Singing the Same Tune: IP in the Music Industry

Our Intellectual Property team considers the key elements of IP and why they are of central importance in the music industry.

Intellectual property plays a crucial role in the music industry, from copyright and trade marks, to licensing agreements and infringement disputes. The protection of intellectual property in this industry ensures that songwriters and music producers are compensated for their work. It also allows artists to commercialise their works through licensing agreements. Moreover, it assists in deterring unauthorised use of musical works by third parties, which protects the originality of those works and prevents financial losses associated with infringement. We consider the key elements of intellectual property in the music industry and how musicians, artists and producers can effectively obtain them.

Copyright

Copyright is the most common form of IP in the music industry. It provides the owner of the work the exclusive right to reproduce, distribute, perform, display or license it. As reported in our previous article on musical copyright in Ireland, the law on copyright in Ireland is primarily governed by the Copyright and Related Rights Act 2000 (as amended). Section 17(1) of that Act provides

“copyright is a property right whereby…the owner of the copyright in any work may undertake or authorise other persons in relation to that work to undertake certain acts in the State, being acts which are designated by this Act as acts restricted by copyright in a work of that description.”

For a song to be protected by copyright in Ireland, it must be original. Whilst there is no statutory definition of an original work, at EU level, the test of originality requires that the work is an expression of the author’s own intellectual creation and that it is identifiable with sufficient precision and objectivity.

Trade marks

In addition to copyright protection, trade marks play a significant role in the music industry. A trade mark is a sign that is capable of distinguishing the goods or services of one undertaking from those of other undertakings. Trade marks can be used to robustly protect names, logos, slogans and brands associated with music artists, bands, record labels and music venues. For example, in the EU, Taylor Swift has successfully registered her name as well as the figurative image of her signature (below) to protect a wide range of goods including musical instruments and guitars in Class 15, clothing in Class 25, hair clips in Class 26 and dolls in Class 28.

Similarly, popular bands such as Coldplay and Guns N’ Roses have also registered their names protecting merchandising items such as clothing in Class 25 and posters in Class 16, as well as entertainment services, organisation of musical performances and management of live shows and live performances in Class 41.

Trade secrets

A trade secret is confidential business information which is used to give a business a competitive advantage. The preservation of the confidentiality of the trade secret is instrumental to retaining that competitive advantage. A trade secret can also be described as ‘proprietary information’ or ‘proprietary know-how.’ In the music industry, methods used in live performances and musical compositions, as well as ticket pricing strategies and logistics management, could all be protected as trade secrets.

Licensing agreements

Licensing plays a crucial role in the music industry. Licensing agreements provide a legal framework which permits artists and creators to grant others the right to use their musical creations while ensuring they receive fair compensation in return. It is via this mechanism that music is licensed for use in films, TV shows, TV advertisements and video games, or even as background music in public spaces. Licensing agreements can take various forms, such as performance licenses for live musical performances, synchronisation licenses which allow the use of music in visual media and mechanical licenses which typically license the reproduction of songs.

Comment

Intellectual property plays a pivotal role in the music industry, both in terms of protecting rights and allowing the payment of fair compensation via licensing agreements. The need for music producers, singer/songwriters, bands and record labels to seek appropriate legal advice on how best to safeguard their rights cannot be overstated. Our recent articles reporting on the multiple copyright infringement cases involving Ed Sheeran as well as the recent trade mark infringement cases involving Katy Perry illustrate the significant costs and difficulties that can arise in the music industry if infringement claims arise and if appropriate and expert advice is not obtained.

For more information and expert legal advice on how best to protect your intellectual property rights, please contact a member of our award-winning Intellectual Property team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.