Updated: May 18
So, this past Monday, I was invited to a space with music artists, producers, and writers to share with them the top ten ways to own and protect their brand. Music is near and dear to my heart, so I was so happy to pour knowledge into those who impact our culture and make our world a more enjoyable place.
Tip #1. EINs, LLCs, INCs and Corps have nothing to do with brand ownership. Registering your business as formal entity and receiving a tax ID number are all ways to help federal and state governments COME FIND YOU to collect what they believe they are owed. None of these are tools to demonstrate proof of ownership of a brand. The government could care less about your brand.
Tip #2. A brand is a promise. Your customers, clients, publics, and stakeholders are loyal because they have bought into whatever they believe you're going to deliver to them. So, brand protection starts with identifying every tangible thing that you're putting into the marketplace to identify that intangible promise in a sea of competitors and copycats...and securing ownership of those "brand identifiers".
Tip #3. Securing ownership of a brand identifier that is a name or symbol requires a trademark registration. Names, logos, slogans, mottos, colors, packaging, etc can all be protected by federal trademark laws. Having a registration certificate gives you the power to dominate the marketplace and exclude others from using similar names to compete with you. It's single-handedly the strongest thing you can do to start protection your brand. Trademarks are the foundation of branding. If someone files a trademark application before you, they win, so don't delay!
Tip #4. Securing ownership of a brand identifier that is sound requires a copyright registration. Lyrics, melodies, and sound recordings (masters) are protected by federal copyright laws. Having a registration certificate gives you proof of ownership and the power to control how your music is put out into the marketplace. It is the ultimate proof needed to go after anyone who may have ripped off your song or sound. Copyrights are the foundation of licensing your music in movies, tv commercials, etc.
Tip #5. Securing ownership of a brand identifier that is a persona requires policing and licensing one's name, image, and likeness. The "right of publicity" is my favorite type of intellectual property. It gives anyone - and I mean anyone - the right to control the commercial use of their personal name, image, and likeness...and the right to monetary damages if someone violates this state right. If you have a public profile and others like using your picture or name or voice, etc in connection with their brand or business, make sure you're being compensated or shut them down - to protect the value in your persona.
Tip #6. Use confidentiality and non-disclosure contracts. Not everything can be protected by a registration or by a law. Some things must be written down in a contract and signed by the parties involved in the transaction in order to protect the brand you're building. A handshake isn't going to cut it. It's much easier to get someone to stop doing something if that is already agreed to in a signed, written document.
Tip #7. Secure Licensing Contracts. Anytime someone wants to use or be affiliated with your brand name, brand sound, your persona, or wants to use your products , services, or influence in connection with their business or brand, you MUST secure a licensing agreement that outlines this collaboration: how long the collaboration will last, when licensing fees are to be paid, how licensing fees are to be paid, how royalties will be issued, what can and cannot be done using your brand identifiers, quality checks and approvals, requesting an accounting, etc. The details of a brand collaboration make all the difference.
Tip #8. Watch out for infringers, unauthorized users, and copycats and pursue them every time. It's one thing to have a brand that is secured by registrations and contracts. It is another to allow people to walk all over your brand value by using it without compensating you for the use. If you're in the business of building a brand but are timid about pursuing unauthorized uses, you may want to reconsider why you're doing what you're doing. Your brand value becomes diluted, watered down every time you let someone copy or take from your brand. Pursue. Every time. It doesn't have to be a lawsuit. It can be as simple as a phone call, DM, or an email. If that doesn't do it, or if you aren't sure of the language to use, call an attorney. It matters. In some cases, an attorney can get you financial compensation for unauthorized uses, so take them seriously.
Tip #9. Learn to be quiet online. Again, a brand is a promise. You can easily break that promise with what you say at random or on an emotional whim. Cancel culture is real and it's silly to fall prey to it simply because you didn't think before you typed or decided to go live.
Tip #10. Get professional help. Protecting and defending it is a 24/7 hour job. You don't have to do it yourself...and your marketing team, manager, and PR person shouldn't have to add this to their list of duties either. Lawyers experienced in working with the entertainment and talent industries typically don't bill by the hour...they will take a small percentage of your deals. So, no excuses not to get to know a lawyer and add them to your team. No excuses!