PROTECT YOUR LEGAL RIGHTS: Basic Copyright and Trademark Law

There are many steps an artist can take to protect their legal rights in their songs and their name that do not require the use of an attorney. In order to secure protection, an artist should obtain a copyright in their songs and a trademark in their name. A full discussion of copyright and trademark law is not within the scope of this article; however, this article will provide the artist with the basic concepts of copyright and trademark law.

Copyright
A copyright is a property right that provides protection to creators of artistic works such as songs and sound recordings. The Copyright Act gives the owner of copyright the exclusive rights and to authorize others: 1) to reproduce the work in copies or phonorecords 2) to prepare derivative works 3) to distribute copies or phonorecords of the work 4) to perform the work publicly , and; 5) to display the copyrighted work publicly.

Essentially, this means that the original copyright owner controls how their song will be exploited. A copyright is automatically created the moment your original expression of an idea is “fixed in a tangible medium.” In other words, a copyright is created in the song when you write it down or when you record the song on tape or on a device (e.g. CD player). When a song is created there are actually two copyrights: a copyright in the musical composition owned by the songwriter and a copyright in the sound recording owned by the recording artist (if artist is signed to a major record company, the label usually owns the sound recording copyright).

Many artists mistakenly believe that the filing of a Copyright Registration form in Washington, D.C. creates the copyright. However, the filing of a copyright registration gives the artist additional protection in the event of a lawsuit. There are two basic forms: the performing arts “PA” form is used if you are the copyright owner of the song. And the sound recording “SR” form is used if you are the copyright owner of the sound recording. To obtain forms go towww.loc.gov/copyright or call 202-707-3000.

Trademark
A trademark includes any name, word or symbol used in commerce to identify and distinguish the source of a product or service of one party from those of others. Trademark rights can be used by artists to prevent their name or symbol from being used by others. Accordingly, these rights are used by musical performers, groups and companies. Such rights are based on “use” of a name and are created when the owner of the name first uses the name in commerce in connection with goods or services.

Filing a Federal trademark registration application with the United States Patent and Trademark Office (USPTO) creates various rights in court; including the right to sue for trademark infringement. Nevertheless, before filing the application, a thorough search must be conducted to determine whether your name (or a confusingly similar name) is already in use. The search may be conducted by you at certain public libraries, by an attorney or by using a searching service.

Be aware that even if a performer does not file for Federal trademark registration, the use of the name creates rights in the area in which it is being used. Therefore, a limited search of just the Federal trademark registration may be insufficient. For example, if you file a federal registration after using your band name and subsequently learn that an unregistered group had already been using the name, in let’s say the Buffalo area in upstate New York, then under state law, that group (the unregistered group) could prevent you from releasing your record in that state which includes New York City and even sue for damages. Usually, the matter is settled when the registered group buys the rights to the unregistered group’s name.

Once a thorough search has been conducted, the next thing to do is file an application for trademark registration. Every application must include a clear representation of the trademark you want to register. There are two possible trademark formats: (1) standard character format; or (2) stylized or design format. Registration of a trademark in the standard character format provides broad rights, namely use in any manner of presentation. On the other hand, registration of the trademark in the stylized or design format is used to register a mark with a design element or word(s) or letter(s) having a particular stylized appearance.

To obtain forms go to www.uspto.gov or call 1-800-786-9199. You can file your application directly over the Internet or you may mail a paper application to the USPTO. Presently, the filing fee is $325.00 for an electronically-filed application and $375.00 if filed on paper.

Artists can protect certain basic rights by filing their own copyright and trademark applications. However, it is strongly advised that the artist use the expertise of an attorney should questions arise during the submission of the applications; and more importantly, before signing any legally binding agreements.udio or well-known performer.