After working with many talented songwriters over the years (and being a “songwriting hack” myself), I know that writers never know when or where a great song idea will materialize. To paraphrase one extremely talented writer I know, “Songs are just floating in the air and you have to grab them when you can.” Don’t count on remembering the next morning that perfect hook that comes to you in a dream. Take a tip from the Boy Scouts and “be prepared.” Commercially successful writers understand this concept very well.
Back when I still had delusions of writing that one big “evergreen” song and retiring to an island, I kept digital voice recorders (I know, I'm old) in my car and briefcase so I could capture my song ideas in an instant. Today, savvy songwriters can take this concept several steps further by establishing a multi-step digital songwriting workflow. Apple iPhone or iPad users can capture the basic elements of a song “on the fly” in the iOS version of GarageBand and later transfer the project to GarageBand or Logic Pro X on a Mac for more detailed production and sweetening. I have heard some impressive demos (and even released singles) that were produced in GarageBand, but the real power of this workflow is the ability to move files from the capture device to a more robust DAW ("Digital Audio Workstation," for those following along at home). Exporting GarageBand iOS projects into Apple Logic Pro X is a very streamlined process. Moving complete projects to other DAWs (e.g., Pro Tools) might involve a few steps, but is a far superior alternative to being forced to recut every track in the studio. Of course, DAWs also are available on non-iOS devices. It is a good practice to check the export functionality on any smartphone based DAW before download.
There are many resources available to take even the most technologically illiterate composer from "zero to demo" and beyond in no time. The point is, when that song comes into your head out of thin air, you need to get it down so you can remember that original inspiration. It might be enough to just jot on the back of your hand “that song about mountains,” but probably not. Having a way to record the nuances of your inspiration will make finishing your song much easier.
How successful are you as a musician? These days, that’s not such an easy question to answer. I know many songwriters whose idea of success is being offered their first songwriting deal. Sometimes I receive puzzled looks from these folks when I ask them why they define success in those terms. Don’t get me wrong, I don’t mean to diminish the significance of being offered a songwriting deal -- by a legitimate publisher, of course (which, contrary to popular belief, doesn’t necessarily mean a big publisher). Other musicians I know claim to have the seemingly simple goal of “just having my music heard.” Here too, I do not want to diminish the noble aspiration of contributing to the creative fabric of the world. However, most artists and songwriters I have known are at least equally interested in achieving commercial success (i.e., making a living through live performances and/or commercially released recordings as a writer, artist, or both).
What is the point of this post? Simply that you should take time to periodically evaluate and adjust your goals as a creative professional. Part of this involves defining what you consider success, a task for which only you are qualified. After all, if you don’t take the time to define success, how will you know when you achieve it? You may already be more successful that you thought.
In the first part of this article on building an effective brand for bands and solo musical artists, I discussed some basic marketing considerations. However, in addition to marketing issues, trademark and service mark development also requires critical legal analysis.
The failure to clear a band name before using it in commerce can come back to haunt a group, because under United States (and certain other countries) trademark law, one obtains rights in a mark by being the first to use it in commerce, rather than being the first to register the mark. Although it is impossible to be 100% certain that a proposed mark will not infringe upon an existing use of the same or a confusingly similar mark, one should always take steps to limit potential exposure to infringement actions. Even if a challenged mark is ultimately deemed non-infringing, the legal expense to get to that point can put most bands out of business. It is advisable to seek help early from an intellectual property ("IP") lawyer with trademark clearance and registration experience.
Most IP lawyers employ a two-step clearance process. The first step is generally termed the “knockout” or preliminary search, which incorporates searches of the U.S. Patent and Trademark Office (“USPTO”) records, websites, and other databases. Assuming that the knockout search comes back clear, an experienced IP lawyer will then employ the services of a third party search organization for a more robust "full" search in those geographic territories in which the mark is to be used. The full search typically expands the previously mentioned sources to state business filings, industry directories, and other proprietary databases. Obviously, this is a more expansive and more expensive approach to the clearance of a mark. However, the extra expense pales in comparison to the defense costs associated with a typical trademark infringement action or, even worse, the amount of an adverse judgment. It is also extremely difficult, if not impossible, to calculate the expense of goodwill lost when one must abandon a mark and develop a new mark "midstream" because of failing to properly clear the first mark at the outset.
It is also worth mentioning that bands should discuss and reach an agreement as to who owns the band’s marks, including the band name. Band name ownership is one of many issues that should be handled in a written band partnership agreement if the band is operating as a partnership or in a shareholder or operating agreement if the band is formally organized as a corporation or limited liability company (a/k/a an "LLC"), respectively.
In summary, although a band’s primary business is making great music, members should always consider the management of its IP assets, including the band name, to be a critical part of that business. Addressing clearance and registration issues early with legal counsel can help limit the risk of having to adopt a new name after spending valuable time and resources, or worse, having to change names completely and pay damages to another party because of infringement.
What’s in a name? Everything! Most people recognize the power that a strong brand carries, but few take the time to consider what a brand really is. Although not completely accurate, many consider “brand” to be synonymous with with “mark,” which Black’s Law Dictionary (7th ed.) defines as “[a] symbol, impression, or feature on something, [usually] to identify it or distinguish it from something else.” True, a mark is used to identify goods and services, but at its core, a mark represents all of the goodwill associated with a particular company, product, or service. Unfortunately, a mark can also conjure up the negative vibes that one might associate with the mark’s owner. But let’s focus on the positives.
Most successful entrepreneurs recognize that their trademarks and/or service marks (together with their other intellectual property or “IP”) are among their most valuable assets. I encourage bands, individual artists, and writers -- particularly those who develop their own labels and/or music publishing companies -- to do the same. The building of a brand takes time and requires careful planning. Therefore, I always recommend consulting legal counsel who is versed in IP law well before the adoption and use of any new brand (and yes, this includes the adoption of a band or stage name, hence the title of this article), as trademark clearance and registration issues are rarely straightforward.
Often, a band will begin performing under a particular name without first taking steps to clear the mark. In most cases, the band will labor in relative obscurity for a number of years, flying under the radar of any other groups that have adopted the same, or a confusingly similar, name (unless the other band undertakes the advisable practice of conducting periodic vigilance searches to detect and prevent the unauthorized use of its name -- more on this topic in a later article). However, for those talented and fortunate few, opportunities can arise that quickly propel the band onto the regional, national, or even international stage. Even bands without any appreciable commercial success can place themselves on the world’s stage rather quickly by building an Internet presence.
In the next installment of this two-part article, I'll discuss some more advanced considerations regarding band trademarks and services marks.
L. Kevin Levine is the founder of L. Kevin Levine, PLLC (go figure), a boutique entertainment, copyright, trademark, and business law firm in Nashville, Tennessee. A lifelong musician who grew up in his family's music store, it was inevitable that Kevin would build his legal career in entertainment and business.