Is It Ever OK to Steal Another Band's Name?
Are you a musician? Is your group having issues? Ask Fan Landers! Critic Jessica Hopper has played in and managed bands, toured internationally, booked shows, produced records, worked as a publicist, and is the author of The Girls' Guide to Rocking, a how-to for teen ladies. She is here to help you stop doing it wrong. Send your problems to her -- confidentiality is assured, unless you want to use your drama as a ticket to Internet microfame.
Dear Fan, Considering the overused tropes of band nomenclature, it is only natural that someone somewhere named a band something that is perfect, then broke up. Maybe the band never played a show, or maybe the band put out a terrible, obscure record. What is the rule on that, how long before that name is open again? When is a name fair game? MG
Dear MG, I posed your question to the Fan Landers resident legal expert, Matthew Hale Clark, who is a musician/attorney here in Chicago and, as luck would have it, my husband. "In this day and age of the Internet, the answer is that it's probably not fair game. To oversimplify the trademark issue, the question is whether there could be a likelihood of confusion in the relevant marketplace. Here, regardless of the genre, scene, or location, you are playing music and so is this other band. Their being broken up doesn't matter to a judge, but whether or not they did anything under that name does. If they really never played a show, put out a record or even had a MySpace page -- essentially, never entered the market -- then it might be fair game."
Likelihood of confusion doesn't just mean exact same name, it means close and similar names -- the emphasis is on confusion. Sadly, all the antler, crystal, rainbow, moon, and sun bands going right now don't seem to be bothered by such things.
Also, I have worked with and known bands who chanced it with a name and it came back to bite them in the ass. Is a band name so perfect and precious that you are willing to cede years of groundwork when all of the sudden this other band rises from the dead and wants a piece of your action? Do you want to have your albums shelved in two different sections at the record store? Do you want to have to add a clunky "Jr." or "Inc." or "NYC" to the end of your name two albums in? If so, by all means, go right ahead.
Our final suggestion is that you should name your band "Ronald Reggae". Unless you are a jam band, in which case, we think you should call yourselves "Chastity's Groove." Best, Fan Landers
Fan, I started playing drums for my good friend's amazing music project. We have lots of respect for each other as musicians, I am excited to be a part of his vision, I love everyone in the band, etc. The project has a lot of support. He is on a nice label, has an amazing publicist, and just scored a great booking agent who will get us paying gigs. There is just one problem, though: tour and money. The tours that are being booked are on both coasts, for about three- or four-week increments. In order for me to be able to do this, I would need to make money. Like, enough for rent. And food. And my cell phone bill. Oh, my dear Fan Landers, how possible do you think this will be? Do touring giggers make ends meet? Will I? A Young Lady
Dear Lady, Whether you make money on this tour is up to you. I do think it is very possible, if you can ask for what you need. This is the professional thing to do, as well as the adult lady thing to do. Also, having boundaries and a formalized expectation from the go will preserve your friendship with your friend.
It is standard, if you hire a band or players for a tour, to pay them salary. For a medium-size indie band, that's $500-$700 week. This is someone else's band; they need to assume the risk. Minimum, you should be thinking $50 per show. But don't charge per show, because if there are days off, you are still on the job. A fair base rate, given the popularity of the band, is $350/week, which is $1,400 a month. When you have the conversation with him about the tour, say that is the minimum you need to make. Don't apologize and don't present it like you are sorry you have to ask. Getting paid is not negotiable. This is his thing. You guys are not 22 years old anymore. This is work, this is your livelihood, you are probably having to leave or quit a day job to do this; no mature person should expect you to take a hit for the sake of them furthering their career.
Since the band has a booking agent, it's safe to assume their guarantees are probably in the $150 range. If they are more, if you know they are in the several-hundred-dollar range, ask for more money. If the bandleader balks, be straight with him: This is the cost of doing business. If he can't swing it, walk. Because no one is going to feel good at the end of a tour where they are essentially paying to be able to play on it. Otherwise, he is taking advantage of your friendship -- which is going to make for an un-fun tour and a ruined friendship before you are halfway down the West Coast. Good luck, Fan
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