Industry Insider | Q&A: Michael Aczon

Oct 1, 2008 12:00 PM, By Mike Levine

THE CHANGING LEGAL LANDSCAPE FOR MUSICIANS

It's always been critical for musicians to understand the legal issues they face, no matter which segment of the music business they're involved in. A legally informed musician is more likely to be a successful one. As technology has turned the music business on its head in recent years, the legal issues musicians must deal with have evolved. To get a sense for some of these new concerns, I spoke with Michael Aczon (www.aczon.org), who is the author of The Musician's Legal Companion (Cengage, 2008) and who has spent the past 25 years practicing entertainment law (see Fig. 1).

What, in recent years, would you say is the most important issue that has changed for musicians legally?

Just as they have to do more themselves technologically and artistically, musicians now have to deal more with legal issues before they interact with other people. They have to cover their legal rear ends much the same way as they have to do their own artist development.

Why is that?

During the past couple of decades on the business, technological, and social sides of the music industry, you've seen consolidation of record companies and of media in general — and radio and television specifically — and a business that has focused more on distribution and promotion than on artist development.

What do musicians have to do these days legally that they didn't have to do previously?

The first is to secure their own trademarks. We've turned into a world of getting your name out there and establishing yourself as a trademark, or transferring the rights to establishing your trademark to somebody else.

You mean trademarking the band name?

Yes. People are putting their work on social networks, selling their stuff on CD Baby, [and so on]. And the next thing you know, you find out that you're infringing on somebody else's trademark because they were using the same band name as you for the last ten years. A lot of people don't do basic research to find out if there's some other band with their name.

Let's say there's a hypothetical band called the Dodos. They make a MySpace page and put their music up there, and then they find out there's another band called the Dodos that has already trademarked the name. Is that trademark infringement?

Yes, it is.

Just the act of putting up a page with that name would be considered infringement?

Yes. The presumption is that if you're going to use a trade name, you've researched that name before using it. Now, let's go to the legal and the practical. The legal side is that if somebody has gone through the steps to register that name — either federally or even internationally — and they continue to use it, then clearly they're not going to give that right up. On the practical side, here's some independent band that's spent a couple of thousand of their own dollars recording, and that's put their music on a Web site, or started selling it on, for example, CD Baby. The legal and practical side of this scenario is that the person who already owns that trademark can make the second band shut it all down, take the name off of their products, and change their name. To a baby band, that couple of thousand dollars and the time, effort, and energy to rebrand their band means something.

Can you register your own trademark, or is that something that has to be done through an attorney?

[You can do it] yourself, and the USPTO — the United States Patent and Trademark Office [uspto.gov] — has relatively easy-to-follow instructions. I like to say if you can install Pro Tools software on your computer, you can probably read through this well enough to do it on your own. Keep in mind, though, that just like installing Pro Tools, if you're doing it for the first time, it may be a trial-and-error process. So it's important to weigh if the possibility of doing it incorrectly makes you want to have an expert do it for you.

It requires doing a search first?

Exactly. And there are search engines. I'm not going to recommend any, but you can go online and find search companies.