*Originally posted on April 30, 2015
A lawyer friend told me that I should copyright the name of my band, The Miseracordions, so that when I make it big (this polka thing is REALLY gonna take off soon!) I can keep other people from using the name. Apart from our music, that just doesn’t sound right. What’s up?
“Weird” Bob Shovovic
Leaving far aside my love of polka played on the accordion (the Doc once spent a weekend in a hotel in Hohokus, NJ where the national accordion championships were being held, and now, any time he hears “Lady of Spain” he suffers from symptoms of PTSD), your lawyer friend is slightly confused, as are most normal people – those who do not practice intellectual property law. The Doc is, however, here to clear things up.
Copyright is a federal law that protects forms of expression. The music that you play (if you can call it that, as I did listen to the demo 8-track that you so kindly sent in with your letter) is protected by copyright when you write it down or record it (the law says that you need to “fix it” in a “tangible medium” – but don’t take your songs to a veterinarian). Copyright doesn’t protect things like band names, book titles, advertising slogans, and other short phrases or words. When these things are used commercially to denote a product or service, then trademark law steps in to protect the owners’ rights.
A trademark (or a service mark) is a descriptive element that denotes the source of goods or services to consumers. Trademarks can be words, such as a product name, but they can also be designs like logos, colors, shapes, sounds, or anything that uniquely identifies the source of the thing. Famous examples of some of these are made-up words, like “Kodak” (some think that it is an onomatopoetic (look it up) word for the sound an old camera shutter made when you snapped a photo), the color pink for fiberglass insulation (it doesn’t naturally come that color – Owens Corning sprays dye on the sickly yellow stuff), the golden (well, yellow, actually) arches, the “wasp waist” shape of a Coca Cola bottle… the Doc could go on like this for hours…
Your band name could be registered in the United States Patent and Trademark Office under the Lanham Act, as a service mark (after all, playing music is a service) and as a trademark (don’t ask me why it’s two words for service and one word for trade – the Doc doesn’t know everything) that denotes those 8-tracks you sell after every bar mitzvah (even the ones where you don’t play, for reasons that escape me.) You also have the choice to register your mark in each state (since you only get to register federally if you offer your goods or services in interstate commerce – meaning that either you or your tapes cross at least one state line.)
Clearly (or maybe not so) there is a lot to know about protecting trademarks. At the risk of sounding too commercial (something of which your band will never be accused) you should consult the attorneys at LW&H. They can advise you on how to protect your marks, your music, your Internet domain name, and many other things (but, sadly, not your reputation, now that you have played an accordion in public.)
Until next month… keep on dancin’