Band name copyright?

**Josh Ryan** · #1 11-26-2002, 01:18 PM

How do I do this so there is as little ambiguity as possible?

Donne Demarest · #2 11-26-2002, 02:31 PM

There is no copyright in a band (or artist) name. That isn't to say you can go and call yourselves The Rolling Stones or REM. Basically, the only legal action you can bring against another band using the same name is one of 'passing off'. This means that you would have to be able to prove that members of the public were being mislead and paying out to hear or see one band and ending up with another. This is very dificult to prove.

A band name is a Trademark.

Here's some info--

Trademarking

Boplicity · #3 11-26-2002, 08:44 PM

Band trademarks aren't something to be taken lightly either. I once played in a band called "Virtual Reality". We recorded demos and even played our debut concert with that name.

Word got around and first thing we knew another band stepped up with the Spanish name "Realidad Virtual" and insisted that we were impinging on their name, even though ours was English, the words were reversed and we played nu-metal while they played salsa or pop or something.

They made a big fuss, so we decided to change our name while the band was still young, but that still created confusion for awhile.

That experience taught me a lesson. Don't take your band's name lightly. I think it is generally better to come up with a name right from the get go that is unusual enough that it is unlikely to be already taken by another band.

**Josh Ryan** · #4 11-26-2002, 10:51 PM

Thanks.

lildrgn · #5 11-27-2002, 11:01 AM

I found a killer website for people in bands, etc, that talks about all sorts of stuff like trademarking, etc. Go here and click on number 2. But the whole thing is chock full of advice and is a really interesting read.

**Hategear** · #6 11-27-2002, 11:12 AM

Is just using the name enough, even if you don't use it? What I mean is, since being fired from my band last December, I have been using the name Flash Flood (that's not the name, but we'll pretend it is) in my musicians wanted ads and on my web page. Can someone come along and steal that name away from me, simply because I am not actually performing under that name? I suppose I would have to be able to prove that band or not, I have been using that name publicly for almost a year, right?

I do know that you can't copyright song titles and that copyright protection does not extend to songs being played live (cover bands).

moley · #7 11-27-2002, 11:37 AM

Quote:

Originally posted by Hategear
copyright protection does not extend to songs being played live (cover bands).

It does. Well, over here it does anyway. Theoretically, whenever you play a song written by someone else live, you (or the venue) owe them (or rather the publisher in most cases) money.

**Hategear** · #8 11-27-2002, 11:41 AM

Yeah, I don't think that's the case here. If it were, there would be a lot of start-up cover bands losing a ton of money to the bands they're covering. Now, if you record and sell those songs...

SMASH · #9 11-27-2002, 11:51 AM

A cover band here wouldn't have to lose money, they'd just owe performance royalties. Same when played on the radio. It is the law, but it is never enforced the way it is in Europe.

As for band names, if you're not using it and it is not established then it can be used by someone else. What legal leg would you stand on when trying to have them cease and desist?

The key is for your name to be established. Have it in the press, on the internet, on the radio, etc. If someone comes along 3 years after you from Timbuktu and is faster at "establishing" the name, they can legally cause you to cease and desist even if you used it first. The factor is "what/whom do people expect when they hear the name xxxxx ?"

I've known people who sued major label bands (successfully) over a name, and I know people who had to change their name when they got a record deal just because another band who was unknown (internationally) was well-known in their own home city. So to do business in that city you'd either have to change your name on all albums sold in that city, tour posters in that city, airplay in that city, etc. You could try to buy that other band off, have a court impose a payoff if it's too late to change your name (albums alreay released) or just change your name.

There's the case of the band "Bush" from England, who in Canada are called "Bush X" (even on their albums, posters, etc.) because there was already an established Canadian band called "Bush" (though nobody had ever heard of them as far as I can tell).

A local guy, well known here and to a lesser degree internationally as "Buck Cherry" sued the major label rock band "Buckcherry" for a decent sum the court decided on when they were already established and touring with the name - too late to change it.

There was a folky performed called "David Wilcox" in the States (got semi-famous opening for the Indigo Girls when they broke big and had an awesome debut album) and in Canada we already had an establish solo blues/rocker David Wilcox. In the record stores there was "Canada's David Foster" and "American David Foster" but it never really mattered since neither one became famous (or released records I believe) outside their own country.

Best thing to do is check online, MP3.com, etc. and see if another band with your desired name exists. If not, use it and establish it fast and if someone else beats you to being "established" then I guess arguably they deserve the name.

moley · #10 11-27-2002, 11:52 AM

Quote:

Originally posted by Hategear
. If it were, there would be a lot of start-up cover bands losing a ton of money to the bands they're covering

Well yeah, there would be a load of start-up cover bands losing a ton of money over here, too, but in a lot of cases, they don't bother. See, the venue is supposed to have an entertainment license (or whatever it's called), and included in this is money going to the PRS. I *think* theoretically the venue should give a list of works that were performed to the PRS so that they can distribute the royalties. I'm not entirely sure, someone please feel free to correct me on this. I know this is how it works with radio play - the station is supposed to keep track of what tracks it plays and how many times it plays 'em, and gives the MCPS a list.

I'm not sure of the details, but I'm pretty sure that live performance should result in royalties for the writers. I'm not sure to what extent all live performances are accounted for.

SMASH · #11 11-27-2002, 12:00 PM

Quote:

Originally posted by moley

See, the venue is supposed to have an entertainment license (or whatever it's called), and included in this is money going to the PRS. I *think* theoretically the venue should give a list of works that were performed to the PRS so that they can distribute the royalties. I'm not entirely sure, someone please feel free to correct me on this

That's correct.

In Canada we have a government agency that monitors airplay and average out payouts to performers/writers and as a gigging artist "real" venues should pay a fee to them for each gig (or annually?) but it's up to the performer to submit details of the cover charge, which songs were performed, cover songs (if any) and by that you get a few dollars down the line. If the cover charge isn't $6 or higher though it doesn't count.

Not sure if foreign artists working/touring in Canada can do so too.

thrash_jazz · #12 11-27-2002, 12:04 PM

Quote:

Originally posted by SMASH

In Canada we have a government agency that monitors airplay and average out payouts to performers/writers and as a gigging artist "real" venues should pay a fee to them for each gig (or annually?) but it's up to the performer to submit details of the cover charge, which songs were performed, cover songs (if any) and by that you get a few dollars down the line. If the cover charge isn't $6 or higher though it doesn't count.

Are you talking about the CRTC? I've never heard of them doing this - where can I get more info?

**Hategear** · #13 11-27-2002, 12:10 PM

Quote:

Originally posted by SMASH
As for band names, if you're not using it and it is not established then it can be used by someone else.

The key is for your name to be established. Have it in the press...

So, plastering musicians wanted ads all over town, featuring a name and a logo isn't enough to make that name mine and posting that name and logo on a web page and saying, "Watch for my new band, Flash Flood, to appear sometime in the near future," isn't enough either?

Even if someone does "steal" that name, they can't take the logo, right?

P. Aaron · #14 11-27-2002, 12:12 PM

Keep all the dated records of your band name. Set up a Business license, Simplemark it, or Trademark it(expensive). Get your band name established with a date through an recorded authority(county, city state, etc.).

Years ago I was in a band that had a Business (DBA) license set up in the town we played in. (???just because)
Along came a band from England about 3 years later, who sent us a letter telling us to cease and desist from using the name we were using. This band had a record(s) out (as did ourselves), and some hype/money promotion behind them.

I argued (unsuccessfully) to the rest of the wimps in the band at the time to fight it. At least, considering the amount of money these English blokes had behind them, to buy us out of our name.

(We had our DBA established about 3 years before these guys came along)

Even a cheap settlement could've maybe got us a P.A. or some gear, or lotsa BEER! Hell, I hated the name we had, so I was all for a pay-out.

The rest of the band wimped out on this, decided to change the name so I split.

SMASH · #15 11-27-2002, 12:12 PM

Quote:

Originally posted by thrash_jazz

Are you talking about the CRTC? I've never heard of them doing this - where can I get more info?

CRTC regulates broadcast licences and content.

I was speaking of SOCAN.

thrash_jazz · #16 11-27-2002, 12:17 PM

Quote:

Originally posted by SMASH

CRTC regulates broadcast licences and content.

I was speaking of SOCAN.

Ah, yes, of course. I didn't know they (SOCAN) were a government agency!

Doesn't ASCAP fill a similar role in the U.S.?

SMASH · #17 11-27-2002, 12:19 PM

Quote:

Originally posted by Hategear
So, plastering musicians wanted ads all over town, featuring a name and a logo isn't enough to make that name mine and posting that name and logo on a web page and saying, "Watch for my new band, Flash Flood, to appear sometime in the near future," isn't enough either?

Even if someone does "steal" that name, they can't take the logo, right?

Stealing the logo would have to be argued as a coincidence (highly unlikely) or they'd owe you for it depending on what a court would decide - though if you could show no damages (the band in your example is effectively fictitious - posters but no band) you might get nothing more than the satisfction of the other party not being allowed to use your logo and no payout to you.

As for your questions about the name, if yourself and the "other band" (presumably a 'real' band since so far your band in the example doesn't really exist) couldn't agree it'd go to the courts and I expect you'd lose your court costs and maybe even have to pay theirs since, in your example, your band doesn't really "exist" so I don't see how you'd argue that people expect to hear your band/music when that name is mentioned. That's what it comes down to and what a judge would have to decide.

Same is true for business names, website domains, etc. If you establish madonna.com and do nothing with it, in a clear attempt to extort funds from her for the domain name, a court will (and has) just take it from you. Same reason the World Wrestling Federation is now the WWE. The World Wildlife Fun (WWF) sued them successfully.

Bottom line, if you have business records dating to 1972 with the name "Nickelback" and have played a few basements and dives around town but still no media or people outside your circle of friends and family have heard of you, and the 'real' Nickelback that everyone on earth expects to hear when they hear that name comes to town or orders you to cease and desist then you are out of luck.

As with all things it isn't who leaves the starting line first, it's who gets to the finish line first.

SMASH · #18 11-27-2002, 12:22 PM

Quote:

Originally posted by thrash_jazz
Ah, yes, of course. I didn't know they (SOCAN) were a government agency!

Doesn't ASCAP fill a similar role in the U.S.?

Yes, ASCAP in the US.

Now that you mention it, I could be wrong about SOCAN being gov't - I've always presumed they were due to their clout and I'm fairly certain they draw much arts funding from the gov't so I could just be confused on their true basis.

**Josh Ryan** · #19 11-27-2002, 12:45 PM

OK, makes sense now, thanks SMASH.

leanne · #20 11-30-2002, 11:52 AM

I've seen web pages where you can register your band name and search for anyone already using it.

A few searches for local band names turned up bands all over the country.

here are a couple of the sites
http://www.bandname.com
and http://www.bandreg.com

Leanne

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