Top Questions US Musicians Ask About Copyright, Trademarks, and Patents

April 2, 2018

In his column, AFM Legislative-Political Director Alfonso Pollard has discussed your union’s work with the musicFIRST Coalition to remedy inequities faced by creators under current copyright laws. The AFM and the coalition support key pieces of pending legislation designed to modernize digital copyright and intellectual rights laws, and enact copyright reform.

But how do copyrights and trademarks work? Protecting intellectual property through copyright and trademarks should be a part of every band’s strategy. Many musicians are unsure about how and why to copyright their songs and other artistic works and whether or not their band name should be trademarked. Following are answers to some of the top questions musicians ask US Patent and Trademark Office representatives.

What is the difference between a copyright, trademark, service mark, and patent? How do I know which I should be filing for?

A trademark is generally a word, phrase, symbol, or design, or combination of these, that identifies and distinguishes the sources of the goods of one party from those of others. A service mark is the same as a trademark, except it identifies and distinguishes the source of a service rather than goods. Both these “marks” are registered in the same way. So your band name and logo could be registered as a mark. A copyright protects an original artistic or literary work, such as a song or poem. A patent protects an invention, for example, if you’ve designed a unique type of capo.

How do I go about copyrighting my song (or other artistic work)?

Copyright protection arises upon creation of a work in a tangible mode of expression (for example, writing down notes, a series of chord changes, and lyrics). Registration with the US Copyright office is not required, but there are several advantages to registration. By registering your work, you have a public record of the facts of the copyright and have the ability to later claim statutory damages and attorney fees in the event of infringement. (Registration must occur prior to the infringement or within three months of the publication of the work.) The practice of sending the work to yourself, often referred to as “poor man’s copyright,” is not a substitute for copyright registration. Registration should be considered for all commercially valuable works. The US Copyright Office handles registration. For more information and detailed instructions visit www.copyright.gov/comp3/chap1100/ch1100-registration-multiple-works.pdf.

Will my copyright be protected overseas?

There is no such thing as an “international copyright” that automatically protects an author’s works throughout the entire world. Protection against unauthorized use in a particular country depends on the national laws of that country. Most countries offer protection to foreign works under certain conditions. These conditions have been greatly simplified by international copyright treaties and conventions. Generally, a US work may be protected in a foreign country if that country has entered into an international agreement with the US.

Do I need to register my band name with the US Patent and Trade Office in order for it to be protected from use by someone else?

No, mark rights in the US are based on use of the mark in connection with goods and services. However, trademark registration is required in almost all other countries. You are not required to be a US citizen in order to register your mark here. Federal mark registration provides notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods and services set forth in the registration.

How and why should I conduct a search before registering my mark?

Conducting a trademark search before filing an application can identify potential problems such as likely confusion with prior or pending marks. Searching the USPTO trademark database Trademark Electronic Search System (TESS) at www.uspto.gov/trademarks could save you the expense of applying for a mark in which you will likely not receive registration because another party has stronger rights to it. Also, if your mark appears as generic or descriptive wording in other registrations, it may be too weak or difficult to protect. The USPTO database only includes federally registered and pending applications and does not include state registries and “common law” marks that have not been registered. Before attempting to register a mark, you may wish to conduct a “full” search to include marks on state registries and common law marks and trade names. These searches are generally done through professional search firms with the results evaluated by trademark attorneys.

In the following months, our union will be asking you to contact your legislators to show support for important copyright reform legislation.

In addition to protecting your artistic creations with copyright, be sure all of your recordings are protected by AFM contracts.