Your Band Is Your Brand: Zombie Rock Bands & Trademark Ownership


zombie trademarks

Rock bands and musicians, it may shock you to learn that your trademarks may be, at the end of the day, the most long-lasting aspect of your musical endeavors.

Wait, what? Not the music? How about the albums? The tour t-shirts? Or the lead singer’s trademark duck-walk? How about the drummer? She made Rolling Stone’s Top 50 Best Drummers of All-Time list, so isn’t that something?

Sure. All good. Especially the music, right? (You’d hope.)

However, it may be the case that these aspects of a working rock band’s career are … replaceable. Maybe not the songs, but very possibly everything else.

When rock bands age, die, retire, or fire and replace individual band members, is anything left? Anything for fans to follow or, most importantly, to buy?

Yes. The name remains. And the logo. And the legal right to tour and perform concerts under the rock band’s name. Rock bands’ trademarks, copyrights, and other intellectual properties can and are increasingly living on past the expiration dates of the band members themselves.

This Article will discuss the newish phenomena of the “licensed” rock band, as well as what this means for your rock band, which may or may not quite have reached a Beatles level of immortal success. (Yet.)

Rock Band, Inc.: The Allman Brothers Example

A rock band is a business enterprise, like any other. Just as IBM or Apple Computers continue to function when founding officers or principals or any other employees die, retire, or otherwise move on, so, apparently, can a rock band.

That a band may actually do this is—and isn’t—a new phenomenon.

Yahoo News recently reported on The Allman Brothers’ “franchising” or “licensing” of its entire body of work to an entirely different band named Trouble No More.

In this case, this development is the brainchild of a talent agent who had formerly worked with The Allman Brothers, in the rock band’s later incarnation. The band itself had not toured since 2014. Key band members Gregg Allman and Butch Trucks had both away in 2017. Only 2 of the band’s original members survive to this day, in fact.

Death will not, however, stand in the way of a good talent agent. Nor, in fact, does it necessarily impair the effectiveness of a registered US trademark.

The talent agent assembled an entirely new group of musicians familiar with The Allmans’ music, dubbed the new band Trouble No More, and sent it out to tour under the name The Allman Brothers Presents Trouble No More.

The connection with the original band? The songs they’re playing—and The Allman Brothers’ name. Its trademark.

That’s all.

As the Yahoo article points out, such “zombie” rock bands are not new in popular music history. The article notes that the Glenn Miller Orchestra, the Duke Ellington Orchestra, and the Grateful Dead, in various forms, among other examples, have continued to perform despite the demise of key members. (Side-note: The fate of Glenn Miller, who disappeared while flying over the English Channel during World War II, remains one of music’s most fascinating unsolved mysteries.)

Beyond the Yahoo article’s examples of “bands that wouldn’t die,” the notion that the musicians comprising a rock band may not be key to the longevity of the rock band’s trademarks is not new in music history.

Any number of rock bands were and are not inspired artistic endeavors of the musicians themselves but crass commercial enterprises launched either by record labels or “talent agents” and other such operators.

Examples of bands formed in this way include:

  • The Monkees
  • The Runaways (Joan Jett’s original band)
  • Spice Girls
  • Boyz II Men and virtually every other “Boy Band”
  • The Box Tops (Alex Chilton’s original band)
  • Virtually every Motown act
  • Virtually every Doo Wop act of the 1950s and 1960s
  • Virtually every K-Pop “band” …
  • Etcetera.

The exploitation of black musicians by record labels in this way has been well-documented. However, this exploitation has largely occurred within the context of royalties payments under US copyright law.

Trademark Ownership and Zombie Rock Bands

From the standpoint of US trademark law, the question is not one of “fairness” but of use.

Rather than “Is this fair?”, the questions are, instead:

  • Who owns a trademark?
  • Who can own a trademark?
  • How can a trademark stay “alive” even when, in this context, the rock band performing under that trademark is actually dead?

A trademark is not a copyright. A rock band’s name is not “protected” as a trademark because you, Founding Band Member, thought the name up. A copyright protects a “creative work” for the benefit of the work’s creator on simply that basis alone (with other requirements.)

A trademark is registered to identify to consumers the source of a service or product sold in US interstate commerce.

A copyright eventually expires. A trademark can remain “alive” and registered infinitely so long as it is continually being used in commerce by its registrant for that service or product described on the registration certificate.

The Bass Ale “red triangle” logo, for example, has been registered in the UK since 1876. Meanwhile, the original brewer and founder of that beer company is, surely, long dead.

This is not conceptually or legally different from the ongoing commercial enterprise that is the Duke Ellington Orchestra or a “mostly dead” rock band like The Grateful Dead or The Who.

A Rock Band Trademark Ownership Dispute Case Study: Rick v. Buchansky

The 1985 case of Rick v. Buchansky provides a good overview of the issues involved.

In this case, in 1961 the plaintiff, Rick, a musical manager and promoter, discovered 4 young guys singing “doo wop” on a street corner. He liked what he heard, invited them for an audition, and this audition went well. Rick offered the singers a contract to form a doo wop singing group. They, together, hashed various group names out, and Rick suggested The Salutations.

Eventually, the name of the doo wop group became “Vito & the Salutations,” again at the suggestion of Rick. The group experienced varying levels of commercial success for many years—and experienced a fair bit of personnel turnover.

Rick continued to manage and record the group.

In 1980, Rick filed a trademark registration application for VITO AND THE SALUTATIONS, which was granted in 1981.

When, later, the group members attempted to sign with a new record label, Rick sued for trademark infringement, among other counts.

Rick won this lawsuit.

Rick v. Buchansky: The Court’s Rationale

Why did the Federal Court rule in favor of Rick?

The Court ruled in Rick’s favor for the following reasons:

  • Rick’s registration of the name VITO AND THE SALUTATIONS was prima facie evidence of his ownership of the mark;
  • Rick exercised almost complete discretion over the group’s financing, promotion, and that he made all important personnel decisions and paid all of the rock band’s expenses;
  • Rick used the mark (rock band name) in commerce in this manner, therefore.
  • Rick used the mark continuously in commerce since 1961, whereas the group’s personnel and composition changed constantly;
  • The trademark was never assigned or transferred to anybody else by Rick.

The Court, in this case, explained:

The background section of this opinion makes clear that, from the beginning, Rick was not merely an agent or bookkeeper for the musical group he managed. The group was formed at Rick’s instigation. It was Rick who proposed that the group perform as ‘Vito and the Salutations.’ Rick not only booked live appearances for the group and handled the group’s financial affairs, but also paid many of the group’s expenses, arranged for the group to produce recordings, and made key personnel decisions.

In general, Rick provided continuity to the group — despite frequent changes in the composition of the “doo-wop” foursome — by overseeing both the structure and style of the group’s ‘act.’ … The Court has already characterized plaintiff’s role in the formation and development of ‘Vito and the Salutations’ as akin to that of the producer of a theater company.

In short, audience members buying tickets to see Vito and the Salutations were accustomed to and expected to see the ensemble assembled by and promoted by Rick since 1961. Any new ensemble billing itself under the same name constituted trademark infringement.

What Is Trademark Use In Commerce?

This longish example is intended to provide an illustration of the primary consideration in US trademark registration: use in interstate commerce.

Trademark registration is designed, primarily, as a consumer protection mechanism. It is intended to ensure that the audiences buying tickets for VITO AND THE SALUTATIONS will sit down in front of a stage populated by the rock band (or doo wop group) that they expect to see. Not some other iteration operating under a confusingly similar name.

Yes, the trademark registration of that particular rock band name did serve Rick well, in that case. But the US Trademark (“Lanham”) Act is concerned with the band’s audience.

With US consumers.

Thus, a trademark that is continuously used in commerce as Rick’s was, since 1961, remains enforceable against infringers. Regardless of the personnel in the band.

A trademark that is no longer used in commerce is (eventually) Abandoned and made available to other enterprises who do wish to use it to identify themselves to consumers.

Further, as US trademark registration is a function of the Federal government, the US Patent and Trademark Office (USPTO) only has jurisdiction to confer the benefits of trademark registration upon your rock band’s name if you are using it across state lines.

This is a requirement for Federal jurisdiction under the Commerce Clause of the US Constitution.

Rock Band Name Use, Licensing, and Transfer

The point of this jaunt through music history is hammer home the point that your band is your brand.

Or, rather, the point is to inspire you, the budding or working musician, to think of your band name, your rap name, your singer-songwriter or stand-up comedian performance name as a brand.

Does your rock band own its trademark? Or does an agent, a manager, or a record company? If you’re generating money for anybody other than yourselves, the actual musicians involved, the odds are good that a trademark registration application will be filed by somebody, somewhere.

If you formed your band on your own and came up with your name, designed your own logo, and manufactured your own sound, growing your own audience, you need to formalize your trademark ownership before somebody else does.

The registration of a trademark for a rock band will, as we see with The Allman Brothers, not only ensure that you not suffer the fate of the doo wop singers in Vito and the Salutations but that you have a potential retirement plan in place.

When the road finally exhausts you, wouldn’t it be nice to simply license your trademark to some talented group of musicians who can travel around for you, playing your music, and generating income for you?

If audiences are into it, why not you?

Trademark registration ensures the marketability of your rock band’s brand for as long as you need it to be marketable.

Contact a Michigan Trademark Attorney to Protect Your Rock Band’s Name

The bottom line is that consulting an experienced Michigan trademark attorney is the most effective way to craft a brand protection strategy for your rock band, a doo wop group, or any musician or rapper.

Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting entrepreneurs, solopreneurs, artists, musicians, start-ups, and larger enterprises with robust intellectual property portfolios in all industries and in all states with trademark registration, trademark renewal, and Office Action refusal response matters.

Further, our founder, Attorney John Hilla, is himself a former working musician, the bass player with a number of different Midwest punk bands for over 15 years. He understands the needs of rock bands and other musicians to his core.

We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration, Letter of Protest, or Opposition success.

Click the “Register Your Trademark” button below to schedule your initial consultation and to begin your brand protection journey.