Sunday, September 25, 2011

Battle of the Bands...

I don’t think I know anybody who doesn’t like music. And even though I know individuals with eclectic tastes, and have indulged in verbal spats over who and which is better, little did I indulge myself into an issue, that to the best of my knowledge, is yet to come forth Indian Courts - The survival of BAND names!

Although under the law of trademarks, generally speaking, names of individuals are not registrable as trademarks, however, with secondary meaning, acquired distinctiveness and well known trademarks (and as many synonyms as there may be), the probability of a band name being registrable rises. 

If one were to apply the rationale that trademarks are source indicators, the name of a band is undoubtedly the indicator of the source of music.

But having said this, another question that arises is- once a band breaks up, what is the fate of its name? Does each individual get to carry its identity forth in his or her own unique way, or does each band member forfeit his right to use the name? I don’t think there is a black letter rule to this. 

If each band member were allowed to use the band name, the source indicator, to my eyes, would be a source of confusion.

But if every member were disallowed to use the name, applying a moral rights sort of rationale (although there are no moral rights grounds in the world of trademarks), each member by virtue of his contribution, should be allowed to continue to use the name of the band.

Or is a third route more apt? Allowing the use of a band name in a nominative sort of way- In other words, in a way to indicate that the performer was part of a certain band, but clearly indicating he is no longer part of the band.

In practice, I believe this is what is done, which while allowing the performer to relate himself to an identity by virtue of which he may be better known, yet does not infringe upon any rights that collectively existed upon all the members of the band. 

My review of song titles and performer names, as I was on my travels this last month or so, reveals names such as Cream of Clapton (When Eric Clapton was part of Cream), Sting of The Police (Sting, when he was part of The Police) and so on. However, Pink Floyd, is one amongst some bands that continued so, and even as Barett and others came and went, have not attached Floyd to their individual cover versions.

The problem would perhaps be resolved if it were a scenario, where the moment a band is created, it incorporates itself as a legal entity. Although a partnership agreement shouldn’t be a problem, however other forms of legal incorporation may require a stricter mandate to be followed. 

Further, where several individuals partner to form a “band” and not merely perform together, under the aegis of a “lead” artist, the problem walks into a dark tunnel. I presume, that in such an instance, a Work made for hire sort of rule would append.

A cursory survey of the US law has 2 scenarios set out. The first is where a Band name is permanent, but artists are doled in and out- in such a case the manager or record label that is responsible for the functionalities of the band, owns the name.

The other scenario is where the artists have named the band and eventually fall outs happen. Some Courts here, rule that all members are allowed to use the name, so long as they sufficiently distinguish one break off from the other.

I find such a ruling from a US Court rather interesting, especially since a moral rights regime is almost non-existential in their jurisprudence. However, to me it seems that under the Lanham Act, where provisions governing aspects such as False and Misleading Advertising exist, such a decision finds logic.

Drifting back to the Indian scenario, what is it likely to be? Two things come to mind-

a. May be Band names can acquire their own right as a trademark, since fashion designers etc. whose names having acquired secondary significance have sought registrable rights; or,
b. Authors/bands cannot have rights, since under the copyright regime, only their works are protectable and they have nothing but moral rights in their names.

Further, as I see and understand, the manner in which IP law is to be interpreted calls for mutually exclusive protections, devoid of any overlap whatsoever. Being a fuzzy area, I wonder what our readers have to say on this…

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