Intellectual Property

Band In The USA: How Can Musicians Fight The Unauthorized Use Of Their Identities?

A number of retailers 'forget' to notify, let alone gain the consent of, bands whose identities are being exploited for profit.

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(Photo by Christopher Furlong/Getty Images)

A musician or band’s name has the power to evoke memories, to sell out arenas, and, most definitely, to move merchandise. In fact, in the year 2017, band merchandise is almost as important to the musician’s livelihood as the music itself. This is a recent trend and a true departure from the historical role of the basic band t-shirt. Back in the day, a musician could barely be bothered to take time away from crafting lyrics or laying down a particularly funky bass line to instead spend it designing merchandise. This task was thus delegated to an underling who slapped the band’s name or logo on the front of a plain cotton t-shirt and the geographical locations that the tour was to visit on the back and — voila — you had your band merchandise for that year.

Nowadays, artists, either working with an in-house team or talented outside designers like Wes Lang and Fear of God’s Jerry Lorenzo, toil for hours on particularly compelling artwork, fonts, and graphic placement. And, the cheaply printed cotton blends of yesteryear — forget it; today’s merch is created from high-quality fabrics and bear price tags to match.

This is as much a financial issue as an artistic renaissance. With less money to be made selling their music, artists have had to find funds elsewhere, and merchandise can be a particularly bubbling revenue stream. Merchandise not only brings in these ancillary dollars, but also builds band brands, and creates excitement around new product releases.

The trend-sniffing dogs that populate the buyers’ offices at large retail corporations have picked up on the scent of this growing movement. A number of retailers have gotten in on the act of using a band’s identity to market and sell merchandise, as well as to ratchet up the retailer’s goodwill and rad-ness factor. Problems arise, though, when the retailer “forgets” to notify, let alone gain the consent of, the band whose identity is being exploited for profit.

In one recent case, the musical duo that creates and performs under the name Classixx was surprised to find that international mega-retailer H&M was selling “Classixx” merchandise at their stores around the world.[1]

H&M had gone about designing, marketing, and selling “Classixx” merchandise without even contacting the duo about the commercial use of their identity. H&M hoped, perhaps, that Classixx would not notice the usurpation or would be too intimidated by the time and expense of going to court to enforce their rights. This, sadly, is an all-too common problem with corporate retailers — in their race to market and sell as much product as possible for as much money as possible, they fail to obtain the consent of those who make that product valuable and take the calculated risk that the artist will not become cognizant of, or have the wherewithal to enforce, their claims.

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And the claims can be strong. Statutory and common law protections exist to ensure that when H&M, and others like it, use a person or band’s identity without permission, their use will not go unpunished.

In California, there are common law protections as well California Civil Code 3344, which prohibits the use of “another’s name, voice, signature, photograph, or likeness, in any manner …for purposes of advertising or selling[.]” In New York, similar protections are found in sections 50 and 51 of the Civil Rights Law, which prohibit the “nonconsensual commercial appropriations of the name, portrait or picture of a living person.” This New York law differs in that it does not extend protection to the deceased, which is why you see so many cheap John Lennon and Marilyn Monroe posters on dorm room walls.

These laws require a company that commercially exploits the identity of another to obtain consent and provide compensation. In the music biz context, Bob Dylan or Joni Mitchell or Ryan Adams or any artist who performs under his or her own government name has a clear claim should a company use their names without permission.

Artists or groups who perform under variations of their names — like Andre 300 or Father John Misty — or wholly creative names — like Skrillex or The Beatles — should, of course, have no lesser rights in their names simply because they are not their government names. But, because the California and New York statutes reference, respectively, “another’s” and “person,” in connection with those whose rights are protected, the unauthorized user tends to argue that the statutes must be read to protect only against the exploitation without consent of government names.

Courts have not been so stingy with their interpretations. One case, Winterland Concessions Co. v. Fenton, 835 F.Supp. 529, 530-31 (N.D. Cal. 1993), decided under California law, recognized a jury verdict against an infringer that had used without permission the identity of, among others, the “Fine Young Cannibals,” which, and I have researched the issue, was not the legal name of any of the band members. And, in Bi–Rite Enterprises, Inc. v. Button Master, 555 F.Supp. 1188, 1199 (S.D.N.Y.1983), the Court recognized that musical groups, as well as individual performers, have protectable rights of publicity.

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This protection for band names is predicated on the idea that the “identity” of the band and not the literal government name or literal physical likeness is what’s at issue. This concept was ventilated in, of all places, a case in which Vanna White sued Samsung over Samsung’s use in a commercial of a letter-turning robot that bore an uncanny resemblance to the Price is Right star. The decision in the case, White v. Samsung Elec. Am., Inc., 971 F.2d 1395 (9th Cir.1992), held that Ms. White could proceed with her claims despite the fact that the robot did not bear her legal name or literal likeness because a plaintiff’s identity can certainly be misappropriated without the exploitation of those two specific identifiers. In deciding the issue, the Court noted, “[i]t is not important how the defendant has appropriated the plaintiff’s identity, but whether the defendant has done so (emphasis mine).”

The next year, in Apple Corps Ltd. v. A.D.P.R., Inc., 843 F.Supp. 342 (M.D. Tenn.1993), another court considered the issue and wrote without equivocation in favor of the musicians: “[c]ertainly, the stage name of a group of individuals is entitled to the same protection as the name of one of the individuals which compose that group.” These cases, and others like it, provide ample support for musicians, and game show hosts, faced with a company’s unauthorized exploitation of their identities. Now, do yourself a favor and go stream some Fine Young Cannibals. She Drives me Crazy is essential listening.

[1] This author’s firm represents the duo.

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 [email protected], and you can follow his law firm on Instagram: @veniceartlaw.

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