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Copyright Issues Re: Band Names & Samples

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Copyright Issues Re: Band Names & Samples

Postby Sunshine82 » Mon Aug 31, 2020 12:05 pm

I’m opening another big can of worms here. I know this is an ambitious post, but i figured you are all a resourceful bunch; perhaps you can advise.

1) Is there a site or place to consult about what band names are available to be used? Is it permissible for two artists to share the same name? What if the name is spelled or formatted slightly differently?

I know there’s one band that used to use the name I’d like to use. There’s also one artist currently using the same name. To be clear, I’ve used the name for awhile but haven’t yet publicly released anything besides old Myspace samples.

2) I plan on sampling music from established artists old and new throughout the 20th century. My goal would be to deconstruct, modify, atomize the samples so they bear little resemblance to their source. I would like to eventually sell the music on Bandcamp for a nominal fee.

A) Is there a good practice for working with samples? If altered considerably, when do they cease to exist as their original source?

B) I’d like to list my sources, but would this be drawing more attention to my sampling theft/borrowing?

C) Can legal issues be avoided if i give the music away for free? What if the particular songs with samples are given away for free while the rest of the related album is sold? Is that any different?

3) Can music that was once either sold or given away by an independent party (i.e. the artist themself) later be eligible to be published by a record label? Would this depend upon the label and terms of contract?

Other than that, are there pro bono law groups that specialize in assisting indie artists with issues like this? Thanks!
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Re: Copyright Issues Re: Band Names & Samples

Postby desmond » Mon Aug 31, 2020 12:25 pm

I think pretty much *all* the cans of worms are open now... :headbang:

No, you can't legally use someone else's work without permission or a license, it doesn't really matter for what purpose. (If it's only for playing with at home, then no one will care).

Do you really want to use a band name that another band are using? Are they likely to sue you, or have that name registered for use as a commercial entity? Is you use of that name going to interfere with their business?
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Re: Copyright Issues Re: Band Names & Samples

Postby MOF » Mon Aug 31, 2020 12:42 pm

1. UK trademarks website and no it’s not, think up a new name, anything close and you’ll have a large legal bill.
2. A grey area, best to avoid, create your own samples in the style of.
A. Yes get them cleared and pay the fee/a grey area.
B. That grey area now becomes a lawyers feeding frenzy.
C. Why bother?
3. Whatever an artist does with tracks that has no direct bearing on what a future publishing deal entails. The free or sold tracks are not the property of those individuals, they can’t exploit them (and shouldn’t share them) for their own gain.
I think pro bono law groups have better things to do than try and undermine their future income streams i.e. protecting intellectual property, which you appear to want to undermine. Rather than mining the past why don’t you just be influenced by it and come up with your own original material?
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Re: Copyright Issues Re: Band Names & Samples

Postby RichardT » Mon Aug 31, 2020 12:54 pm

Sunshine82 wrote:I’m opening another big can of worms here. I know this is an ambitious post, but i figured you are all a resourceful bunch; perhaps you can advise.

1) Is there a site or place to consult about what band names are available to be used? Is it permissible for two artists to share the same name? What if the name is spelled or formatted slightly differently?

I know there’s one band that used to use the name I’d like to use. There’s also one artist currently using the same name. To be clear, I’ve used the name for awhile but haven’t yet publicly released anything besides old Myspace samples.

2) I plan on sampling music from established artists old and new throughout the 20th century. My goal would be to deconstruct, modify, atomize the samples so they bear little resemblance to their source. I would like to eventually sell the music on Bandcamp for a nominal fee.

A) Is there a good practice for working with samples? If altered considerably, when do they cease to exist as their original source?

B) I’d like to list my sources, but would this be drawing more attention to my sampling theft/borrowing?

C) Can legal issues be avoided if i give the music away for free? What if the particular songs with samples are given away for free while the rest of the related album is sold? Is that any different?

3) Can music that was once either sold or given away by an independent party (i.e. the artist themself) later be eligible to be published by a record label? Would this depend upon the label and terms of contract?

Other than that, are there pro bono law groups that specialize in assisting indie artists with issues like this? Thanks!

1. Look for the name on Spotify. There is no formal register of band names. It is permissible to use the same name as someone else as long as the name is not trademarked by the other party for music production purposes. Copyright protection does not apply to band names. But if you do use the same name, things will get very confusing. Look up ‘Mike Stern’ on Tidal, for example, and you will see that under the jazz guitarist Mike Stern you can also electronic music by another Mike Stern.

2A ) I don’t know, take legal advice.
2B) if you think like this you’ll get into serious trouble! Don’t think for a second of committing theft of samples. It can be an extremely expensive proposition. Again, take legal advice.
2C) No, giving samples away doesn’t change the legal position.

3) Yes, if you negotiate that with the label. Do you really need a label these days, though?
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Re: Copyright Issues Re: Band Names & Samples

Postby RichardT » Mon Aug 31, 2020 12:56 pm

MOF wrote:1. UK trademarks website and no it’s not, think up a new name, anything close and you’ll have a large legal bill.
2. A grey area, best to avoid, create your own samples in the style of.
A. Yes get them cleared and pay the fee/a grey area.
B. That grey area now becomes a lawyers feeding frenzy.
C. Why bother?
3. Whatever an artist does with tracks that has no direct bearing on what a future publishing deal entails. The free or sold tracks are not the property of those individuals, they can’t exploit them (and shouldn’t share them) for their own gain.
I think pro bono law groups have better things to do than try and undermine their future income streams i.e. protecting intellectual property, which you appear to want to undermine. Rather than mining the past why don’t you just be influenced by it and come up with your own original material?

I’ve looked into point 1 in some detail when choosing my artist name, and unless the other party has trademark protection for their band name, I don’t believe they have any right to complain if someone else uses it.
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Re: Copyright Issues Re: Band Names & Samples

Postby CS70 » Mon Aug 31, 2020 2:36 pm

Sunshine82 wrote:I’m opening another big can of worms here. I know this is an ambitious post, but i figured you are all a resourceful bunch; perhaps you can advise.

1) Is there a site or place to consult about what band names are available to be used? Is it permissible for two artists to share the same name? What if the name is spelled or formatted slightly differently?

No, and it'd be overwhelmingly difficult. They're all "taken"... it's very hard to come up with something that is good, short and not yet used. :) But they're all available - so long they're not trademarked in your country.

I know there’s one band that used to use the name I’d like to use. There’s also one artist currently using the same name. To be clear, I’ve used the name for awhile but haven’t yet publicly released anything besides old Myspace samples.

It's absolutely common. When we picked up our band name there was none on streaming, but a couple artists came and went over time. Originally Spotify was awful in these things, mixing everybody up together. Now the big streamers offer a free "artist separation" service (usually thru the publisher). The small streamers or general aggregators of music, are still messed up, for both big and small names.

Ideally you want to try to find something original but it's very, very hard and there's no guarantee it'll stay original for long.

And even if you trademark your name (and you have to do it every country unless you use the international trademark/Madrid system) if someone uses it (or even, if you are an a***hole, was already using it) you have to sue them.. will all kind of complications and expenses.

2) I plan on sampling music from established artists old and new throughout the 20th century. My goal would be to deconstruct, modify, atomize the samples so they bear little resemblance to their source. I would like to eventually sell the music on Bandcamp for a nominal fee.

If it's not recognizable, you can do whatever you want - so long you do not explicitly name the source of course (because in that case you are capitalizing on the name).

If it is recognizable, you have to get a license from the original artist (that's the short version).

A) Is there a good practice for working with samples? If altered considerably, when do they cease to exist as their original source?

All these issues aren't pre-decided. A claim must be filed and litigated. The final result depends on the jurisdiction and the type of judicial system where you file the claim. It's like asking where a cloud starts...

The best is to make sure that no claim can be raised because nobody recognizes the sample, or, if you want it recognized, agree with the copyright owner a license for using it.

B) I’d like to list my sources, but would this be drawing more attention to my sampling theft/borrowing?

Subject to the same qualification above, yes.

C) Can legal issues be avoided if i give the music away for free? What if the particular songs with samples are given away for free while the rest of the related album is sold? Is that any different?

Subject to the same qualification above, no.

3) Can music that was once either sold or given away by an independent party (i.e. the artist themself) later be eligible to be published by a record label? Would this depend upon the label and terms of contract?

Yes.

Other than that, are there pro bono law groups that specialize in assisting indie artists with issues like this? Thanks!

Pro-bono, don't think so, but some musicians associations or your PRO will often be able to give a consultation or forward you to a service.
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Re: Copyright Issues Re: Band Names & Samples

Postby MOF » Mon Aug 31, 2020 2:37 pm

I’ve looked into point 1 in some detail when choosing my artist name, and unless the other party has trademark protection for their band name, I don’t believe they have any right to complain if someone else uses it.
The Shadows were The Drifters but changed their name at a time when trademarks were for more for corporations.
Why risk litigation in increasingly legal times and bad publicity on social media.
I’m a big fan of The Beatles and would like to call myself Beatle (joking obviously) but Apple Records would soon put a stop to that. As I said, get your creativity hat on musically and trademark wise.
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Re: Copyright Issues Re: Band Names & Samples

Postby desmond » Mon Aug 31, 2020 2:43 pm

CS70 wrote:Now the big streamers offer a free "artist separation" service (usually thru the publisher).

Oh, I *love* that - how to take a flaw in your system to not be able to recognise similarly-named artists correctly, not care about the quality of results or the user-experience, and then find a way charge the artists/labels to sort it out correctly - brilliant! :lol:

Oh - "free" you say... maybe no so brilliant... :tongue:
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Re: Copyright Issues Re: Band Names & Samples

Postby The Red Bladder » Mon Aug 31, 2020 4:57 pm

I have to live, eat and breathe this issue - and the short answer is (as has been mentioned above) you MUST copyright a name and the name must be unused in that context or in association with that product (in this case a music act). Copyright in the UK costs £170 for 10 years.

Samples - create your own, pay for the use, or face litigation. It really is that simple! And it makes not one iota of difference whether you give your 'music' away or charge £1,000 a minute just to hear the damn stuff.

As a side comment from me...

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Re: Copyright Issues Re: Band Names & Samples

Postby blinddrew » Mon Aug 31, 2020 8:01 pm

The Red Bladder wrote:I have to live, eat and breathe this issue - and the short answer is (as has been mentioned above) you MUST copyright a name and the name must be unused in that context or in association with that product (in this case a music act). Copyright in the UK costs £170 for 10 years.
Sorry but this isn't correct, you're mixing up trademark and copyright. They're different things with different purposes and you're conflating the two.
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Re: Copyright Issues Re: Band Names & Samples

Postby RichardT » Mon Aug 31, 2020 8:21 pm

blinddrew wrote:
The Red Bladder wrote:I have to live, eat and breathe this issue - and the short answer is (as has been mentioned above) you MUST copyright a name and the name must be unused in that context or in association with that product (in this case a music act). Copyright in the UK costs £170 for 10 years.
Sorry but this isn't correct, you're mixing up trademark and copyright. They're different things with different purposes and you're conflating the two.

That’s right. The name can be trademarked, not copyrighted. You must check in the trademark directory online to see if your proposed name is trademarked.
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Re: Copyright Issues Re: Band Names & Samples

Postby DC-Choppah » Tue Sep 01, 2020 12:26 am

May I suggest that if you want to sample music, and then mangle it so it is unrecognizable, then you don't need samples. Your mangling process is the creative part. Make your own source material, then mangle. Or use some libraries that are cleared.

For example here is Steve Gadd himself playing drum loops for you. https://www.youtube.com/watch?v=zLHS8QzvgWE

For $14.99 he clears you to use these loops in your creations.

There is a world of sample packs like this. If you can't find what you want, you will have to clear it.

If your samples are intended to evoke people's established memories of that music, then you have not mangled it. You have used it. So you need to clear it. Clearing it is easy. Look into how to clear your samples before this venture.


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Re: Copyright Issues Re: Band Names & Samples

Postby ken long » Tue Sep 01, 2020 6:40 am

The Red Bladder wrote:I have to live, eat and breathe this issue - and the short answer is (as has been mentioned above) you MUST copyright a name and the name must be unused in that context or in association with that product (in this case a music act). Copyright in the UK costs £170 for 10 years.

No. As already corrected, you need to trademark the name. In the UK this is about £100. But then you may want to mark the name in potential markets esp the US.

As a side comment from me...
:roll:

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Re: Copyright Issues Re: Band Names & Samples

Postby CS70 » Tue Sep 01, 2020 6:47 am

desmond wrote:
CS70 wrote:Now the big streamers offer a free "artist separation" service (usually thru the publisher).

Oh, I *love* that - how to take a flaw in your system to not be able to recognise similarly-named artists correctly, not care about the quality of results or the user-experience, and then find a way charge the artists/labels to sort it out correctly - brilliant! :lol:

Oh - "free" you say... maybe no so brilliant... :tongue:

Ahah yeah they were a complete mess for the first few years - nobody had thought that two bands could have the same name..

But in fairness, I don't think there's any unique id for a band.. all the streaming service gets is a string of characters, in all caps. It's probably the publishers' job to assign IDs, or a collaborative effort. And of course publishers don't coordinate on these things among themselves (I guess). So it's a bit of a structural situation, that can be fixed only when and if an error is noticed by the publisher or the artist. And with the explosion of both the streaming and the aggregation businesses, most actors in both fields didn't have a clue themselves.

It's still the case most "minor" streamers do not distinguish between bands with different names - and spaces and capitalization don't count... to say nothing of associated services, such as MusixMatch.. it's still a mess.

The "music catalog" idea stems from times when few artists were successful enough to warrant these kind of admin jobs..
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Re: Copyright Issues Re: Band Names & Samples

Postby CS70 » Tue Sep 01, 2020 6:59 am

The Red Bladder wrote:I have to live, eat and breathe this issue

A little more concretely, what can happen is that someone likes the name, trademarks it in your country and send you a cease and desist letter to stop you using it.

Mightily annoying, but it can be litigated - how, depends a bit on the country.

For example, in Norway trademarks can be acquired by both registration and use.

Of course in this latter case the bar is high... but a substantial bunch of audio and video material with consistency of branding, associated press activity (social media counts) published over a number of years on independent platforms is likely to constitute a solid base for claiming usage rights. As always with these things, there's no pre-given answer, you've gotta hire a lawyer and defend your right. But then it's the same if you have trademarked..

All this of course doesn't help the guy that has just uploaded his first song on Soundcloud but, as always, these provisions are made to defend commercial interests, not peoples egos. If there's no business involved, things become tenuous.

I agree that if you can trademark, you should. Class 9 and 41 for a band. It can be pricey if you want to register the international TM in many countries.
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