This month, a Dutch court denied Dan Aykroyd and the widow of John Belushi an attempt to shut down a Blues Brothers tribute show.
Anyone near a television set in the 1970s or a cinema in the 1980s should be familiar with the Blues Brothers. The characters, developed by John Belushi and Aykroyd, inspired several generations to dress up in darks suits, black fedoras and sunglasses while muttering lines from the film like: “It's 106 miles to Chicago, we got a full tank of gas, half a pack of cigarettes, it's dark... and we're wearing sunglasses”.
The duo, who went on to record several albums and even had a hit with a cover of Sam Cooke’s Soul Man, have inspired tribute acts all over the world and inspired rather easy to compile Halloween outfits. It is important to remember in the context of this case that the Blues Brothers themselves were a kind of tribute act, playing homage to blues singers of a generation.
Stars in Concert – the tribute show business at the centre of the case – set about producing a tribute act named “I’m a Soul Man – a tribute to the Blues Brothers”. Stars in Concert has previously set up musical tribute shows around the world, including one in Canada under a license agreement with the company set up with Aykroyd and Belushi.
On copyright grounds, the claimants argued, among other things, that re-enactment of scenes from the movie were infringements of the movie script. However, it was ruled that it was impossible to assess these copyright claims without knowing more about how the production compared to the script.
Aykroyd and Belushi also attempted to win on copyright grounds by maintaining that the fictitious characters of Jake and Elwood Blues were protected by copyright and that infringement occurred whenever a production broadly used this musical duo of brothers with the same names, the same attire, the same "cool reserved pose" and the same repertoire of blues and soul music.
But Justice Melanie Loos rejected this argument, stating: “On the basis of these style features that form undeniably an important part of the characters' appearance and which were copied by the claimants from previous blues legends, the claimants cannot claim protection by copyright in these provisional relief proceedings.
“The Dutch Copyright Act does not grant exclusive right to a person working on the basis of his own distinctive style. This judgment is based on the idea that copyright protection of abstract forms such as distinctive style features would entail an intolerable restriction on the creative freedom of an author and would therefore act as a brake on cultural developments.”
The “distinctive style” of the black-suited duo isn't restricted by their right of publicity since it wasn't unique to them and was in fact copied by them from other singers, the Dutch judge ruled.
“The claimants did not contest that the appearance of Jake and Elwood Blues, namely a duo wearing a black suit, with a white shirt, black tie, white socks, black shoes, black sunglasses, black ‘pigskin’ hats and sideburns are similar to the dress style of a number of blues legends form the 1950s, such as Reverend Gary Davis and John Lee Hooker," Justice Loos wrote in an opinion piece earlier this month.
She added: "The claimants even stated at the hearing that Aykroyd and Belushi were inspired for The Blues Brothers by the performers of the so-called hipster style of ‘electric blues’ performers from Chicago."
Diederik Stols, the attorney who represented the defendants, described the ruling is a "groundbreaking" one that will set precedent. He added that the original 1950s and 1960s blues and soul musicians didn't care that Aykroyd and Belushi were mimicking their style because they were collecting royalties from the performance of their music.
“What does paying 10 per cent get these productions?” asked Stols. “The right to put on a black suit?”
Aykroyd and Belushi were able to claim trademark infringement in the name “Blues Brothers”, which in effect means that the show can go on as long as Stars in Concert remove that moniker from the name of the production.
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