Intellectual property rights give musicians and artists control over their artistic works (music, sculptures, photographs, etc…) as well as their name and brand.
- What is the Difference Between Copyright and Trademark?
Copyright laws protect creative works, whereas trademark laws govern the naming rights and goodwill in the brand. Understanding the differences between copyrights and trademarks helps to ensure that creative works and brands are properly protected.
The USPTO is responsible for issuing federal trademark registrations, and it provides a forum to challenge trademark applications and registrations. It also provides policy guidance to the Administration on all forms of intellectual property, including trademarks and copyrights.
The U.S. Copyright Office, which is part of the Library of Congress, is responsible for registering copyrights and providing policy guidance (e.g., releasing a study on Copyright and the Music Marketplace). Several Circulars provide information on Copyright Basics (Circular 1), Registration for Works of the Visual Arts (Circular 40), and Musical Compositions and Sound Recordings (Circular 56a). In addition, the Copyright Office’s Compendium provides guidance on registering musical works and visual art works. For information about registering copyrights with the Copyright Office, please visit the Copyright Office website at www.copyright.gov.
- Registering Your Trademark with the USPTO
Although federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant's claim of ownership of the mark, legal presumption of ownership nationwide, and exclusive right to use the mark on or in connection with the goods/services listed in the registration. Further benefits and an overview of the application process are explained on our Trademark Basics page. Some issues that commonly arise when registering trademarks for musicians and artists are set forth below.
Ownership. Before registering a mark, it is important to decide who owns the mark. This may be an individual, a legal entity such as a sole proprietorship, a corporation, or a partnership. See TMEP 803.03. Although less common, several persons can jointly own the rights (see “joint applicants” TMEP 803.03(d)). In the case of a band, the members might consider who should own the trademark rights if something happens to the band. It may be helpful to consult a lawyer about these issues.
Identifying Goods and Services. The application must list the goods and/or services on or in connection with which you use or intend to use the mark in commerce. The application filing fee is related to the goods and/or services listed in the application. Goods are products, such as CDs or T-shirts or paintings. Services are activities performed for the benefit of others, such as live vocal performances by a musical band. Identifications that are often relevant to musicians are found in Classes 9 (e.g., CDs and downloadable audio files featuring music) and Class 41 (e.g., entertainment services in the nature of live vocal performances by musical bands). Artists may register in a variety of classes depending on the nature of their works (e.g., marble sculptures in Class 19 or wooden sculptures in Class 020 or custom paintings in Class 016) or services (e.g., custom art drawing for others in Class 041). The Acceptable Identification of Goods and Services Manual lists identifications of goods and services and their respective classifications that the USPTO examining attorneys will accept without further inquiry if the specimens of record support the identification and classification. Additional guidance is provided in the Trademark Registration Toolkit.
Registering a Name. Sometimes musicians and artists want to register their name as a trademark, including a stage name or pseudonym. If the mark appears to be a person’s name, then there are additional requirements for the application. If the name is an actual name (including a nickname or stage name) of any living individual, then the person’s consent to the use and registration of the name must be included in the application file. See TMEP 813 & 1206.03. If the mark does not refer to a living individual, but could be interpreted as a name (e.g., a band name that looks like a person’s name), then a statement that the mark is not a living individual must be in the application file. See TMEP 813.01(b).
In addition to the consent requirement, applications seeking to register a performer’s name as a trademark must include evidence that the mark appears on at least two different works (e.g., multiple CD covers). See TMEP 1202.09(a). Applications seeking to register a name as a service mark must show a use in connection with the service, and not merely the artist’s name or the name of the group. See TMEP 1301.02(b). However, an artist’s name or pseudonym affixed to an original work of art (sculptures, paintings, jewelry), need not show use in connection with a series. See TMEP 1202.09(b).
- Other Considerations for Musicians and Artists
A federal trademark registration is valid throughout the United States. Trademark rights outside the United States are protected according to the laws of the respective country. In some cases, a registration is required for trademark protection. Trademarks registrations may be filed either directly in the respective country or, where applicable, via the USPTO using the Madrid Protocol. An attorney may provide additional guidance on international protection.
Although copyright protection is “territorial” in nature, which means that copyright protection depends on the national laws where protection is sought, most countries are members of the Berne Convention on the Protection of Literary and Artistic Works and/or the World Trade Organization, which provide important protections for foreign authors. Under these agreements, a qualifying foreign work generally must receive the same protection as a local work. This bedrock principle of international copyright law is called “national treatment.” International copyright agreements also set forth certain “minimum standards” of copyright protection. For example, copyright holders have the right to be protected without formalities such as registration.
For additional information about international copyright protection, see Circular 38a, International Copyright Relations of the United States from the Copyright Office here.
In addition to registering trademarks and copyrights with government offices, registering with private (non-government) performing rights organizations (PRO) and other collective management organizations can help ensure that musicians and songwriters receive payment. Different PROs handle different rights for different types of artists. For example, the performance rights in musical works are licensed by the PROs ASCAP, BMI, SESAC, and GMR. Statutory licensing fees for the non-interactive digital performance of sound recordings in the U.S. are distributed by the PRO SoundExchange for featured artists and copyright owners. AARC distributes the Audio Home Recording Act royalties to featured artists and copyright owners. The AFM & SAG-AFTRA Intellectual Property Rights Distribution Fund collects the non-interactive digital performance license fees, as well as the Audio Home Recording Act royalties, for non-featured artists. All of the organizations mentioned in this paragraph have reciprocal agreements with similar organizations in foreign territories and will collect and distribute the U.S. stakeholders’ royalties from those countries.
This is provided for informational purposes only, and reference to any specific organizations, corporations, or websites does not constitute the USPTO's endorsement or recommendation.
Domain Name Registration
The USPTO does not register domain names, although it does accept applications for trademarks that include top level domains (e.g., “tmarkey.com”). For information about these types of trademarks, see TMEP 1209.03(m).
ICANN, the organization responsible for administering the domain name system, publishes a beginners guide to domain names.
Can You Recommend a Lawyer to Help Me?
Musicians and artists may want to consider using private legal services. In addition to the general information about hiring a lawyer provided on our website, Volunteer Lawyers for the Arts (National Directory) provides a list of volunteer lawyers programs throughout the country. This is provided for informational purposes only, and reference to any specific organizations, attorneys, law firms, corporations, or websites does not constitute the USPTO's endorsement or recommendation.
- Volunteer Lawyers for the Arts (National Directory) (External Website)
- Acceptable Identification of Goods and Services Manual (ID Manual)
- Trademark Basics Website Links to online trademark registration, search, status, policy and procedures and other favorites for potential trademark registrants
- Just Starting Out Inventors Resources - important information for potential trademark applicants