Protecting Your Brand

Wednesday, August 3rd, 2016

By: Molly Shehan 

Artists share their message with the world through artistic expression and ultimately their brand. An Artist’s creative viewpoint, lifestyle, and aesthetic cultivate a “brand” that allows fans to identify and engage with them. From an economic standpoint an artist’s brand has become an important profit generating asset. For example, the sale of merchandise and diverse licensing opportunities provide interactive means for fans to engage with artists through purchasing products and unique live experiences.  However, due to online marketplaces, print-on-demand services, and the ease of posting an artist’s image with non-related goods and services, there are many opportunities for an artist’s brand to be misused by others.

The core of every artist’s brand is their name, image and likeness. An individual’s right to control the commercial use of their name, image, and likeness is referred to as one’s “right of publicity.” The right of publicity is a state right and therefore the scope of protection and remedies available for misappropriating one’s name and likeness are subject to each individual state’s statutes and case law. The scope of protection granted under state law has a wide range. For example, states vary on whether the right of publicity continues after an individual dies or if the right of publicity extends to a group of individuals. However, the varying legal standards between each state’s right of publicity are supplemented by uniform copyright and trademark rights. While, trademark rights are acquired by use and copyrights are established at the time of creation, the scope of protection and remedies available for infringement of these rights are significantly increased with federal registration. Federal trademark registration in an artist’s name (and any related marks) and copyright registrations in any common designs or logos are important tools to protecting an artist’s brand.

Obtaining federal trademark and copyright registrations provides protection against misuse and dilution of an artist’s trademarks and copyrights and builds a stronger portfolio of creative assets. The federal act governing trademarks is known as the Lanham Act. Registering with the United States Patent and Trademark Office provides the registrant with the exclusive right to use the mark in connection with certain goods and services. Additionally, the Lanham Act provides protection against deceptive business practices such as trademark infringement, counterfeiting (both a civil and criminal offense) and cybersquatting.  Similarly, pursuant to the Copyright Act, artwork, pictures, symbols and design can be registered with the Library of Congress and, if infringed or misused by others, are protected by various causes of actions and remedies.  Building a portfolio of registered trademarks and copyrights allows artists to protect their brand against infringing uses, such as counterfeiting, and prepares artists to enter into licensing agreements with the knowledge that they own rights to their brand.

One common misuse of an artist’s brand is the sale of counterfeit goods. Today’s marketplace extends beyond selling merchandise at live performances and therefore counterfeit efforts have expanded beyond sales outside of venues at shows and festivals. While there are means to prevent the sale of counterfeit merchandise outside of venues and seize the counterfeit merchandise onsite under the Lanham Act, resources should also be spent monitoring online platforms. Online marketplace and social media websites are being flooded with counterfeit merchandise. Large online marketplaces such as ebay, Amazon and Alibaba can present a problem when large amounts of merchandise are printed in foreign territories and shipped to fans who believe they are receiving authentic merchandise. Additionally, many print-on-demand websites do not require users to verify that they are licensed to manufacture or print merchandise incorporating an artist’s name or image. As a result, there is a high amount of counterfeit merchandise that is inferior in quality and takes away from the sale of authentic merchandise.

Beyond the sale of counterfeit merchandise, it is important to monitor social media sites, fan sites, mobile apps and other websites to ensure that an artist’s name, likeness, trademark or copyright is not being used in way that creates the appearance of an endorsement. For example, it is easy for an artist to quickly become associated with a product or consumer brand with the use of hashtags containing the artist’s name, pictures of the artist, or images of common elements associated with the artist’s persona. Even websites such as Spotify can present issues if a Spotify “Branded Playlist” contains all songs from one artist and creates an association that appears to be an endorsement or sponsorship relationship.

As soon as an artist or artist’s team becomes aware of the misuse of an artist’s name and likeness, whether by another consumer brand or individual, or the promotion and sale of counterfeit merchandise, it is important to be proactive and strategically try to address these issues. Enforcement efforts require a strategic plan to analyze and remove the merchandise or misleading content. Not enforcing an artist’s rights in their brand dilutes and devalues a brand that has been strategically developed. Even worse, it can harm the relationship with fans who are misled as to an artist’s relationship with a particular consumer brand or purchase inferior quality goods that leave the fan disappointed.

Being passive with respect to managing an artist’s brand leaves room for missed licensing and sales opportunities and puts someone else in control of an artist’s creative and commercial identity.

Published in MusicRow Magazine (www.musicrow.com), June 2016