By Auntie Donna Brown, CEO of Always Resourceful LLC
In this article, we will explore the concept of intellectual property and its significance for indie artists. Put simply, “intellectual property” refers to creations of the human mind. Any indie artist who has ever created a unique work has produced “intellectual property,” also known as IP. The value of safeguarding an artist’s creativity goes without saying and can be priceless.
Let’s begin by discussing copyright, one of the tools used by indie artists to protect their intellectual property. However, it’s crucial to understand that copyright is not the only way to safeguard original works of art, which is a common misconception.
Protecting your creative works requires a multi-faceted approach that encompasses copyright and trademark registration, patenting, trade secrets, active monitoring for infringements, and creating unique content. These elements can be strategically used together or separately to identify and distinguish your brand from others and potentially amplify your income through licensing and deals.
A Multi-Faceted Approach: Safeguarding Your Creative Works
Indie artists who invest time and energy in creating original work generally want to protect it. However, many may not realize that their work is intellectual property, and even fewer may have been taught how to leverage the IP they create to exponentially increase revenue by identifying multiple revenue sources. As a US IP lawyer with a unique background in strategic management, it is important to me that artists understand how to monetize, grow, and protect the value of the art they create, just as businesses understand the need to create multifaceted strategies to maximize revenue.
While many may be familiar with federal copyright protection, in this article, we will explore why federal trademark registration and an ongoing monitoring strategy for infringements can be equally important.
Let’s start with creating unique content. Educate yourself about intellectual property rights and equip yourself with the knowledge to maximize the value of your work and ensure it receives the recognition and respect it deserves.
Now, you might be wondering what all this means for you as an indie artist. Instead of overwhelming you with abstract legal phrases, let’s explore your options by following the journey of a hypothetical indie band named “The Night Lights,” led by our imaginary songwriter, Emma.
Let’s assume that after a couple of gigs, The Night Lights band has been well received by its audiences, and now Emma and the band are exploring potential opportunities and safeguarding against potential threats to the band. In a meeting after band practice, Emma calls everyone in to talk about the band’s decisions.
Emma’s heard of copyright as a tool to protect the band’s creative work, but recently Emma has heard of this thing called a federal trademark, and she is not certain how that works.
Luckily, Emma has an aunt who is also an intellectual property lawyer. Emma invites Auntie Donna Brown®️ to a Zoom meeting to discuss the band’s options with them.
Auntie Donna is the business strategist and IP attorney you never knew you needed. She shows up to support these creators and helps them understand how to use federal trademarks as a strategy to avoid leaving “any money on the table!” Okay, so there is not a real table in this hypothetical, but you see where I’m going with this. Auntie Donna Brown®️ spends the next hour consulting with the band, explaining the benefits of registering a few federal trademarks — how it is not just brand protection, but also a monetization strategy.
By obtaining a federal trademark for their band name, “The Night Lights,” Emma and her bandmates establish exclusive rights to the use of that name in connection with their musical services. This trademark ensures that no one else can use a similar name, which could cause confusion in the marketplace.
Because the band has built a community and it has a known brand name, Auntie Donna points out to Emma that there is an additional monetization opportunity.
Emma and her bandmates can license their trademarked band name for use on merchandise such as t-shirts, hoodies, caps, and other apparel. They can collaborate with manufacturers and distributors to create high-quality products that showcase their band name prominently. Fans can proudly wear these merchandise items, helping to promote the band and create a sense of connection and community among their fan base.
Posters and Artwork
The band can license their trademarked band name for use on posters, album covers, and other promotional artwork. This allows them to create visually appealing designs incorporating their band name, album titles, and song lyrics. Fans can purchase these posters and artwork to decorate their spaces, further spreading the band’s brand and creating a visual representation of their music.
In addition to the word mark trademark for their band name, “The Night Lights,” Emma and her bandmates may also consider securing an image trademark. This image trademark can be a distinctive logo, symbol, or artwork associated with the band. Here’s how the image trademark can enhance their licensing and merchandising opportunities:
The band can release limited edition merchandise items that showcase the image trademark. These collectibles can include special edition vinyl records, signed posters, or unique merchandise items only available for a limited time. Fans who are avid collectors will be particularly drawn to these exclusive items, further strengthening their connection to the band.
By combining the power of a word mark trademark for their band name and an image trademark for their visual identity, Emma and “The Night Lights” can leverage licensing and merchandising opportunities to generate additional revenue, promote their brand, and establish a deeper connection with their fans.
The Importance of Protection from Infringement in the Age of Artificial Intelligence
A federal trademark can provide an indie artist with a solution to stop AI-generated sampling of their work in the following ways:
By registering a federal trademark for their artist name or logo, the indie artist establishes a distinctive brand identity that is legally protected. This trademark serves as a clear indicator of the artist’s originality and creativity, making it easier to recognize and differentiate their work from others, including AI-generated samples.
With federal trademark registration, the indie artist gains exclusive rights to use their trademark in connection with their music. This means they have the legal authority to prevent others, including AI algorithms or developers, from using their trademark without permission. If an AI-generated sample infringes upon its trademark, the artist can take legal action to enforce their rights and stop unauthorized usage.
With a registered federal trademark, the indie artist can send cease and desist letters to individuals or organizations using AI-generated samples that infringe upon their trademark. These letters formally request the cessation of unauthorized usage and may serve as a warning before pursuing further legal action.
If the unauthorized use of AI-generated samples continues despite the artist’s cease-and-desist efforts, they can pursue legal remedies. This may involve filing a lawsuit against the infringing party, seeking injunctions to stop the usage, and potentially claiming damages for the unauthorized use of their trademarked work.
Monitoring and Addressing Infringements to Safeguard Your Creative Works
While copyright and trademark registration provide essential foundations for protection, it is equally important to monitor potential infringements. Regularly conduct online and offline searches for unauthorized use of your work. This can be a daunting task and is a service that can be outsourced to a professional.
Keep a watchful eye on music streaming platforms, social media channels, live performances, and merchandise to detect any attempts to exploit your creations without permission.
Enforcement Actions: Cease and Desist
Upon investing your time and money in registering a federal trademark, you gain some tools to use against copycats infringing on your property. One of the more common tools is known as a cease and desist letter. It essentially puts the thief on notice that you are aware of their actions, and it includes a demand to cease the infringement and provide compensation for the unauthorized use of your intellectual property (IP), or risk facing further legal action.
In the case of our hypothetical band above, the scenario might look like the following:
Once again, it is best to consult with an IP lawyer before launching and building out your brands, just as Emma did with her band, as well as when a threat arises that requires action. The last recourse would be to pursue legal remedies, in which case you can take the registered trademark to court to prove your case.
It’s important to keep in mind that the foregoing facts were merely hypothetical and designed to help you understand how intellectual property works. It is recommended that you seek advice to create your own strategy for your IP to amplify revenue and protect against copycats. Whether you call Aubtie Donna Brown®️ or not, it’s up to you. But just remember, an ounce of prevention is worth a pound of cure. Meaning once you create your next big creation, put some thought into it and explore strategies for your band.
This is Auntie Donna Brown®️, and I’m done talking.
*Disclaimer: None of the foregoing should be construed as legal advice; each situation should be considered on a case-by-case basis. All examples are based on federal copyright and trademark laws.