Use of artiste's name in tribute band name

[Kev999]

We are forming an amateur tribute band to a well known musician.
If, for example, the musician's name was "Johnny Cash" and we called our band "The Johnny Cash Project" would that be allowed?

 

[Taxing Matters]

You may well find yourself facing trademark infringement or right of publicity lawsuits by the famous artist in question if you do that. If the artist is dead, his/her estate may still hold a trademark in the name and it may sue you. I think you'd do better to come up with a name that does not include the names of real people (other than those in the band), names of businesses, or other readily recognized names.

 

[quincy]

We are forming an amateur tribute band to a well known musician.
If, for example, the musician's name was "Johnny Cash" and we called our band "The Johnny Cash Project" would that be allowed?

Where are you located, Kev999?

Tribute bands have two major areas where they face legal risk - copyright infringement and trademark infringement.

To avoid copyright infringement, the tribute band must play only licensed music. The licenses are available to the bands through performance rights organizations (ASCAP, BMI, SESAC) or the tribute bands can perform at venues that are licensed.

You do not infringe on the music copyrights if you are authorized to use this music, in other words. The permission to use the music comes with the licensing of it.

Trademark law centers on consumer confusion. Another band’s trademark (name, slogan, logo) has established value in its music and its image - which is why you want to pay tribute to the band - but these trademarks must be handled with care. You cannot promote your own band in a way that makes consumers believe you are the original band. You must take care not to dilute the value of the original trademark. And you must avoid infringing on the publicity rights held by the original artists. You should not use their names or images in your promotional material or performances without permission from the original artists/musicians.

That said, you can use trademarks in a descriptive way. As a tribute band, you must use the name of the original band so consumers know who you are paying tribute to but, because you are NOT the original band, you cannot identify yourself by their name.

For example, you could call yourself “The J.C. Band” and promote it as a band paying tribute to Johnny Cash and his music. You cannot call yourself Johnny Cash because you are not Johnny Cash.

Because specifics matter, you will want to discuss the real names and all facts with an IP attorney in your area.

Good luck.

 

[FlyingRon]

I agree with Q's posts on trademark. His information on copyrights as it applies to live music was a bit overly simplified.

As pointed out, the owner of the music copyright needs to provide license to any music. Just about any song published after 1924 is protected. For example, Alfred Brumley's I'll Fly Away (which Johnny Cash used to sing) is still protected. In fact, there was a federal lawsuit between the heirs not long ago on this one.

Now copying is in several forms. It covers not only making copies of existing recordings, but also audio recordings (called phonorecords in the law, whether they be vinyl,CDs, tapes, or digital downloads) of you performing someone else's work, but also all public performances (such as playing in bars and othe concert venues), being played on the radio, or being used behind movies and TV shows.

The copyright owner is usually (for mainstream music) a music publisher which often was aligned with the record company, but things are heading away from that.

All of these have individual license schemes. The right to make audio copies is called a "mechanical license." Once anybody makes a phonorecord, there's a provision in the law called a compulsory license that requires the owner to allow you to make your own "cover" of the song. You have to pay this to the owner. Most of the mainstream industry has authorized a company called "The Harry Fox Agency" (www.harryfox.com and its related site songfile.com) to collect the mechanical license fees for them.

To do public performances, either live or on the air, the venue (be it the radio station, the bar or concert hall, a background music service, websites, or in some cases a university) contracts with one of the Performance Rights Organizations. For most of these there are blanket licenses that cover all music represented by that organization. The big three PROs in the US are ASCAP (www.ascap.com), BMI (www.bmi.com), and SESAC (www.sescac.com).
Note that your individual performance (you as the JCP) will want to be represented by one of these.

If you want to embed the music into another performance (a theatrical work, a movie, TV show, even a commercial), you will need to obtain synchronization rights. These are usually individually negotiated. They are without compulsory or blanket rights arrangements. There are special organizations (music clearance) that specialize in running down all the rights you'll need for these.

 

[LdiJ]

We have a concert series here in Central Indiana every summer and quite a few tribute bands are part of that series. Many of them call themselves (for example) "Johnny Cash Tribute Band", while others will title their show " A Tribute to Johnny Cash" with their band name in very small letters underneath. I would suspect however that the ones who call themselves "Johnny Cash Tribute Band" likely have some kind of permission to do so. This is a large, heavily organized series and I doubt they would allow anyone to play who wasn't totally legit.

 

[quincy]

Here are links to three relevant cases that discuss in depth the factors looked at by a court when deciding if a tribute band/impersonator has infringed on the trademark rights or publicity rights of the original artist(s) or whether the use of the name and likeness of the original band/artist is a (nominative) fair use.

Apple Corps. v. Leber, 229 USPQ 1015 (Cal Super 1986):
https://rightofpublicity.com/pdf/cases/apple.pdf

New Kids on the Block v. News America Publishing, Inc:
https://m.openjurist.org/971/f2d/302/new-kids-on-the-block-v-news-america-publishing-inc-usa-new-kids-on-the-block

Estate of Presley v. Russen, 513 F.Supp 1339 (DNJ 1981):
https://h2o.law.harvard.edu/cases/290

It is important NOT to base the legality of use on what others do or have done. There can be licenses involved that permit uses or there can be legal actions pending against the user or the user may not have been discovered by the original artist(s) yet or the original artist(s) may not be the litigious sort (or weighed costs versus benefits).

 

[Kev999]

That is all tremendously helpful! Thank you so much. Greatly appreciated. (But not the answer we wanted to hear.....)

 

[quincy]

That is all tremendously helpful! Thank you so much. Greatly appreciated. (But not the answer we wanted to hear.....)

You are still able to have a tribute band. You just have to be careful how you handle the rights and reputation of the band you want to honor.

We all appreciate the thanks, kev999, so thank you. Good luck with your musical career.

 

[ChristieAndie]

We are forming an amateur tribute band to a well known musician.
If, for example, the musician's name was "Johnny Cash" and we called our band "The Johnny Cash Project" would that be allowed?

I don't think so. But if you do something in ironic sense, nobody will sue you.

 

[quincy]

I don't think so. But if you do something in ironic sense, nobody will sue you.

That is not exactly true. Although “parody” can be a defense used in a trademark or copyright infringement lawsuit, it does not prevent a lawsuit.

Successful parodies are difficult to create. The creator of a parody must be careful not to compete with the original affecting the market for the original, or dilute the value of the original, or defame/disparage the original, and cannot confuse consumers into believing the created work has any connection to, endorsement from or sponsorship by the original source.

Trademark holders are responsible for protecting their own trademarks from unauthorized uses. How vigorously they do this varies but some trademark holders are quite aggressive when it comes to enforcement of their rights.

 

[FlyingRon]

Christie is necroposting with the sole purpose of getting her thread count up so that she can spam other threads (which she has done and has been reported).

 

[quincy]

Christie is necroposting with the sole purpose of getting her thread count up so that she can spam other threads (which she has done and has been reported).

I know that. I reported one of her posts and saw that some of her other posts were reported.

This thread was not as old as others she responded to, though, so I thought I might as well correct her misinformation.