Friday, May 29, 2009
Posted by The Dear Rich Staff at 8:41 AM
Thursday, May 28, 2009
Dear Rich: Our band is putting out its first CD and we are considering creating a record label to release it. What do you think? What's involved in creating a record label? Do we need a lawyer? I'm so glad you asked. You don't need a lawyer to form a record label and there's not that much involved in creating one, as I'll explain below. The bigger question is why are you doing it. One reason artists create labels is that they feel it gives some legitimacy to their release -- as if to say to the world, "see, somebody has signed us." If that's your prime motivator, don't bother. Your fans won't care and anyone in the music industry will be able to discern that you've just created a fictitious label for your release. However, if you're serious about building a small business around a series of releases (including other artists), then it might make sense to create a label.
Most importantly, and of greatest concern is money. Who will pay for the pressings and artwork? How will you finance promotion? Are you borrowing money to start up? Or are you seeking investments? Will you pay for recording costs? Can you afford to keep going when distributors are late paying you (or worse, go belly up)? All of these things are worth considering before you launch your music mini-empire. (Here's a quick lesson (PDF) on the flow of money in the music business!) If you're still eager to move forward, you'll need a name for your label and you'll want to make sure no other music or entertainment services are using a similar name. (In a future blog entry, we're going to explain how to perform basic trademark searches at the USPTO.) Next, if you're not familiar with basic business startup information, you might want to get a primer. That's because you may need to figure out your business form -- partnership, LLC, corporation -- and file a fictitious business name with your county clerk. You'll need to open a bank account and use an accounting system -- either an Excel Spreadsheet or Quickbooks should do. You may want to affiliate with an independent music distributor (here's a list by state) which may prove challenging, unless you have an artist that is already selling well. And you will need agreements for the distributor, for consignments, and for your artists (including your band). Digital copies of all these agreements are included in my book Music Law, and the Dear Rich staff reports that there other helpful resources for starting a label on the web. One of the more popular books on the subject is Start and Run Your Own Record Label.
Posted by The Dear Rich Staff at 8:43 AM
Wednesday, May 27, 2009
You can review some of this information on your own. For example, societies such as HFA, BMI or ASCAP should be able to verify whether your Dad is listed as a songwriter. If your Dad was a union musician, he may be entitled to payments from the Sound Recording Special Payments Fund. If your Dad signed recording or management agreements, you need to review them to determine how payments are to be made (and to see whether they expired). You may also need to track the change in ownership of the record labels as the business has been in turmoil during the past 15 years. (And, finally, there are Sound Exchange payments from digital broadcasting as discussed in a previous entry.) Ultimately, you may need to hire an attorney who specializes in tracking down payments or hire one of the companies that specialize in these types of investigations (although we have not tried their services and cannot vouch for them).
Posted by The Dear Rich Staff at 8:46 AM
Tuesday, May 26, 2009
You can find out whether SoundExchange is holding money for you by checking the list of unregistered artists . If you don't see your band here, then Sound Exchange is not currently holding a check for you.
Posted by The Dear Rich Staff at 8:47 AM
Monday, May 25, 2009
In order to make your music available on iTunes and at other download spots such as Rhapsody and Amazon MP3, you'll need to affiliate with an online distributor who will take a portion of the proceeds. This article explains the basics for joining with one of these distributors (our favorite is CD Baby). If your band is covering songs by other artists you should also pay for a mechanical download license from HFA. The basics are explained in my book Music Law. Considering that 95% of the music that's downloaded is illegal, you'll need a full-time legal staff (no, the Dear Rich staff is not available) to prevent illegal downloads. Your daughter and her band have copyrights in the recording, and whoever wrote the songs has a separate musical works copyright. Registration isn't required but will help once your daughter's band goes big time (and you need to chase the bad guys).
Posted by The Dear Rich Staff at 8:58 AM
Friday, May 22, 2009
By the way, thanks to patent attorney Robert Plotkin for his help with this answer. Robert is the author of the new book, The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business, and we'll be featuring excerpts from an interview with him in the future.
Posted by The Dear Rich Staff at 9:01 AM
Why so proprietary if it's in the Public Domain?
If the manuals are in the public domain, you may wonder why the owners are being so proprietary. That's often because they either don't know the status, or they do and they're attempting to leverage their "ownership." The Dear Rich staff ran into a similar problem a few years ago with the "owner" of some 1930s cartoons resulting in a nominal fee being paid (not the exorbitant fee being requested) in order to acquire a good digital version of the original work for reproduction. All this effort may not be necessary once the Google Settlement is finalized, since Google plans to digitize and display every word ever placed into print. (Some newer Audel manuals are already available.) Anyway, we're not sure why the companies think that publishing these manuals is cost-prohibitive. Guess they've never heard of POD.
Posted by The Dear Rich Staff at 9:00 AM
Getting a Grip on Trademark Strength. Trademark strength is a measurement of consumer identification. A weak mark requires more effort to register. One factor in determining strength is the meaning of the words, something that the punctuation is unlikely to affect. The same is true for the way the mark sounds. That's why Shake 'n Bake isn't stronger than Shake and Bake. One TTAB ruling said that "the addition of punctuation marks to a descriptive term would not ordinarily change the term into a non-descriptive one." Punctuation also failed to save the day for a generic term. (The TTAB acknowledged that punctuation in an acronym "lends a visual distinction ... ") We haven't seen your mark, but the Dear Rich staff advises that unless the punctuation adds a distinctive meaning or sound, you shouldn't rely on it to bulk up your trademark.
Posted by The Dear Rich Staff at 8:59 AM
Tuesday, May 19, 2009
Posted by The Dear Rich Staff at 9:02 AM
Friday, May 15, 2009
Posted by The Dear Rich Staff at 9:08 AM
Thursday, May 14, 2009
Dear Rich #2: I have a website that offers custom in-home computer services -- I'm like a geek squad business -- but so far, only in one state. If I register my trademark can I say it is used in interstate commerce? I'm so glad you asked. Short answer: "Yes, you are both in commerce." The fact that you are regularly entering into contracts (doing business) across state lines should qualify your trademark as being "in commerce" for purposes of federal registration. The same is likely true for a website offering services in one state since, according to one court, "the services are available to a national audience who must use interstate telephone lines to access the site." By the way, the "use in commerce" requirement refers to "all commerce which may lawfully be regulated by Congress," not just interstate commerce. So, for example, since the federal government regulates television transmissions, a TV station that broadcasts in only one state could qualify for registration.
The Dear Rich staff can't say positutely, whether performing services on an American Indian reservation constitutes commerce regulated by Congress (we think it does; readers, any comments?). BTW, you can find lots of other helpful free trademark information in Nolo's Online Guide to Trademark Applications (download it here).
Posted by The Dear Rich Staff at 9:09 AM
Wednesday, May 13, 2009
Posted by The Dear Rich Staff at 9:10 AM
Tuesday, May 12, 2009
Posted by The Dear Rich Staff at 9:13 AM
Monday, May 11, 2009
Dear Rich: I sell vintage movie memorabilia, old movie posters, and move photographs that were produced by studios as publicity and advertising. They are quite collectible and even in this rotten economy manage to hold some value. I do not sell copies, only originals. I recently offered at eBay two photos of an actress -- a 50's pin-up, Playboy centerfold, and "B" movie queen -- and the actress complained that they violated her right of publicity and she had them removed from eBay. A strike has been placed on my account and I am told if it happens again I will be suspended from selling, i.e., I will be out of business on eBay. I've been running a business for years selling these types of goods. I always thought the right of publicity was intended so I could not sell copies or produce products with the images of celebrities. I did not know they also owned the rights to these vintage materials that were either sold or given away by the studios to theatre owners and newspapers. Am I really violating the law? Did the actress really have the right to have these removed? I'm so glad you asked. The short answers to your question are "No," and "No." One of the precepts behind the right of publicity is that each person should have the right to control how others exploit (or "commercialize") their persona, image, and name. For example, Woody Allen has been vigorous in his use of the right because he does not want to be perceived as endorsing other people's products (or having others imitate him to sell products). But re-selling legitimate, previously licensed photos (that is, the pinup consented to the original movie stills) is not a violation of the right of publicity. This is an area where the right of publicity intersects with the first sale doctrine and -- as this case demonstrates -- the first sale doctrine trumps.
As for eBay, they're casting an unnecessarily wide net, probably because it's easier than addressing each situation on a case-by-case basis. Their celebrity policy seems confusing and does not address your situation (sales of original posters or stills) and eBay's intellectual property rules don't cover your situation as well. Since your actions are not prohibited by law or by eBay, you should consider making an objection. Under eBay's rules, you can't just re-list the item; instead, you're supposed to contact eBay using the link in their email (and please feel free to link to this blog). Until this matter is resolved, the Dear Rich staff has stopped listing its Strawberry Shortcake collectibles at eBay (and we'll encourage others to do the same).
Posted by The Dear Rich Staff at 9:14 AM
Friday, May 8, 2009
As for registering your own certification mark (as opposed to using an existing certification mark), you can't qualify to register one if you engage in the production or marketing of the goods that you are certifying. So if you are engaged in the transportation of the coffee, the Dear Rich staff imagines you will have a hard time at the trademark office registering a certification mark for it. For your FYI, the Dear Rich staff is currently considering registering its own certification marks for (1) motion pictures in which there is no littering, and (2) plastic shell packaging that does not require use of the jaws of life.
Posted by The Dear Rich Staff at 9:15 AM
Thursday, May 7, 2009
Posted by The Dear Rich Staff at 9:16 AM
Wednesday, May 6, 2009
But wait... there's also a trademark rule that says that it's okay to use a geographic name even if your products are not from that place. For example, a car company can register Yukon for an automobile and a magazine company can register Atlantic. What's the difference between Maid in Paris and Yukon? Maid in Paris is deceptive because people are likely to think this is a perfume from Paris (a city known for perfume). People are not likely to believe that their Yukon was manufactured in the Yukon (not an area known for making SUVs). As for your beer brand, the Dear Rich staff thinks it might be risky to call it 'Kansas City' since the Fat City does have a reputation for beer and breweries, and consumers might believe your beer is from there. What if you moved your beer company to Kansas City? Then your mark would be geographically descriptive (and we'll talk about that in another blog post).
Posted by The Dear Rich Staff at 9:17 AM
Friday, May 1, 2009
All that legal stuff aside, the Dear Rich staff would really like to see you make this musical. It seems like a sweet idea and could be very rewarding. So what's a music director in a tiny K-8 school supposed to do? It reminds me of the time my mother called a big music publisher lawyer and asked for permission to perform a song at a nonprofit benefit. The lawyer's response: "As far as I'm concerned, I never got this call." In other words, when a copyrighted tree falls in the forest, sometimes nobody hears it. That appears to be the approach taken by some musical directors.
It would be unwise and unprofessional to advise you to go ahead without permission. However, should you choose to assume the risk -- and it does involve some risk -- you can lower the odds of seeing lawyers on opening night by doing the following:
Hello!) it's unlikely that your efforts will be the subject of a cease and desist letter. If you do receive one, don't blow it off; respond immediately and halt production until a resolution occurs. Finally, have a backup musical ready, just in case.Unless the author or someone from the movie company reads the Dear Rich blog (
Posted by The Dear Rich Staff at 9:19 AM