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TWITTER, FACEBOOK, TUMBLR AND A HOST OF OTHER SITES provide no shortage of free and easy avenues for bands to instantly upload content and receive feedback. Yet it remains important to keep a traditional band website as an anchor for remote sites and to potentially protect your legal rights. From securing a domain name to a web development contract, the law seems to creep into each and every aspect of your site. As a musician, here are a few things to keep in mind.
Domain Name: You are likely to select a domain name close or similar to your band name (i.e. bandnamemusic.com) because these are generally the safest bets in terms of branding, recognition and ease of remembrance. However, mere registration does not create trademark protection and may possibly infringe on another party’s rights where the name is already in use by another entity (for a guideline to trademark “use” issues, see February 2011’s “Legal Pad”). Essentially, the general test is whether the site’s name might confuse consumers, leading them to a site with the expectation that certain desired products or services would be found there when, in fact, they’re not. While there is some disagreement among courts regarding application of traditional trademarks as applied to the Internet, your best bet is to stay safe early on and avoid disputes at the outset (i.e. brothers Mike, Tom, and Vinny will want to avoid calling themselves MTV and purchasing MTVband.com, even though that site is currently for sale). Just because you have no problems with your domain name in the early days does not mean you’re in the clear. Be forewarned that the moment real money starts coming in, so will the disputes over any potential claims.
If the domain you want is already taken (or you believe your rights are being infringed upon), InterNIC (www.internic.net) is a good place to start. It has public information on Internet domain name registration and provides potential methods of access to domain owners.
Development Contract: Once your domain name is determined and you’ve registered with a reputable company (godaddy.com and register.com are safe bets), it’s time to hire a developer to build your site. Disputes with web developers are not rare and you may need two or three to get the job done right. To ensure you are on board with the same creative vision at the outset, here are a few items to consider:
Timeline: a basic, generic or template site may take as little as a week to complete, while a more involved and technically challenging site could take a month or more. Turnaround is also based on the skill level of your designer and the amount of other projects he or she is working on. Try to get a final completion deadline and, like all of the terms discussed, get it in writing.
Cost & Payment: Cost of your site will vary widely depending on originality, page numbers and the time required to develop it. Your contract should spell out an hourly rate, flat fee or some combination of the two. You should also decide whether you want to retain the designer post-project to update the site. If your flat fee is a substantial amount, you may want to stagger payment based on completion, with a final sum due upon delivery.
Specifications: Whether to take the “hands on” approach or to let your developer run with it is a matter of choice and trust. Make sure you get the direction and creative control in writing. If you plan to provide the developer with sketches, artwork, fonts and layout, put it in your agreement. Problems emerge in the gray areas.
Site/File Ownership: You’ll want to make sure that you have full ownership rights to the site and all of the content contained within. Make sure that upon final payment you receive the design files that back up your site. These are important for ownership and editing purposes.
Assignment: Whether or not you want your developer sub-contracting (or “farming out”) the work should be included in the contract. Farming might be advantageous to some groups looking to the developer to simply oversee the project and keep costs low. However, some developers may simply have others complete sub par work for a portion of the price and pocket the difference. Your developer’s portfolio should speak for itself.
Content: All of the material on your site, from photos to text to audio to copy, needs to be clear of copyright issues. Have a “warranties and indemnities” clause in the agreement whereby your developer guarantees that no copyrights or trademarks were infringed upon. This will protect you against claims if any problems arise in the future. If you are creating a site on your own, remember that just because an article or photo is not credited does not mean it’s not protected under copyright law.
Remember, these are simply the basics. There are a slew of new, online legal issues being presented on a daily basis. Keep yourself posted on emerging developments and get in touch with a trusted professional when problems arise.
Adam Barnosky is a practicing attorney and writer specializing in entertainment law and business development. He has worked with musicians, actors, and playwrights in Boston and New York City. Find him at adambarnosky.com
DISCLAIMER: The information contained in this column is general legal information only. Any use of this column does not create or constitute an attorney-client privilege. Consult your attorney for all specific considerations.