Who gets the rights to our band name when the band breaks up? 7 Answers as of October 07, 2012

4 of my friends and I were in a band together for several years and we just broke up. 2 of us are going to do our own thing and we want to keep the same name. Another guy says we can't. How do we decide?

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Law Office of Anthony Hong
Law Office of Anthony Hong | Anthony W. Hong
The answer depends on several factors including importantly whether anyone has ever received a trademark on the band name.
Answer Applies to: Texas
Replied: 10/7/2012
Richard M. Gee, a PC
Richard M. Gee, a PC | Richard M. Gee
Normally, the name of the band is the personal intellectual property of all the band members. Hence, any of them could use the name unless you have an agreement to the contrary. There may be a question as to whether the band members not using the name would be entitled to some sort of royalty related to the use of their intellectual property (i.e., the band name, which is a trademark), so if you want to use the band name, you probably should work out a deal with your remaining band mates.
Answer Applies to: Colorado
Replied: 10/7/2012
Entertainment Law Partners
Entertainment Law Partners | Tifanie Jodeh
If you dont have a written agreement then you have nothing to govern who owns the name. You should all get an agreement done.
Answer Applies to: California
Replied: 10/4/2012
Day and Koch, LLP
Day and Koch, LLP | Bartley Day
For any band which hasn't set up any kind of legal entity (for example, a corporation, LLC, etc.) and which doesn't' have any agreement in place addressing the band trademark issue (for example, a partnership or LLC agreement), the band's trademark is generally considered a partnership asset and belongs to the members jointly. There are some technical exceptions to this, but that's the general rule. If your band is a real business (as opposed to a hobby band), you would be well advised to consult with an attorney knowledgeable about this kind of legal issue, because there are some complicated aspects of it which aren't really suitable to discuss on a website like this. There are also some creative ways to rescue a situation like this. General note to other bands: This kind of situation is a very good example of why any band of any significance should have a formal contract in place which addresses this trademark ownership issue, since this kind of problem arises so often. Bart Disclaimer: The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. You should seek the advice of competent legal counsel before taking any action related to your inquiry.
Answer Applies to: Oregon
Replied: 10/4/2012
Lawyer for Independent Media
Lawyer for Independent Media | Sue Basko
In California, the music business is very important and is strongly addressed in law and policy. Please see my answer on here for this same question for Illinois. When considering the same question in California, I would add that since you obviously did not plan ahead, do not use the name for the new band. Bands in California are far more likely to enter into the professional level of music, including touring, record labels, television, and on. And you can't move on and up if you are entangled in legal issues from a past band.

When your band or act has any major legal issues hanging over it, that usually will stop the band from being considered for contracts with managers, agents, labels, etc. Questions about ownership of the name are a huge legal issue. The best step you can take is to start your new band with a new name that is not now and has not in the past been the name of a band anywhere in the world. Start researching. Google is a good start.

Once you pick the name, contact a lawyer to do a search and register trademark on the name. This is work I do, and I think it is an excellent investment for a band. NEVER use an online pseudo-legal service to try to register trademark on a name. Trademark registration is a complex process that takes over a year to complete. Those online services are not lawyers and they simply fill out the application, probably incorrectly. The application is merely the beginning of the process. There is still a year or more of legal work after that. If you use one of those fake legal services online, you will be out the money you paid, which at this time will be over $400, and you may also lose the right to use the name. Just use a real lawyer for your legal work.

Answer Applies to: California
Replied: 10/3/2012
    Lawyer for Indie Media
    Lawyer for Indie Media | Sue Basko
    I love this question. This is the very kind of work that I do When you formed the first band, you should have had a band contract written up, that would spell out such things as who owns the name and what happens when the band breaks up. I write these contracts and I welcome bands to contact me to have me do this for them.

    Most bands that go on to become famous go through many personnel changes. That's just how it is. Bands break up because of differing levels of commitment, differing levels of talent, artistic differences, personality clashes, power plays, drug and alcohol use, mental and emotional instability, jobs, school, and family changes. The band itself can have stability and longevity, even as the members come and go. It takes some solid planning and foresight to make that happen.

    A band name does have value to it, and goodwill attached to it. That means people recognize the name and will go to shows and buy CDs or downloads because they associate good things with the name. Therefore, who has the right to use the name is a very important question.

    Since you did not form a written contract with the first band, the band is probably considered a de facto partnership. That is if you all joined at about the same time and were all considered partners. If that is the case, the assets of the band would be divided equally. The band name is one of the band assets. Since you cannot divide a name, none of you can use it unless you get permission from the others. If it is worth money to use the name, you might consider making a money offer and then getting a written contract about use of the name. Otherwise, you are truly best starting new and fresh and coming up with a totally new name that is not being used by any other band anywhere else in the world. And, if you have other assets that must be divided, such as shared recordings, you should definitely consult with a lawyer who does this sort of music work.

    As you form your new band, with a new start, I strongly advise that you get a band contract written up to address such things as band name, song ownership, recording ownership, personnel changes, ownership of email lists and social media accounts, ownership of music sales accounts, and many other factors. Some people like the drama and magic of forming a band without advance planning. This is similar to falling in love and diving head first into a relationship. However, the magic quickly wears off and the drama remains and is intensified. Think of a band contract as a prenup.

    Answer Applies to: Illinois
    Replied: 10/3/2012
    The Barrister Firm
    The Barrister Firm | Christopher Benjamin
    Whoever owns the REGISTERED trademark to the name is the one who has legal control.
    Answer Applies to: Florida
    Replied: 10/4/2012
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