Our band is somewhat loosey-goosey. One member dropped out, formed a competing band using the same name. Since we use the name in our gigs, he can't. Right?
If there is no band agreement and the arrangement is informal, the right to the band name customarily stays with the band. Without a formal contract specifying who owns the band’s name, a member who is kicked out may form a new competing band with the same name. Once a band name dispute arises from an informal arrangement, a lawsuit must be filed for a court to determine who used the name first and which members were in the band when its names gained a "secondary meaning" (i.e., the public began recognizing the band by its name). If it can be proven that certain members were identified by the public as being in the band, the court can bar the use of band’s name by another individual or other competing group. To determine ownership, a court will inquire into who has artistic control over the band and for how long.
Under the "control" test, if none of band members have belonged to the band long enough, taken sufficient creative control, or written and produced a significant portion of the band’s songs, the right to a band’s name could very well belong to a producer or manager that has done so. The name of band may also be voluntarily assigned to a producer or manager. However, if such a non-member owns the band’s name, he/she may only validly transfer the name if the original groups’ style and "good will" is retained in any newly formed group.
(Reprinted with permission of Ruben Salazar, Esq.)
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