Similar to songs titles, there seems to be an infinite number of band names to pick from. However, unlike song titles, band names can be protected. Trademark protection is a tricky but hot topic these days. With the numerous licensing opportunities presented to successful bands and musicians the protection of a band or artist’s performance name is extremely important.
Bob Marley is a perfect example. Marley has become more than just a musician’s name. People who know Marley’s music immediately associate it with Reggae, Jamaica and a certain “laid back” lifestyle. Over several decades, the Marley name has been exploited by thousands of people for millions of dollars. A protectable name has gone unprotected.
Bob Marley’s estate recently reached a global licensing deal with Hilco Consumer Capital, a major private equity fund that licenses well known brand names to equally well known merchants. The Marley family had grown tired of the millions of dollars it lost out on thanks to sales by unlicensed dealers across the globe. Think of all the Marley paraphernalia that can be bought on the street or in your local head shop. Not to mention the schwag manufactured in China and India that finds its way into the US and European markets.
After years of sitting by and allowing trademark infringers to profit off of the Marley brand, the Marley’s took appropriate action. Hilco with hits large corporate infrastructure and influence will be able to secure specific approved relationships with merchants. Any sales that are occurring outside a relationship developed by Hilco will be an obvious infringer and can be dealt with accordingly. Bootleggers will be less likely to sell their unlicensed goods to retailers. That is not to say that you will no longer be able to pick up a Jamaican Flag with Marley’s face on it at Panama City beach during Spring Break ’09. However, you will not be able to walk into Spencer’s Gifts at your local mall and pick up a “Bob Marley, Legend” t-shirt or hemp necklace. The family through its new corporate partnership have taken the necessary steps to register all things related to Bob Marley and his musical goods and services. Those trademarks can now be policed and enforced if need be through the court system or the mere threat of a law suit.
Most likely, you and your band are not fielding offers from Hilco or other major license distribution companies. Chances are you are not worried about having your band’s name emblazoned on backpacks or hoodies at the mall without your permission. Yet, get a little bit of buzz going and unlicensed merch will start popping up online and even at your shows. Bootleggers love to capitalize on new bands because most do not know how to protect their rights. That’s why you should be prepared.
Registering your band’s name as a trademark will give you statutory protection. Statutory protection will allow you to enforce the rights you have through your unique band name or logo (assuming its unique). By registering your band’s name as a trademark, you can take the steps necessary to stop infringers from using the name or logo, recover monetary damages from those who infringe those rights and even, in specific cases, get the attorney’s fees that you spent to enforce your rights back from the infringer.
Sounds great, right? It is, but like most things with the government, the trademark process is not exactly easy. You have to do your research first. You can’t just pick a name that you think is rad without determining if someone else beat you to the punch. You also cannot profit off of another band’s name and notoriety. While Jon Bovi may think they are the “opposite of Bon Jovi”, chances are, Bon Jovi doesn’t think so. If there is a likelihood that the public will be confused as to the source of where the music is coming from, the government is not going to approve your application. Our friends from SNL may think that they have nothing to do with the actual band, but there is no way they could ever make it with a name that is so similar to the original.
Find out if there are any other bands using the name you want for your band; see if that band registered its name with the United States Patent and Trademark Office. Do a MySpace and Google search. Go to www.allmusic.comand look up your chosen name. While there are a lot of variables to determine if a band name is trademarked or protectable, if you find a band name that is still being used by a band today or was registered in the past, its time to go back to the drawing board for your own band name. Do not start a marketing campaign, release an album or start multi-state tour with a band name until you are sure you are the only ones out there using it. As with most things involving the law, its always a good idea to talk to a lawyer to help you out with the process.
Now more than ever being independent in the music business is important. Its importance may be your band’s goal or, conversely, your independence is thrust unwillingly thrust upon you. The key is making that independence work for you in every possible way.
The typical music recording agreements today include a multiple album commitment from the artist with an option for additional albums. Unless you have clout, the form agreements coming out of New York, Memphis and Los Angeles will give ownership of all of your master recordings (your songs) to the label. Ownership transfers even in most 360 deals (the topic of my next post). The real whopper is that even though your band complies with the agreement and the label owns your music, the normal recording agreement will not include what is known as a release commitment.
A release commitment is something that every band should try to get from a label. It gives a date certain for the release of the music that you have turned in for your album. There are horror stories of artists that have turned in music to a label only to see the label sit on the album for months or even years. I believe the rapper Saigon waited over 5 years to release his debut album. Not much of a buzz left after waiting that long. Having language in your agreement which puts the burden on the label to actually release your language or forfeit their rights under the recording agreement is the best way to make sure this doesn’t happen to your band.
Just like every other industry in the U.S. right now, the music business is running on fumes. The Recession is hurting record sales (physical and digital), merchandise and concert tickets. So even if you have signed with a label, there is no guarantee that your label will (a) be able to fulfill its obligations under the agreement or (b) exist next month. What happens if you sign with a label and that label’s distribution company goes belly up? Unless you asked for a release and/or distribution commitment in your agreement, you may be stuck waiting for your label to work out a new deal with another distributor. Either way your music is delayed in getting out (if it does) or you are back to square one: a great album with no means to get a physical copy out to your fans.
So should you just give up? Like our friends from Galaxy Quest: Never Give up! Never Surrender
Do not despair. Remember the title of this post. Don’t rely on anyone else. Especially in these tough economic times, bands have to get creative to make a buck. If you are a band who has a buzz, can pack a 300 person venue, sells out of its merch at its show, etc., traditionally you would look to a label to swoop in and sign, wine and dine you. Like I said, those days are over and even if they, do you really want to sign a recording agreement?
It’s time to get creative. Do everything you can yourself first. Register your copyrights under your own band name. Register your band’s name and logo as a trademark yourself. Use every single contact you can to get your music to the next level . Look to sponsors (RED BULL LOVES TO MUSIC), like minded third party companies (Apple), concert promoters, party planners, management companies, anyone who has the ability to do what you cannot do yourself. Go strictly digital. Contact digital distribution companies (read below) to get your music to websites in other countries. Do what it takes to get your music out and build your band’s brand.
Its not an easy road. You definitely have to treat your band like a business. But just like other small business owners you will directly benefit from your hard work because you, not a label, own your band. You will be able to negotiate your own deals, collect 100% of the royalties, spend money when you think its appropriate and distribute income when you want to rather than waiting for someone else to pay you.
So whether you choose to go the independent route or you went with a label that dropped you or dropped off the face of the earth, you are in a pretty good position. Not easy, but definitely doable.
SHAMELESS SELF-PROMOTION OF THE WEEK
Seed is an awesome digital distribution company that works with labels and artists to get their music out to the public via websites and digital outlets all over the world. They work to license your music to places you definitely have heard of and others you didn’t even knew existed. Check them out: www.seed-ny.com and www.myspace.com/seedny. Tell them lawyer4musician sent you (but only if your music is good ;))
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: