Musicians should never represent themselves on legal issues. Here music attorney, Charmaine D. Smith, breaks down copyrights, trademarks, and how she helps musicians protect their intellectual property rights.
As a music attorney, who are some of the folks Greenberg Traurig represents?
Our firm represents various people and entities in the music business, including recording artists, music industry associations, and digital music services (such as permanent download services, Internet radio services, and music subscription services).
Please explain the difference between sound recordings, publishing and copyrights?
Original works of authorship are protected by copyright law. There are two distinct works of authorship in pre-recorded music, and therefore, two distinct protectable copyright interests: (1) a copyright in the musical work, which refers to the composition —musical notes and any lyrics (for example, the sheet music), and (2) a copyright in the sound recording in which the musical composition is embodied. A sound recording is created when musicians perform a musical composition and record it onto a physical medium, such as a CD. Music publishers typically control the copyright in the musical work (through agreement with the author — songwriter/composer — of the musical work). The term “publishing” is commonly used when referring to administration and licensing of rights associated with musical works.
How do you help artists protect their intellectual property?
Our firm helps artists protect their rights in their sound recordings and musical works through counseling on how to obtain (and assisting with obtaining) federal copyright protection. We help artists protect their stage name or band name through conducting trademark search clearance and filing for trademark registrations. Our firm represents artists in negotiating record label and publishing deals, and advises artists on membership with sound recording and performance rights collectives. Our firm also assists artists in enforcing their intellectual property and other proprietary rights through cease and desist letters, trademark oppositions and litigation (if necessary), and in exploiting their rights (including name, image and likeness rights) through negotiating licensing arrangements.
In your time as a practicing attorney, what is a common mistake you’ve seen artists/bands make,
from a legal standpoint?
Many artists/bands select, use and establish goodwill in stage names or band names before taking the necessary steps to “clear” the name. In other words, they use the name before undergoing the appropriate searches to see if anyone else is using or has claimed rights to the same or similar name. The artist/band is exposing itself to potential legal claims of infringement of another’s rights if it uses a name that is the same or similar to that of another artist/band. In addition, once the artist/band has established a fan base (and an emotional connection to the name), it becomes more difficult to change the name.
When should an artist seek your help?
It is never too early to include a lawyer as part of an artist’s team of advisors. As mentioned above, clearing rights to use a performing name and taking the necessary measures to protect that name are crucial, and timing is an important factor. An artist should seek counsel, among other reasons, to protect its rights in its music, to take advantage of any royalty-generating opportunities, to negotiate label and publishing deals and to negotiate licensing and merchandising arrangements.
Contact Charmaine D Smith for legal help at www.GreenbergTraurig.com