I’m sure all of us know there’s much more to being in a band than writing and performing music. Sure, there’s a lot of fun to be had rocking out and getting paid but unfortunately, one of the single toughest obstacles between a band and success has little to do with actual music. I’m talking about the business side of things here, or rather, the legal side. The sooner you and your band start learning about legal issues and decisions that will assuredly have to face, the better you will be prepared for them when the time comes.
The best way to begin is by learning all about the legal concepts of trademark and copyright law so that your music, band name and similar materials (such as logos, symbols, etc.) are protected from other players looking to mooch off your hard work and creativity.
Essentially, copyright and trademark are two types of intellectual property rights that grants creators, owners or inventors of the “property” protection from unauthorized use. Trademark more specifically takes care of distinctive brand signifiers such as logos, words, names, symbols, sounds and even colors that are used to distinguish a certain product or service by their “brand.” Think of McDonald’s and their Golden Arch; although its technically just a big, yellow letter M, people around the world can take one look at it and automatically know hamburgers are near. Copyright on the other hand protects specific creative works such as a song, essay or painting. I’m sure by now you’re getting the picture that you’re going to have to be dealing with both.
If you really stop and think about it, there are hundreds of thousands – if not millions – of bands all over the world, each of which is creating their own music and coming up with their own names. This means that sooner or later, by the simple fact of numbers, that there’s bound to be very similar, if not identical, ideas being made. Even in your own local scene, there’s a good chance that sooner or later, another band is going to come up with the exact same name as your own or create a song very similar to one that you wrote. This is exactly where trademarks come into play – but they’re only useful if you actually take advantage of them!
First off, trademarks are registered through the United States Patent and Trademark Office (USPTO). There are essentially two primary types of marks that can be registered; the first are actual trademarks which are used to identify goods and services and the second type are service marks which are used exclusively to identify specific services. You’ve more than likely noticed certain little superscript symbols next to a company or product’s name (TM SM ®). These symbols essentially tell everyone that there are exclusive rights to the name, something you most certainly will want if you come up with a distinctive band name.
TM, SM and ®
Now that you know a little bit about what these marks actually are, it’s time to understand the differences between them. To begin, if you don’t actually register your band’s name or distinctive mark with the USTPO, your use of it in connection with your group’s services pretty much automatically falls into what’s known as a “common law” trademark, meaning that it will only provide limited protection under state law. This type trademark does allow you to use the symbols “TM” (trademark) or “SM” (service mark) depending on what type of mark you will be using. But again, this common law trade mark only offers limited protection. Let’s say you come up with a band name and logo but you do not officially register either and then a band comes along with a similar name or logo, only they happen to have them registered. Under law, said band can prevent you from using that name or logo on all promotional materials across the entire country where your band has yet to play or sell music.
So, if you’re serious about getting big and eventually making money and playing shows across the U.S., it’s a very good idea to get your band’s name or distinguishing marks registered, after which you can begin using the registered trademark symbol (®), letting everyone know they’re off limits. Alright, so after you have everything good and registered, you – as the owner of the band name or marks – have exclusive right to that name nationwide. Not only that, if some band happens to be using the same name, you’re allowed to bring legal action against them in federal court. Furthermore, officially registering a trademark also entitles you to obtain international registration simply based on your U.S. filing.
Let’s say you opt to stick with the unregistered, common law type of trademark. This will essentially limit your rights to the name based on your band’s geographic location, meaning that it’s possible for another band to use the same name if they are not likely to be confused with yours in their own area. Great if you’re a local act and plan to stay that way but not so good if you plan on getting nationwide attention – and better hope that a band with an identical name to your own doesn’t make it big and file a cease and dissent order on you! Another good reason to file for an official federal trademark is the protection it affords you online by preventing “cybersquatting,” which is essentially the practice of registering a domain name identical or similar to a well-known business’s name with the intention of selling it to said business owner at a huge profit (such as registering iWatch before Apple even has the intention of making one).
Unlike trademarks which protects names and marks that are used to identify a specific service or entity, copyrights deal with very specific creative works or inventions such as music, movies, works of art, books, manuscripts and even computer software. As the writer of your songs, you essentially have exclusive rights to your work, regardless if it’s published or not. This means as soon as you write a song (or create anything else), it is automatically copyrighted to you. Section 106 of the 1976 Copyright Act gives the owner of the copyright the exclusive right to do any of the following, or authorize others to do them: Reproduce the work, prepare derivative works based upon the work, distribute copies of the work to the public, perform the work publicly and display the copyrighted work publicly.
Just as with a common law trademark, you don’t have to officially register with the U.S. Copyright office in order to have a copyright. However – just like with officially registering a trademark – making it official does grant you extra protection and allows you to use the Copyright © symbol which tells people that if they try to take even a small part of your music, legal action can be taken. If you still decide not to register your copyright, it’s still valid, but you’re not allowed to bring any legal action to prevent infringement or actually enforce it.
Making it Official
Alright, so I think by now you get the picture that if you plan on actually making it big, it’s a smart idea to think about registering a trademark for your band’s name. The very first thing you should do in this case is performing a trademark search to make sure that your band’s name isn’t already trademarked. If your band’s name happens to be available, you can then use the available trademark application to officially and federally register your band’s name, at which point you can use the ® symbol to your heart’s content. And once your band starts churning out those hits, don’t forget to get some official protection for your songs by filing a U.S. copyright application.