• TalkBass has been independent since 1998. Add your voice.
    Create a free account to reply to discussions, view embedded media, and browse with fewer display ads.
    Join freeLog in
    Want zero display ads or expanded classifieds tools? Compare plans.

BAnd Name

If he did not trademark the name he has no legal right to own it. Currently your band would have some implied rights to the name based on the amount of time you have used it and the "goodwill" associated with the name but if you did not trademark the name you don't own it either.

I went through this with a band where we fired the drummer due to his drug use which had made him unreliable as a musician. He was a founding member of the band and sued us claiming he owned the name and thus all rights to it. Unfortunately for him a trademark search turned up fifty pages of businesses with a similar name, none owned by him. Our lawyer advised us to let the drummer have the name (but none of the money he claimed we owed him in damages) select a new unique name, do a trademark search for it, and if no one had registered it do so ourselves so that we would never be in the same situation again. We were also advised to set up a legal business. This little escapade cost us $5,000 in legal fees, we never had to go to court because the drummer's lawyer wisely advised him to settle out of court.

If your ex-bandmate created the logo, associated artwork and merchandise then he would own the copyright for those designs by default unless you contracted with him and paid him to create those items exclusively for the band with the understanding that all artwork would be owned by the band, not him. To protect yourselves going forward you would need that in writing. If he did the work as a band member and not "for hire" you should cease using the logo or selling any merch with his designs unless you work out a deal where he gets paid either for the designs outright or royalties on merchandise sold if he is not willing to sell the rights to the artwork. The logo is tricky because even if you do not use it on merchandise it is being used to generate "good will" for the band. If you don't do anything and the band is lucky enough to be successful he could come back later with a claim against you at a time when it would be much more difficult and costly to change the band's name and eat the cost of any existing merchandise utilizing his designs.

This is great advice, coming from experience. The only thing I would add to it or modify, is that I believe you can claim a trademark without having registered it; but only if you actually did business under that name. If I open up Sally's Pizzeria in town and build my pizza business up for ten years but never register the name, then some joker goes and opens up another Sally's Pizza on the other side of town, I'm pretty sure I can sue for trademark infringement even though I didn't register it formally. Whereas, if I registered "Sally's Pizza" as a trademark but never actually opened the pizzeria, and after ten years try to sue the guy running an actual Sally's Pizza, I'm probably not going to win that claim.

I think the OP's former bandmate has gotten confused between trademark and copyright concepts. They're both types of intellectual property, they both can be created presumptively by simply doing something (running a business, writing a piece), and they can both be registered in order to document one's ownership of them. But the difference is in that second quality, the presumptive creation of the right; If you write a song, you own copyright in the song. But to own a trademark, you need to actually do business under it. He's thinking of the name of the band as though it were a song he can own as a copyright matter, without the doing-business part. That doesn't fly. For instance, Peter Banks was the one who came up with Yes' name as a band (he was the original guitarist); after a couple of albums they fired him. He didn't take the name with him; it belonged to the band.

But I think you do have a point that any creative work he DID do, like an artwork or logo, he may have a copyright in. Even there, I'm not as worried, though. If he did them when he was a member of the band, say with the band functioning as a partnership, and if there was an understanding (as I think there would have been) that these works were done for the partnership of which he was, at the time, a member, then he may not have a claim to separate individual ownership of them; it could be pretty strongly argued that the partnership as a whole owns them. He didn't produce them as an independent outside contractor for them, but as a member of the group.

Of course, we're parsing legalities in an issue which, to judge by the OP, is probably not much more than a garage band with nothing at stake. I seriously doubt anyone's going to court over any of this.
 
Does he have the copyright? What a $u(ker!

If he's in the USA he does purely by virtue of the fact it's his original artistic creation. You don't need to register a work to have a legal copyright. Or to have protection under the law. Registering something merely gives you additional rights when it comes to claiming damages and generally makes it easier to enforce your rights under law.

Either way he's gone. Make a clean break and let him have his little logo. I would however make it a point to let people know how petty he was being about it if I was ever asked why the band suddenly changed its name.
 
  • Like
Reactions: Wisebass
I write numerous letters for my clients, telling other lawyers to perform anatomically improbable acts of self-gratification, because their (trademark, patent, tort) claim is baseless, and if they fail to do as I suggest, I will gladly do it for them. Mostly they do as I suggest.

Those letters cost my clients thousands of dollars each.

If you want a detailed opinion of your options in this situation, send me a check and we can talk. If you want to avoid sending me a check, change the name.

Would that every attorney were as forthcoming as you sir. :thumbsup::)
 
we had to let go of a bandmate because he simply wasn’t getting our songs down. Instead of practicing our songs he spent more time working on logos and shirts etc. when he joined, he had the idea to change the band name. We thought it was s good idea and went with it. Now he’s gone and doesn’t want us to continue to use the name. What could he really do?
legally : who ever copyrites the name first owns it!

Morally: not worth the BS just change it back to your original name be the bigger man & let him keep it!
 
That’s not how copyright works. You’re talking trademarking here.

Dude has copyright over the logo (artwork) at most.

If he actually took the pains to trademark the name and logo, that’s another thing altogether.

Ok, if that's the case then just change the word I used " copyrite" to who ever "trademarkets" the name first owns it! Cool ? cool.. :)
 
I'm going to die when the OP comes back and says something like, "Well, we made a decision. We went ahead and changed our name from 'U2' to 'Bono Iver'. Dodged a major bullet with the lawyers. Downside is we have to re-paint our tour bus, private jet, all our road cases, website, etc....plus about 10 million shirts. Kinda sucks. Oh well. We're pretty excited about the new name, and hopefully our fans will be patient enough to stick with us. Thanks TB for the great advice!!!"
 
we had to let go of a bandmate because he simply wasn’t getting our songs down. Instead of practicing our songs he spent more time working on logos and shirts etc. when he joined, he had the idea to change the band name. We thought it was s good idea and went with it. Now he’s gone and doesn’t want us to continue to use the name. What could he really do?
unless it's copyrighted/patented, nothing. ignore him