Published by Law360 on January 6, 2023
A recent Rolling Stone article by David Browne called “The Future of Classic Rock Tours: One or Two Surviving Members… Or None?” described how heritage bands like The Allman Brothers Band and Lynyrd Skynyrd continue touring — and generating revenue — even when one or more original members is retired or dead.
Continuing to tour is just one way to preserve a band’s legacy, engage with fans and generate income. In fact, bands and solo artists have many possible revenue streams related to intellectual property rights — the copyrights in their music and the trademark rights that arise from use of their band name.
Intellectual property assets can unexpectedly increase in value, even for bands that have long stopped touring. For example, the songs “Goo Goo Muck” by The Cramps, and “Running Up That Hill” by Kate Bush received second lives, and are generating royalties, decades after their original release dates, because of their use in popular Netflix series.
An artist may seem like a one-hit wonder or a band might stop touring. Savvy musicians should take care to manage music-related copyrights and trademarks, since intellectual property assets can live on for decades — especially in an age when technology has made it relatively easy to disseminate music, and create and sell merchandise.
Artists and their representatives would be well advised to audit their intellectual property rights, review band and publishing agreements, and register necessary copyrights and trademarks in order to be poised to capitalize on these rights and prevent infringement.
The people or entities who own the copyright in the composition of a song — the music and lyrics — and recordings of a song can generate royalties and licensing fees from numerous sources.
For example, the creators of a song earn royalties from record sales and streaming services, from master use licenses — when a song is used in a film, television show or commercial — and from grand rights licenses, when a song is used in a theatrical work.
In November, the 1981 song “Goo Goo Muck” by The Cramps, was revived in a fun scene in the new Netflix series “Wednesday.” According to Billboard:
In the week following the show’s release, from Nov. 25 to Dec. 1, “Goo Goo Muck” was streamed on-demand over 2 million times in the U.S. — a more than 8,650% increase … That adds up to $11,089.85 in a single week for the Capitol Records master recording and $2,492.33 in publishing [royalties].
Jim Shaw, the owner of the publishing rights in the track, told Billboard that the song’s revival has been a “funny little bonanza.”
Kate Bush experienced a similar increase in popularity last summer when her 1985 single “Running Up That Hill” was used in a pivotal scene in season four of Netflix’s “Stranger Things.”
In addition to revenues generated from the license, Bush realized revenues because of new interest in her work, and because streaming services like Amazon Music, Apple Music and Spotify promoted playlists that included not only the song used in “Stranger Things,” but her other music too.
In the U.S., copyright lasts for the life of the author plus 70 years, so the copyright in a song is a valuable asset for artists and their heirs.
In addition to copyright, artists and bands are increasingly protecting their names as trademarks.
A band’s name can be registered for numerous types of services such as live musical performances and all sorts of goods, including records, T-shirts, keychains and other merchandise. Unlike copyright, which expires after a certain period of time, a trademark lasts for as long as the mark continues to be in use, so trademark rights can exist for decades after a band stops touring.
Many performers and bands have protected their names as trademarks. Here are just a few examples:
- “Pink Floyd” is registered for CDs, records, posters, clothing, jewelry, bags, tableware, games, live performances by a musical band and more.
- “Elvis Presley” is registered as a trademark for postcards, notepads, posters, dolls, guitars, jewelry, records, beverageware, clothing, museum services, magnets, collectible plates, wine, entertainment services, bags, toys, keychains, shampoo and more. Keeping up with current trends, Authentic Brands Group LLC, the firm that manages licensing and marketing activities for Presley’s estate, applied to register “Elvis Presley” for downloadable virtual goods and NFTs. Though he’s been dead for 45 years, Presley’s estate is reportedly valued at about $500 million, and continues to find ways to monetize the Elvis brand.
- “Britney Spears” is registered for phonograph records and audio cassettes, jewelry, backpacks, barrettes, dolls, online retail store services, entertainment services and cosmetics.
- “U2” is registered for live musical performances, T-shirts, records, posters, CDs, podcasts and more.
Successful artists often seek to register brands other than band names as trademarks, in order to capitalize on their renown and generate new lines of business. For example, Lizzo has filed applications to register “100% That Bitch,” “The Big Grrrls” and “Twerk Out” as trademarks too, capitalizing on song lyrics and aspects of her performances.
Mariah Carey’s company, Lotion LLC, has more than 20 pending applications for trademarks she intends to use, including “All I Want For Christmas,” “Mimi,” “Curly Riah” and “Build A Bra.” Several of her trademark applications — “Queen of Christmas,” “QOC” and “Princess of Christmas” — were opposed by an artist named Elizabeth Chan, a Christmas singer- songwriter who asserted that she has been dubbed the Queen of Christmas, and that Carey cannot appropriate those names for herself. Many of the opposed applications were abandoned at the end of 2022.
Given the relative ease with which people can now manufacture and sell merchandise, registering a band name or other related name as a trademark can be a smart business strategy.
Trademarks can be used to generate an ongoing revenue stream, and to prevent third parties from free-riding on the goodwill developed by the band.
Determining who owns and can use a band name for performance is a complicated issue. When new bands form and are not yet famous, they likely don’t appreciate the legalities of choosing a name.
Savvy bands enter into an agreement that addresses various issues, including ownership of the band name. Such an agreement might provide that a leaving member forfeits their rights in the band name when they leave, or provide that a leaving member has to be bought out in order for the remaining members to continue using the name.
Not all bands have agreements, though, including Pink Floyd. When Roger Waters left the group in 1985, he famously sued the remaining band members to prevent them from using the Pink Floyd name without him. He lost.
In addition to protecting band members’ rights in band names, Congress attempted to enact legislation a few decades ago to protect consumers from being confused about band names.
In 1999, the Truth in Rock Act was introduced in Congress. It was spearheaded by Jon “Bowzer” Bauman, who hosted a television show in the late 1970s called “Sha Na Na,” and was frustrated with knock-off groups using the Sha Na Na brand. The Drifters and The Platters were also advocates for this law, since they were fighting against infringing musical groups.
The legislation provided that the name of a famous musical group could not be used by a group of performers unless the group included at least one member of the original group. Although not passed by Congress, similar legislation was adopted by many U.S. states.
Owning a trademark registration would have been another way for bands and brands like Sha Na Na, The Drifters and The Platters to have protected themselves — if the bands themselves owned their names, they would have had claims for trademark infringement. Interestingly, “Sha Na Na” was registered as a trademark, but was not renewed, so the registration was canceled in 2017.
Bands and solo artists are primarily concerned with the creation and distribution of their music. They should also be business minded from the get-go, so that they clear the path for long-term monetization of their IP assets — their music and brands.
Band members should enter into a band agreement to address issues including use of the band name, ownership of copyrights and trademarks, and how IP assets will be exploited and enforced. This can help avoid future disputes if the band splits up or if a member dies.
Registering band names as trademarks in the U.S. and other countries is a good strategy to prevent infringement. Bands should also be mindful of IP issues when they negotiate deals with record labels and other parties.
For the lucky bands that develop significant followings and revenue, adopting a business-minded approach to the ownership and management of their intellectual property assets can help preserve and monetize the goodwill that lives in a band’s name for the benefit of the band members and their heirs.