Thank you Eats_Crayons and Walloon. I didn’t realizing that registering a band name could be so complicated.
That idea of the name being corporately owned must be behind the situation I remember that forced David Crosby and some other originals to play about 10 shows as the Byrds many years after they had quit. The drummer apparently had been touring as the Byrds with unknowns playing the rest. I remember because they played Ventura, where I lived at the time.
It also varies depending on juristiction and the nature of the band name or logo.
NOTE: The following varies by juristiction (i.e. the country you’re in).
Trade names (using a Canadian example) belong to the first business to use it in a given jurisdiction. There is a right of protection (against the use by others) for trade names because they have value attributed to them by reputation and brand/product identification.
NOTE: Businesses can have the same name if their products are radically different. So “Eats_Crayons” the band would not be in conflict with “Eats_Crayons” the pencil sharpner.
Example: The UK band “Bush” (with Gavin What’sHisNuts) had to sell their self-titled debut CD “Bush” as “Bush X” in Canada where it would have infringed on the use of “Bush” by a Canadian band (with pre-“Guess Who” guitarist, Domenic Troiano). The “one hit wonder” Canadian band had released an album and under the name “Bush” in 1970 and re-released it on CD in the early 1990s. So they could legally tell Gavin to stuff it.
The “Bush” vs. “Bush X” issue was resolved amicably in 1997 and the UK band is now recognized as “Bush” (no X) in Canada. IIRC, proceeds of the deal went to charity.
When you form a band it really, really is recommended that you come to some kind of written agreement with respect to the way the band name is managed. Always, always put together mini-contract. Even if your band-mates are your best friends. You want to have basic contract in place both for your protection and theirs. Sounds ugly – like a prenuptial agreement – but really, you’re doing it to protect all your best interests.
If things go sour, bad feelings can make you behave quite differenlty than you every thought you would.
For starting your own band, I’d simply start fresh and have all promo saying something along the lines of “Eats Crayons Superstar: Formerly of My Friend’s Are Losers Band”.
Avoid the hassles altogether.
<tangent>
Are the names of bands used in works of fiction also copy-righted? Could a band name themselves Stillwater (“Almost Famous”) or Eddie and the Cruisers or some other name from a movie? Or what about in a book, suppose I publish a book and use the band names from my fics (Beer is Not a Sex Crime and The Money Grubbing Communists), could someone just take those names for their bands?
</tangent>
You cannot copyright a name or title under U.S. copyright law. Band names are service marks.
That’s in interesting point about the bands in movies or books. I wonder if Crowe registered “Stillwater” as his service mark, so no one could tour under that name without his permission, which he wouldn’t give. How much does it cost to register these, who does it, and how complicated is it?
Copyright protects original works of authorship. Typically a name is not an original work of authorship. You might be able to make some sort of novel argument making parallels to fan fiction, but its too late for me to consider such things.
So, the question is one of trademark law. A trademark exists for only one purpose…to inform consumers of a product’s origin (or sponsorship). So, the question is reduced to “will the consumer be confused if a band named themselves Stillwater?”
Specifically, sec. 1125 of the TM act says:
Note that the statute does not require the fictional band to be trademarked, just that consumers be confused.
I should note that Sec. 1127 of the TM act says:
So, for radio and tv programs, additional relief* can be sought if the “other distinctive features,” which I would say includes band names, were actually registered. (I haven’t done one for a while, but I seem to recall charging about $2k for a federal registration)
In the absense of a registration (and for books and movies, which are not mentioned in 1127), I’m not sure whether such “other distinctive features” could rise to the level of being a trademark/service mark.
*Dillution, for example, is only available for famous tm/sm. Usually, the fight is over whether a mark is famous. However, if you were to try to claim “Stillwater” is a sm, then be prepared to fight over whether it is actually a mark.
U.S. Patent and Trademark Office fees for trademarks and service marks. The fee to apply for a trademark or service mark registration is $335.00.
There actually was a service mark registration for a band named Stillwater, apparently unrelated to the movie Almost Famous, as the registration says that the band first used the name in 1988, and began using it commercially in 1989. The service mark application was filed in 1991. The registration was cancelled in 2004 after the Nashville-based owner of the mark failed to file an affidavit or declaration that sets forth goods and services in connection with which the mark is in use.
How would this then apply to a name like Spinal Tap as the title of the movie is “This is Spinal Tap” could some use just “Spinal Tap” or maybe the name “This isn’t Spinal Tap”? There doesn’t seem to be any use of “Spinal Tap” that I can find.
Two Spinal Tap albums are still in print: This Is Spinal Tap and Break Like the Wind.
Anecdote:
In 1991, the band name Yes was litigated over by ex-members Jon Anderson, Bill Bruford, Rick Wakeman, and Steve Howe (who had just released an album called, well, Anderson Bruford Wakeman & Howe) versus the current lineup of Chris Squire, Trevor Rabin, Tony Kaye and Alan White.
They settled the dispute by uniting BOTH bands and touring as an eight-piece.