Most people know trademark and copyright law protect the intellectual property of creatives, inventors, and authors alike, but copyrights and trademarks are often confused for one another although they protect different types of assets and have different registration requirements as well. Foundational concepts of the entertainment industry are derived from copyright and trademark law as the industry is heavily based around the creation, ownership, and exploitation of intellectual property.
What is a Copyright?
Copyright law provides a set of rules to protect the ownership of certain unique works including, literary, dramatic, musical, choreographic, pictorial, sculptural, audiovisual, and architectural works which are fixed in a tangible medium. Copyright law affords owners exclusive ownership and protection of their intellectual property for the life of the author plus 70 years. Additionally, copyright owners are afforded 6 exclusive rights to their works which include the right to copy, reproduce, distribute, publicly perform, digitally transmit, publicly display, make derivatives, and protect the work from unauthorized use of third parties.
How are Copyrights used in the music industry?
Copyright is vital to the music industry because the industry is based upon ownership of certain creative works, primarily musical compositions and sound recordings. In the music industry, every song you hear is comprised of two copyrights. The first copyright is for the musical composition (the “song”) which consists of the music and lyrics. The second copyright is for the studio recorded track (the “master”) that we hear on Apple Music, Spotify, or the radio. The copyright for a musical composition is usually owned by the songwriters and composers who contributed substantively to the overall creation of the musical composition, while the copyright for a sound recording is usually owned by the party who paid for the production of the masters, usually the music artist or their record label.
Copyright ownership of musical compositions and sound recordings are integral to the music industry as the parties who hold these rights make significant income derived from the exploitation of the works.
What is a Trademark?
A trademark is any word, name, symbol, or device or any combination thereof used to identify products or services and to distinguish them from those manufactured or sold by others. Trademark provides federal protection for word marks or service marks. You can acquire common law trademark rights the first time you use the mark in association with goods or services for commercial purposes. However, common law trademark rights are not full protection and unfortunately without a valid federal trademark, you do not have a presumption of ownership of the mark, your rights are limited to your local geographical area, and you may not be able to prevent or otherwise legally prohibit a third party from using your mark as well. While you may acquire common law trademark rights for the use of a word, name, symbol, or slogan in connection with the sale of products or services, common law rights are also limited regarding an owner’s standing to bring claims in a court of law.
Once you federally register a mark with the USPTO, you not only gain federal protection of the mark, standing in federal court, but you also obtain the ability to seek statutory damages for trademark infringement as well. The first right pertaining to jurisdiction and venue allows a trademark owner to litigate the trademark infringement claim in federal court, rather than state court. Whereas a common law trademark owner has a high burden of proof for infringement cases, a federal trademark owner does not have such a burden as they have a presumption of ownership of the mark and the infringing party bears the burden to prove they did not in fact infringe upon the federally protected mark. Additionally, a trademark owner is afforded certain remedies, which may include monetary damages such as disgorgement of the infringer’s profits, statutory damages, punitive damage, and “attorneys’ fees” for “extraordinary circumstances”.
How are Trademarks used in the music industry?
In the music industry trademark law helps to protect music artist’s professional names, band names, logos, business names, and famous slogans and catch phrases.
Generally, entertainers register their personal and business names, slogans, and well-known phrases in connection with music, merchandise, apparel, and other related goods and services their brands might offer. Class 9 allows for protection of musical recordings embodied in CDs, audiovisual works, and sound recordings. Entertainers frequently register their marks in class 25, for clothing, hats, and other types of merch and apparel and in Class 41 for certain educational and entertainment services including, music companies, production companies, etc.
LA natives, Kendrick Lamar, Blxst, and the late Nipsey Hussle all have registered their names for federal trademark protection in connection with class 25 for clothing, merch, and other forms of apparel, but the three well-known west coast artists have also registered their mark in connection with other goods and services as well. For example, Blxst also registered his mark in connection with music production services in class 41, while Kendrick Lamar and Nipsey Hussle both registered their mark in connection with for compact discs for musical recordings and audio and video featuring music and artistic performances in class 9.
While copyright and trademark law protect different forms of assets, both concepts of IP are the foundation of the integral concepts of the music industry. Copyright and trademark law not only provide ownership rights for an artist’s intellectual property and brand names, but both concepts also govern how IP is assigned, distributed, and exploited within the entertainment industry. An artist’s comprehension of copyright and trademark law is integral to the overall protection and proper exploitation of their music, brand names, and entire catalog of intellectual.
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