You’ve heard of famous musicians suing other musicians over allegedly stolen music, and vice versa. They are rightly seeking to enforce their intellectual property rights in their original creation. If you have created original music and want to protect it against use by others, you’ll need to understand the intellectual property (IP) rights of music.
What happens if another performing artist uses your band name or logo, or something similar? You have intellectual property rights for these assets as well, and can protect them from infringement.
Is Music Intellectual Property?
What is IP in music? IP stands for “intellectual property” and yes, original musical creations are considered intellectual property and can be protected from use by others under intellectual property law.
There are four types of intellectual property: patents, copyrights, trademarks, and trade secrets. Patents protect original ideas or designs or processes. Copyrights protect creative works in tangible form. Trademarks protect a brand identity. Trade secrets are aspects of production, design, customer lists, pricing, and anything else about the dealings and operations of a business that give it a competitive edge and can be kept from general knowledge.
The two forms of intellectual property most commonly found in the music business are copyrights and trademarks. However, if for example someone invented an improved guitar pick-up, that might be patented. If a musician or band had a list of fans, or a list of contacts for performance venues, those might be trade secrets.
How Can I Trademark My Music?
Trademarks protect your brand identity, so if a snippet of music is identified with your brand, that can be trademarked. This is most often done by those who offer products and services readily identified with a “jingle,” or short musical work. Think of the commercial for State Farm Insurance: “Like a Good Neighbor, State Farm is There!”
A composer of musical works could be identified by a jingle, but would be more likely to trademark his or her stage name, band name, or band logo.
Is It Worth Trademarking Your Music?
Probably not, if you are the composer-performer and creating and/or performing music is what you do. For most original musical works, trademark is not the appropriate form of intellectual property. But trademarking the unique aspects of your brand identity, such as your name, the name of your musical group, and the combination of images, fonts, and colors that make up your unique logo, would be worthwhile.
Why trademark your brand? Your brand represents your identity and your reputation with fans and venues. If another performing artist uses your name or logo, or creates a name or logo similar to yours and uses it, you risk confusing fans as well as those who would hire you. If your competitor’s music is not the same style or quality as yours, you risk diluting your brand and hurting your reputation by allowing that infringement to continue.
You can protect your brand by trademarking it, and enforce your rights in court should someone use your mark or something too similar to it. This is important, because in the music industry, composers, performers, and producers all rely on brand reputation to make a living.
How Do I Trademark My Band Name and Logo?
You can register your band name, logo, and anything else associated with your brand with the U.S. Patent and Trademark Office (USPTO). Musicians typically register their trademarks under one or more of the following Classes:
- Class 9 for audio & video recordings;
- Class 16 for things that are printed, such as posters, stickers, and songbooks;
- Class 25 for clothing, and;
- Class 41 for entertainment services, online audio and video recordings and newsletters.
The registration process usually takes about a year from your initial application, and must be renewed every five years.
Copyright law gives the authors of original works a set of rights in those works. The authors/owners of the copyright can then transfer one or more of those rights to others, presumably for profit.
“Author” refers to the creator of an original work that preserves it in tangible form, such as a writing or a recording. An author can be a composer, a performer who records or transcribes an improvised work, a lyricist, or a lighting engineer that choreographs your band’s stage show.
The four rights the author of a copyrighted original work has are:
- the right to reproduce the work;
- the right to transfer the work;
- the right to perform or display the work, and
- the right to make new creative works based on the original underlying work.
These rights can be transferred by the author individually, or in combination.
What Happens If You Don’t Copyright Your Music?
The four copyright rights are not enforceable unless the author registers the work with the U.S. Copyright Office. This means that unless you copyright your music, anyone can reproduce, transfer, or perform your original music, or make new derivative works based on your original music, and profit from it, without recourse.
How to Copyright Your Music
Register your original music with the U.S. Copyright Office.
How Long Does Copyright Protection Last?
In general, copyright protection lasts for 70 years after the death of the author. In some cases, copyright protection lasts 95 years from the date of publication, or 120 years from creation of the work.
Which term applies depends upon whether the author was an individual or someone working for a company, when the work was created, and other factors which may require careful legal analysis.
We Can Help You Protect Your IP in Music from Use by Others
Protecting your musical intellectual property is protecting your income stream, whether it’s from performing, recording, broadcasting, licensing others to perform, record, or broadcast, songbooks, or merchandise. Contact us to find out how you can best protect your IP in music at (212) 837-2600.