Join Richard Stim for an in-depth discussion in this video Protecting your band name, part of Music Law: Managing a Band's Business.
- Your band name is protected under trademark law, an altogether different type of law from copyright laws that protect your songs and recordings. A trademark is a word, phrase, or symbol used in commerce to identify your band. In very broad terms, the first user of a band name can stop another band from using their trademark if it's likely that fans would be confused. It doesn't matter who was the first to dream up a band name, what matters is which band is the first to use it in commerce, that is on posters and newspaper advertisements, online or on recordings.
As soon as you publicly use it, and assuming no one else has previously and continuously used it for music purposes, it is your trademark. If a different band already has the same name that you want to use, don't be tempted to get around trademark law by changing the name slightly. Names that sound alike or have the same meaning, even if they're spelled differently, or are in a different language, are often likely to cause fan confusion. For example, the name Arcade Fear may likely be confused with Arcade Fire.
There are various ways to check if a band name is already in use. For example, the website Is This Band Name Taken can alert you if a band name is already used or ill-advised. You can also determine whether anyone has registered the name for entertainment purposes at the US Patent and Trademark Office, USPTO website. You don't have to register your name with the federal government to get trademark protection, but it helps if you have a dispute.
As a very general rule I recommend that you register your name if your band is signing a major label record deal, or if you're earning over $10,000 a year. By the way, registration of a domain name is not the same thing as registering a trademark, and neither is registering a fictitious business name with the county clerk. If you register with the USPTO, you can claim trademark rights in all regions of the country, not just where you perform or sell records.
And your band may use the symbol R in a circle in conjunction with your music. If you want to register your band name, you can use the service of an attorney, or an online service such as trademarkia.com, or legalzoom.com to assist in the process. You can also do it yourself using the online assistance provided at the USPTO site. Fees for filing currently range from $225 to $325 per class.
In the case of a performing band, you would choose Class 041, Entertainment Services. Once your application is received by the USPTO, it is assigned to a USPTO examining attorney, who will notify you if there is an error in the paperwork. The total time for an application to be processed often takes a year. Two situations that may cause problems for your band's registration of a trademark are if your band name consists of scandalous or immoral content, or if you use the name of a living person without permission.
Although the Trademark Office rarely exercises its right to stop the use of a scandalous or immoral mark, it has done so on occasion. For example, recently refusing an Asian American band that sought to register "The Slants." In other words, do not confuse your band's right to freedom of speech with trademark registration. The Trademark Office will also not permit registration of a band name that consists of a living celebrity, such as "The Kim Kardashians," without the consent of the celebrity.
In addition, the use of a celebrity's name could trigger a lawsuit based on a claim known as a right of publicity.
It starts with what it means to be the manager of a band, and what types of business structures are available for bands. Once you've decided on a business structure, you can create a band partnership agreement that covers voting rights, postbreakup scenarios, new members, and terms for resolving disputes. Richard also exposes potential sources of disputes, like ownership of the band name, songs, equipment, and recordings. He includes advice on negotiating solid band contracts and managing financial basics: taxes, income, cash flow, and bookkeeping. Finally, he'll address how to protect your work, including your copyrights, band name, and songs, and explains how to find a lawyer—and save money on attorney fees.
DISCLAIMER: This course is taught by an attorney (or other instructor) and addresses US law concepts that may not apply in all countries. Neither LinkedIn (including Lynda.com) nor the instructor represents you and they are not giving legal advice. The information conveyed through this course is akin to a college or law school course; it is not intended to give legal advice, but instead to communicate information to help viewers understand the basics of the topic presented. The views (and legal interpretations) presented in this course do not necessarily represent the views of LinkedIn or Lynda.com.
- Putting together a band partnership agreement
- Working out ownership disputes
- Limiting band liability
- Protecting your copyrights and band name
- Hiring a lawyer