Are bands missing a beat by focusing on copyright and overlooking trade marks?
Do you recognise the b(r)and?
Music industry intellectual property disputes concerning copyright frequently make the news, especially if they are hotly contested in the law courts. Recent protest by artists against the changes to copyright law – which may make it easier for AI companies to use copyright works – has been championed by the likes of Sir Paul McCartney and Sir Elton John, and covered extensively in the press.
But what about trade marks?
Trade marks are also relevant in the music industry, but appear to play second fiddle to the more glamorously-perceived copyright protection.
Big name artists regularly protect their brand via trade mark registrations. Taylor Swift is well-known for doing this, with over 600 registrations protecting not only her name but each ‘Era’. However, the importance of trade mark protection may be overlooked by new artists and bands.
How is a trade mark relevant to an artist or a band?
A trade mark is an intellectual property (IP) right that protects a brand identity, including names. Like any other business, an artist or band name is a brand identity. It can also extend beyond just the name. There are many other elements to consider such as album titles and other visuals, including logos.
All of these marks feature heavily on touring posters and merchandise, as well as on third party advertising and posters, such as a festival line-up poster. All of these clearly act as a badge of origin, and they should be protected like any other aspect of the artist’s business.
So when should an artist or band consider trade marks?
As with any business, it should be at the forefront of an artist’s mind at the earliest stages. Before registering and commencing with the use of a trade mark, we would generally always recommend conducting clearance searches.
For many, a music career may have started at a young age when resources and funds were restricted, and IP-awareness limited. However, being IP-savvy at this initial stage is important for protecting the future brand. It is not unheard of for bands to have to change their name later down the line due to trade mark issues, as was the case for the band Easy Life. Having to re-brand after several years – six years in Easy Life’s case – can cause serious confusion within a fan base.
What is the benefit of registering your trade mark?
Bootleg merchandise has always been an issue within the music industry, and with the rise of online marketplaces this has only increased. In a time where artists, particularly those who are starting out or are lesser known, rely so heavily on touring and sales of merchandise for income, it seems that they may be missing a vital tool in their IP kit to assist with this issue.
Having a trade mark registration is a great means to prevent others from using your brand or a similar brand in respect of identical or similar goods and services. It can also act as a deterrent to third parties, for example bootleggers or fans, who may look to try and use or register the band name or other trade marks to have as their own business.
Allowing sales of illegal merchandise, makes it harder for artists or bands to make a living. An artist would not want another copying their music but why does there seem to be a reluctance to stop people copying their brand?
At Barker Brettell we appreciate it is striking a fair balance. No one wants to come across as a bully or clash with a fanbase. However, having a trade mark could be very helpful when it comes to tackling those who are maliciously profiting from your reputation.
If you would like further advice on this, please contact the author or another member of our trade mark team.
