The following information is an excerpt from the Berklee Online course Music Business Law for Artists, authored by Valerie Lovely, which is enrolling now.
You’re more likely to pave a successful professional career in the music industry for yourself when you understand the basics of music business and music law. It also helps when you can recognize when it is time to bring in the appropriate professional.
In this article, we’re going to get into some music business law fundamentals you should know first. When you work within the music industry, it helps to have a basic understanding of the vocabulary used, how business is conducted, and the laws that apply. There are many legal issues that if not properly handled can create immediate or future problems.
Some examples might be:
- You have been fined because you missed the due date on state or local business filings.
- A few years in, the business is growing and you are getting great press. Then you receive a letter from an attorney saying you must immediately change your band name or the band that was using it first will sue you for trademark infringement.
- You are being sued for copyright infringement. The plaintiff claims that your hit song (from last year) copies the melody and chord progression of their song that was released many decades ago.
- After a decade of success, you receive an offer to buy your publishing catalog for $25 million—but the deal falls through because you do not have the proper paperwork showing you are the owner of 100 percent of the rights in the songs.
Music law is, at its most basic definition, comprised of all of the laws that we encounter on a regular basis in the operation of business within the music industry. We do not have one standard set of laws that apply throughout the United States. Instead, we pull from a variety of existing common law and statutory laws. Let’s take a look at these different types of law that make up music business law.
Music Business Law Fact 1: Intellectual Property Law
Intellectual property is about the products that come from human creativity; the results of the creative mind. In the legal world, there are three broad categories of law that protect intellectual property; these are copyright law (creative expression), trademark law (branding, trade dress), and patent law (inventions). All of these areas of law have statutes at the federal level.
In the music industry, the intellectual property rights that generate the majority of income primarily fall within the following areas:
Music Business Law Fact 2: Copyright Law
Copyright law protects the original expression of creativity when fixed in a tangible form. Examples include: song compositions, sound recordings, photography, artwork, film/video, and screenplays.
Music Business Law Fact 3: Trademark Law
Trademark law protects the branding of a business that identifies it and/or its products or services to the public. Examples include: business names, logos, and jingles.
Music Business Law Fact 4: The Right of Publicity
The right of publicity protects against the unauthorized use of a person’s name, voice, photograph, etc. for commercial benefit. There is no federal law for this right, so rights are enforced through a combination of federal copyright and trademark law as well as an assortment of state and common laws.
As we’ve seen from just this brief overview, a lot of music business law deals with the “who did it it first” of the music business, or in some cases, “who copyrighted it first.” So let’s look a little further at copyright law and trademarks.
Trademark Basics in the United States
A great deal of branding occurs with tangible goods. This is called use as a trademark. There is also branding in connection with a service provided. This is called use as a service mark. In the music industry, an artist may protect their name for live performances as a service mark and their name in connection with goods as a trademark. The body of law that governs both uses is called trademark law. Rather than refer to trademarks and service marks, we use the term “marks” to encompass both.
The US applies the concept of “first use” for trademarks. The first to use a mark for branding purposes in a particular line of commerce develops rights in the geographical area in which they do business. So long as they consistently use the mark over time, their rights will be “superior” to the user of the mark that came along later. Listen to the Music Is My Life podcast episode with a Seattle-based singer named Lady A, who suddenly found herself in the middle of a legal dispute when a well known group changed their name to the moniker she had been using for years.
First to File
In contrast to the way the US uses the “first use” approach, the majority of countries in the world apply a “first-to-file” system. Trademark rights are obtained when someone is the first to file a registration with the government. China is a country with the most strict application of the concept. The first to file obtains superior rights even if the filer has never used the name and someone else has been doing business under that name for some time. Other first-to-file nations include more than half of the countries in South America, almost half of the countries in Europe, about a quarter of countries in the Middle East, and Asia, and a handful of republics in Africa. Not all are as strict as China, some allow—to varying degrees—challenges to those first filings based on goodwill built through prior use.
Whether you have common law, state law, or federal law rights, you have a duty to enforce those rights. This means you must monitor the market for anyone using the same or a similar mark in your area of business. If you find one, the first step is to immediately send them a cease and desist letter, letting them know that they are infringing upon your rights and that if they don’t stop using it and change their name right away, you will file a lawsuit. In many cases, this is all it will take, but if not, and the infringement is widespread, you may need to move ahead with the lawsuit.
You must also regularly search the United States Patent and Trademark Office for anyone trying to file a registration for a mark that is confusingly similar to yours. If you find one, the time to file an opposition to the registration, or request an extension of time to do so, is within 30 days of its publication on the USPTO Trademark Gazette.
When to Act
If you allow the infringement to continue on for too long, you risk losing the ability to stop it. How long is too long? There’s no clear rule on this, so we look to recent federal court cases for guidance. It seems that if more than four years pass from the time the rights owner learned that there was a new business using the same or a similar mark and when they took action, then that is too long, and they have lost the ability to claim trademark infringement in court.
It’s all a lot to process, and it may at first seem counterintuitive to the idea of having fun, being creative, and making music, but if you take your time to study and learn all of this information now, you’ll likely find that the actual amount of time you’re spending on music business law is still a lot less than the amount of time you’re spending making music.
So now that you have a little bit of background, let’s get to the most important detail for artists: How to copyright a song.