by Sue Basko, esq.
See a related article: Protecting Your Band Name or Singer Name with Trademark
When you start a rock band, you choose a name for it. You should do this strategically so it enhances the future of the band, rather than causing problems. In this article, I give some general rules, and many of these rules also apply to choosing a stage name for a singer, or even to picking a name for a movie, company, or website. The information here should be helpful, but it is not legal advice for anyone’s particular situation. To get that, you would need to speak directly with a lawyer.
If you choose a name and it must be changed later, you then lose the goodwill, name recognition, booking power, following, and sales power that you had built up associated with the band name. This can be a big deterrent for a record label, agent, manager, or touring company that is considering signing your band. Their lawyers know you have to change your name and the question arises whether you are going to be able to build up your same “fame” afterwards, and how long it is going to take. There is the additional problem that legal work, such as contracts, have used the band name, and all that is going to have to be adjusted. A band that needs a name change is not likely to be signed, period.
RULE 1: Pick a name that is not being used or has not been used by another musical band.
HOW TO: You should pick a name that is not the same or similar to any other band in rock or any other genre, in use anywhere that you can find it in the English-speaking parts of the world. Google extensively on the internet, on all possible spellings of the main words.
WHY: You must choose a name that cannot be confused with any other group, for purposes of booking and promotion. You need a name that you can trademark if you decide to do so. If a record label or promotion or touring company wants to sign your band, they will make you change your name if it can be confused with another group. Also, if the other group notices you are using their name, they can force you to stop using it.
RULE 2: Pick a name that has not been used by any other rock band in the past, even if that band is no longer operational.
HOW TO: Some more very in-depth Googling, searching on youtube, asking music geeks.
WHY: Chances are, someone still owns the rights to that name or uses that name for some purposes, such as song publishing, band reunions, vintage merch, etc.
I have seen instances where a big band in the swing music genre or a jazz band uses the name of its famous leader. When the leader dies, sometimes the band continues on using the name. For example, I think this is the case with The Artie Shaw Orchestra. This will be a situation where the right of publicity and trademark/ service mark to use the name must reside with either the group or with an ownership entity of the group, such as a company. If you are looking ahead, it makes sense to plan for the death of the namesake leader, so that his or her music can live on in the best way to continue to please audiences. This is best done with legal paperwork done in advance, rather than with lawsuits after the fact.
RULE 3: Pick a name that is not the same or similar to that of any band you were ever in before, whether that band is still operational or not.
HOW TO: Be honest. If you were in a band called “Hopscotch,” you cannot name your new band “Hop Scotch.”
WHY: Every rock band is a business entity and in most cases, the name belongs to the entity and not to any given band member. There are some exceptions to this, such as when a “band leader” (or core unit) starts and organizes a band and maintains a sort of ownership control over the band. Then, as the peripheral band members come and go, that band leader will keep the same band name. An example of this is The Rolling Stones.
However, one band member, or one of the core group members, cannot form a new band and take the name.
However, still, ownership of the name may reside in the group as a whole. This is where a lawyer should definitely be consulted. Example on this rule: The name “Pink Floyd” has been trademarked and is owned by a business entity and not by any given person. Roger Waters has lately been touring as “The Wall.”
This situation can become very sticky when one or more members of a defunct band want to reunite and/or add other musicians, and perform for a “comeback” tour. If ownership of the name has not been clarified legally, this often results in lawsuits and/ or hard feelings. It can also result in audience disappointment. Anyone thinking of forming such a comeback should consult a good lawyer. Anyone forming a band now should think ahead to such future possibilities and choose the right name and have the paperwork done properly from the get-go.
Some "comebacks" are not really so. For example, a few years ago, there was a band that was said to be a comeback of The Byrds. This band had none of the original members and its connection to the influential 1960s California band was tenuous. When called on this, the band said it did not actually use the name "The Byrds," but "The Byrds Celebration." The fine line between being a cover or tribute band, and pretending to be the real thing, had been breached. See Rule 7 below for Cover bands.
If the band name itself contains the actual or stage name(s) of the band members, and if one or more of those band members leaves the band, then the legally correct thing to do is to change the name to reflect the membership. The legal rules behind this may include trademark, right of publicity, and in some cases, fraud. Examples: “Simon and Garfunkel” is only Paul Simon and Art Garfunkel performing together, and could not be used by either of them for their solo career or other bands. The same with “Sonny and Cher.” If Dave Matthews were no longer performing, no one should be selling tickets to the “Dave Matthews Band.”
RULE 4: Pick a name that is not used or owned by any other company or organization of any type.
HOW TO: Google extensively. Also, have a lawyer do a trademark search.
WHY: So you are not possibly violating anyone else’s trademark or other rights. Also, to give yourself maximum SEO (search engine optimization). If you have a unique name, a search on your name will likely place you on top.
RULE 5: Pick a name that is not the same as or cannot be confused with the name of any product, movie, TV show, book, comic book, character in any kind of book or show, the name of any other person, etc.
HOW: Google, google, google. Trademark search.
WHY: So you do not violate anyone’s trademark, copyright, right of publicity, privacy rights, or anything else. You might think it is cute to name your band after a Disney character, but Disney lawyers will let you know fast and firmly that it is not acceptable.
RULE 6: If you want mainstream success to any extent, pick a name that is not profane, violent, racist, sexist, offensive to any religion, apparently Satanic, or in poor taste, either in words or implication.
If a major goal of your music is that you want to shock, offend, or appeal to a limited audience while scaring away others, then you may want to choose a name that shows this. However, your band is likely to be banned from college campuses, high schools, community festivals, city-sponsored events, church-sponsored events, performances in stores and shopping malls, radio airplay, performing or use of your songs in advertising, placing your own ads in most media (they have standards), many commercial venues, websites, contests, online music sales sites, etc.
What about NWA or the Dead Kennedys, you may ask. They did not make it to huge mainstream success, and they began many years ago. In the intervening years, society has become much more concerned about appearing to treat others with civility, as well as with the perceived dangers of rock music. The influence of certain rock groups has been named as a factor in writings regarding school shootings, murders, and suicides. If, after considering all this, you still insist on calling your band the Satanic Nazi Marines, or The Defective Sperm, by all means, give it a whirl.
RULE 7: If you are a cover band or tribute band, pick a name that cannot confuse anyone into thinking you are the real band. A cover or tribute band is a band that performs and/or records the music of a famous band. Sometimes the cover band will try to look, act, and sound like the famous band, in which case, it is a tribute band. There are many Beatles tribute bands. If the famous band is still performing, great care must be taken not to violate their copyrights, trademarks, rights of publicity, etc. A lawyer must be consulted. If the famous band is not still performing, great care must also be taken.
HOW: Pick a name that does not use the actual words from the name of the original band, the name of any of their songs, or anything that sounds similar. The band also cannot use the name of the original band in advertising. For example, there is a successful Beatles tribute band in the midwest called "American English." That name is a good choice, because it does not confuse and yet implies what type of music will be played. There is a Grateful Dead tribute band from Florida called "Uncle John's Band." That is skating on thin ice, because that is the name of a Grateful Dead song. There is a Led Zeppelin tribute band in Los Angeles called "Led Zepagain" that records and performs the songs of the original band. If Led Zepagain has not licensed use of the Led Zeppelin name, (and their website gives no indication that they have), I would expect the lawsuits to fly any time now. Why? Violation of trademark, violation of service mark, violation of right of publicity.
There are instances where a famous rock band will license out use of its name to a tribute band. For example, right now, there is a touring show called Led Zeppelin 2. I do not know for a fact, but I am certain this touring group must have contracted with the real Led Zeppelin to use their name for this tour. Otherwise, the owners of the Led Zeppelin name could sue them.
Led Zeppelin 2 is a group of highly talented musicians, mostly from Chicago. From the photos and videos, I'd say most of them are wearing wigs and trying to look like the real Led Zeppelin from that band's heyday. It looks like Led Zeppelin 2 puts on a very good show musically. You can bet that the real Led Zeppelin is making money on each ticket. My guess is that some unwary ticket-buyers probably think they are going to see the real Led Zeppelin. If so, they must believe in the fountain of youth.
The real Robert Plant is touring with his new band, Band of Joy, and they are quite excellent. They play acoustic versions of some of the old classic Led Zeppelin songs. But, truth be told, if you want "realistic" Led Zeppelin excitement, the Led Zeppelin 2 imitators are the ones delivering it. The point is, to do this, you better believe they have a contract with the real Led Zeppelin and are paying dearly to use the name, stage likeness, performance styles, and music.
The name Led Zeppelin is registered as a trademark for goods and services (music sales) by Robert Plant, James Page, Robert Baldwin aka John Paul Jones, and the Estate of John Bonham. They do not have it registered as a service mark for performance, perhaps because they are not currently performing under that name or perhaps due to oversight. Nevertheless, I think they would legally own the sole right to perform under that name, since they have so come to "dominate the field" of rock music under that name, whether or not it is registered. And they definitely own the sole right to sell music under the Led Zeppelin name.
See a related article: Protecting Your Band Name or Singer Name with Trademark
-- To contact me, please email: SueBaskoMusic@gmail.com