Discussion:
What is the name of your state? Massachusetts is what we call it.
I just started a new band and we decided upon a name that is a song name of a now defunct band. Also, I found out that another band in NJ had this name about 4 yrs. ago but it seems they are long since gone as well. If my band plays a show in NJ will we have any trouble? What if these 2 bands suddenly reform (I highly doubt it), what implications could that have against my band? Any help would be greatly appreciated.
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The first band whose song you named yourselves after have protection to it, together or not. If they were smart and registered the song, then you will likely have problems in ANY state.
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" just started a new band and we decided upon a name that is a song name of a now defunct band. Also, I found out that another band in NJ had this name about 4 yrs. ago but it seems they are long since gone as well. If my band plays a show in NJ will we have any trouble? What if these 2 bands suddenly reform (I highly doubt it), what implications could that have against my band? Any help would be greatly appreciated."
Unless either band registered their song names and band names as trademarks AND have record labels or someone else protecting those trademarks (unlikely, unless these were bands that were selling records) then you are probably okay. Unless these bands were signed to labels, any trademark rights they would have acquired would likely be abandoned by now, and thus up for grabs.
You could search to see if there are any registered trademarks (), or talk with a local attorney with experience in trademarks, but you are probably okay.
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divgradcurl, I did check out that website as suggested and didn't find anything for the name we are using. I had to take a music business class for college once and it touched upon some music law, not a lot but a little. I was under the impression that if you were using say another band's name as a song name of yours (whether copyrighted or trademarked) or a song name as your band name that there was no problem with that since they were not being used for the same exact thing. Ever heard of Alice In Chains? they have a song named "Godsmack" and the band Godsmack was a tribute band and then became nationally popular as being an original band, I doubt they asked permission to use this name. Any ideas or more insight??
Answer:
You are partially right. If the original band's name was trademarked -- especially a registered trademark -- then it is quite likely that they could keep you from using their name either as a song name or a band name. Just because song titles and band names are not the exact same thing doesn't mean that the trademark holder can't keep you from using their name.
However, although many band names are trademarked, song titles are almost never trademarked. Songs themselves are protected by copyright, but the scope of copyright protections are very different from trademark protections.
In the Godsmack case below, the name "Alice in Chains" is almost certainly trademarked, which would keep any other band from using that name. Whether someone could use the name "Alice in Chains" in a song title or not would depend on a lot of factors, and depend on whether or not AIC or their record label wanted to sue to protect the trademark.
However, ecah AIC song, including "Godsmack, is protected by copyright; it would be very, very unusual for a song title to be covered by a trademark. Copyright protects the creative work of the song; however, bits of the song may be used by others in some circumstances. Since the band Godsmack used only the title of the song, it is likely that a court would find that there was no infringement on AIC's copyright or, if there was, that Godsmack's use of the title was a "fair use" and therefore allowable.
There are no cut-and-dried rules to follow here. A lot of what gets done probably has more to do with whether or not bands feel like suing other bands rather than what is literally allowable under trademark and copyright law. Even if AIC could keep Godsmack from using the work -- and they might be able to, since it is a made-up word, and therefore has more "creative" content than a regular word, and therefore is entitled to a higher level of protection -- whether they would actually enforce that right is another story. Copyrights are typically more complex (and therefore expensive) to enforce than trademarks, so it is more likely that a band or label would be more aggressive protecting a trademark than a copyright, especially if the infringement of the copyright is not cut-and-dried.
Anyway, sorry if this is getting more complicated than you hoped! In any event, using a song title for a band name is unlikely to get you into trouble. Using another band's name also is unlikely to get you into trouble IF the band has been defunct for several years (at least) and was not signed to a record label.
BTW, yes I am familiar with both AIC and Godsmack. I'm not much of a Godsmack fan (they're okay, but I'm not really into the "nu-metal" or whatever they call it -- I was a metalhead in the early 80's, and I still listen to Maiden and that kind of stuff, plus black\death metal and a lot of the stuff coming out of Europe. Maybe when I hit 40 I'll switch to easy listening. Not.) but I do like AIC. I saw them a few times back in the old days (early 90's) -- once I saw them open for the Clash of the Titans down in SoCal -- Slayer, Megadeth, Anthrax and AIC -- wierd bill. I don't really like Jerry's solo stuff much, and I guess with Layne's death we won't be seeing a reunion...
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thank you once again divgradcurl....very informative and don't worry about it being too much..I am a learner and I like it. Since the bands in question are one that is a defunct indie label band and the other being a band that is defunct as well and never made a cd and might have played about 2 shows in their short career I don't think there is much to worry about, thank you for your input. I love black/death metal too...don't care too much about the message but I am a musician so I like to rock! I just saw Opeth/Moonspell/and DevilDriver over the weekend and it was crazy...I saw Slayer and Archenemy a few months ago and it kicked ass too! good to see that great minds think alike..thanks for everything and take care!
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Just an aside.
Since one of the bands had a label, you might want to check with the label as to whether or not they own the copyright on the band name.
This was a common practice in the 50s and 60s with smaller labels and producers (keep the oldster comments to yourself).
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thanks very much Pfaffing85690 ....I will contact them and see if I can get further information. and don't worry..I dislike most people under the age of say 25 but there are exceptions. and I'm a big fan of steely dan, frank zappa, pink floyd, miles davis, louis armstrong, and many, many, "old" artists!
your age is just a number my friend