By Gary Symons
The Guess Who, one of the great bands from the 1970s, is embroiled in a lawsuit between four of the original members.
Guess Who founding members Burton Cummings and Randy Bachman, who wrote most of the music, are suing their former band mates Jim Kale and Garry Peterson, as well as the rest of the current lineup of The Guess Who.
The two musicians accuse the current Guess Who members of misleading fans to believe that their lineup—which Bachman and Cummings have labeled as “little more than a cover band”—is the original Guess Who.
The Rolling Stone magazine obtained a copy of the federal suit filed in Los Angeles on Monday in which Bachman and Cummings say Peterson is the only current member who was in the original Guess Who from the 1960s and 1970s. They allege they have used the band’s names, photos of their original members, as well as using recordings that Bachman and Cummings performed on “to give the false impression that Plaintiffs are performing as part of the cover band.”
“They’ve taken mine and Randy’s history, the history of the Guess Who, and stolen it to market their cheap ticket sales in their fake bullshit shows,” Cummings told the Rolling Stone. “It takes away everybody’s legitimacy.”
The counts listed in the suit are false advertising, unfair competition, and violation of right of publicity. Cummings and Bachman are seeking as much as $20 million in damages.
The lawsuit, apparently, has been a long time coming. The musicians say they have been upset with the new Guess Who lineup for years, but told Rolling Stone the issue escalated when the band began touring again when the pandemic restrictions were lifted.
More importantly, Bachman and Cummings say they were actually planning to tour together prior to the pandemic began in 2020, but the dispute with their former bandmates made it impossible.
Neither Kale nor Peterson have commented since the lawsuit was filed, and their lawyers did not reply to a request for comment. However, comments made in the past show how bitter the feelings are between the former members of what is considered one of Canada’s greatest rock bands of all time. In a 2012 article in the Free Press newspaper in Winnipeg, where the band got its start, Kale said, “Cummings signed off on the name in 1977 … and he hasn’t stopped his pissing and moaning ever since. What the hell do you think I was going to do, start a scrapbook? Here I was with a whopping grade 10 education and I don’t have a trade and I’m too old for a paper route. I gotta make a living.”
Kale did say at the time that he’d give the name back if Cummings and Bachman paid him and Peterson for the trademark. “I’ll have a band of trained monkeys out there just to piss him off,” he said at the time. “I’m prepared to be that petty … I’m really, really sick of it. I’d love to take the high road, but I’m not going to. I’m his karma.”
The Guess Who soared to fame in 1970 with the release of their album American Woman, which hit Number 9 on the Billboard charts, while the title track hit #1 for the singles charts. Unlike their former bandmates, Cummings and Bachman later went on to enjoy successful careers. Cummings posted several hit songs as a solo act, while Bachman founded the equally if not even more successful Bachman Turner Overdrive, sometimes known as ‘BTO’, which released five top 40 albums in the US, six top 40 singles, and sold 30 million albums.
Bachman says his issue is that the current iteration of the Guess Who are not just playing as a cover band, but confusing their fans about who is actually playing.
“It’s been going on for a long, long time, and we hear from fans who say they spent money on tickets and [Cummings and I] weren’t there,” Bachman told Rolling Stone. “Enough is enough. I get my kids seeing these ads asking me if I’m playing Park City, Utah, next week. The fans are getting ripped off over and over, and Burton and I lose because we can’t tour the Guess Who even though we want to. We wrote the music for this band and want to give it to the fans. The clones that are up there weren’t even alive when these were hits, it’s kind of a joke.”
Cummings also argues that, while the band broke up, he and Bachman had no idea Kale was planning to trademark the name.
“The way Kale put it was he wanted to use the band’s name for a while,” he said. “Randy was with BTO and I was carving out a solo career, so we both had moved on by then. We thought Kale playing with Donnie and Kurt, it wasn’t really the Guess Who, but it’s not a completely fake thing. Never was there a sniff in that conversation about him trademarking the name, never ever.”
Kale retired in 2016, leaving Peterson as the only original member left. He apparently only plays on occasion with the band, but Kale and he still own the trademark that allows other musicians to play under The Guess Who name.
“It’s really tainted our legacy; it’s tarnished it,” Bachman says. “[Peterson] can be replaced by a drum machine; you can’t replace Burton Cummings’ voice— it’s the greatest rock voice out of Canada. My guitar playing was a one-of-a-kind thing I developed as a kid in Winnipeg. You can’t replace that, and if you do, why would you want to replace it when you can have the real thing?”