For instance, if I changed my name to Elvis Presley and started making records could the heirs to the estate of the more famous possessor of that name sue me? What if my name really was Elvis Presley? Would I have to change it if I wanted a recording career?
I think the problem isn’t copyright so much as the danger of confusion. Early in his career, David Bowie briefly performed under his real name of David Jones, but changed it to avoid confusion with Davy Jones of the Monkees. Few performers would actually want to be mistaken for someone else. But I don’t think there’s any legal reason why you couldn’t use your own name, even if it was shared by someone more famous.
Certain actors unions, like SAG, will only allow one member to have a particular name. There was a “Michael Fox” already on the books, so Michael Andrew Fox adopted a middle initial of “J” to avoid using Michael A. Fox.
I know “Andrew Lloyd Webber” has his name trademarked.
I don’t believe that a person’s name can be copyrighted but it can be trademarked. I would imagine that “Elvis Presley” is a registered trademark of the estate of Elvis Presley. The estate could not stop you or anyone else from naming yourself or your cat “Elvis Presley” but if you attempted to perform under that name they could I believe force you to stop because of the trademark infringement.
Various performers’ unions (SAG for one) have rules about name usage. ISTR Dennis Miller had problems at some point because there was some old SAG member with the same name who raised a stink about Miller’s using the name.
Not copyrighted – short items like names or titles are uncopyrightable.
It could, however, be trademarked. That’s where the issue of confusion comes in: if your name were actually Elvis Presley, and the Presley estate trademarked the name (as they probably have), then using your real name might cause confusion and thus you will be ordered to stop.
It used to be that you were allowed to use your real name, but about 20 years ago, the Coca Cola Company managed to keep Walter Taylor from putting his own name on his Bully Hill Wine because it could cause confusion with Coca Cola’s Taylor Wines brand (and Walter was even part of that Taylor family).
If you tried to start a singing career as Elvis Presley, the Presley estate would be suing you the second they heard of it, and use the Walter Taylor case as a precedent.
I keep getting those solicitations from Columbia House trying to get me to sign up for their “record clubs” and I’ve noticed that they offer CDs by Billy Joel®. He must have had problems in the past. AFAIK, his real name is William Joel.
How do we avoid the squatting of names via trademark. Seems like unscrupulous companies could shell out the appropriate fees and trademark a slew of common names, banking on a famous person arising with one of those names, requiring said person to negotiate.
(1) Names cannot be copyrighted, because, like titles and slogans, they’re too short to be “creative works.”
(2) Names used as names cannot be trademarked, because a name used as an individual human being’s name is not a “use in commerce.” In order for a name to become a trademark, it has to be used as the identifier of a source of goods or services. Merely releasing recordings or other creative works under your name is not a trademark use. It’s merely use as a name. You have to be doing something more than that to be eligible for trademark rights.
(3) It doesn’t matter whether Joel’s legal name is “Billy Joel” or “William Joel.” If he’s using either one as one might use a personal name, then it’s considered use as a name. If he’s using either one in commerce as a source indicator, then it’s considered use as a trademark.
(4) With trademark issues, likelihood of confusion is key. If your use isn’t likely to cause confusion, then the trademark holder can’t stop you.
(5) Even if some uses are confusing, there is a limit to which you can be prevented from using your own name to indicate that a work is yours (especially if it’s a name you were born with). Michael J. Fox had to adopt a different name under Screen Actors Guild rules, but the original Michael Fox would not have a trademark claim against him. David Bowie decided to change his name for his own peceived benefit, but Davy Jones of the Monkees could not have brought trademark claims against him to force him to change his name. Bad faith can play a factor. If you change your name to “Elvis Presley” at age 20 and start recording music, that will be viewed differently than if your parents had named you “Elvis Presley” at birth.
(6) I don’t know what Harlan Ellison does with his trademark, but he can’t force other Harlan Ellisons (if there are any) to change their names if they start publishing novels.
Can’t do it. Trademark rights are established through use in commerce. Just registering marks doesn’t get you anything if you don’t actually use them as brand names to sell your goods or services.
Furthermore, no one can stop you from using your own name as your name. Davy Jones of the Monkees could not have forced the other David Jones to change his name to David Bowie if he had not decided to do so voluntarily.
Why isn’t putting your name on an album (or other work of art for sale) using it as an identifier of a source of goods? Assuming the work of art is something only you are capable of producing, doesn’t your name identify the source?
You’d have to release enough art under your name so that it became a well-known brand.
Trademark is not like copyright. If I write a book I own the copyright, even if I only make photocopies and pass it around to my family and friends. My copyright is just as strong as the copyright of a bestselling author.
But the strength of a trademark is tied directly to how well-known the brand is. If I start selling home-made cassette tapes of me playing the guitar I don’t automatically get trademark protection just because my name is printed on the label.
The simple reason is because the law says so. A personal name used simply as personal names are customarily used, to identify an individual, is not a use in commerce.
Mere specification of the identity of an author or creator of a creative work is not the same as using a mark to identify the source of goods or services.
Legally speaking an author/creator is not a “source” and a creative work is not a good or service.
Now, making copies of a creative work and licensing their distribution and sale … that’s a use in commerce. If your name becomes associated with that business, then you might have a trademark on your hands.
What if a person’s name were part of an address? In Cincinnati there are at least a couple of streets named after Pete Rose. We’ve all seen car dealerships, for example, named after their location, Main Street Ford, 5th Avenue Saab, whatever. If I opened a car dealership on Pete Rose Way could I call it “Pete Rose Auto Sales”?
Well, here along Ford Road in Dearborn, the street name having obvious origins, there are all sorts of businesses named “Ford” having nothing to do with the auto manufacturer. Were you to put in a Hyundai dealership with the Ford name, though, trouble would likely start.
I haven’t heard of any, but even if the Presley estate had objected, they would have had no case, no more than Lou Costello’s estate would.
There would be no trademark issue as such, but Pete Rose could argue that there was an implied endorsement amounting to a commercial misappropriation of his name, image, or identity. It would depend on the facts of the case and how clear it was that the dealership was named after the street and not the person.
Yes, trademark use is tied to markets. The Ford Motor Company presumably has “Ford” as a trademark in the motor-vehicle market, so if you open the Ford Restaurant or the Ford Bookstore in Dearborn, you aren’t operating in the same market as the Ford Motor Company.
For many years the Dodge-Chrysler dealership in Glens Falls, New York was named the Ford Garage, which I always assumed was after the original owner, who I assume was no relation to Henry. It was a little confusing to those not in the loop, but I assume that the Ford Motor Company had either bigger fish to fry, or the Ford Garage Company, Inc. had some kind of leverage that let them keep using the name.