Tuesday, October 16, 2012

Music and Trademark Law: Who Owns a Bands Name?

This is not legal advice. Leave audio feedback at (512) 686-6329.

Sorry it’s been awhile since my last post. Some overlapping midterms got in the way. Before addressing infringement in music production I thought I might discuss trademark issues in band names.

Doug explained that music mostly deals with copyright law. For the most part that's true. However, one dispute sometimes arises in the music world that falls within the domain of trademark law is who owns a band’s name.

A band’s name is protectable under trademark law because it is used in commerce to identify where a good or service comes from. The general rule for who owns a trademark is that the owner is the person who controls the nature and quality of the goods or services. In terms of who owns a band name this can get rather complicated because of two unclear issues: what exactly does a band sell? And who controls the nature of the goods or services?

In 1986, the District of Massachussets decided the case of Bell v. Streetwise Records. The case dealt with the band New Edition. After being discovered and mentored by a producer in the music industry, New Edition was able to become a commercial success. After releasing a few albums, the band decided to switch labels. The dispute reached the district court because both the original record company and the band wanted to use the name New Edition.

In deciding the case, the court had to determine what exactly a band sells. The court discussed whether albums or concert performances were the primary good or service identified with the name New Edition. A determination of the album would have favored the record industry because music producers are more involved with record production compared to live performance. The court decided to combine the two and identified New Edition relating to the overall entertainment services the band provided.

In determining who controlled the nature of the entertainment services, the Court looked at the band’s history. Before being discovered, the band members could not read or write music. The music producer played five instruments at a time during the bands early performances. (I’m not entirely sure the judge completely believed this claim, but he did put it in his opinion.) The court ultimately found that it did not matter how much help the band needed to get off the ground because the band members are ultimately, what consumers think of when they hear the term New Edition. The court awarded the band the use of the name.


  1. This is why it's important for bands to work these issues out BEFORE it becomes a problem. Of course most bands never think they'll get big enough to have to worry about this type of thing so it ends being decided by the courts in the end. A simple trademark registration in the early stages can save a lot of trouble though. A band's name can be considered to be the same thing as a company name or product name. I had no idea how important these issues were until recently when I launched my own business but I found a great resource for info on http://trademarkshop.ca

  2. Anonymous08:53

    I'm guessing the 5 instruments at a time claim meant on the record. Meaning that the producer played (let's make up instruments) the keyboard part, the sax part, the guitar part, the bass part and the drums all on the record. Not literally at the same time. I haven't read the opinion, so I can't say if this is accurate, but that's my guess just reading Brian's article.

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