FROM THE DESK OF

FROM THE DESK OF... SHELLY HARRIS

IMPORTANT TRADEMARK AND COPYRIGHT ISSUES

by: Shelly Harris / Entertainment Attorney

There are several trademark and copyright issues you should be aware of when releasing any CD cover and artwork.

Initially, you must make sure that there is no service mark infringement with the artist/band name you are presenting on your product, but you must also make sure that the title and artwork do not cause any infringements or other legal problems later on down the line.

If the CD doesn't initially sell large quantities, or if you have "empty pockets" rather than deep pockets, you may have less to worry about at first, but there's always a chance that things will take off later in the form of more lucrative sales and/or a distribution or record deal.

Therefore, the following is a list of things best avoided to divert a potential suit, injunction, financial settlement and/or potential recall of your CD:

In album artwork:

1) Don't use any copyrighted pictures (famous or unknown) or other copyrighted artwork without written permission from the copyright holder.

2) Since it is technically being released for "commercial purposes," get a written release -- in advance of pressing -- from any "models" appearing on the cover art, even if the model is your sister or your best friend. (And don't forget to obtain the written permission from the photographer who took the shot as well, even if it is your mother!) The only exception would be if you are using photographs of people taken at a large "public gathering" or concert.

In album titles:

1) Avoid use of another band’s name in your title.

2) Try not to “confuse” the public by using an album title that would lead them in any way to think another band actually released the album or CD.

3) Don’t use an album title that is closely related to that of a movie soundtrack that has previously been released.

4) Avoid using album titles that incorporate other well-known, copyrighted names, trademarks, or company-owned and created logos/catch phrases.

Conversely, you can use titles of books, songs, and famous or popular phrases and slang in most cases, since such things are not provided protection under the copyright laws.

However, you should still try to avoid any extremely famous book or movie title since the public may automatically associate the title with one particular and well-known source, which will potentially cause "confusion" to the public/consumer and/or a suit based on "dilution" (meaning a diminishment of the way the public perceives the famous book, series, movie, or other trademark that existed before your album/CD).

Finally, it is not advisable to use blatantly objectionable or controversial artwork unless you are in a position to defend potential lawsuits (and prosecution!) in any district court where your album/CD may be distributed. What is considered cool, sexy, and edgy in Chicago or L.A. may actually be considered Constitutionally obscene or offensive in Smallville.

If it is a hill you are prepared to battle on -- or die on -- for the sake of art, principle, and good 'ol rock 'n’ roll rebellion, then by all means do it (and we can all think of many notable artists who have), but be prepared for any combination of potential personal, professional, and pecuniary consequences.

And just make sure any heightened promotion, attention, and additional sales that might come out of it would outweigh the hassle and costs to you, the artist.

Write to Shelly Harris at: shellyharrislaw@aol.com

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