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The Brand Is the Band

These days artists and bands, old and new, can make good money licensing their music to ads, movies, and video games. But the real cash cow is touring and playing live. This is particularly the case for older bands whose fans are used to spending money on music and have the money to do so. This has led to the phenomena where bands reunite to play shows and make more money than they did in their heyday.

Reunion tours without a reunion

While it’s a nice narrative to think of old friends getting to together to play for fans, it is more complicated than that. There are the usual gripes of “never appearing on stage again with that guy,” as well as deaths of band members or physical setbacks hindering members from being able to perform anymore.

An additional concern arises from questions about the ownership of the band’s name. Roger Waters gave up the band name, “Pink Floyd,” to his fellow bandmates, despite being the main songwriter and band leader. On the other hand, Axl Rose retained the rights to “Guns N Roses,” all for himself. Rights in the band name “Eagles” poses less of a problem, as there is only one surviving original member—Don Henley.

The confused fight for interest happens with ‘90s nostalgia acts as well, where musical groups like the Pixies or the Smashing Pumpkins are missing key members that were an important part of the bands’ identity. Indeed, sometimes the band has no original members. For example, Foreigner has been led by guitarist Mick Jones for years; but his bouts of illness have often prevented him from touring. Regardless of whether he is on stage, the band carries on as Foreigner.

Band name as the trademark

Band names may qualify as a trademark, which allows for ownership to be assigned by contract. Even if there is no contract, trademark law will apply in determining ownership of the band name. Depending on the facts and circumstances, the final original member may own the name, or even a manager who gained control of the band as original members were replaced by contracted musicians when they quit or retired.

While fans may cry foul with these so-called “counterfeit” bands, ownership of a band name trademark is not that different than the owner of a sports team. Players come and go, but the team carries on.

The brand and protecting it

Band names enjoy protection under trademark law because they represent brand names and service marks that allow a band to distinguish itself from other bands’ identities or music. Even if there is one or two (or zero) original members, the music played on any particular night represents the band’s identity and entertainment services, and carries over to certain merchandise, such as albums.

The owner of the band name is responsible for maintaining and protecting the trademarked name through licensing and continued use, whether it be promoting album sales or booking tours in the United States. Protecting the band name may also require the owner to take action against infringers who would “dilute” the brand through uncontrolled used of the mark, which could occur if former bandmates, or a completely different band with completely different music, identify themselves with the same name.

The general goal is to ensure that the consumer is not confused as to the source of the music and entertainment offered under any given band name. But intellectual property and trademark law can be quite confusing. Those with questions about band name ownership or other trademarks of creative endeavors are advised to speak with an attorney who handles trademark law and other intellectual property.

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