Creative work can be protected in various areas through copyright and related rights which can be applicable to the extent they exist and are set down in proper form, principally:
1. Copyright in the music, i.e. the musical score and arrangement.
2. Copyright in the lyrics.
3. Copyright in artwork used for album covers and the like.
4. Copyright in set/costume and lighting/sound designs.
5. Copyright in sound or video recordings of performances.
6. Copyright in pictures, photographs, materials created for promotional purposes such as artwork, advertising copy, and brochures, and graphic designs generally.
7. The performance right which accrues to musicians in respect of their right to receive remuneration for any recordings and broadcasts of their performance. However, session musicians for example are usually required to contract on the basis of a one-off fee in return for which they give up any future claim.
8. The recording right which exists when a person has an exclusive recording contract with the performer(s) concerned, which thus entitles that person to prevent anyone else making or using a recording of the performance in question by such performer(s).
9. Moral rights which authors may have to be identified as such and to be able to prevent mistreatment of their work.
There is no copyright in an idea, only in its expression in tangible form – so that for example a character or theme in a song does not enjoy copyright, but its expression in music, lyrics and artwork will.
(The name/appearance of a character such as Ziggy Stardust or Sergeant Pepper may also attract common law rights in passing off if goodwill and reputation is built up in it, and possibly be capable too of valid trade mark registration if used as a badge of origin to promote goods and/or services.)
As copyright arises automatically as soon as the work is documented in tangible form, and none of these rights require registration in any way, their exploitation is largely controlled contractually by means of appropriate agreements between the parties concerned.
All copyright material should bear the correct copyright notice, that is © and/or ℗ (for phonograms) with the year of first publication and the legal name of the copyright owner.
The initial owner of the copyright in a musical work is generally its author/creator, except for example in the case of an employee where ownership of copyright will be vested in their employer in the case of any work created under their contract of employment, or in the case of a sound recording its producer (i.e. the person by whom the arrangements necessary for the making of the recording are undertaken – so that a recording studio is not normally the copyright owner if it does nothing more than providing facilities for the recording to be made), or in the case of a film the producer and principal director (or their employer).
The initial owner of the copyright can assign (or license) or be obliged to assign (or license) his or her copyright to someone who has commissioned them to produce the work in question. For example, a photographer will be the first owner of the copyright in the photographs, but a customer can make it a condition of placing the order that the photographer assigns all copyright. If nothing is agreed as to copyright, the customer is likely to have at least an implied licence from the photographer to use the photographs for the purpose for which they were commissioned (but not to make further copies or use them for other purposes).
The first step is to establish what copyrights rights are being created, who are their creators/owners, that they are properly documented, and how they need to be regulated contractually.
The next step would then be to decide what contractual arrangements there might need to be with secondary rights holders or other parties such as record companies, producers and recording studios.
A limited company or limited liability partnership might possibly be an appropriate vehicle in which to vest the rights concerned, which the individual band members could contract with on appropriate terms and which in turn could then contract with secondary rights holders such as record producers/companies and studios and other parties involved in the development, exploitation and promotion of the band and its music.
You should also consider what the band will be called, and the extent to which its name (or any logo) should be cleared and protected from a trade mark perspective.
A band’s reputation is valuable; it should protect its name as a trade mark. If it does not, it may risk losing a vital asset and also open possibly the door to problems at a later date if members of the band leave.
Registration is the only effective means of protecting trade marks and controlling unauthorised use or imitation by others.
Also, if a band does not seek trade mark registration at an early enough date, there is a danger that prior registration by someone else could cause problems.
