© 2007 – 2011 Peter Vaughan Shaver, Sound Advice, LLC
All rights reserved.

Trademarks (also referred to as “service marks” if used for services) are words, symbols, designs, slogans, or combination of these elements that identify the source of your goods and services. Generally, trademark rights begin when the mark is first used for particular goods, like CDs and T-shirts; or services, such as live performances. Trademark rights last as long as your marks are actively used for your products or services.

Be careful about choosing a band name. Research possible choices carefully and don’t use names that are easily confused with other bands or entertainers. Properly researching your chosen band name can save you a lot of headaches and by picking a creative and unused name you can avoid wasting time and money. Research existing names on the Internet by doing general searches for names that you are considering. You can also search for band names in the federal Trademark office website database and your state corporation division business registration database. Note that websites like bandname.com are for reference only and have nothing to do with protecting your trademarks, even if you “register” on their website. For more general information on registrations, check out the U.S. Trademark Office website at www.uspto.gov.

As long as your marks are not identical, or confusingly similar, to one that has been adopted earlier by another band or performer, you have some protectable rights, even without registering your trademarks. Ok, so you have found a cool name that nobody else is using – why register? Registration gives you the exclusive right to use your trademarks within certain categories and territories. Registration also helps prove that you were the first to adopt and use a specific trademark and this will help you establish priority rights against later attempted users. However, your rights may be limited to a specific state or the entire country, depending on where you are actually using the trademarks. Registration also enables you to recover money from infringers, including heavy penalties, and attorney fees. Federal registration in the U. S. also helps provide you with rights in other countries.

Filing a state trademark registration can be fast and fairly inexpensive. State filing requires you to fill out a single page form and submit a fee for an initial term of a few years. You also send in samples of your use of your trademarks. Actual use is generally required prior to registration and you can renew your mark for unlimited periods, provided you use them continuously from the date of initial registration.

Federal filing is more expensive and complicated, but your rights have potentially broader scope. The application cost is as little as $275.00 per trademark, per “class”. Classes are separately numbered listings for the use of your trademark for different products or services. Some common federal classes for registering band related trademarks are: Class 41: Entertainment services, namely, live performances by a musical group; Class 25 for Clothing, such as T-shirts; Class 9 for sound recordings; and Class 16 for printed matter and paper goods, such as stickers and posters.

Federal trademark applications are more complicated to complete and may take over a year for the Trademark Office to issue a final decision, your rights will generally date back to the initial application filing date, or your first use of the trademark for a commercial purpose. There are also two types of federal trademark filings based on usage. Generally, actual use of the mark is required before a trademark can be registered. However, one form of federal registration allows you to reserve the future use of a trademark by filing an “Intent to Use” (ITU) application. The initial registration term is for 10 years and is renewable for additional 10-year periods. Federally registered marks can also be renewed for unlimited amounts of time, as long as they remain in active use for the classes you have claimed.

Here’s a few more concepts to keep in mind regarding trademarks:

1. After you start using a band name or logo, document your use of your marks. Keep dated copies of show posters and flyers, printers’ bills, photographs of the marks being used, etc. This will provide crucial evidence if there is ever a dispute over where and when you used a specific trademark.

2. Also consider registering your album artwork and logo designs with the Copyright Office. Copyrights give you additional power and control over valuable images related to your band.

3. Use the “®” symbol only for federally registered trademarks. Use “tm” (Trademark) or “sm” (Service Mark) for state registered marks or unregistered marks. See how these symbols are used on recordings and merchandise for well-known bands.

4. Generally, you should always try to keep your merchandising rights for both trademarks and copyrights. Avoid transferring these rights to record companies as part of recording deals, and try to retain all your trademark rights for use in merchandising or licensing deals. While it is standard to give record companies the limited rights to use your band name and logos on your recordings and promotional materials, they should not get the right to use the name on any merchandise without additional payment.

5. It is also important to decide who will “own” the name and logos if band breaks up or a member leaves. Put this in your band’s written partnership agreement.

6. Register your band’s domain name as soon as possible. Check carefully to see if anyone else is actively using your name or any similar names that might cause conflicts later on. Avoid registering domain names with other companies’ trademarks in them.

DISCLAIMER: This article is intended only as a very general overview of trademark law and should not be relied upon as personal legal advice. Every situation is different and the reader is advised to obtain qualified legal assistance for their specific, individual matters.

Peter Vaughan Shaver, Esq.
SOUND ADVICE, LLC
3939 NE Hancock Street, Suite 308
Portland, OR 97212 (503) 473-8252 PV@PDXSA.COM

© 2007 – 2011 Peter Vaughan Shaver, Sound Advice, LLC
All rights reserved.

First off, it is absolutely important for musicians to know that there are TWO types of copyrights related to music: rights in the SONG COMPOSITIONS (imagine the songs written out as sheet music, with or without lyrics) and rights in the SOUND RECORDINGS (in the form of CDs, digital formats, etc.). Don’t confuse the two, because there are very different sources of music-related revenue specifically related to each type of copyright.

The good news is that by merely writing down, or recording your songs in some form, you have some copyright rights in your creative material. Even without filing copyright registrations, if you “fix” your original material in a “tangible medium of expression,” such as digital or tape format, you will have established copyrights in your work. However, the bad news is that, without actually registering your songs with the federal Copyright Office, your copyrights are very weak, limited and nearly impossible to enforce against any infringers.

Don’t wait until you get signed by a recording or publishing company to deal with your copyrights. Also, for certain publishing and licensing deals, it is a benefit to have previously registered your ownership of both your sound recordings and song compositions. You don’t have to register every song you create, but for songs that have any economic value, or are being exposed to the public, you should definitely consider registration. Also, if you are looking for a recording or publishing deal you will be submitting your songs for other parties to review. Try to obtain the maximum protection of your work before sending it out.

Registering your copyrights is an inexpensive way to prevent getting ripped off and protecting rights to your creative output. Think of registration as a cheap “gold standard” insurance policy for your valuable songs. The benefits of registration include establishing iron-clad proof that you created and owned the material as of a certain date, the ability to sue in federal court, the ability to recover your attorney’s fees from any infringers and, as an alternative to actual damages, you might be able to collect “statutory damages” of up to $150,000 for each willful infringement.

Copyright registration is easy.

1. Go to the Copyright Office website (www.copyright.gov) and complete or download copyright application forms and review the Instructions on how to complete them (separate files). The primary form is called a Form CO and you enter the type of creative work to be registered. As of 2011, the fee for electronic application files is $35.00 per application.

The old school method involved completing paper forms which can still be ordered for free from the Copyright Office from their website. Using the old school forms, Song compositions are generally registered using a Form PA (Performing Arts). Otherwise, use a Form SR (Sound Recordings). In certain circumstances, using the SR Form will entitle you to register BOTH your compositions and sound recordings on one form. This gets very complicated so check out Copyright Office Circulars #56 and 56a for more information. Also, you can separately register your copyrights for album packaging artwork/ design using the (Form VA). Note: filing fees for paper forms are more expensive than electronic versions and may take longer to process.

2. Complete the application Form and make the proper payment. You then either digitally or physically send in deposits of your song compositions and/or recordings (one copy for unpublished music, two copies for released music). Generally, you can register entire collections of songs together for one fee. However, in certain cases, you might want to consider registering individual songs, especially where an individual song is very popular. To get maximum benefits you should always register within three months of publication of your music – the date from which you first offer the work for sale or perform it in public. Keep copies of everything you send to the Copyright Office.

3. In a few months, you will receive a stamped and numbered registration sheet from the Copyright Office.

4. If you want to register individual song titles, you must submit separate registrations for EACH song, or, if you register an entire collection at one time, you can add all song titles to your application. See the COPYRIGHT.GOV website for more information on collective registrations.

Note: Don’t bother with the practice of “poor-man’s copyright” or mailing yourself a sealed envelope containing your creative material. This is NOT the same as filing for real copyrights and does not provide you with any of the important benefits of registration listed above.

Even if you don’t register your work, you should always place a copyright notice on any demos sent out for review, including putting your notice on the CD and the packaging. For compositions, album artwork and logos, the notice should look like this: “© 2012, your name here. All rights reserved.” If you own the sound recordings add “(P) 2012, your name here. All rights reserved.” The circle “P” stands for “Phonogram” – an old school way of saying “sound recording.” You can see how other artists do this by checking out most major label CD packaging.

For more information download the following from the Copyright Office website:

1. Circular 56 Copyright Registration for Sound Recordings.

2. Circular 56a Copyright Registration of Musical Compositions and Sound Recordings.

3. Circular 7d Mandatory Deposit of Copies or Phonorecordings for theLibrary of Congress.

DISCLAIMER: This outline is intended only as a very general overview of copyright law and should not be relied upon as personal legal advice. Every situation is different and the reader is advised to obtain qualified legal assistance for their specific, individual matters.

© 2007 – 2011 Peter Vaughan Shaver, Sound Advice, LLC
All rights reserved.

1. GET ALL AGREEMENTS AND PROMISES IN WRITING: People don’t always do what they say and, in order to protect yourself, get all promises made to you in writing. At the very least, document your understanding of the terms of any proposed agreement by printing out an exchange of e-mails with the other party. If anyone tells you that they only do “handshake deals” give them YOUR own agreement to sign, or don’t do business with them at all.

2. NEVER SIGN ANYTHING YOU DO NOT UNDERSTAND: All too often, musicians sign contracts that they do not fully understand. Ask questions and make sure that you understand every word of every agreement you are asked to sign. If in doubt, have the person offering you the agreement to translate any unclear legal language into plain English for you.

3. (ALMOST) EVERYTHING IS NEGOTIABLE: With some exceptions, you can almost always negotiate the terms of any proposed agreement. This applies to adding, deleting or changing contract language and terms. Know that often it is not what is IN the contract, but what has been left OUT that can be dangerous. Know what to ADD to your contracts. Remember: If you don’t ask for it, you won’t get it. Be wary if you are told that they don’t make changes to their “standard agreement.”

4. ONLY GIVE UP THE MINIMUM RIGHTS NEEDED: Many music industry contracts try to get musicians to give up more rights than they need to provide. Try to limit all deals in terms of how long they will last, the territories that apply and other parameters. Retain as many rights as possible, especially if the party you are signing with is not actively doing business in certain territories. Limit their rights to the locations where they are actually doing business NOW.

5. KEEP YOUR PUBLISHING: Reserving your song composition publishing rights can benefit you greatly in the long run. Even for major label deals, songwriters often make more money on their publishing rights than on the sales of their sound recordings. Certainly there are exceptions to this rule, such as if you are offered a good deal (and a decent advance payment) to sell or license some or all of your publishing rights. Otherwise zealously guard and protect your songs as if they were your children and view your publishing rights as a personal pension plan.

6. REGISTER YOUR COPYRIGHTS and TRADEMARKS: Register your copyrights – for BOTH your song compositions and your sound recordings. These are two very different and distinct copyrights and there are different income streams related to each of them. Learn and understand the differences between sound recording rights and song composition publishing rights and how money is made from each of them. Registration is a crucial step toward solidifying your valuable rights in your creative work and preventing others from ripping you off. Copyrights will be part of virtually every music business agreement that you ever sign and you need to nail down your copyrights before you sign anything. Also, try to register and retain exclusive rights to your own album artwork and design, website URLs, logos and trademarks.

7. DON’T GIVE UP YOUR CREATIVE WORK FOR FREE: The music industry is full of scams that take advantage of creative people who are desperate for exposure. All too often, musicians get ripped off by people and companies that want to use your very valuable work without paying for the privilege. While you might very well get some good “exposure” for allowing your songs or compositions to be used by someone, often, when pressed, compensation for the proposed uses may be available. Remember: Don’t ask – Don’t get. Don’t devalue your creativity and remember: you can die from “exposure”.

8. DON’T USE OTHERS’ CREATIVITY WITHOUT PERMISSION: Respect other musicians’ and songwriters’ rights in what they created, and don’t use samples including others’ work, or record cover songs, without paying for the privilege, or at least getting their permission to do so. Music is not free and you should do the right thing by your fellow musicians, otherwise you might end up getting sued for copyright infringement.

9. THERE IS A REASON IT IS CALLED THE MUSIC “BUSINESS”: As soon as you start considering making music your career, or at least something you intend to make money from, you need to understand that your “hobby” is now a “business” – treat it as such. Conduct yourself (and your business) in a professional manner. Educate yourself about how the business works and how to avoid bad contracts.

10. HIRE A QUALIFIED ENTERTAINMENT ATTORNEY: Until you are an expert on copyrights, contracts, trademarks, business organizations and tax issues, find someone who is. A qualified entertainment attorney will have experience in all of these areas, as well as valuable industry connections that can make your music business endeavors more profitable and hassle-free.

DISCLAIMER: This article is intended only as educational information and should not be relied upon as personal legal advice. Every situation is different and the reader is advised to obtain qualified legal assistance for their specific, individual matters.

Peter Vaughan Shaver, Esq.
SOUND ADVICE, LLC
3939 NE Hancock Street, Suite 308
Portland, OR 97212 (503) 473-8252 PV@PDXSA.COM

© 2007 – 2011 Peter Vaughan Shaver, Sound Advice, LLC
All rights reserved.

WHAT IS A COPYRIGHT?

KEY CONCEPT- Copyrights do not cover ideas, only the expressions of ideas. Anyone can use an idea, but individual expressions of the idea are protectable.

The Term, copyright, actually refers to a bundle of exclusive rights, including the right to:

1. Reproduce in copies, or imitate the creative work.
2. Distribute and sell the work, or allow others to do so.
3. Prepare or authorize derivative works or modify the original.
- Derivative works are adaptations or transformations of the original work.
4. Perform or display the work publicly, depending on the type of work.
5. (For certain works of visual art) Control the integrity of the work and the attribution of authorship.

It is important to separate the concept of copyright from the physical work itself. Selling or transferring the physical artwork does not necessarily mean that the creator’s rights in the work have been transferred. While someone can buy and “own” the work, unless otherwise transferred, the copyrights to the work remain with the creator. All exclusive transfers must be in writing. Non-exclusive rights may be transferred verbally.

• What is covered by copyright law?
Copyrightable works include creations that are literary, musical (including song compositions and sound recordings), dramatic, pictorial, graphic, sculptural, audiovisual, architectural, or choreographic.

• What is not covered by copyright law?
Ideas, facts, concepts, principles, discoveries, titles, blank forms, recipes, typefaces, general topics, common plots or themes, stock characters, processes or procedures.

- Trademark law covers anything (names, designs, logos, slogans, short phrases, etc.) that can be used to indicate the source of a product or service.

- Patent law covers devices, processes, and compositions of matter or ornamental designs of functional objects. Types: utility patents, design patents and business method patents.

THERE ARE TWO REQUIREMENTS FOR A VALID COPYRIGHT:

1. The work must be ORIGINAL: A very low threshold of creativity is required and the work does not have to be brilliant or unique. The work must simply exhibit a minimal level of creativity to be protectable. Any material added to a preexisting work is protectable, but you are not entitled to claim any rights in the preexisting work itself unless you also created it.

2. The work must be FIXED in a “tangible medium of expression.” You have to physically record and save your creative work before you have a valid copyright. According to copyright law, all works are protected by as soon as they are “first fixed in a tangible medium of expression … from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Fixation occurs the second your pen leaves the paper, the camera is clicked, etc.

THERE ARE TWO TYPES OF COPYRIGHTS:

1. UNREGISTERED COPYRIGHTS: Upon creation and fixation, a valid copyright exists. This is copyright protection at its most basic level. However, only minimal protections exist for these unregistered copyrights: You can only sue for recovery of your actual damages or the infringer’s profits and you don’t get any of the benefits that you receive through federal registration. You also need to register in order to file a lawsuit.

2. REGISTERED COPYRIGHTS: This is the highest, and most comprehensive, level of copyright protection. The Copyright Office of the Library of Congress regulates the registration process. Registration is an inexpensive and very effective way to obtain full legal protection for your creative work.

THE BENEFITS OF REGISTRATION:

1. Access to federal court system: All copyright cases must be filed in federal court and registration is required for access to the federal court system. Copyright registration, if issued either before, or within five years of, the first publication, is considered proof of the validity of the copyright and the fact of your ownership. Otherwise, the basic step of proving at trial that you created the work can be time consuming and expensive.

2. Legal fees and court costs may be recoverable from the infringer.

3. Statutory damages: As with unregistered copyrights, you can recover actual damages (your losses or the infringer’s profits) or, for registered works only, you can request payment of statutory damages of up to $150,000 for each willful, “bad faith” infringement. Statutory damages may be less for “innocent” infringements. Note that you will not be entitled to statutory damages and attorney’s fees unless the work was registered before the infringement occurred. However, if the work is registered within three months of the date of the work’s publication, these important benefits remain available. Therefore, try to register your works within this three-month grace period to retain your rights to these benefits.

4. Possible injunctions against further infringement or seizure and destruction of infringing products by federal marshals.

4. Possible federal criminal penalties against the infringer.

HOW TO REGISTER A COPYRIGHT:

Registration Information: Information and application forms are found on the Copyright Office website . Fill-in online forms are available at this location. This site also features a searchable database containing most actively registered works.

1. Obtain and complete the proper application Form and the Directions for Completion for that Form. Common application Forms include the online CO Form (for most forms of copyright content); and the old-school paper forms that can be obtained by ordering through the Copyright Office website: VA (Visual Arts), PA (Performing Arts), TX (Text-based work), and SR (Sound Recordings).

2. Include Deposit(s): You must deposit the “best edition” available of the work. The number of deposits depends of the publication status of the work: Send one copy for unpublished works; Two copies for published works (Publication is generally defined as offering the work for sale or lease, or otherwise transferring ownership of the work to a third party). Applications that are submitted within three months of publication will be retroactive to the date of first publication. Always try to register within three months.
- Collections may be registered under one application (Collective Registration).

3. Submit the online application or send the paper forms with the completed application form to the Copyright Office with the required fee.
- Be sure to retain a complete copy of everything you submit.
- It is best to send your application packet, and / or deposits by Fed Ex, UPS or Express mail.
- The registration process can take up to a number of months, but the effective date of your registration is the date that the Office received your application.

REGISTRATION MYTH – “Poor Man’s Copyright” or mailing a sealed copy of the work to yourself or a friend. In reality, this practice is practically useless.

DURATION OF COPYRIGHTS: The effective date of your registration is the date your complete package, including completed forms, deposits and fee, is received by the Copyright Office. Generally, copyrights last for the life of the creator plus 70 years. The Duration of the registration can be longer (95-120 years) for other types of works, such as works created on a “work for hire” basis or works created under a pseudonym.

COPYRIGHT NOTICE: Since April of 1989, you are not required to actually place your copyright notice on your work. However, placing the proper copyright information on your work provides an important notice to other people who might consider willfully using, or stealing, your creative work. If possible, you should always add your notice because anyone using work with a proper notice on it will not be considered an “innocent” infringer. In the case of a “willful” infringement, you may be entitled to recover statutory damages and attorney’s fees. The proper form of the notice is:

© Symbol / “Copyright”/ “Copr.”; Year; Name of Creator(s).

Example: © 2012 Peter Vaughan Shaver. All rights reserved.

Optional Language: “All rights reserved” – important for international uses of the work.

NOTICE MYTH – “If it doesn’t have a copyright notice, it’s not protected”: WRONG. You should always assume that copyright law covers a work, even if it does not have a visible copyright notice on it. This is especially true for images, music or text found on the Internet. You should always try to determine who owns a work you wish to use, in whole or in part, and get the owners permission.

COPYRIGHT INFRINGEMENT:

In order to establish an infringement there are three things you must demonstrate:

1. You must prove that you own the work. Properly registering your work makes this very easy. Federal registration is considered conclusive proof that you were the creator of the work. As mentioned above, registration must occur within three months of creation, or before an infringement occurs, in order for the copyright holder to sue in federal court, or to be eligible to receive the registration benefits mentioned above.

2. You must prove that the alleged infringer had access to the copyrighted work and copied it. Circumstantial evidence is typically sufficient to prove access.

3. You must prove that the infringing work is substantial similar to the original, copyrighted work. Substantial similarity is determined using an “ordinary observer” standard: That is, would an “ordinary person” see the similarities between the original copyrighted work and the allegedly infringing work?

• Copyright infringement is a STRICT LIABILITY offense: Generally, regardless of the infringer’s intent, if the court finds unauthorized use of a work, the infringing party is responsible for any damages to the copyright holder. However, some infringements may be considered “innocent” and the infringing party may be subject to lesser penalties. Try to document your attempts to find the owners of any content you may wish to use.

FAIR USE: Not all unpermitted uses of another’s work are copyright infringements. In certain cases, reasonable uses of existing works are allowed. The concept of “fair use” exists as part of copyright law as a defense to a charge of copyright infringement. Fair uses include using preexisting work for purposes of parody, criticism, commentary, news reporting, teaching, scholarship, research, or “transformative use.” Fair use is often an issue with collage, parodies, and other derivative works.

FAIR USE FACTORS:

1. The purpose and character of the use.
Is the secondary use “for profit”? Generally, non-commercial works have more protection under fair use than uses involving profiting from the use of original work.

2. The nature of the copyrighted work.
The more creative and unique the original work is, the less the fair use defense applies to anyone using the original work. More generic works have less fair use protection.

3. The amount and substantiality of the portion of the copyrighted work used.
This factor uses quantitative and qualitative tests: How much of the original work was used and was the part that was used the most distinctive, valuable or central part of the original work? Generally, less use is best. Don’t use the “heart” of a copyrighted work..

FAIR USE MYTH: “If I only take (10% / 20% / 30%) of someone else’s work, it is fair use.” WRONG. There is no set percentage that is the dividing line between fair and “unfair” use. DO NOT rely on using any set “percentage” of a preexisting work, or by making any certain percentage of changes to the original work, however drastic. Even minimal amounts of usage can be infringing.

4. The effect that the use will have on the market for, or value of, the copyrighted work. For example, do sales of the secondary work hurt or replace sales of the original? Are the markets for the two products similar or overlapping? It never matters that the infringing user may actually increase or create a market for the original work.

5. Public interest: Some fair use cases cite an unofficial factor referring to whether or not the alleged infringer’s use was disparaging, obscene, or done with knowledge and willful disregard of the owner’s interest.

• GENERAL RULE: If you are in doubt about the fair use exception, seek permission from the copyright holder, perhaps obtaining a license to use their work.

THE PUBLIC DOMAIN:

As mentioned, copyrights have only limited terms. After their term of protection ends, all works eventually revert to the public domain. Public domain works can be used freely used for any purpose without obtaining permission from anyone. Included in the public domain are works not subject to copyright protection such as works with expired copyrights, works never registered under earlier laws, improperly registered works and all federal government works, with the exception of stamps, currency and licensed materials.

In order to determine whether or not something is in the public domain, check the date of creation. The copyright laws have changed greatly over the years and the date of creation or publication will determine exactly what law applies, not the current laws. The “safe date” is currently “frozen” at 1923. Anything dating before that date is generally considered to be in the public domain. Works from 1924 may be covered until 2019.

PUBLIC DOMAIN MYTH: “If I find it on the Internet, it must be in the public domain.” Often NOT true. Always get permission to use anything found online. Sometime people will offer images, music or other content that they have stolen or posted without the permission of the copyright holder, implying that the content is free for the taking. However, relying on the false statements of others does not create a fair use exception for your use of others’ creative work.

LICENSING AND SALES OF COPYRIGHTS:

View the bundle of copyright rights like a pie. Various slices (such as the type of use, length of use, exclusivity of use, territories of use, etc.) can be removed from this bundle and separately transferred or licensed to others. This allows the creator of the work to retain the remaining rights in their work, while generating income from smaller parts of the “pie” that they have sold or temporarily leased to others.

NOTE: All exclusive transfers of copyright must be in writing to be valid. The only exceptions are non-exclusive transfers, which may be done with verbal agreements.

DISCLAIMER: This outline is intended only as a very general overview of copyright law and should not be relied upon as personal legal advice. Every situation is different and the reader is advised to obtain qualified legal assistance for their specific, individual matters.