By Joan McGivern and Sam Mosenkis, Attorneys at ASCAP.
What's in a band name? A potential legal battle if you don't plan ahead wisely. Here's the legal scoop behind naming your group.
An obligatory scene in almost every music-genre movie is the scene where the newly formed band gets together to choose their name. The drama, and at times comedy, of it aside, it is self-evident why one of the first steps a new band takes is choosing the band name. The name is the bands' identity as a group, used for pretty much everything it does, from promoting performances and recording albums to setting up a website using the name as a cyberspace address. As a current band member, it is essential to take a proactive role in securing ownership interests of your band's name.
According to U.S. trademark law, a band name is often considered a service mark, serving as a brand for your bands' services. Only those who have a legal ownership interest in the band's service mark may use it as an identifying brand. Therefore, without legal ownership, you can't tour or record under that name or even use the name for your website without the possibility of others in the band asserting their legal rights against you.
As a current band member the easiest way to secure ownership rights in your band name is by signing an agreement with the other band members specifying the ownership interests of each of the band members in the name. If the band goes bust or a member decides to leave, the agreement will set out exactly who has what rights in and to the band name. If the band has not set up an agreement regarding the band name, rights in and to the name may be controlled by the type of organizational structure of the band, for example, a partnership or a corporation, and eligibility for use of a band name depends on this definition. If your band has organized itself in such a way, an entertainment lawyer should be able to assist you in figuring out the rights any band member or ex-band member may have with regards to use of the band name.
If your band has been formed without legal formalities, and no written agreement exists, it is likely that an individual or minority group that leaves the band will not have ownership interests in the band name. In this case, the band name will likely be owned and controlled by a majority of the band who would be able to prevent the departing member from using the name. For example, in a three member band, if one member leaves the remaining two members control the use of the band's name, even if the departing member helped create the band.
However, even if your band dissolves or you quit the band and you find yourself without ownership rights in the band's name, you may still be able to use the name for the limited purpose of identifying yourself as a former member of the band. For example, in the recent case of Kassbaum vs. Steppenwolf Productions Inc., the Ninth Circuit Court of Appeals held that former Steppenwolf member Nicholas Kassbaum, aka Nick St. Nicholas, could refer to himself as a "former member of Steppenwolf" despite the fact that he had signed a contract agreeing never to use the name Steppen-wolf for any purpose whatsoever. Of course, your ability to use the band name would still be quite limited.
So, be careful and plan ahead! Defining in advance who has rights in and to the band name can resolve any problems before they begin. Otherwise, even a band's founding member or members may find themselves without the right to use the name they originated.
Many thanks to our legal interns, Rich Guidice, Corey Rudnick and Faith Tabafunda for their help in preparing this article.