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Music is not your product. It can’t be. Consumers simply won’t pay for it—at least not like they used to. They want to stream it online. For free. And while they may listen to some advertisements along the way, the economics of music streaming services do not translate into big bucks for artists.
Smart musicians know that music provides artists with a platform to develop a relationship with an audience—more commonly known as a brand.
From a legal perspective, a “brand” is a combination of trademark rights and, for most musicians, the right of likeness or celebrity. And just like copyrights in music, these rights can be built, leveraged, sold, or licensed to others.▼ Article continues below ▼
A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of goods of one party from those of others. Service marks are similar, but they distinguish the source of services instead of goods. For purposes of this discussion, we’ll refer to both types of marks as “trademarks.”
GUNS N’ ROSES and BRUNO MARS are both examples of registered trademarks. The trademark laws would make it very difficult for someone else to create music—or other products and services—using the same marks.
Trademarks rights are created simply by using a mark. These are called common law rights. But you receive a myriad of legal benefits if you register a trademark with the United States Patent and Trademark Office.
Unlike copyrights, trademarks last forever—as long as you use them.
Band names, stage names, album names, certain slogans, and logos—among other things—can all be protectable as trademarks. However, before choosing a mark, it is very important that you conduct a trademark search to “clear” the mark. You cannot use a trademark that is confusingly similar to the mark of another.
The right of publicity (sometimes called a right of likeness) protects a person’s right to control or even profit from the commercial use of their name, likeness, and persona. The right of publicity allows a musician to prevent companies and individuals from using their identity to promote a product or service without compensation. In other words, your right of publicity allows you to stop a company from promoting a product using your name or likeness without your permission.
There is currently no uniform, federal law regarding your right of publicity. Each state has its own laws, and those laws differ from state to state. Some states may only protect celebrities, while other states protect any individual’s identity from commercial exploitation.
In some states, the right of publicity survives death. The duration of protection after death also varies from state to state.
A strong brand begins with a strong identity. What is your personality? What are your values? How do you speak, and what do you say? All of these things influence your audience, your connection with your audience, and ultimately, your brand.
Once you find your voice, you should consider the legal structure for your brand enterprise. Who or what will ultimately own the brand? If you have a band, will everyone in the band own and control the brand? What happens if someone leaves the band? Can the brand continue without them? A good lawyer can help you answer these questions and more.
Smart artists will use a holding company to own and manage their intellectual property rights. When it comes time to make merchandise or license the brand for other commercial purposes, it’s a lot easier and cleaner to structure the deal. But more importantly, when it comes time to negotiate with publishers, agents, managers, and record labels, you will have a clear picture of what you have already created and brought to the table, and you will be better positioned to negotiate your deal. If you assign intellectual property to a separate entity, make sure you understand exactly who controls that property and how (or whether) that control can change over time. Many great entertainers have lost control of their brands because they didn’t understand the deal when they signed it.
A word of caution: be very careful with your right of publicity. Some solo artists are the brand. Record labels or business partners may insist that you assign away your right of publicity so that it, too, may be commercialized. If you are inclined to do this, consider who will control your persona—and for how long. Be very careful of any deal that would purport to give control of your persona to a third party in perpetuity.
As you set out to build your brand, focus first on developing a core mark that can operate as a brand keystone. This can be a symbol (like the Grateful Dead Lightning Skull logo), a slogan, or a phrase. A good mark serves as the foundation for a larger brand strategy. Each additional mark that you develop should complement your core mark and allow you to build a cohesive brand.
Use social media to speak with your audience and grow your brand and persona. Place your brand in front of your audience whenever you can. Branded merchandise provides great marketing. A good brand is familiar. It reminds someone of you, your band, or your message. In time, you may find opportunities to leverage your audience through sponsored social media activity. And as your brand grows, you may find opportunities to license it in connection with products and services that speak to your audience.
As you leverage your brand in connection with goods and services, remember to register the relevant marks in connection with those goods or services. A mark registered in connection with music does not necessarily cover t-shirts or hats. You should also consider seeking trademark protection internationally. American pop culture plays well in other countries. Without appropriate trademark protection in those countries, it may prove very difficult to shut down unlicensed retailers of counterfeit products.
Commercial success in the music industry is now largely driven by the actions you take off stage. It takes time and energy to build a strong, recognizable brand. But the hard work can pay off. Strong brands are the envy of every commercial enterprise, and businesses will pay handsomely for the privilege of speaking to your audience.
main photo by Susanne Blech55, used under a Creative Commons license.