Musicians interested in starting a band may think it is all about the music, but there are many legal decisions that need to be made and issues that may need to be overcome, before the tracks are recorded and the concert is lined up. First and foremost, the legal concepts of trademark and copyright law must be understood so that your band name and materials are protected from other musicians who many unknowingly steal your creativity.
Copyright and trademark laws are two forms of intellectual property rights that allow owners, inventors, and creators of “property” protection from unauthorized use. Trademark protection safeguards distinctive brand signifiers, such as words, names, symbols, sounds, and colors used in commerce to distinguish products and services by their company or “brand,” while copyrights protect specific creative works, such as a song or painting.
Registering a Trademark for Your Band Name
It may seem farfetched, but with millions of bands creating music all over the world, there may come a time when another band tries to use your band's name, and this is when a federal trademark comes into play. Trademarks are registered through the United States Patent and Trademark Office (USPTO). The two primary types of marks that can be registered are trademarks, which identify goods or services, and service marks, which are used exclusively to identify services. If you develop a distinctive name for your band, you can notify others of your claim to exclusive rights in the name by placing one of these symbols as a superscript next to the first and most prominent use of the band's name: TM SM ®. As discussed more fully below, these symbols serve to notify others of your claim to exclusive rights in the name.
The Difference Between TM, SM and ®
If you do not officially register your distinctive mark with the USTPO, your use of the mark in connection with your band's services automatically creates what is called a “common law” trademark, which provides limited protection under state law and entitles you to use either the “TM” (trademark) or “SM” (service mark) symbol. However, the protection from a common law trademark is limited. For example, if you create your band's name but do not register your name's trademark with the USTPO and a similar band registers a comparable name, the registered owner can, under law, prevent you from using your band's chosen name on all promotional materials across all areas of the U.S. where your band has not played or sold music. Therefore, if you're serious about making money with your band and growing to nationwide recognition, it's wise to register your trademark and use the ® symbol. Not only does it give you, the owner of the band name, exclusive right to use your name nationwide, it also allows you to bring legal action in federal court against any other band using the name and also allows you to obtain international registration based on your U.S. filing.
If you decide not to register your trademark, your rights with respect to the mark will be limited geographically, which means it may be possible for another band to use this name if they are not likely to be confused with you in their respective geographic location. In addition, filing for a federal trademark also gives your band protection online by preventing cybersquatting. Cybersquatting is a practice whereby people register a domain name identical or similar to a well-known business entity's name in hopes of selling it to the business owner for an inflated sum of money.
Copyrights protect specific works such as books, periodicals, manuscripts, film and video productions, computer software, works of art and, of course, music. As the author of your songs, you have exclusive rights to the work you produce, whether it is published or unpublished. As soon as you write it, paint it, or create it in some other way, it is automatically copyrighted. 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.
Similar to the common law trademark, it is not mandatory to take action with the U.S. Copyright Office to obtain a copyright. However, formally registering a copyright, which allows you to use the Copyright © notice, offers added protection if someone tries to steal even a small part of your music. George Harrison, Ray Parker, Jr., and Vanilla Ice all found out the hard, expensive way the consequences of copying or sampling portions of others' copyrighted materials, even though they all said it was unintentional. If, however, you do decide not to register the copyright, the copyright is still valid, but you cannot bring legal action to actually enforce your copyright and prevent infringement.
How to Register a Trademark and Copyright Your Music
If you are considering registering a trademark for your band's name, it is best to first determine whether or not this name is already registered by another band. This requires performing a trademark search. If the name is available, you can then complete the appropriate trademark application to federally register a trademark for your band's name and be able to use the ® symbol. Also, once your band begins creating music, you can then protect your songs by filing a U.S. copyright application.
LegalZoom can help with your trademark search, trademark application or copyright registration. As in all areas of the law, if you have questions about your intellectual property, you should discuss them with an attorney specializing in intellectual property law. You can speak to an attorney about your intellectual property through the LegalZoom business legal plan.