Intellectual Property On The Music Festival Main Stage

Almost everything having to do with music festivals involves IP law, including the counterfeit merch you bought.

With Austin City Limits, the Texas-based music extravaganza that marks the unofficial close of the annual music festival circuit, going down this past weekend, your correspondent ventured out to the Lone Star State to suss out the legal issues that are bubbling up in this hugely profitable industry. And, boy howdy, are they bubbling.

Given the absolute cratering of the market for recorded music, which at this point is a financial non-issue for the vast majority of musicians, and the wholly exploitative streaming royalties scheme deployed by Spotify, Apple Music, and so on, which enriches the tech companies that own the streaming platforms while impoverishing most of the artists who supply the music that gives the platforms their value, the money a band makes playing festivals is now no less than a matter of survival.

As is the money the bands make selling their merchandise (jauntily shortened to “merch” in most conversations) to festival-goers. Shirts, hoodies, hats, and so on bearing a band’s name and a photograph (or other piece of key art) are passionately rendered with as much care as a song and then offered for sale at every festival site. Each and every one of these pieces of merch, it is important to note, is saturated with all sorts of intellectual property. You have the photographer’s copyright in his photograph of the band, or the graphic artist’s copyright in his drawing of, say, a dinosaur holding a guitar. And you have the band’s trademark in its band name and logo. And, lastly, you have the band member’s name and likeness rights in connection with their personae.

All of those intellectual property rights are indeed ensnared in the humble rock band t-shirt and numerous cases have arisen in connection with those rights: claims asserting that the photograph on a piece of merchandise (which, notably, often implicate both copyright and a misappropriation of likeness) was exploited without permission, or that a band’s graphic artwork was copied from another artist, or, in cases that trend toward the vitriolic, that one band member was keeping too much of the merch money for themselves. These cases tend to settle, and not inexpensively given the numerous intermingled intellectual property and accounting issues.

Bootleggers peddling counterfeit merch, which almost always consists of cheap and dubiously manufactured shirts, are another endemic problem. The sale of counterfeit goods by roaming, backpack-wearing hawkers to those treading the festival’s lanes of ingress and egress cuts into legitimate sales and often involves apparel that become shrunken, faded, and nigh unwearable after a single wash. Bands have tried to combat these sales in numerous ways, but have run into difficulties given the fluid nature of the bootlegger’s sales strategy and customer service policy (the latter of which often consists of laughing and/or running away when presented with an intellectual property or quality control issue). One new trend has been for artists or their brand managers to file cases against numerous unnamed Doe defendants and to then obtain an injunction and seizure order pertaining to the Does’ statutorily shady conduct, which is then enforced at and around the performance location.

Bravado International, one of the larger merchandise corporations, not too long ago took this approach in connection with anticipated bootleg Billy Joel merchandise. Bravado’s lawyers represented to the court that the Piano Man had reason to believe that bootleggers would be attempting to exploit his intellectual property in the vicinity of his upcoming shows and that relief was necessary. The court agreed, and issued an order that the U.S. Marshal, the state and local police, local deputy sheriffs, off-duty officers, and “any person acting under their supervision” (language broad enough to deputize even a lowly attorney) were authorized to “seize and impound any and all unauthorized merchandise bearing Billy Joel’s trademarks “or other indicia.” This included any “clothing, jewelry, photographs, posters and other merchandise” within a 10-mile vicinity of his shows, for six hours before and after the performance. Pretty intense and wide-ranging for a judicial decree; it leads one to envision jack-booted enforcers descending on the show with a court order in one hand and a huge burlap sack in which to stuff counterfeits in the other. But, it has been relatively effective and is gathering steam as an enforcement mechanism for a number of bands.

More popular than the individual band merch is the merch for the festival itself. The profits that a festival realizes through selling hoodies and shirts branded with the name and logo of the event is only outpaced by the monies received in ticket sales (food sales are often outsourced to muy artisanal third-party vendors).

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For this reason, and to keep a stranglehold on the festival scene in a particular region, the corporate colossuses behind the festivals have been zealous in enforcing their intellectual property rights in court. The Coachella Valley Music & Arts Festival, one of the top dogs in the festival game and certainly the all-time leader in per-capita flower crown and peasant skirt wearage, has been particularly aggressive in ensuring that nobody else markets anything under the name “Coachella.” They memorably pursued Urban Outfitters for selling a collection of bohemian-type clothing under the Coachella name. And they recently launched a lawsuit against an emerging film festival in the Coachella Valley that had the temerity to refer to itself as “Filmchella” and “Filmchilla.” Alleging that they and they alone had the right to all things ‘Chella, they are currently pursuing a trademark infringement claim against the festival and its portmanteau in Federal Court in Los Angeles. (N.B., the author’s firm has been retained to represent the film festival.) The case is complicated by the fact that the word “Coachella” is a textbook geographic descriptor, meaning that it is used to merely indicate the location or origin of the event. And such descriptors face an uphill battle on the road to trademark protection. This makes sense, of course, because if we were to allow companies to monopolize references to geographic areas in the names of events, it would preclude everyone that follows from referring to events or festivals that follow in relation to the location in which they are taking place. And the Coachella Valley is big enough for all sorts of events and festivals.

Other festival-related legal issues, such as those related to live-streaming festival sets and onstage and in-song product placement, abound. But, we will have to wait to engage with those issues until Spring ‘18, when the festival season, like the rest of the northern hemisphere, arises anew.


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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