In a case which will be watched closely by the recording industry and by bands in general, UK girl band the Sugababes are being sued by former member Keisha Buchanan over the rights to use the group’s name.
The group formed in 1998, with the original line-up of Siobhan Donaghy, Mutya Buena and Keisha Buchanan finding limited success (although their first album contained four top 40 hits) before their commercial breakthrough in 2000 after Donaghy was replaced by Heidi Range for their first Number 1 single “Freak Like Me”.
This incarnation of the group lasted until 2005, when Buena left to pursue a solo career. Her successor, Amelle Berrabah, was selected by the group’s management and was part of their most commercially successful period, peforming on several chart-topping singles and albums.
September 2009 saw the latest line-up change with Buchanan leaving the Band in favour of former Eurovision contestant Jade Ewen to a huge backlash from both critics and fans over the continued use of the “Sugababes” name; the Guardian in particular claimed that “the Sugababes don’t exist as a band”.
The latest twist in the ongoing soap opera is Buchanan’s claim, which according to tabloid reports will see her attempt to “claim a stake in the Sugababes brand, which has grown into a multi-million pound business empire”. The story is developing quickly, and it has now come to light that Buchanan, Buena and Donaghy have applied for a Community Trade Mark over the band’s name.
If successful, the original line-up would have a monopoly over its use and the current line-up would need to find a new identity.
This kind of dispute is a long-standing legal tradition amongst some of the UK’s biggest musical exports; it happened to Fleetwood Mac in the 1970s, Pink Floyd in the 1980s and Black Sabbath over the course of last year. As Bands continue to evolve into Brands and generate new revenue streams in ways that simply weren’t even thought of when their line-ups first came together (in this case, the Sugababes name is already licensed for use on products as diverse as Dolls and Footwear), the use of their identity will probably only become more and more fiercely-contested.
The legal issues behind all of this are, by turns, both very simple and very complicated. Forming a Band is, under English law, entering into a “Partnership at Will”, and if there is no agreement between the original partner members as to how profits generated by and goodwill in the band’s name should be split, then the default provisions of the Partnership Act 1890 will apply and both the profits and liabilities will be shared equally. Similarly, Partners can’t be “expelled” from a Partnership At Will without an explicit written agreement and this kind of Partnership can be “dissolved” by one of its members at any time who must, according to the 1890 Act, participate equally in its management (in this case, Buchanan has gone on record to say that she was “forced out” of the group.
It’s always better to draw up your own bespoke Partnership Agreement to deal with these kinds issues as the 1890 Act is in dire need of an overhaul. It’s hard to believe that the Band wasn’t advised on this and that there won’t be a well-drafted agreement in place already, but the Court gave some very valuable advice on this area in the 2003 case of Byford v Oliver and Dawson, which involved the remaining members of 80’s British Heavy Metal band Saxon registering their name as a Trade Mark without the involvement of original frontman “Biff” Byford, who claimed that the Trade Mark should not have been granted on the basis that he owned a percentage of the goodwill in the “Saxon” name.
In this case, Oliver and Dawson had actually tried to prevent Byford from using the name and although at first instance the Trade Mark Registry ruled in their favour on the basis that each band member owned goodwill in its name and that it was simply a matter of whoever registered the name first would own the Trade Mark, Biff Byford had the last laugh.
Byford took his case to the Court of Appeal, where the late Judge Laddie found in his favour, ruling that a band was, without any other agreement a partnership at will and that any goodwill attached to its name belonged to the original partnership jointly rather than to one individual.
If a band splits up, then a Partnership at Will comes to an end unless there is some kind of agreement to the contrary, meaning that no-one can use the name without the permission of the original members. So, the likely outcome here if there isn’t any agreement in place would be that the current line up can’t continue to use the “Sugababes” name.
In any event, if the Trade Mark Application is granted in favour of the original line-up, then they would be the only group who could use the name. This would be disastrous for the latest line-up, although there is a small window of time in which an opposition could be filed. Based on the “Saxon” case, however, it’s doubtful whether an opposition would be successful.
Musicians should always look into getting a Partnership Agreement drafted to deal with what happens to the band name (and profits which the group generates) in the event of a split and if not, it’s clear that any remaining members will not be able to register a trade mark against the name and carry on regardless with a monopoly to stop anyone else from using it. It’s going to be very interesting to see how and when the other members of the original line-up become involved but one thing is certain – this dispute is going to get “Ugly”.