You’re cruising along the internet one day minding your own business when you see your name listed on an event page you’ve never even heard of. Confused you click on the link.
You read on to see your name listed in the lineup, and yeah – that’s your bio alright! But on the flyer, listed next to your artist name is some other guy’s picture cheesing next to it. That’s when it dawns on you – “Someone has stolen my name!!!!”
Unfortunately, this is a real problem. Many artists have worked hard to maintain their name, only to have it stolen by someone who’s looking for an easy way to acquire a reputation and get gigs. Read on to learn how to remedy the situation, and gain some pointers in how to protect your name and likeness from being appropriated by opportunistic thieves.
The very first thing you should do is research. Find out exactly how long the other person has been using your name. If they used it long before you did, and can establish this, the law is usually on their side. If you possessed it before they did, you essentially have cause to exercise the right of prior use to your artist name. Gather any evidence such as event flyers and releases to establish prior use. This is key evidence in exercising your rights to ownership.
There are two issues at stake – one of a service mark and of a trademark. It’s important to understand that your artist name is considered a service mark, and is essentially used to sell services – in this case your performance as an artist. A trademark is a word, logo, or design that is used as a brand name to sell a product – which would be your music or merch. You need not have registered these with the US Trademark Office to have these protected under your ownership. These both can be established by prior use.
The Lanham Act provides for trademark protections. It holds remedies for the likelihood of confusion and false or misleading statements that would in turn hurt your reputation as a business. (Which is basically the issue when someone is using your name to get bookings etc.) This also is an issue of “right to publicity” – your right to control how others use your name, likeness, image, or other identifying aspects of your artist identity. Violation of these rights is an “appropriation of name or likeness” which is as follows:
652C Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
So basically, this issue is taken extremely seriously within the law of the United States. The first course of action is to contact the other person, and make them aware that you hold prior use to the artist name. Show them the evidence, and if they are a reasonable person, they will perform under another name. But we all know that the world is full of unreasonable people.
The best solution in this instance is to acquire the services of a qualified attorney to write a “cease and desist” letter for you. It’s basically a letter stating your legal rights, how this person is violating those rights, and that they must stop or face legal consequences. You could certainly do this for yourself, but coming from a lawyer it would give more legal clout, and make them more receptive to you meaning business. If they then continue to use your name, you could then take them to court and sue them for damages.
If you cannot afford to hire an attorney, or don’t want to go to court over the issue, mediation and arbitration are available. Mediation is a low cost way of settling disputes through negotiation and conflict resolution. Both parties come to an agreement, and sign an contract to officiate the resolution. Arbitration, which is usually performed by retired judges, is another option. Decisions are binding (meaning no further litigation can be pursued) or non-binding (meaning, further litigation could be pursued after the decision). In both instances, you would have to get the other party to agree to either of these courses of action, which can be pretty difficult if they have intentionally sought to acquire your name, and are not responding to your request for them to drop the use of the name.
For more information on mediation and arbitration in the State of California, contact California Lawyers for the Arts at http://www.calawyersforthearts.org/ – they are a great non-profit legal organization that helps artists acquire mediation, arbitration, and attorney services – sometimes on a sliding scale basis.
The bottom line is is remain vigilant and always be on the lookout for who or what is using your artist name. Research before choosing an artist name in order to make sure that no one is currently using it. Trademarks can be protected by filing an “intent to use” application with the US Trademark Office, and service marks can be protected by filing a service mark application with the same entity. These, however, are not required, and should be done only if you are really sticking to your artist name.
We hope this has been helpful! Tune into our blog and stay tuned for more helpful hints from The California Music Industry Summit!