What’s in a Name?

27 02 2008

What do you think of when you see these images? Chances are when you see the “Mouth”, you automatically think of the Rolling Stones or elderly rockers. When you see the Steal Your Face (skull) you probably think of the Grateful dead or really elderly hippies. When you happen upon the bat like W, you most likely think of the Wu Tang Clan and one of hip hop’s originators.

These logos and the band names associated with them are distinct. The success of the individuals behind the names have taken merely a band’s name and transformed it into something more; something far reaching and immediately identifiable to not only the band but the type of music that band plays.

Today you can buy a Rolling Stones inspired cell phone, a Grateful Dead set of cuflinks or even a onsie for your newborn with the Wu symbol on it. All of these products are under the control of their respective bands. But what is to stop the an entrepreneurial crook from taking the Stones’ name and slapping it on a Frisbee, a cigarette pack or a bottle of whiskey? Let’s take it one step further, what’s to stop a group of 8 aspiring Finnish rappers from performing under the name Wu-Tang Klizan?

The simple answer is trademark protection. Each one of the above logos is a trademark owned or controled by the respective band (or band member). A trademark is a distinctive word, phrase, name, symbol or design (or a combination of any of those) that identifies and distinguishes the source of the goods of the owner from the rest of the public. Just like copyright protection, there is a “common law” trademark which offers the owner a certain degree of protection and a federally recognized and registered trademark which heightens that level of protection. The registration process is handled by the United States Patent and Trademark Office (check it out at http://www.uspto.gov/).

As a musician you can trademark a bunch of things. Your band’s name, obviously, but also your logo as a design, your band name in a design or perhaps the slogan for your summer tour. Here are some famous band names in a distinct script or design that have been protected by their famous owners:
or

Both are registered trademarks of their respective legendary bands.

There is an additional dimension to trademarks. Trademarks are divided into numerous classes. Each class has a specific definition for which the applied for mark falls under. For example, International Class 41 covers a multitude of entertainment services and International Class 09 includes recorded music in many different formats. Each class requires a new application (and the corresponding fee). So, you have to think about what type of goods and services you or your band may offer; from selling DVDs to t-shirts to motor oil, a separate application will be needed.

For a band that is just starting out a typical concern is not whether to apply and register a mark for their band, but rather to make sure that their unique band name is in fact unique and does not violate a previously registered mark. A little common sense and help from your friendly advisers should be able to help steer you and your band mates in the right direction. Just remember, a name not only says a lot about you, it may help you create the brand image you need to succeed.

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Categories : Law, Music and Business, Trademarks

Make Your Music Your Property

16 02 2008

Chances are you have heard a lawyer or a non-lawyer who has watched too much Boston Legal say: ‘you must protect your intellectual property’. But what is intellectual property and what does it have to do with music?

As a lawyer I hear a lot of legal terms bandied about in a context that isn’t, well, shall we say, remotely correct. Chief amongst the “mistakes” that the public makes is referring to band names or album titles or even lyrics as being trademarks; or a logo on a t-shirt as a copyright. It’s not an uncommon misconception, in fact, it’s almost right.

Everyone has seen that little symbol somewhere: (c) or a ©. The copyright symbol’s purpose is to provide notice to the rest of the world that the work that you are looking at belongs to someone else and not you. So how do you get the right to place that symbol on your cd jacket, artwork or lyric sheet?

A copyright is the exclusive right granted to the individual that has created a specific tangible piece of work. I just wrote that and I don’t really understand it, so let me try to make sense of my own thoughts. The minute you write a lyric on a piece of paper or on a computer, you have created an exclusive right to that work which is called a copyright. That means that lyric is yours and no one can use it without asking you first. This is known as a “common law” copyright. There are laws (statutes) which allow you to actually submit your work (the lyrics to a song) to the United States Copyright Office and register it thereby putting the entire world on notice that you are the owner of the work and giving you some great rights to sue people who try to use your work without your permission (known as copyright infringement).

How do copyrights apply to music? Here’s an over simplified example: Alicia Keys writes a new song and Pharrell composes the music for it. The song is recorded and released by her label, J Records. A video is shot by Spike Jones and new website is created to sell the song, video and ringtone for Alicia and her label. This process, for just one song, has created these following copyrights: 1. copyright to Alicia for the lyrics to the song; 2. copyright to Pharrell for the composition of the music which accompanies the music; 3. copyright to J Records (who likely owns Alicia’s music) for the sound recording (the music with the lyrics); 4. copyright to Spike Jones for creating and recording the video for the song; 5. copyright to the web site designer who created the site for Alicia; and so on and so on. I think you get the picture.

If everyone involved in this example has the right management and legal team on their side, copyright applications were submitted and registered for every aspect of this one song. It may sound like a lot of mumbo jumbo, but its crucial to prevent someone from stealing your music. Just as you protect your personal property with locks, safes, insurance or alarm systems, you should do the same for your music. Understanding your intellectual property rights will not only protect your work but will ensure that you get paid for it.

Stay tuned for another rough example involving Trademarks.


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Categories : Law, Music and Business

D-I-G-I-T-A-L REVOLUTION

1 02 2008

From Newsweek to Wired to Rollingstone, everyone is writing about the shift in the music business. The majors are dying. EMI is laying off 2000 employees. Universal’s sales plummeted last year. Why are they dying? A lot of reasons: declining CD sales, mismanagement, over-indulgence, a shifting economy, or a massive superiority complex. Take your pick.

Meanwhile, those musicians who are business savy and hip to the shifting industry are flourishing. One main reason: DIGITAL MUSIC. Whether its through Myspace, Yahoo, Itunes, personal websites, ring tones, cool little thumb drives shaped like robots, music is arriving to the public via computers. The CD is dying a slow, painful death. It is not quite a dinasour yet, more like a Bolivian Chinchilla (an endangered species, seriously, look it up).

If anything is responsible for wiping the CD out of exisitence it is obviously the MP3. In 2007 digital sales jumped 54% which equates to a cool $278.2 million. So what does this mean to you? Well if you are Mary J. Blige or the Eagles, it means that you made a boat load of money for the first time based on your digital sales as compared to your physical or CD sales (assuming they have the right type of recording deal in place). If you are an indie or a newbie, it means that more people have access to your music than ever before and you could actually make a living if you market yourself correctly and enter into smart agreements with the right type of digitial distribution company.

Think about it; old recording contracts apply the cost of manufacturing the physical CD against the royalties that are owed to the artist. Couple that with the cost of distribution which may include warehouse costs, shipping, dock fees, etc. and your precious royalty has already shrunk to pennies rather than dollars.

Digitial distribution does not have any of these costs. You will share your profit with the website that sells your music and you may pay a graphic artist to come up with a digital booklet to accompany your digital release. Other than that, what costs do you have?

Like BETA to VHS to DVD, the Vinyl to Tape to CD now goes to MP3. So come on, join the revolution.


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Categories : Music and Business Law


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