I Am A Musician. How Can I Protect My Intellectual Property?
Given the competitive nature of the music industry, protecting your intellectual property (IP) as an artist should be a high priority. However, it can be difficult to know where to even begin when it comes to trade mark protection. To help, this article provides a brief outline of:
- the benefits of trade mark registration;
- how to register a trade mark; and
- other ways you can protect your IP beyond trade mark law.
Why Register a Trade Mark?
Artists can use registered trade marks to indicate the unique origins of their goods and services. For example, a hip hop artist might register their music artist name as a trade mark. This means that when they print their name on merchandise, consumers know whose merchandise they are purchasing. Trade marks ultimately protect the features of a brand that make a business or musician distinct from others in the industry. This can range from an artist’s rap name to their unique logo.
Registered trade marks provide you with the exclusive rights to use, licence and sell your mark. This means that only you are entitled to use your distinctive mark when marketing the music you produce or the services you provide.
If someone infringes your registered trade mark, you also can enforce your exclusive rights. Trade mark infringement occurs if someone uses a mark that is substantially identical or deceptively similar to your own mark. The infringement must also occur in relation to the same or similar goods and services that your mark is registered in connection to.
Rap artists who use the name ‘Kanye West’ to sell their music and associated merchandise would likely be committing trade mark infringement.
Ultimately, a registered trade mark gives you the right to prevent the infringing party from continuing to use your mark.
Trade Mark Registration
Whilst Australian trade mark law recognises both registered and unregistered trade marks, registration provides you with greater certainty when enforcing your rights. Trade marks are registered with IP Australia. Registration with IP Australia means that they have approved the existence of your mark on their database. Before you commit to registering your trade mark, you should consider the following points.
Has Someone Registered an Identical or Similar Mark?
Whilst your stage name might be unique to you, there is a chance that someone has registered a mark that is similar or identical to your stage name. To find out if this has occurred, you should conduct a comprehensive search of IP Australia’s trade mark register by entering the details of your proposed mark.
If you attempt to register a mark that is similar or identical to a registered trade mark, IP Australia might not accept your trade mark application. This is on the basis that two similar or identical marks are likely to confuse consumers.
Which Trade Mark Classes Apply?
Put simply, trade marks are registered in connection with your goods and services. For this reason, you must identify the goods and services you offer in your trade mark application. To simplify the process, you can use the picklist which groups common goods and services into trade mark classes. As a musician, the following trade mark classes might be applicable:
|Trade Mark Class||Applicable Goods and Services|
|9||Devices for recording music|
You should note that once you submit your trade mark application to IP Australia, you cannot include additional trade mark classes. If you forget to include a class, you will have to submit a new application at an additional expense. To avoid this, you should ensure from the outset that you have identified the most relevant trade mark classes in your application.
Trade mark law protects the features of your brand that make it unique. However, trade marks are incapable of protecting your original works. As a musician, you should know how copyright law can protect your compositions from being misused by others.
Copyright prevents other people from misusing your original works without your authorisation. In Australia, copyright protection applies as soon as your music is written down or recorded. Copyright protects your work for 70 years after your death.
If someone has copied your musical composition without your authority, you will have the legal means to prevent them from further infringing on your copyright.
There are, however, some exceptions to copyright infringement which are known as ‘fair use’ exceptions. These exceptions allow others to use your original work without your permission if it is for the following purposes:
- criticism or review;
- satire; or
- reporting the news.
If you think someone has infringed on your copyright, you should seek legal advice before issuing the potential infringer with a cease and desist notice. If you issue a cease and desist notice on no reasonable grounds, you could find yourself facing unwanted and costly litigation.
As a musician, you can protect your IP using trade marks and copyright protection. A registered trade mark can protect your stage name or identifiable logo. It can also provide you with the exclusive rights to use, licence and sell your mark. On the other hand, copyright law can protect your original works, including musical compositions. If you need help with protecting your IP, our experienced IP lawyers can assist. Call us on 1300 657 423 or complete the form on this page.
Frequently Asked Questions
Unlike trade mark registration, copyright protection does not require registration in Australia. Rather, copyright law automatically protects your music once you record it.
Generally, a standard trade mark application alone will cost you $250 per class of goods and services that you have included in your application. Of course, the cost will differ if you register multiple trade marks or decide to use a trade mark lawyer to help file your application.