Will The Real Wailers Please (Get Up) Stand Up?

Bob Marley spent his brief, extraordinary life promoting peace, unity, and the Rastafarian ideal of “one love.” His family and former band members have been at each other’s throats ever since.

The latest installment in a long line of legal and public relations battles over Marley’s life and work comes in the form of an acrimonious legal dispute for the rights to the name The Wailers, originally used in 1963 for Marley’s own band. Though Marley succumbed to cancer in 1981 and his Wailers co-founder Peter Tosh was murdered a few years later, the third original member of the group, Bunny Wailer, continues to tour to this day.

The present dispute has nothing to do with Bunny Wailer, however. Instead, it’s a “bakkle” with several members of Marley’s mid-1970s backing band. On one side: bassist Aston “Family Man” Barrett and guitarist Al Anderson; on the other: a touring group called The Wailers, which has been playing Marley’s music with a rotating set of members for decades.

Until a few months ago, Barrett himself was a member of what he now calls “the sham Wailers.” They maintain a healthy touring schedule, playing about 200 shows a year to sizeable audiences around the world, according to their official bio. Barrett was the last member of that touring band to have actually played with Bob Marley, and now that they’ve parted ways, he and his fellow plaintiffs argue that the band has no right to continue using the Wailers name.

Disputes over popular and profitable band names are as old as the recording industry itself, from classic groups like The Drifters to rock-era titans like The Doors to more recent examples like LMFAO and One Direction. These cases can often get nasty, to the point where the legal battle does more to tarnish the band’s image than any half-assed greatest hits tour possibly could. Take the case of the Beach Boys. When the band announced its 50th Reunion Tour in 2012, singer Mike Love let his cousin and bandmate Brian Wilson know he wouldn’t be invited by releasing the news to the press. Even the name The Wailers has been the subject of past disputes; a decade ago, Barrett and his bandmates successfully defended a suit by members of a Seattle group with the same name founded in 1959.

What makes this case strange isn’t the what; it’s the how. Band names are too short to copyright, and too useless to patent, so typically they are protected via trademark—the same species of intellectual property that keeps Starbucks, Gucci and The New York Yankees safe from counterfeiters and wannabees. Yet neither party in this case owns the trademark to The Wailers, and a brief review of public records shows that, in fact, nobody does.

Bob Marley’s estate, which operates through a company called 56 Hope Road Music, owns a trademark for recordings and apparel using the name “Bob Marley and The Wailers,” but that’s not quite the same thing. Everyone on the planet knows that Bob Marley has joined the great jam session in the sky, so there’s little chance that someone might buy a ticket to see The Wailers expecting to see him chanting down Babylon in person. Without a “likelihood of confusion,” there are no grounds for a trademark infringement case—which probably explains why the Marley family itself hasn’t stopped The Wailers from touring under the name. Similarly, guitarist Al Anderson, a plaintiff in the current case, holds a trademark for “The Original Wailers Featuring Al Anderson,” but that’s a pretty specific mouthful, and therefore unlikely to hold up as protection against the use of the far more general name “The Wailers.”

Without a trademark to dispute, the plaintiffs in the present case have resorted to an amalgam of state laws as the basis for their suit, which was filed in Virginia. These include the right of publicity (using Barrett’s name and likeness without permission in marketing materials), unjust enrichment (making money at the expense of other parties), and defrauding the public (creating false expectations regarding the band’s personnel). Each of these arguments likely has its merits, although Barrett’s name and likeness no longer appear on the band’s site at Wailers.com, except for a brief note clarifying that he no longer has any affiliation with the band.

Yet the legal whole is less than the sum of its parts; in the words of veteran New York intellectual property attorney Mark Kaufman, the legal strategy “sure sounds like a way to try and circumvent federal trademark law.” In other words, Barrett and company are effectively trying to protect a trademark that doesn’t exist, by cobbling together a bunch of claims under state laws whose consequences might approximate the federal one they’re avoiding. To put it even more simply: They seem to be trying to shut down (or at least rename) The Wailers by any means necessary.

While the plaintiffs’ legal claims might be tenuous, their moral footing is on firmer ground—at least, in the eyes of some educated observers. That’s because this case is about more than simply whose name appears next to an entry in the federal trademark database, or whether consumers can reasonably expect to see the same personnel that appeared on a 40-year-old album when they buy a ticket to see a concert.

What’s really at issue in this case is a larger philosophical question: who deserves the credit for a great cultural legacy, and who should participate in its continuing financial and reputational success? In our culture, we celebrate individual achievement. Visionaries from Thomas Edison to Steve Jobs have been hailed as uniquely gifted wunderkinds, revolutionizing technology, business and culture through sheer force of will and radical imagination. Our legal systems reflect this bias; copyright depends on the existence of an author, and patent requires an inventor. Anything else is just considered “folklore” or “common knowledge.” In reality, of course, for every titan of industry and great artist we celebrate, there are dozens, hundreds or even thousands of nameless contributors without whom the invention or artwork in question could never have come to fruition.

Bob Marley’s music is no exception to this rule, and of all the under-appreciated contributors to his work, perhaps the one most deserving of recognition and remuneration is Aston Barrett.

“Family Man’s iconic sound was a huge part of The Wailers’ appeal,” says Vivien Goldman, Bob Marley’s first biographer and currently a professor at NYU. She should know; Goldman was in the studio with Marley, Barrett, and the rest of The Wailers when they recorded the album Exodus, which includes bass-driven classics such as “Natural Mystic” and “Jamming.” Therefore, she says, “what Family Man wants, Family Man should get.” Goldman points to Barrett’s losing battle against the Marley estate in 2006 for a percentage of the lucrative royalties to his recordings as evidence that he is still due a share of the spoils for his share of the work. In fact, Goldman says that Barrett should be credited on nearly even footing with Marley himself as the architect of the sound that continues to bring positive vibrations to reggae lovers from Kauai to Karachi.

“I know how Bob completely relied on Family Man through the whole arc of their music together,” she recalls. “Bob would have wanted Fam to participate in his legacy.”

Whether the courts agree with this assessment remains to be seen. After a hearing in Virginia Beach Circuit Court on August 31^st, the case remains open. In the meantime, Bunny Wailer, The Wailers and The Original Wailers Featuring Al Anderson (recently redubbed The Wailers Reunited, and featuring Aston Barrett on bass) all continue to perform widely, each group bringing its own take on Marley’s musical legacy to festival and club audiences around the world.

With any luck, Barrett and The Wailers will resolve their differences amicably, and there will be no more trouble marring Marley’s musical memory. Like the man said, time will tell.