Written By: André Carty
In this article, I will be outlining what is a trademark, why it is relevant in music and by the end of this article; you should have a clear understanding of the basics of trademark law and how to apply for a trademark of your own.
On the premise that the music industry is a business, and like any other business you may seek to register the business name you are trading in the industry which will, in turn, protect you and your brand against those who seek to corrupt it. If you are in the music industry, there is a strong chance you would have seen the symbol “®” everywhere, which indicates that the name/brand is trademarked. The mark offers the owner recourse if you or your brand has been impersonated or counterfeited. You have the right to reclaim your name on any website including social media or at the very least to have any replicas shut down.
The legal definition of a trademark is outlined in Section 1 of the Trade Marks Act 1994 as: “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.” Trademarking is not to be confused with copyright despite both offering protection to the creator of artistic work.
The distinction lies in the level of protection, particularly as a musician. Copyright is protection awarded automatically to creators or owners of original pieces of work, whilst trademarks are strictly registration of artistic work to show the distinction and identification of a particular business or artistic work from another. Trademarks are applicable across all industries. So depending on your musical aspirations it’s worth noting that copyright lasts a lifetime irrespective of how active you are in the industry whereas trademarks last ten (10) years provided that you are active in the business to maintain eligibility. Additionally, your activity will be beneficial when it comes around to renewing your trademark.
Just to be clear there is no legal obligation for you to protect yourself. However, if you have dedicated time, effort and money to curate thousands of followers, strong brand recognition and a platform to promote your music then your craft is worth protecting, as your musical catalogue grows with time and so does its value.
In 2018 the UK artist group Section Boyz did an interview on NFTR. The hit project Don’t Panic was a huge success debuting at #3 in the UK Chart and remaining in the top 40 during the first week. They explain their name change from Section Boyz to Smoke Boys and how it came about. In short, while they were busy in the studio recording focusing on the music, someone had registered the trademark ‘Section Boyz’. Consequently, the group was entangled in litigation with intellectual property barristers going back and forth for years over the said name. Since the group is now known under a different name as a result of the foregone litigation, they cannot go by ‘Section Boyz’ anymore as someone had beaten them to the registration mark. Consequently, they have to start rebuilding the brand. The reality for artists is that the sooner you are protected the better to avoid such calamities.
Can you imagine building your name, branding yourself and growing your fan-based all for someone to force you to change your name? It could confuse fans, misdirect streams and ticket sales or even worse an artist is involved in a scandal that results in you getting cancelled innocently. The sooner you protect yourself the better to avoid such pitfalls.
Is trademarking for everyone?
Early protection is prudent but before starting you should give some consideration to the following:
- Your career ambitions – Not everyone wants to be the next Digga D or Adele or DBE. You may want to consider teaching and helping the local community or performing sporadically so it may not be suitable for your needs.
- Group or solo artist. Depending on which one you decide it may be worth trademarking the group or just yourself.
- Trademarking involves costs and even lawyers.
- The uniqueness of your name. This can work for you in the beginning as trademarking may not be imperative if you self manage and plan to keep a low profile career. However, if you are selling apparel and have a large volume of streams and high profile album plus website then trademarking is a must.
- Your position. Are you the pianist or drummer or guitarist? Perhaps then trademarking your name would not be useful. You could perfectly conduct business with your name as many do in the industry.
- Further things to consider is the location which is vital in the world we live in now where an international booking is a direct message ‘dm’ away. Does my trademark protect me internationally? And If I want that extra international security how would I begin?
At this point, you should have a basic understanding of the relevance of the law in music and after careful consideration; you have your answers to the 6 questions above. Now let us see how it can work for you and give you or your artist the protection that is needed.
Where do I begin:
- Choose a name and Check.
Before going through the effort of trademarking your name it is worth running a check. Let’s begin with UK registration. There is a search tool on the government website which can be found at https://www.gov.uk/search-for-trademark. This is to ensure that the name is available for use. You may want to exercise further checks for other artists using similar names and their following to prevent them from challenging your trademark if they see fit due to their audience.
- Pick a location
Location is vital. In the digital age where a booking can come from a ‘DM’ on social media, it is worth considering international registration. Registration in the UK does have its limits. American courts may not respect the UK trademark to protect your name; you must register there for the courts to honour your trademark. Due to the Madrid Agreement, you may not need to register in every single country.
- Registration Stage
Once you have completed the checks and are satisfied that no one poses a threat to challenge your name then the registration stage can begin. During this time you will not be able to change your trademark so be certain of your name. Remember the legal definition, you must ensure that your name meets that criteria and specifically the right class for your purpose which is also crucial. If you choose the wrong class your trademark is worthless. That being said, the class that usually applies for artists and musicians would be under ‘category 41’. They would be relevant to your publishing, recording, printed music and live music, to say the least. The application process takes four months, during this time people have the opportunity to challenge it. It would be wise still to enlist the services of an intellectual property rights lawyer to help as you make your application since you can only apply once and choosing the right class can be abstruse. You may make similar applications however they can be an arduous process. Once accepted then and only then you can make your international application.
- Costs involved
There are costs involved with this process: first, you pay £100 initially, plus £50 for each additional class. You’ll then get a report telling you if your application meets the rules. If you want to instruct a solicitor you can however kindly bear in mind their fees will be considerably higher. The international trademark fees are structured differently according to how many countries you seek to be protected in. In addition, the 10-year duration will still apply and can be renewed simultaneously with the UK application.
Trademark your name only?
In recent years producers have become just as notable as artists with taglines such as ‘m1 on the beat’ or ‘we got London on da track’ or Tion Wayne’s infamous ‘mmm-hmm’. Producers should think about trademarking their music also as many can profit from your brand that you worked diligently to craft. Imagine if someone is making £5,000 a month on Depop from selling apparel with your tagline on them it can be damaging to your brand especially if those products are associated with poor quality.
You can trademark almost anything within reason sounds included so long as it suffices the legal definition. It is important to note that you cannot trademark a name or lyric that you are about to use, trademark bodies frown upon this as many seek to collect and stockpile trademarks to limit others’ usage.
That extra cheque most artists miss out on
Frequently you might hear artists speaking on new hot topics on publishing, recording, printed music, lyrics and live music. This is because some artists are beginning to become aware of the many ways they can be paid for the same songs outside of royalties. For example, most refer to royalties concerning licensing music to be played whereas mechanicals are in relation to licensing music to sell it. Labels must pay to print the music and then sell it to the fans. They cannot simply take their copy and duplicate it multiple times without paying those who made the song. So they have to obtain licensing rights from the publisher, which is usually the same person who made the song. For instance, you are a writer as in the creator of the music and the publisher as in the licensor of the music.
You would get two streams of income one as the writer and the other as the publisher since the label/seller has to pay them every time the song is distributed. Artists often fail to see the importance of negotiating their publishing deals effectively which can mean you miss out on an extra income stream long after your career is over which could equate to hundreds of thousands or even millions.
This can be seen in the notable case of the Caribbean songstress, Sister Nancy with her infamous track “Bam Bam”. Conversely, Master P of No Limit records understood the business of the industry and ‘mastered’ it with respect to intellectual property rights such as trademarking and copyrighting. This was most notably said within the interview of Snoop Dogg where he credited Master P for teaching him many of which he did not know whilst he was with and after the then infamous Death Row Records.
To conclude, you should have a clear understanding of the basics of trademarking and its importance in music. You should also have the information to decide as to whether trademarking is worth having based on your position in the industry.