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5. Trademark As you may recall from our trademark article, a trademark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one person from those of another. For purposes of your album, there are two trademarks that you may want to protect: the name of your band (or pseudonym if you are a solo artist) and the name of your record label. For the name of your band and record label please make sure that no one else is using them. You will want to first conduct a general search on the Internet using a search engine like Bing, Google or Yahoo! If these searches turn up nothing, then I would search the database maintained by the U.S. Patent and Trademark Office (www.uspto.gov). This database includes the trademarks that are currently pending review at the U.S. Patent and Trademark Office, the registered trademarks, as well as trademarks that have been abandoned or cancelled for one reason or another. While these online searches are helpful, you may wish to engage the services of a third party to conduct a more thorough search. These companies not only conduct the searches I mentioned above, but also search the trademark registrations in all 50 states as well as common law uses.

rights organization (“PRO”). In the United States there are three PROs: ASCAP, BMI and SESAC. Before the release of your album, you should affiliate with one of these organizations as both a writer and publisher. Once you have been accepted, you should then register your songs with them, so that they can pay you should your songs generate any public performance income. Please note that before you can submit your application to register as a publisher, you need to “clear” the name with your PRO. This can take some time so make sure you apply at least 8 to 10 weeks before you plan on manufacturing your compact discs of vinyl LPs. There’s nothing worse than manufacturing hundreds or thousands of CDs with a name that is rejected by your PRO because someone else has already used that name! 8. Affiliation with Sound Exchange In 1995, Congress passed the Digital Performance Right and Sound Recordings Act (“DPRSRA”) which created a public performance right for the owner of sound recordings (i.e., masters) when those recordings are publicly performed in a digital format. As a result of DPRSRA and the Digital Millennium Copyright Act passed in 1998, the copyright owner of masters may

Before you commercially release your album, it is recommended that you register the copyrights in your songs, the master recordings and artwork with the Library of Congress. You can do this online at the following URL: www.copyright.gov.
If you have not yet registered your trademark, you may use the ™ symbol. The ™ symbol puts the public on notice that you are claiming common law rights in the mark. Once you have registered your trademark with the U.S. Patent and Trademark Office you may then use the ® symbol. 6. Manufacture of Compact Discs While many artists view some legal issues as unnecessary because they are unsigned and pressing up only a few hundred or thousand CDs, more and more replicators are requiring proof from artists that any required licenses have been obtained. To avoid any unnecessary delay in the release of your album, it is important that you secure mechanical licenses for any covers and permissions from third parties involved in the recording process and creation of your album artwork. In addition, you will want to get a Universal Product Code if you will be selling physical product (e.g., compact discs or vinyl LPs). Often referred to as a “bar code”, the UPC Code is used to track sales of your album in a physical format. While you can obtain a bar code from the Uniform Code Council (www.uc-council.org), most artists will work with their CD or LP manufacturer to obtain a bar code. 7. Affiliation with Performing Rights Societies As stated above, one of your rights as the copyright owner of your songs is to publicly perform them. In order to play your songs on the radio, at clubs, in amusement parks or on television, these users must have your permission to do so. Since it is not feasible for you to do this on your own, you will need to affiliate with a performing
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receive public performance income when the masters are publicly performed on (a) Internet radio; (b) satellite radio (e.g., Sirius XM); and (c) digital cable (e.g., Music Choice). The monies generated by the public performance of masters are paid out as follows: 50% to the copyright owner of the masters, 45% to the featured artist, 2.5% to AFTRA and 2.5% to AFM. As an aside, it is common for the featured artist to pay a small portion of his share to the producer of the masters. Similar to the PRO that collects the public performance income earned by your songs, a company called Sound Exchange collects the public performance income earned by your masters. You will want to affiliate with them as both the featured artist as well as the copyright owner of the masters on your album. 9. Affiliation with Digital Aggregator With the rise in the distribution and sale of music on the Internet, you will want to affiliate with a company that can deliver your album to online digital service companies like Amazon, eMusic, iTunes, Rhapsody, etc. These companies are often called “digital aggregators”. There are a number of these companies in the United States such as IODA, The Orchard and InGrooves but some of these services don’t cater to an artist or band releasing its first album. If you fall into this category, you may have more success going with CDBaby or Tunecore. And so, in conclusion... I have really enjoyed writing articles for this column with Bruce Kaphan. I want to extend a heartfelt thank you to both Lorenz Rychner and Mike Metlay for their
http://www.uspto.gov http://www.copyright.gov http://www.uc-council.org
Recording - October 2011

Table of Contents for the Digital Edition of Recording - October 2011
