Copyright? Trademark? The Name Game
The Name Game
A reader recently posed a question as to whether a band name may be entitled to copyright and/or trademark protection. There may be several answers to this seemingly simple question. (This is separate from the issue we covered earlier dealing with the use of a band name once a member leaves the band.)
When a band picks a name, there are several layers of protection. At the state or local government level, a band may incorporate or form an LLC or partnership under a name, which becomes its “alter ego” by picking a unique name in the state where the band is located, and then registering the name with the secretary of state or other registering agency.
The alter ego need not be the same as the band name. The band may register its band name with the local county clerk, thereby entitling it to protection against other bands using the same name. This name is commonly known as a “d/b/a” or “doing business as.”
Typically, identical names are not accepted at the state or local level, and so it is relatively easy to determine if another band is using another name in your jurisdiction by performing a simple name search. If you find an identical name, it’s back to the drawing board.
As a cautionary note, it is advisable to check with various unions and trade organizations to determine if your band name is already in use. Do not assume that your fertile imagination was successful in producing a totally unique band name. Suffice it to say that a band name must not conflict with a previously registered name. And this is not merely because of the annoyance of having bands with identical names, but also an attempt to avoid confusion in the payment of royalties from the various clearinghouses, i.e., BMI, EMI, ASCAP, and SESAC.
The organizations that should be consulted to ascertain the existence of identical band names are the U.S. Patent And Trademark Office, state corporate registries, musicians unions, and the aforementioned BMI, EMI, ASCAP, and SESAC. A Google search would also be advisable.
In the next installment of this column, we discuss how to obtain protection for your band name.