The Song Remains Similar – Led Zeppelin and the Stairway to Heaven Plagiarism Trial

Music plagiarism

What constitutes music plagiarism? The line between inspiration and plagiarism is a fine one, and is the crucial distinction when it comes to music plagiarism. As I examined in my article here on the Robin Thicke vs. Marvin Gaye trial, everyone from Shakespeare to the Beatles to Sam Smith has been accused of stealing ideas from those that came before them.

As poet T.S. Eliot famously wrote: “Immature poets imitate; mature poets steal.”

The Plagiarism Claim 

One of my favorite bands of all time, Led Zeppelin, is now under the microscope for apparent music plagiarism in their classic “Stairway to Heaven”. “Stairway” is largely considered one of the greatest rock songs of all time (and apparently the most played rock song in the history of FM radio). The song they’re accused of plagiarizing is a somewhat obscure instrumental called “Taurus” by the American band Spirit, released in 1968. “Stairway” was written in 1970 and released in 1971.

Music plagiarism

Spirit in a field circa 1972

(Legal aside: while the statute of limitations for civil copyright infringement under U.S. law is three years, courts often read that as only restricting back royalties to the previous three years. It does not bar old infringements. Which is why this case can be brought 45 years after the release of the song).

A United States district judge decided in April that, while the four-chord backbone shared by the two songs is a common convention in the music industry, the similarities between the songs were more than just chord structure. A jury will now decide in June whether the “Stairway” opening segment was stolen from “Taurus” and if Robert Plant and Jimmy Page are guilty of music plagiarism and liable for copyright infringement.

(Second legal aside: the claim against bassist/keyboardist John Paul Jones was dropped, as he was not credited as a writer of the segment in question).

The timing of this lawsuit could not be more critical: starting in June, Led Zeppelin is preparing to re-release all of their albums in deluxe, re-mastered vinyl and CD editions. Zeppelin IV (which contains “Stairway”) is Zeppelin’s best-selling album.

“How Many More Times” – Previous Plagiarism Claims Against Zeppelin

This is not the first time the band has been sued for music plagiarism. Since the 1970s, Zeppelin has made settlement agreements and granted writing credits to other artists for several Zep songs, including “Whole Lotta Love” (blues legend Willie Dixon), “The Lemon Song” (blues legend Howlin’ Wolf), “Dazed and Confused” (folk singer Jake Holmes), and “Babe I’m Gonna Leave You” (folk singer Anne Bredon, whose son asked her in the 1980s why she covered Zeppelin early in her career. Her response: “that’s actually my song”). For a list of the 13 songs that Zeppelin has been accused of music plagiarism in the past, see here.

Music plagiarism

“Communication Breakdown”- How This Ended Up at Trial

In May 2014, Spirit’s bassist Mark Andes brought a music plagiarism action on behalf of Spirit’s guitarist, Randy Wolfe aka Randy California, who drowned in 1997 in the Pacific Ocean while attempting to save his drowning son (his son survived). According to court documents, Mr. Wolfe was interviewed about the similarities between the two songs before he died. He said that he had been friendly with the members of Led Zeppelin, and that if they wanted to take his song, “that’s fine.”

However, lawyers for the Wolfe estate argued that “the tenor of the interview” indicated that Mr. Wolfe “felt cheated by Led Zeppelin and was merely trying to save face and make light of a bad situation.” According to the court documents, Wolfe complained about the similarities between the songs. “I’d say it was a rip-off. And the guys made millions of bucks on it and never said ‘Thank you,’ never said, ‘Can we pay you some money for it?’ It’s kind of a sore point with me. Maybe someday their conscience will make them do something about it.”

Music plagiarism

Randy Wolfe aka Randy California, circa 1975.

Lawyers for Zeppelin argued that any similarity between the songs was limited to a chord structure that has existed for centuries, and is too commonplace to be entitled to copyright protection. This argument was trampled under foot. The district judge stated that “while it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure.”

“When the Levee Breaks” – Plagiarism Trials Becoming More Prevalent

The jury trial, set for June of this year, is the second high-profile music plagiarism trial to make headlines in the last two years This is a trend that some industry experts say may open the floodgates to more plagiarism lawsuits.

In 2015, the very same Los Angeles court that will hear the Zeppelin case awarded more than $7.4 million to the family of R&B legend Marvin Gaye after finding that the Robin Thicke and Pharrell Williams hit “Blurred Lines” had copied elements of Mr. Gaye’s 1977 song “Got to Give It Up.” The judge later reduced that amount to about $5.3 million. The case is now on appeal.

Music plagiarism

Wolfe’s lawyer has said that he’s seeking a songwriting credit for his client, and is willing to settle for $1 if the songwriting credit is given. The $1 offer would, however, come at a much larger price: Mr. Wolfe’s estate would share in all future songwriting revenues from the song. Any windfall from the judgment would apparently go to the Randy California Project, which supplies musical instruments and lessons to students at low-income schools in California. The windfall has the potential to be massive. As of 2008, “Stairway” had reportedly earned $562 million. It could be the single most profitable song in rock history. Needless to say, there is a lot riding on this jury’s decision.

“Good Times Bad Times” – The Legal Test for Plagiarism

The law states that anything that reflects a “minimal spark” of creativity and originality can be copyrightable, including melody, chord progression, rhythm and lyrics. In the event of a trial, the person claiming music plagiarism must prove two things, Access and Substantial Similarity.

1) Access

Wolfe’s legal team must first prove that Page and Plant had heard, or could reasonably be presumed to have heard, “Taurus” prior to writing “Stairway.”

“Stairway” was recorded between December 1970 and January 1971, and was first performed in March 1971, according to court documents. Before that, Zeppelin and Spirit toured the same venues and played at the same festivals on the same day at least three times between 1968 and 1970.

Music plagiarism

Lawyers for Wolfe also presented an interview that Page gave in 1970: “Spirit do some really nice things on albums. They give a really nice atmosphere when they play, and I always enjoy seeing them.”

But Plant and Page said that “they never toured with, shared a stage with or listened to any of Spirit’s music during these brief encounters,” according to court documents. The members of Spirit recalled things differently, however. They claim to have talked with members of Led Zeppelin backstage and that the bands had performed one after the other at two festivals.

Whatever the case, it’s difficult to deny that Page and Plant had access to the song in question. So the entire music plagiarism trial comes down to whether the similarities between the songs constitutes a “substantial similarity.”

2) Substantial Similarity

Wolfe’s legal team must show that the average listener would be able to tell that “Stairway” has been copied from “Taurus.” The more elements that the two songs have in common, the more likely they are “substantially similar.” In other words, “sounding alike” is not plagiarism; there must be many similar elements that combine to create plagiarism.

It is important to note that the lawsuit only accuses Zeppelin of copying the introduction of “Taurus,” not the entire song. So when we’re talking about “Stairway” being lifted, it’s really only 30 seconds of the Stairway intro we’re talking about.

“Taurus” begins with 45 seconds of orchestral music, lead by ominous strings and a sprinkling of jazz flute. This is followed by 15 seconds of fingerpicked classical guitar, with the bass notes descending chromatically (i.e. a half-step at a time) from A to F. This fingerpicked section repeats itself before the song moves to a different musical part. It’s these 30 seconds that are the subject of the music plagiarism claim.

Music plagiarism

“Stairway” has that same chromatic descent, and a similar feel of spare, slowly paced guitar. The phrasing (i.e. how the guitar is played) of “Stairway” and “Taurus” is similar. However, plenty of songs start in A minor and descend from there (“Babe I’m Gonna Leave You” and “While My Guitar Gently Weeps” both do the same). Further, “Stairway” builds and resolves in a way that “Taurus” does not. So what we’re left with is the first several guitar notes on “Stairway” resembling the first several guitar notes in “Taurus”.

Is the above “substantially similar”? The courts have stated that in order to be so, the copying must be egregious enough that it violates the copyright in the other song.

That is not easy to say with confidence here. Vanilla Ice’s “Ice Ice Baby” and Queen’s “Under Pressure”? That’s easy. The Beach Boys’ “Surfin’ USA” and Chuck Berry’s “Sweet Little Sixteen”? Ditto. The Offspring’s “Get a Job” and the Beatles “Ob-La-Di, Ob-La-Da”? You bet. Even The Stones’ “Has Anybody Seen My Baby” and KD Lang’s “Constant Craving” is clear.

The comparison between “Taurus” and “Stairway” is not so clear. Starting a song in A minor is not copyrightable, neither is a descending chord pattern.

The fact is, many songs remind you of a song you’ve heard before, and that’s what makes them catchy. CBC Radio examines these similarities daily with their “Distant Cousins” feature, which apparently has listeners sending in dozens of songs a week that sound “substantially similar.”

“Stairway” contains a brief segment that sounds similar to “Taurus,” but for me, it is not egregious and therefore not substantially similar enough to constitute music plagiarism.

Music plagiarism

Spirit in another field, 1972

“Bring it On Home” – Concluding Thoughts

“Taurus” is an interesting song at best; a short instrumental that I might put on while meditating. It’s fine background music. “Stairway” is monolithic. A song that has connected with millions of people around the world. A crowning achievement in rock and roll songwriting. If it’s overplayed, it’s for good reason. If “Taurus” is underplayed and underappreciated, it’s for good reason as well. It’s not an exceptional song. As Zeppelin biographer Mick Wall notes, if Page was influenced by the chords from “Taurus”, “what he did with them was the equivalent of taking the wood from a garden shed and building it into a cathedral.”

Now, as my band mate pointed out, you still have to pay for the wood from the garden shed. Which is where I think Page and Plant should have settled this out of court years ago, for an undisclosed amount. It might not have included songwriting credit, and instead just a dollar amount. It would have avoided all the bad press and lawsuits. But we’re past that point now.

I don’t think the jury should come back with a finding of music plagiarism in this case. Part of me wishes they would, as the underprivileged kids will benefit and Zeppelin can afford it. But that’s not how the law works. The reality: if “Stairway” constitutes music plagiarism, so do half the songs on radio today.

My guess as to what really happened: Page heard the song at some point, maybe it was backstage in the dressing room waiting to go onstage, and it seeped into his subconscious. Then when he was feeling inspired a year or two later, he sat down and it came from his fingers. I don’t think it was intentional, but intent doesn’t matter in a plagiarism case. Only outcome.

For me, the outcome here is not plagiarism, but inspiration.

Music plagiarism

How Your Music Makes Money (Part Two) – The Songwriting Copyright

Songwriting Copyright

How does your music make money in the modern world? While record sales are becoming less and less relevant, revenue streams generated from the Songwriting Copyright have greatly increased. This is because music is being used more now than ever before. This use generates money for the writers of the music.

The revenue streams flowing from the Songwriting Copyright include:

Public Performance Royalties

The owner of the songwriting copyright owns the exclusive right to perform or authorize others to perform the music publicly. These public performance royalties are collected and administered by a collection agency such as ASCAP or BMI in the USA, and SOCAN in Canada. “Performance” in the music industry can include any of the following:

  1. A performance of a song or composition – live, recorded or broadcast. For example, when a song is played during the broadcast of an NHL game. The broadcaster pays a fee to SOCAN, and that money flows to the writers of that song.
  2. A live performance by any musician. When your songs are played live at a venue by you or by someone else (as a cover), you get paid. Venue owners pay SOCAN specified fees, and those fees are distributed to SOCAN members based on set lists that the performing artists submit to SOCAN. So when OBS covers “Psycho Killer” during a live show, the writers of the song (Talking Heads) get paid. The same would happen if a band covered OBS.
  3. Performance through the playing of recorded music. This includes radio airplay and other similar performances. Radio stations pay significant fees to SOCAN every year for the right to perform recorded music on air, and these monies are paid out to songwriters based on the submitted playlists. So when my band’s recording of “Psycho Killer” gets played on radio, Talking Heads get paid.
  4. Music performed through the Internet. Similar to C, but for Internet broadcasts.

songwriting copyright

Mechanical Royalties

The author of a song has the right to be paid every time a copy of that song is made (or “mechanically reproduced”). So the record label or individual reproducing the song must pay the writer a fee per song, per copy manufactured. In Canada that fee is 8.3 cents and determined by an agreement between the recording and publishing industries, and the in US it is 9.1 cents and determined by legislation. Another real world example: when my band’s recording of “Psycho Killer” is sold on iTunes for 99 cents, 8.3 cents go to Talking Heads. If you are signed to a label, they should be paying you mechanicals for songs you write. If you are unsigned, contact CMRRA in Canada and the Harry Fox Agency in the USA for more info.

Synchronization Licensing Fees

Similar to a Master Use License, but for the writer and owner of the Songwriting Copyright. The synchronized song also generates performance income every time the television show, commercial, or film containing the composition is performed. In other words, the “backend” revenue from performance royalties can often far outweigh the “up front” sync fee, if the television show or film is played thousands of time around the world. A good example is the Cheers theme song “Where Everybody Knows Your Name”, which was written by struggling songwriter Gary Portnoy. The up front synch fee paid to use the composition in Cheers was quite modest, but the “backend” performance royalties as a result of Cheers airing so many times in so many countries has made Mr. Portnoy a millionaire several times over.

songwriting copyright

Private Copying Levy

Similar to the Blank Tape Levy discussed last issue. Money from the sale of blank CDs goes to songwriters across the country. If you are a songwriter, you are entitled to receive payments from this levy. Contact the Canadian Private Copying Collective to sign up.

Print Royalties

Print income is derived from printed copies of a song, from the sheet music. Sheet music consists usually of the melody notes and the lyrics which may accompany those notes. The copyright owner or administrator can license the right to print such sheet music to print publishers, in exchange for royalties. For most musicians, print income represents a small percentage of their total income from songwriting.

Lyric Display

Revenue generated by the display of your lyrics on a website. Paid to songwriter/composer by your publisher. While the right for composers to earn money based on the display of their lyrics is not new, the number of opportunities has exploded thanks to the Internet and the growth of licensed lyric aggregation sites like LyricFind.

There are many other miscellaneous revenue streams to consider in order to make the most of your career in music. YouTube revenue-sharing, ad revenue from Google Adsense, issuing samples of your music to third parties, creative fan funding campaigns, etc.

The music industry – and the way in which you can earn a living in it – will continue to evolve. As the saying goes, the only constant is change, particularly in the music business. The Songwriting Copyright will continue to be a major source of revenue for songwriters. As always, email me with any questions or comments.

Songwriting Copyright

How Your Music Makes Money (Part One) – The Sound Recording Copyright

Sound Recording Copyright

The Sound Recording Copyright ain’t what it used to be. Record sales are seriously down, and that’s an understatement. But there are numerous revenue streams that still flow from the Sound Recording Copyright. Are you making the most of your sound recordings?

Major transformations in the music industry have occurred in the last decade that have completely altered how music is created, released and consumed. Some say these changes have made it easier than ever for musicians to retain control of their careers and to benefit more directly when their music is released. Others say that while access to the marketplace has greatly improved for most musicians, the changes in the industry have decimated the ability for musicians to generate revenue once they’re in the marketplace.

While new technologies may have indeed reduced the revenue flowing from the sale of recorded music, they have also created a great deal of new revenue streams from the use of that music. The fact is – most musicians are unaware of many of these new revenue streams. The top 1% of musicians now earn about 80% of all revenue earned from recorded music. Assuming you are not (yet) part of that 1%, you need to make the most of any and all revenue streams being earned from your music.

Yet it’s not that easy. The copyright system as we currently know it developed in bits and pieces over several decades as technologies changed, and the layers of complexity in music-related revenue streams can even confuse me (once in awhile, and only before my morning coffee).

In every recorded song there exists two essential copyrights: one in the recording of the song (the Sound Recording Copyright) and one in the composition itself (the Musical Work Copyright). This article will focus on the revenue streams new and old flowing from the Sound Recording Copyright.

sound recording copyright

The Sound Recording Copyright 

Whether on vinyl, cassette, CD or via digital download, income from the sale of sound recordings has been a core part of many musicians’ income streams for decades. There’s no doubt that this income stream has undergone serious changes in the past 15 years. Where record sales were once the primary income source for most musicians, they are now an ancillary revenue stream at best. Where artists used to tour in order to sell more records, they now release records to create interest in their tours.

That being said, the development of legitimate download stores like iTunes, Amazon, and Napster, as well as licensed subscription services like Rhapsody, Spotify and Apple Music, have created new revenue streams from the Sound Recording Copyright. There’s also been serious growth in a new revenue stream from sound recordings: digital performance royalties that are generated when sound recordings are streamed on webcast services (like Pandora) or played on satellite radio (like Sirius XM).

Do these new revenue streams from the Sound Recording Copyright make up for the lost revenue from record sales? Not likely. But if every music fan in the world paid $10/month for Spotify, for example, we would have a much healthier source of revenue flowing to recording artists. Streaming is clearly where the industry is heading…digital track sales are falling at nearly the same rate as CD sales, as music fans are turning to streaming on iTunes, SoundCloud, Spotify, Pandora, iHeartRadio, and music blogs.

sound recording copyright

The major revenue streams generated from the Sound Recording Copyright that you should be aware of include:

Record Sales

This includes sales from traditional brick-and-mortar stores, physical sales through Amazon, physical sales at live shows, and digital sales through iTunes, Bandcamp, etc. This revenue stream continues to decrease each year.

Streaming Royalties

Digital royalties are generated when music is streamed through services such as Pandora and SiriusXM, and collected by an agency called SoundExchange. SoundExchange has paid out more than $3 billion in royalties since their first distribution, and their website has a search function to see if you or your band are owed money.

Master Use Licenses

When a song is used in film or television or in a commercial, the owner of the master recording is paid a “Master Use License”. The amount of the master fee depends on the bargaining power of the parties involved, and how badly the producer wants the song in their production. Use of music in film, TV, etc. requires two licenses, a Master Use License from the master owner and a Sync License from the publisher or songwriter.

sound recording copyright

Neighbouring Rights

This is a right that compensates the performers on a recording rather than the songwriters (session players, singers, performers and record companies). Radio or TV broadcasters pay a tariff to collection agencies in order to compensate the performers and the labels that own the sound recordings. Note: neighbouring rights do not exist in the USA, but exist in many other countries such as Canada and most of Europe. In Canada, register with ACTRA to start receiving these royalties.

Private Copying Levy

When consumers purchase blank CDs and like media, they pay a fee known as a private copying levy, which was created to compensate music rights holders for private copies made of their music. If you own your master recordings, you are entitled to a portion of these payouts. In Canada, check out www.cpcc.ca for more.

This is just a starting point, and there are new revenue streams from the Sound Recording Copyright being created all the time. Next up: the revenue streams generated from the Songwriting Copyright.

Sound Recording Copyright

 

What is an Artist Development Deal, and Should You Sign One?

Artist Development Deal

In the “glory days” of the recording industry (i.e. after Elvis, before the Internet), there was a very common type of deal offered by record labels called the Artist Development Deal, sometimes known as a “Demo Deal”. The idea was fairly simple: if a label liked you but didn’t want to commit fully with a record deal, they’d offer you an Artist Development Deal. I like to think of them as the ‘promise ring’ of the music industry: a commitment, but not taken seriously by anyone outside of the relationship.

What is an Artist Development Deal?

In theory, the Artist Development Deal was the best of both worlds for the artist: the commitment of funds and development from the label, without signing away your soul. However, there was often more to these deals than meets the eye. The deals often gave a significant cut to the label on live and publishing revenues, often involved horrible royalty payouts, and many times included a right of first refusal clause that made the commitment as significant as a full recording deal, without all the perks. Kind of like a promise ring with the consequences of an engagement ring.

These deals still exist, but the entire artist development infrastructure has changed. Long story short: the major labels are no longer paying for artist development. But who is? For the most part, artist development has fallen on artists, and record labels only become interested when an artist has built up a major following both on and offline. But there is a whole new industry emerging in the area of artist development, led by young entrepreneurs, small businesses, and music fans, as opposed to multinational corporations. In other words, the “new” Artist Development Deals are coming from startups trying to build a legacy, rather than protect one.

What does an Artist Development Deal look like in 2017?

The new Artist Development Deals range from mutually beneficial and artist-friendly to downright exploitive. What they have in common is the investment of time and resources by the ‘developer’ in the short term, in exchange for a piece of the artist’s revenue streams in the long term.

Here’s an example: in exchange for “developing” the artist for the next 3 years, the developer will be entitled to 15% of all revenues generated during the term, and 10% of all Sunset Revenues earned over the 10 years following the term (known as the “sunset period”). Sunset Revenues are defined as gross revenues earned during the sunset period from all master recordings and compositions recorded/released during the term, as well as revenue earned from all deals negotiated during the term but received in the sunset period (including sponsorship and endorsement deals).

What are the Pros and Cons of an Artist Development Deal?

One of the advantages of signing an Artist Development Deal is obvious: the developer should open up doors that otherwise would be closed, such as providing industry contacts, booking shows, helping develop your live show, song writing, image, and brand generally.

A clear disadvantage of the Artist Development Deal is that the revenue pie gets split further, so each band member earns less. If you sign with a manager or record label or publisher, the pie gets divided further. Now, you need all of these additional parties at some point in your career, so it’s a question of ‘when’ rather than ‘if’, whereas not every artist needs the help of an artist development team.

So that is the real question you need to ask yourself: to what extent can the developer truly “develop” your career? What are they offering that you cannot already do yourself? If self-managing isn’t something at which you and your band mates excel, you will benefit more from an artist developer, and sooner rather than later.

As always, email me with questions and comments.

Artist Development Deal

Should Your Band Trademark Your Band Name?

Band Trademark  Band Trademark Band Trademark

Is it worthwhile for musicians to obtain a band trademark? When you think of bands like The Rolling Stones, AC/DC, Metallica, the Ramones, the Red Hot Chili Peppers, Aerosmith, KISS, and Iron Maiden, their logos and brands are immediately identifiable and familiar. These brands also happen to be worth millions.

The trademark of a band name or logo serves to identify and protect these brands, and can be hugely valuable in the music industry. The band trademarks listed above are arguably as identifiable as the band’s songs, and in many ways, just as valuable.

What can be protected via a Band Trademark?

Band trademarks can assume numerous forms. There are traditional Word Marks: Metallica, Iron Maiden, and Aerosmith are all word marks that have been registered with the United States Patent and Trademark Office, and protect the words themselves when used in association with music.  Word marks can also take the form of personal names.  For example, John Lennon, Mick Jagger and Bob Dylan all have trademark protection on their performing names.

Band Trademark

Another type of band trademark is a Design Mark, which might consist of stylized words, letters, and/or a design element, like a logo. So the classic tongue of The Rolling Stones, the asterisk logo of the Chili Peppers, the stylized letters used by Metallica, Iron Maiden, and KISS…all of these designs are trademarked in addition to the words themselves.

Titles of songs and albums receive limited benefits under trademark law. A band generally cannot register trademark rights in the title of an album or song to prevent other artists from using it. For example, The Replacements released an album titled Let it Be, which of course The Beatles did years before. A title of a song or album may be protectable, if it is used in connection with merchandise, such as clothing. For example, Led Zeppelin would likely have a successful claim of trademark infringement if another band made t-shirts with ‘Stairway to Heaven’ written on them, because the song is so directly linked with Led Zeppelin.

The general prohibition on registering titles does not apply where there is a series of works involved.  For example, Meat Loaf owns a federal trademark registration for the mark BAT OUT OF HELL, which he used as the title of a three-album series.

Band Trademark

Without a Band Trademark, what rights do I have in my band name?

You can establish rights in your band’s name without a trademark, through the simple use of the name. However, absent a federal trademark registration, your rights in a mark are limited geographically to the scope of your reputation.  Therefore, without a trademark, it is possible for two bands to exist with the same name, and neither would have a claim against the other unless the “reach” of the bands overlaps.

If two bands have the same name and their territories do not overlap, each band would be entitled to prevent the other from entering into its “zone of protection”, and both have the right to expand into “unoccupied territory” so long as their areas of operation remain remote.  Thus, for example, a band in Toronto with only a regional reputation in Ontario can peacefully coexist with a band in Vancouver using the identical name.  However, if either of those bands land a record deal with national distribution, or release a song online that gains significant exposure in the other’s territory, they could bring an action to stop the other band from using the name further. Of course, the concept of completely isolated territories is a bit nebulous in the Internet age, but the principle still applies.

What are the benefits of a Band Trademark registration?

The case of Stuart vs. Collins demonstrates the benefits of a federal trademark registration in the music industry.  The Stuart case involved a little-known rock musician named Thomas Stuart who performed in a group called The Rubberband.  Although the group’s primary area of operation was in the southeastern United States, Stuart procured a federal trademark registration for the band’s name.  Subsequent to the registration date of Stuart’s mark, well-known funk bassist Bootsy Collins began to tour and release records under the name Bootsy’s Rubber Band.  Stuart filed suit, and ultimately was awarded $250,000 after prevailing on his infringement claim. Without a federal trademark, Stuart’s rights would have been limited to his immediate zone of reputation, and the value of his claim would have been greatly diminished. Too bad for Bootsy.

Band Trademark

Here are some other benefits of a trademark registration: it will stop dishonest competitors from diluting or tarnishing your band’s image; it will stop new bands from trying to use the name (as the name will appear in the Federal Trademark Register); it might allow you to claim triple the amount of damages if your band name is willfully infringed; in the event a domain name infringes your mark, a federal registration provides standing to bring an action that can force the infringing site to be shut down; and finally, you may be able to enlist the help of US Customs Service officers to stop gray market or counterfeit goods at the border.

When is the right time to obtain a Band Trademark?

My advice: if you take your career seriously (and you must if you’re reading this), you should think seriously about investing in a trademark for your band. In theory, it is never too early to apply for a trademark. A good estimate of cost is around $1,000.00 CDN to file a Canadian trademark application, and roughly twice that to file a US application. I’ve dealt with several band name disputes, and can confirm that they end up costing far more than the cost of a trademark. I appreciate that paying rent, buying a new guitar, and maintaining your tour van might take precedence, but the cost of a trademark will be money well spent. When you look at the ongoing decline in music sales, it’s hard to deny the increasing importance of ancillary revenue streams like merchandise and the increasing value of your band’s “brand”.

Before choosing a band name you should do some targeted Google searches as well as trademark searches on the US Patent Office website (www.uspto.gov) and the Canadian Trademark Database (www.cipo.ic.gc.ca) before committing to the name. When you can afford to, invest the money and secure the trademark. The last thing you want is to get your big break after years of hard work and building up your brand, only to find out that another band owns the rights to your band name and you have to start from scratch. As always, email me with any questions.

Band Trademark

Should Musicians Give Their Producer Songwriting Credit?

very common question I get asked by my musician friends and clients is whether they should give their producer songwriting credit on songs they’ve produced.

This question brings up a key distinction to be drawn between the Songwriting Copyright and the Sound Recording Copyright.

Record Points vs. Songwriting Points

Rather than give their producer songwriting points, recording artists would traditionally give their producer 2 to 4 points on the record. In simplified terms, this means that 2 to 4% of revenues generated from the sale of these records would go to the producer. So for each $0.99 iTunes sale, two to four cents would go to the producer. Only the sound recording copyright is involved here.

However, I’ve noticed an interesting thing happening in the last few years: as record sales (and therefore producer royalties) continue to decline, many producers are suddenly calling themselves songwriters. In some cases, it’s justified: I know a lot of producers that are also talented writers, and who sit down with the artists they record and help them take the songwriting to the next level. They might help write lyrics, add entire parts to the song, suggest structural changes, or change the chords and melodies.

If the producer is indeed a co-writer, they would be entitled to portion of the songwriting copyright, for the length of the copyright (the life of the writers plus 50 years in Canada). Once a songwriter, he or she will always be a songwriter of that song, likely for a hundred years or more. They will be entitled to revenue from radio play, use of the song on television, at sports games, and any other time the song is performed…for decades.

Giving up songwriting is a big deal, and a much deeper commitment than giving up points on the record. See my article on The Two Copyrights in a Song for a more in-depth comparison.

This leaves us with the million-dollar question: where is the line drawn between producing and writing?

Producer or Producer/Songwriter? 

You as artist are paying – and likely a significant amount – to obtain the various services that a producer provides, such as offering their opinion of the songs, making suggestions on improving them, and suggesting changes to the arrangements. But do any of these things constitute producer songwriting?

For example, if a producer changes a single chord in the chorus of your song, is that producer songwriting? If they write all the lyrics to that chorus, is that producer songwriting? In my opinion, the answer to the former is no and latter is yes. Unfortunately, most contributions fall somewhere in between the two extremes, which creates a real grey area.

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What does the law say? 

In Canada, the question of whether the producer is entitled to songwriting was settled in the Sarah McLachlan case (see Neudorf v. McLachlan et al, BC Supreme Court). The court ruled that there must be proof of mutual intent between artist and producer that producer songwriting with the artist will take place, as well as evidence that such producer songwriting occurred. What this means is that bands and producers need to sit down before recording begins and discuss this important issue, and agree if the producer will get points on the record and/or on the song, or neither. Unfortunately, 90% of the time this does not happen, and things hit the fan when a song becomes a hit and the producer claims half of the songwriting.

While the issue of intent might be clear in some cases (i.e. was it discussed or not), finding evidence that producer songwriting actually occurred might prove to be difficult. See my article on What Constitutes Songwriting for more clarity. In the meantime, just know that as an artist, you should not be giving away any of your songwriting unless real co-writing is happening with your producer. And it should all be discussed before the “record” button is pushed.

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Cross-Canada tour our best yet!

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What a way to finish a tour!!! In front of 1001 of our closest friends in Saskatoon!! Honestly, that was the loudest, craziest crowd we’ve played to…had to stop a few songs and let the crowd sing along. Amazing. Thank you to our Australian brothers The Lazys for joining us the for entire tour, to our amazing crew, and to promoters and radio stations across the country who continue to believe in us and keep making things bigger and better! But most of all, THANK YOU to our fans coast to coast who keep blowing our minds with your incredible support…we really do have the best fans in the country. Cheers friends

KD Chosen as Music & Law Columnist for SOCAN

Received some great news this morning. I’ve been writing articles on the music industry for years, sharing them here and getting them published every now and then in magazines like Canadian Musician and DRUM! Magazine in the US. Today’s breakthrough is particularly special, as I’ve been a songwriter for most of my life. SOCAN has chosen me to be their “Music and Law” columnist for their website!! I’m incredibly honoured and appreciative. My first article went live last week. Here’s to many more.

Arena Shows with Judas Priest!!

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We just got off stage at the Brandt Centre in Regina opening for Judas Priest, and it was one of the best shows of our career!! Rob Halford came to our dressing room before the set and introduced himself, and knew our names (!) and a bit about the band. What an honour, and what a true gem of a man. So humble and kind. What a legend.

We head to Winnipeg for another date with the metal gods, then back home for a few weeks off before our national headlining tour. But for now, just soaking this in. What a feeling.