We recently published a blog post about the importance of using copyright and the steps to take to protect your music. However, copyright is not the only intellectual property concern in the music industry. Our expert IP lawyer, Marilee Owens-Richards, explains the fundamentals that any professional working in the music industry needs to know about trademarks, copyrights and the steps to take to protect their music.
1. Research the name to make sure it is available
It is important to research the name to make sure it is not already being used by another performer. Registering a trademark for your band name is also an important step in protecting your rights. When contracting with a label, it is also important to make sure that they do not hold the trademark to your band name.
2. If you are part of a group, it is important to make an agreement about who is allowed to continue to use the name if the band breaks up numerous famous bands have sued each other for the right to continue to use the name after the band broke up, such as Bucks Fizz, Steppenwolf, Deep Purple, and the Beach Boys. The agreement should also make it clear about how the copyright is going to be owned. Numerous bands go to court to dispute copyright. Famously, Nirvana and Courtney Love went through numerous legal disputes with each other and with other parties after the death of Kurt Cobain.
3. Make sure you are not referencing something that may be protected by trademark rights
Along with the name of your band, it is also important to be careful with album names and song titles. Most of the time, these titles are not a problem unless you reference something that may be protected by trademark rights. In the 1990s, the group Aqua recorded the song “Barbie Girl.” Mattel sued but lost as the court considered it parody. Even though Aqua won, they still had to go through two years of courts and legal fees.
Your performance name or the name of your band is protected by trademark law. One of the most famous cases of this is in the 1990s when Prince gave up his name on albums and started using a symbol instead. This was because he had a contract with Warner Bros which restricted him from releasing music under the name “Prince.”
Your performance name or the name of your band is protected by trademark law. One of the most famous cases of this is in the 1990s when Prince gave up his name on albums and started using a symbol instead. This was because he had a contract with Warner Bros which restricted him from releasing music under the name “Prince.”
4. Consider legal obstacles very early on with complex matters of copyright law in music, it is better to consider legal obstacles early on rather than being entangled in litigation later. For example, Fall Out Boy changed the name of their song from “My name is David Ruffin and These are the Temptations” to “Our Lawyer made us change the name of this song so we won’t get sued.” Although amusing, this is a good example of avoiding a potential IP infringement claim.
5. Make sure that your work does not plagiarise the work of another artist
Aside from protecting your own work, it is also important to ensure that your song or work does not plagiarise the work of another artist. The composition copyright and the recording copyright can be infringed. Even inadvertent copying of a composition can lead to expensive litigation.
One of the most famous (and strangest) cases in music copyright is the 1994 case, where John Fogerty was accused of plagiarising himself. John Fogerty had been a member of Creedence Clearwater Revival and release the song “Run through the Jungle” in 1970. The song was owned by CCR’s label Fantasy Records. CCR disbanded in 1972 and John Fogerty launched a solo career. In 1985 he published the song “The Old Man Down the Road” with his new label, Warner Bros. In 1993, Fantasy Records sued John Fogerty, alleging that Old Man Down the Road was the same song as Run through the Jungle but with different words. Fogerty’s defence was that of course, they sounded similar because they were both variations on his “swamp sound”. To prove his point, he went on the witness stand with his guitar and performed the songs for the jury and also demonstrated the “swamp sound” found throughout his music. The jury was persuaded and determined the two songs were not substantially similar.
One of the most famous (and strangest) cases in music copyright is the 1994 case, where John Fogerty was accused of plagiarising himself. John Fogerty had been a member of Creedence Clearwater Revival and release the song “Run through the Jungle” in 1970. The song was owned by CCR’s label Fantasy Records. CCR disbanded in 1972 and John Fogerty launched a solo career. In 1985 he published the song “The Old Man Down the Road” with his new label, Warner Bros. In 1993, Fantasy Records sued John Fogerty, alleging that Old Man Down the Road was the same song as Run through the Jungle but with different words. Fogerty’s defence was that of course, they sounded similar because they were both variations on his “swamp sound”. To prove his point, he went on the witness stand with his guitar and performed the songs for the jury and also demonstrated the “swamp sound” found throughout his music. The jury was persuaded and determined the two songs were not substantially similar.
6. Before sampling any music, it is important to make sure that you have paid a fee to licence it or check to see if your use would be considered fair use or fair dealing
Sampling is the most common way that recording copyright can be infringed. The latter option should only be done with professional legal advice. Sampling has become legally complex where even the “feel and groove” can be considered to be plagiarised. For example, Robin Thicke and Pharrell Williams had to pay $7 million dollars to the estate of Marvin Gaye, because their song “Blurred Lines” infringed the “groove, vibe and feeling” of Gaye’s song “Gotta Give it Up.” The verdict was surprising because “Blurred Lines” did not copy the melody or words in the Gaye song. One German sampling case has gone on for 20 years. The rap artist Moses Pelham, used two seconds of music from Kraftwerk’s “Metall auf Metall” and incorporated it into his song “Nur mir.” The case has been heard at every level of German court and is now heading to the European Court of Justice. The decision is likely to make a large impact on the music industry.
Let’s recap
If you are a professional or an amateur musician you need to:
- Research the name to make sure it is available
- If you are part of a group, it is important to make an agreement about who is allowed to continue to use the name if the band breaks up.
- Make sure you are not referencing something that may be protected by trademark rights
- Before sampling any music, it is important to make sure that you have paid a fee to licence it or check to see if your use would be considered fair use or fair dealing
At LawBite we provide quick, affordable and easy to understand legal consultation. We offer a free no-obligation 15min legal phone consultation with our Intellectual Property lawyers. We provide quick, affordable and easy to understand legal consultation. We offer a free no-obligation 15min legal phone consultation with our Intellectual Property lawyers. If you need business legal advice, please enter an enquiry or call us today on 020 7148 1066 to speak to a member of our friendly Client Care Team.
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The author of this article is expert LawBrief Marilee Owens-Richards. Marilee has over 10 years of experience in IP, IT and commercial law. Marilee qualified in the US (New York State) in 2007. She moved to the UK and qualified in England and Wales in 2009. She has experience working with a range of clients from small businesses to large multinational corporations. Since 2012 she has worked with Monotype, Ericsson and Epicor. She is available to consult for a range of IP and IT matters.
