mr. industry

Mr. Industry

My band just made a CD, and now we want to get digital distribution so we can be on the iTunes store and places like that. Someone told me I need to have a special code on the CD to do this. We already have a bar code for the CD. Is this something different? Can I still add it with a sticker or something, even though the CD is already manufactured?

– Caroline G.
Guitar/mandolin/melodica
Brooklyn, NY

Dear Caroline,

In order to sell music through many digital retailers, including iTunes, each digital master must have an ISRC code attached to it. ISRC codes are issued by the IFPI internationally and by the RIAA in the US. They are digital "fingerprints" which attach to digital tracks, acting as powerful tools for royalty collection, administration, and anti-piracy safeguards. Assigning the code can be done either at the mastering stage, or at the encoding stage by whichever digital aggregator/distributor you are using to deliver recorded content to the retailer.

ISRC codes are separate from UPC codes (the "bar codes" referenced above), which are retailing tools to gather sales information, and are identical to the code listed on the back of the physical embodiment of the digital master. ISRC codes are tethered only to the digital master, and remain embedded regardless of the ownership of the recording.

It's not terribly clear what current uses ISRC codes have (besides the "powerful tools" I mention above, referenced from the RIAA website). But individual fingerprinting of digital tracks is likely to have a future place in the digital sales of music as other watermarking technologies take hold, especially in the (hopefully increasing) sales of otherwise "naked" (or un-DRMed) mp3 song files.

If you live in the US and wish to obtain a code, go to http://id3.org/isrc.html, or go to http://ifpi.org/isrc to locate the appropriate administration agency in your territory.

– Mr. Industry

Dear Mr. Industry,

I was Googling my band Goats Blood Stew looking for stuff our fans are saying about us, and I found out that there's another band in Chicago with the same name as us! We have the domain name www.goatsbloodstew.com. (Besides, we ROCK and they SUCK!) Does this mean we can tell them to change their name to something else?

– Derrik A.
Guitar/vocals, Goats Blood Stew
Ft. Worth, TX

Dear Derrik,

Given that original band names are disappearing faster than Republicans in Congress, this question is very important, and difficult to answer. This is by no means a complete answer, and should not be considered legal advice.

In the US, trademark law, which governs this issue, is very complicated, and anyone with a TM question should definitely contact an attorney in their state who specializes in trademark law. Mistakes can have big consequences (as can be confirmed by some established bands forced to settle TM suits for large amounts of money).

In short, trademarks are governed by federal and state (or common) law. These laws focus on the likeliness of consumer confusion — for example, are consumers who think they are buying genuine Nike shoes (allegedly made in a third-world sweatshop) buying what they think they are, rather than imposter Nikes (probably made in the same third-world sweatshop)?

In a pre-cynical world, the concept of trademark was meant to ensure that customers are buying the quality items they think they are. It would be very confusing (and dangerous) to consumers if high-quality GE appliances were marketed next to other, lower-quality products also branded as "GE," or perhaps "GB." Even misspelled names (and translations of names) have been found by courts to be confusingly similar to other names previously used in trade. Laws such as these have helped capitalism (and product safety) to thrive, as superior products are recognized by consumers as such, and therefore earn more money and stay on the market longer than inferior products.

A determining factor in trademark law is whether a given trademark or trade name has been used in trade in a given market before another, confusingly similar one. There are also very stringent and rather confusing rules as to what can even be protected as a trademark in the first place (Example: You can't sell an item/service under a descriptive term, such as "Water" brand water, since it would prevent anyone else from selling the commodity by using its own name). But for the purposes of a musical group, unless you are called "Rock" or "Music" (Roxy Music aside), pretty much any crappy name one can think of would be trademarkable (with some exceptions, of course).

Searches of the PTO database can be done here.

But this is not the end of the story. Under various states' common laws, trademark ownership can also be gained by use in trade within a given market. If a band named Goats Blood Stew is playing live in Chicago and selling CDs within Illinois before you have either played in Chicago with that name or federally registered your trademark, you are out of luck in Chicago. The Chicago "Goats Blood Stew" will have superior geographic rights in Chicago — and have fun signing a record deal when you are prohibited from selling records (even over the Internet) or playing live in Chicago.

To complicate things further, if neither band is federally trademarked, each may have geographic rights to their own cities, but neither one may have national rights. This might be because neither band has toured (or sold records) nationally. The first to do so might earn superior rights to the nation over the other, regardless of whether the first has registered federally — which, I stress, should be done regardless, in order to give notice to others. This is all very gray, and courts/arbitrators could decide differently on the same question of use in trade, so be careful.

But what about the Internet? Does creating a domain name, or selling your music through iTunes or CD Baby, or streaming songs on MySpace, give you national rights, regardless of the fact that you have never played in California or sold a record in New York? This is a question for a trademark lawyer. The more general answer is to tread very carefully.

Theoretically, of two bands who start using the same name "in trade" over the Internet at the same time, the one with the most national sales (and perhaps the one that tours nationally first) has a better argument for national rights against a less popular (and more geographically limited) artist of the same name. Since use in trade is a prerequisite to protection, how much trade is performed under a given trade name might have some bearing on ownership, provided that the initial uses were very similar in time.

Who "sucks" the least has no bearing on trademark. Since no one thinks their band sucks (except for Primus, who were wrong), and audience taste is about as subjective as the money spent on promoting Jessica Simpson, "suckage" is a lousy barometer for naming rights.

One big exception to the above is your own name. If an artist's Gosh-given name is their trade name, courts have tended to give that artist the right to continue using it, regardless of how many other folks out there are named Tom Waits. I don't suggest changing your name to take advantage of this rule, as you'll earn more "right of publicity" suits against you than a Bette Midler lookalike on an episode of Seinfeld (or a Girlz Gone Wild filming in Hef's Grotto).

Bottom line: Despite the clear scarcity of "new" band names left that don't completely blow, choosing your name must be done carefully, making sure that no one else is using it nationally (or locally) first. Because no one wants to be "The NEW Goats Blood Stew," and settling trademark suits can be incredibly expensive, it pays to be sure you are really as original as you think.

– Bob Dillan (a.k.a. Mr. Industry)

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney in your state/country for individual advice regarding your own situation. In addition, no e-mail or other message to or from rightround.com establishes any attorney-client relationship.

Got a music business or legal question?
Ask Mr. Industry at mrindustry@rightround.com, or leave a question below!

Posted August 2006

Send to del.icio.us  |