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Categotry Archives: Trademark

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How Much Should an Attorney Cost?

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Categories: Articles, Business, Copyright, Law, Legal Issues, Music, Music Industry, Trademark, Tags: , , , , , , , , ,

Erin Jacobson music attorney music industry lawyer


An attorney’s advice could make the difference for you between a successful and a nonexistent music career.   Legal fees aren’t cheap, but they’re a worthy expense in your career progress. The cost of attorneys does vary due to a variety of circumstances, so as you plan your budget, you should keep the following factors in mind.

How are lawyers’ rates determined?

1. Experience

A lawyer with more years of experience will typically be more expensive than someone who is newly licensed. Also, an attorney with more experience in (or who devotes the majority of his or her practice to) a certain area of law will be able to charge more than someone who only dabbles in that area. Someone who’s better known in the business and has had more high-profile cases can also command a higher rate.

2. Nature of your matter (i.e., what you need the attorney to do)

One of the most important factors that dictate the amount that you will have to pay an attorney is what you actually need the attorney to do for you. A short and simple contract or a consultation to answer questions will cost less than if you require a long, complicated contract to be drafted or reviewed. If you’re starting a company, you’ll need all new contracts drafted, which will take more time and thus be more expensive than reviewing a five-page agreement. Attorneys tailor contracts to your specific situation, which takes the attorney’s time and skill to create something specific to your needs. The amount of time needed for negotiation is speculative, as it’s rare to be able to predict the other party’s agreeability to contract changes or willingness to wrap up the deal promptly.

3. Office arrangement

It may sound unimportant, but the location of an attorney’s office and the type of office that he or she has does factor into the fees charged. Attorneys in larger metropolitan areas and more expensive parts of town will charge more than those who have offices in less desirable areas. An attorney who’s part of a larger firm or who has a high-rent office will have to charge more to cover that rent. In contrast, an attorney with lower overhead costs may be able to charge less and pass those savings on to the client.

4. Extra fees

There are often other fees you’ll be responsible for when working with an attorney, such as filing fees. Copyright and trademark registrations have application fees set by the Copyright and Trademark Offices, respectively. Similarly, a trademark search company will set the fees to conduct a trademark search. In court matters, there are filing fees required and set by the court that will need to be paid to process your case. Attorneys have no control over these fees.

Other additional fees that may need to be paid to your attorney may involve things like postage or copying costs on your behalf. These are not ordinary costs in an attorney’s business. You are paying the attorney for his or her time, skill, experience, and advice, not for secretarial matters that are the client’s responsibility. These are fees that will be incurred no matter what your attorney’s fee is, but it’s important to remember that they are your responsibility so you can include them in your budget.

Fee structures

Fee structures vary greatly among attorneys. In Los Angeles, attorneys tend to range from about $250 to $750 or more per hour. Some attorneys require an upfront retainer payment, which is an advance against fees earned. Other attorneys will not require an upfront retainer payment, but will bill you after the work has been completed. In both of these scenarios, attorneys will keep track of the amount of time that they worked on your matter, and then multiply their hourly rate by the amount of time spent on your matter to calculate your total fee. There are also attorneys who will also work on a flat-fee basis depending on the task at hand.

Other attorneys work on a percentage basis where they don’t necessarily keep track of the amount of time that they worked on your matter, but will instead take a certain percentage of the amount you receive under the deal they’re negotiating for you. Alternatively, some attorneys will take a percentage, usually five percent, of your gross income. Attorneys who work on percentage usually only do so for high net worth clients, as otherwise the number of hours invested in a client may greatly exceed the amount paid to the attorney.

Some attorneys will use a client’s income and/or industry status as deciding factors in whether to represent a client. Especially at the larger law firms, many attorneys won’t accept new clients who won’t guarantee a certain amount of income to the firm.

Some litigators (attorneys who handle lawsuits in court) will take a case on contingency, meaning that they only get paid if they win your case, and then will take a percentage of the recovery from the case. However, most attorneys do not take cases on contingency, and will require an hourly rate and an upfront retainer. Again, these fees will vary based on the factors discussed above.

When you’re interviewing a potential attorney, ask about his or her rates and fee structure to determine if you can afford that particular attorney.

How much do common musician services typically cost?

It’s incredibly difficult to generalize prices of what a certain matter will cost, as it depends on all the factors explained above. I’m quite hesitant to actually name numbers since they vary so drastically, but I will do my best to give an idea of the most basic matters to provide you with a starting point. (These are general fee ranges based on examples I have seen in the industry. These numbers are not quotes of my services, an advertised fee, or guarantees of fee amounts. If you need this type of agreement drafted, it will need to be based on your particular circumstances and your attorney’s best judgment.)

1. Copyright registration

Copyright registrations are usually $35 to $55 for the registration fee, plus the time it takes for your attorney to file the application. Absent complicating circumstances and including only a small group of titles, this should usually take about an hour or less of your attorney’s time. There are also services like Indie Artist Resource that can register titles from $135 to $335, depending on the number of titles.

2. Trademark application

Trademark application fees are based on the number of categories (called classes) in which you want to protect your mark. For one class online, the application fee runs from $275 to $325. If you are registering in more than one class, multiply that number by the number of classes for which you are applying. Again, the application itself probably takes about an hour of time, but the Trademark Office usually requires amendments to be made later, which are again based on the attorney’s time spent on those amendments. The number of amendments requested depends on the mark, other marks already registered, and the attorney at the trademark office assigned to your application. A trademark search from a reputable company starts just under $800 for a word mark and just over $600 for a logo.

3. Basic music business agreements

Something like very basic agreements for management, producer, or band partnerships could cost $800 to $2,000+ depending on the agreement and details of your situation, or $300 to $400 for a template.

 

Again, all legal fees will vary depending on your specific situation, so the most effective plan of action would be to figure out what you need as completely as possible, and then ask attorneys for an estimate. If the cost of what you need is above your budget, consider a solution like Indie Artist Resource, or save up more money for the investment – and it is an investment in your career.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

Originally posted on Sonicbids.com

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How to Prove Someone Stole Your Band Name (Or Find Out if YOUR Band Name Is Causing a Legal Conflict)

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Categories: Articles, Law, Legal Issues, Music Industry, Trademark, Tags: , , , , , , , , , , ,

Image from freeimages.com

Image from freeimages.com

Many musicians know that they need some protection for their band name, but are confused as to what type. In fact, musicians often ask me, “Do I need to copyright my band name?” Copyright, however, is a protection for creative works: compositions, recordings, films, artwork, merchandise designs, etc. Trademarks and servicemarks are what distinguish and identify sources of goods and services. In the case of band names, a trademark for a specific band name reflects back to what that band provides – a certain type of music, an image, a feeling or community for its fans.

For example, Van Halen and Aerosmith are both registered trademarks with the United States Patent and Trademark Office. They’re also both classic rock bands from the same time period, but a music listener knows he or she will be getting a different kind of music, feeling, image, etc. from each of those bands. As a non-music example, Coca-Cola and Pepsi are both brown-colored sodas, but a consumer knows that these two drinks and the expectations associated with them are different.

Whether you’ve already registered your band name or think you might register it in the near future, it’s important to understand the basics of trademark infringement lawsuits to avoid potential conflicts. Here are the three ways to prove an infringement on your band name – and to determine whether you’re infringing on someone else’s.

(Please note that I’m not a litigator and this explanation is only a general overview of the basic principles considered in a trademark infringement suit. Actual cases may include nuances not discussed in this article.)

1. Plaintiff owns the trademark

The plaintiff (the person bringing the lawsuit) must show that he or she owns the trademark that’s allegedly being infringed. A plaintiff is required to have a federal trademark registration in order to sue in federal court, and showing the federal registration creates a presumption of valid trademark ownership, although this presumption can be rebutted. Things start to get trickier when there are unregistered marks involved, bringing up common law state issues as well as examination of the prior uses of the marks.

2. Plaintiff has priority to use the mark

The proof required here is similar to that explained in the previous point. Someone with a federally registered trademark has a legal presumption that his or her mark is senior to the allegedly infringing mark, and that they therefore have priority of and exclusive rights to the mark in question. Again, this can be rebutted and can be complicated by unregistered marks and/or other issues.

 

3. The defendant’s mark will create a likelihood of confusion

Likelihood of confusion is the real meat of a trademark dispute. Basically, the court will compare the two trademarks to see if their similarity would be confusing to a consumer, and thus harmful to the senior mark. In relation to bands, it would depend on whether the two band names would cause confusion about which band is which.

Here are the factors:

Strength of the senior user’s mark

A court will look at the strength of the mark used in commerce first. Again, we can use Aerosmith as an example. The word “Aerosmith” doesn’t have any real meaning in the dictionary and is also not likely to be commonly associated with rock music; therefore, the name “Aerosmith” is very distinctive in identifying the band. This is much stronger than something like “Steven’s Band” or “Joe’s Rockin’ Band,” which could be applied to any musicians named Steven or Joe.

Similarity of the marks

This one is fairly self-explanatory, but the court will look at the degree of similarity between the two names. Aspects like whether the names sound or are spelled similarly, as well as whether the names might look the same or have similar meanings, are all considered.

Similarity of the products or services

This factor will look at what’s being offered by the mark owner. In the case of music, both bands would be offering music. To look more specifically, both bands could be offering rock music, or alternatively one might play death metal and one children’s music. If only one party is a band, maybe that party plays rock music while the other party offers clothing or high-end power tools. A court will look at how both names or brands are being marketed and whether they are to the same audience.

Proximity of the goods and services

This factor looks at the physical proximity (location) in which the two goods or services are sold. Using the example above, let’s say the two marks in dispute are the maker of power tools and a band. Power tools will be sold at a hardware store, whereas CDs will be sold at a music store, making their physical proximity farther apart and confusion less likely. However, two bands with similar names would both be sold in music stores, making confusion between the two marks more likely.

Likelihood the senior user will also offer the same type of products as the junior user

Again, let’s stick with the same example. If a band comes along with a similar name to a power tool company, less confusion would be evident if the band sticks to only making music and not offering power tools as part of their merchandise items. However, if the senior user is a clothing brand, it’s probably very likely the band will want to sell T-shirts or other apparel at their concerts and on their website, making the likelihood of confusion between the two marks stronger.

Evidence of actual confusion

People confusing one band’s album for another or buying tickets to one band’s concert thinking they were going to see the other band would be examples of actual confusion. Evidence of someone actually confusing the two marks isn’t required, but it may be compelling to show that there is actual confusion.

The junior user’s intent in adopting the mark

Did the junior user adopt his or her mark with good intentions because he or she really felt it was the right name for the band, or did he or she do it purposely to try and ride the coattails of the other band’s fame or to purposely confuse consumers? Trying to profit off of another band or brand’s established mark will not work in the junior user’s favor.

Sophistication of the buyers/degree of care likely to be exercised by the consumer

This looks at how much care a consumer will take before making the decision to purchase the goods or services. For example, someone buying a $2 million airplane would probably put a lot more care into his decision than someone buying a bag of potato chips. A court will look at how much care fans will take in selecting purchases from a band.

 

These are some of the basic principles to consider so your band name doesn’t conflict with another band or brand name, or if you feel that someone may be infringing on your trademark. All trademark registrations should be handled by an experienced attorney or a service like Indie Artist Resource. All potential or actual trademark infringement suits should be handled by an experienced litigator.

This article was previously published on Sonicbids.com.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

 

 

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How to Protect Your Music and Avoid Legal Pitfalls

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Categories: Business, Copyright, Infringement, Law, Legal Issues, Music Industry, Music Publishing, Record Labels, Royalties, Trademark, Tags: , , , , , , , , , , , , , , , ,

I recently had the privilege of being interviewed for My Music Masterclass about how musicians can protect their music, avoid some common legal pitfalls, and more.  The video is available for a temporary stream or permanent download HERE.

My Music Masterclass is a fantastic website where users can view exclusive masterclass sessions with the top touring musicians and industry professionals.  (Registration required and there is a small fee for the streams and downloads.)

You can view a preview of the full video below.  This video is packed with a lot of information and I hope it helps artists to further understand and take control of their careers.

Please don’t hesitate to contact me so I can help you to protect your music and grow your career.

Stream or download the full video here!

This preview video is also available on YouTube – please like, comment, and share it!  (Subscribe to my YouTube channel here.)

The information contained in this video and any linked resource is intended to provide general information and does not constitute legal advice by Erin M. Jacobson, Esq. or My Music Masterclass. The content is not guaranteed to be correct, complete, or up-to-date. This video is not intended to create an attorney-client relationship between you and Erin M. Jacobson, Esq. and you should not act or rely on any information in this video without seeking the advice of an attorney.   YOUR USE OF THIS INFORMATION IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM THE USE OF THIS INFORMATION. ERIN M. JACOBSON, ESQ. AND/OR MY MUSIC MASTERCLASS WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER RELATING TO THE USE OF THIS INFORMATION.