By Christopher R. Chase, Esq. of Frankfurt Kurnit Klein & Selz, P.C
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THOUGHTS ON PATENT- ARE YOU (OR YOUR BOSS) PERSONALLY LIABLE DO DOCUMENTS GENERATED BY AN BASHING, OBVIOUSLY FOR YOUR COMPANY’S PATENT INFRINGEMENT? INVENTOR HAVE TO BE CORROBORATED? www.iptoday.com I. P. Today, 381 W. Northwest Hwy., Palatine, IL 60067 A Publication of Omega Communications April, 2007 $9.00 Volume 14, No. 4 By Christopher R. Chase, Esq. of Frankfurt Kurnit Klein & Selz, P.C. use of the artist’s brand by third parties. How the Band Protects Its Brand: Part II will present an overview of the use of trademark law in the music industry, including examples of artists that were The Use of Trademarks to Protect forced to change their professional name due to trademark concerns and a discussion of issues that are particular to group artists and Promote the Musical Artist in the industry. Part II will also focus on an additional tool that helps artists protect Third parties, including record compa- BY CHRISTOPHER R. CHASE, ESQ. OF their brand – state right of publicity laws. nies and advertisers, also want to be a part This Article advocates development of a FRANKFURT KURNIT KLEIN & SELZ, P.C. of that brand. For example, because the eco- useful trademark strategy to establish, nomics of the music industry are changing, Mr. Chase is an intellectual property and protect, and extend the artist’s brand, and record companies themselves are now in the concludes that the artist’s professional entertainment attorney with Frankfurt “music” business rather than the “record” name is a valuable commodity in the music Kurnit Klein & Selz, P.C. in New York. He business, as “music” includes much more industry and must be protected with the use can be reached at [email protected]. The than recorded music, such as touring, mer- of an effective trademark strategy. author thanks Marc Handelman, Brian G. chandising, and publishing.5 Many record Murphy and Alexandra VonHockman for labels are creating multiple-platform ven- THE BRANDING OF A BAND their insightful comments. tures with artists, as the labels are looking Artists in the music industry no longer beyond declining CD sales for new sources focus only on their live performances and This article was published as a two-part of revenue.6 EMI Music has been a big recorded music – they are now extending series in the March & April 2007 issues of player in this area, and has signed multiple- their art to a brand. The “band as a brand” 7 Intellectual Property Today. platform deals with artists such as KORN, concept operates on two levels. Not only are ROBBIE WILLIAMS,8 and the estate of artists themselves developing their own DEAN MARTIN in order to forge a number brands, but third parties frequently partner hat’s in a name? If you are an indi- of relationships “with artists around the with artists to help promote corporate brands vidual artist or group in the music world to oversee non-recording aspects of – thereby extending the reach of the artist’s W industry, there are numerous assets musicians’ careers.”9 Even more signifi- name from recorded music to other fields. within your professional name, such as cant, Rhino Entertainment has actually goodwill, commercial recognition, and taken charge of the complete GRATEFUL Artists Promoting Their Own Brand valuable intellectual property rights. The DEAD brand – exclusively managing the Much like Proctor & Gamble selling reputation and recognition of an artist’s band’s intellectual property portfolio, toothpaste or General Mills selling cereal, music is built around the artist’s profes- including the name, likenesses, and trade- the artist is also selling its branded product sional name, which is what consumers use marks, as a whole.10 Third parties see the – sound recordings and live musical perfor- to identify the artists they enjoy. value in artists’ brands and want to exploit mances. The artist’s name plays an impor- Traditionally, the artists’ name or logo iden- such value and recognition.11 tant role in these branded products. For tified their musical performances and Therefore, an individual artist or group example, if you liked MADONNA’s last recorded music, but now these names, and pursuing a career in the music industry album, chances are that you will purchase her next album based on the fact that it is increasingly, an artist’s logo, are doing should take the necessary steps to protect “Madonna” who released it.12 Artists, how- much more, a fact that has not gone unno- his, her or its professional name and logo in ever, are now selling more than just their ticed by the artists themselves.1 order to safeguard the “brand.” This pro- two core products. In the past, artists in the music industry tection can be obtained through the use of As artists need to find revenue streams generally only relied upon revenue from trademark law. Prior to diving into the music industry, an artist should develop a to supplement the royalties from their their recorded music and live perfor- trademark strategy – from choosing a pro- recorded music, selling merchandise mances. The landscape of the music indus- fessional name, logo, and other branding becomes a valuable tool and can become an try has changed, however, in recent years. elements to clearing and registering his, artist’s most reliable source of income.13 As artists in the music industry become her, or its trademarks. This puts the artist in Merchandise can be just as important to an more reliant upon ancillary streams of rev- a position to prevent others from using con- artist’s career as the music that the artist 2 enue rather than record sales alone, they fusingly similar professional names and creates, as it is both promotional and mon- must seek out other opportunities for trademarks, license merchandise, and etarily valuable. By creating merchandise, income and can use their names and logos avoid trademark infringement claims. In artists can turn their logos and names into to do so.3 Not only do artists want increased the ever changing music industry, an artist profits.14 In addition, not only does mer- income, they also want a broad amount of should have continuity in its name and logo chandise help an artist’s bank account, but consumer recognition – and can do so with in order to maintain the selling power that the promotional value in merchandise is non-recording activities,4 such as merchan- attaches to such property. invaluable – such as when a fan buys an dising or third party sponsorships. Artists Part I of this two-part Article discusses artist’s t-shirt and wears it around town or are now using their names and logos to the branding of an artist in the music indus- puts a sticker of the artist’s logo on a note- stand for more than just their music. Thus, try, from the perspective of the artist devel- book. Moreover, unlike their recorded the musical artist has become a “brand.” oping its own brand as well as the extensive music, which may be dictated to some INTELLECTUAL PROPERTY TODAY MARCH /APRIL, 2007 35 extent by the record label for which the goods and services with those of a popular or services,51 most notably TOM WAITS52 music is being created, one of the few areas musical artist in order to connect with that and JOHN DENSMORE of THE DOORS.53 that an artist can still retain stylistic and artist’s fan base or perhaps just to associate Thus, artists can use their own brand to creative control is with merchandising.15 their goods or services with hip, cool, or promote others’ brands. If the product of Take KISS for example. While many iconic artists.34 Using the artist’s name to the artist’s brand is hip, interesting music, artists in the music industry have used their form that association is very important for then third parties will want to trade off of name and logos to sell merchandise, no such third parties.35 that brand.54 At the same time, the artist artist may be more prolific in merchandis- Sponsorships or product tie-ins can be receives valuable commercial exposure for ing than KISS.16 The group’s name and mutually beneficial for both the third party its music. Certainly, in order to protect logos, as well as the individual members’ and the artist – the third party can associ- themselves, artists should try to retain some painted faces,17 have been used for action ate itself with the artist while the artist control over where their music, name or figures, clothing, comic books, condoms, often receives much needed monetary sup- likeness will be placed and how the rela- DVDs, board games, coffee, food, coffee port for tours,36 instruments, recording tionship between the third party and the mugs, beauty products, necklaces, stickers, costs,37 or necessities such as clothing.38 artist is established.55 puzzles, pinball machines, video games, Corporate brand partners can help launch credit cards, trading cards, lighters, and an album by providing marketing support THE USE OF TRADEMARK LAW TO even a custom-made coffin with band in return for having the artist’s music fea- PROTECT AN ARTIST’S BRAND imagery!18 In addition to their flamboyant tured in a commercial campaign.39 As discussed in Part One, musical stage performances, KISS’ merchandising Moreover, the line between corporate artists are becoming brands used to pro- prowess has helped them become one of the brands and artists may become more mote their own, and others’, goods and ser- most recognized names in the music indus- blurred, as a corporate brand may align vices.