Concert Posters and the Rise of Legal Rights
June 30 2011, 12:06 PM
Filed in: Opinion
Thanks for the amazing insight Martin!
Concert posters have long been the standard when promoting gigs. It’s simple, efficient, and people generally love seeing these unique pieces of art. In today’s DIY market coupled with fading music sales, artists are beginning to rely heavily upon poster design as an additional merchandise revenue stream but few realize concert posters/design pack a hefty legal punch. In short: Who owns the concert poster? The band that’s performing? The designers who designed the poster? Perhaps the venue that booked the artist? If you don’t think these issues are important, think again. Concert posters are quickly becoming the hottest piece of merchandise, not only for growing indie acts but major artist as well. Indie bands with limited edition numbered prints have been able to sell good designs for $100, therefore banking more on posters than CD sales. Take an established group with a vintage concert poster back from the 60’s and it may sell for $10,000+. I can’t touch upon the global issues concerning concert posters due to the enormity of the content, nor will I address all the legal implications in detail, however I do suggest using the information below as a solid foundation, a brief flicker of insight into the multitude of issues that can quickly snowball out of control.
Use of concert posters have traditionally worked as follows: A music venue and/or promoter books a band and subsequently hires an artist to design a concert poster surrounding the performance. The band provides the venue/promoter with photography and logos who in return passes the information off to the poster designer. With new technology new methods are used. Now it may be common for a band to design a concert poster and later provide the poster to certain venues showcasing the venue logo/information. Others may hire poster designers who design, print, and distribute the poster. Regardless, every scenario identified consist of three major legal components, often ignored, which (especially in today’s music market) inevitable come back to bite someone in the ass. When these components are combined two questions emerge: who owns the poster and who owns the poster design? In order to touch upon these questions, let’s review the three legal components and how they’re used.
1. Trademark:
If you’re in a band and you haven’t filled for a trademark – listen up. Trademarks (ones which are rightfully filled for, granted, and owned) must be licensed when used by anyone other than the trademark owner. For example, if I own the trademark for BAND X, when I play at a venue, who ever uses the concert posters to promote must be granted a license in order to use the mark. If a poster designer uses BAND X in a design, he must have a license to do so. If you don’t own the trademark, you’re mark is open on the market (i.e. Anyone can use it and they can use it without your permission). However, when concert posters are designed it’s typically authorized by a handshake deal, telephone call, or it’s simply implied. All the more reason a performance contract is relevant in order to address who owns the rights to (a) use the mark and (b) who owns the poster. Let’s say for example a designer builds a killer concert poster for an upcoming show. The band owns the trademark but didn’t license the mark for use. Well at this point we’ve got a stout legal issue. Because the band didn’t regulate the mark, a design will suggest it was simply implied that they could use the mark to promote the concert. In part he is correct. Consider five years down the road, the band signs with a major label, they tour heavily and begin selling millions of albums. The “vintage” concert poster becomes a collectors item. The poster designer can begin printing, reprinting, and selling the design and the band receives nothing. Had the band issued a “proper” performance contract with a limited license, they would enjoy in the income stream. I use the term “proper” simply because bands will cut corners by using form contracts they find on the internet. Because these are relatively new rights that bands are taking into consideration, form contracts will not cover such areas.
2. Copyright:
This is perhaps one of the most scandalous topics following the Vampire Weekend album cover infringement. Instead of covering that litigation story in exhausting detail, let’s look at a realistic working model. Band X provides their promo photo to a poster designer who in return places the group picture into a poster design. Smart tactic considering the band will receive more visibility. However, who owns the rights to the band promo photo? Did the photographer who took the band picture license the photo to the group? Has it been purchased following a work for hire contract? Maybe it was the cash/photo exchange that simply implied the band now owns the photo? If it’s the later, which it typically is, the band does NOT own the photo, the photographer does. Without securing the rights, guess who will come a calling if the band sparks in popularity and the poster is being sold as additional band merchandise?
3. Right of Publiciity:
Right of publicity is typically the topic that gets promoters and venues sued. In short, right of publicity authorizes monetary damages when someone’s image, photo, or likeness is used for commercial gain without their consent. For example, if VENUE X or DESIGNER X begins selling concert posters following a gig, but didn’t receive authorization from the band in order to do so. In this scenario they are subject to litigation because they have infringed upon the bands image. Problem in today’s informal market, bands typically sign performance contacts (a) without reading, or (b) without issuing their own. This has consequences because they usually give away rights; rights they didn’t even know existed in the first place. In order to recoup cost, venues will sell unused concert posters or poster designers sell designers on websites in which they create. In short, someone else is making revenue in which should have/could have been redirected to the band.
As an attorney I cringe at talented musicians who don’t secure their product and rights because they didn’t want to spend money to hire legal counsel. However, I also understand that contracts are frowned upon in the informal indie music market. I can assure one thing, the talented musicians and bands that run their career like a well oiled business which control their legal rights, products, and image are the “professionals” - they work in the business and make a living in this business. It’s important to know your legal rights, know how to use your legal rights, and spot legal issues as they arise. With the increased popularity of concert posters as a merchandise product using these rights are now more relevant than ever. Couple this with the increased DIY generation, the international marketplace and decreased music sales and you’ve got a recipe for intellectual property disaster. Knowing how to use your rights becomes a mandatory second language if you want to be successful.
Martin F. Frascogna is an entertainment attorney at www.frascognalaw.com who specializes in music globalization (ie: expanding fan bases and international markets). He consults with several labels both domestically and internationally in efforts to expand rosters and sponsorships into the appropriate global territories. He co-authored the American Bar Association book: Entertainment Law For the General Practitioner, which is used by entertainment attorneys around the world. Martin works with indie level musicians who operate on a shoestring budget. Allowing musicians to budget for legal services as opposed to billing high rates has lead Frascogna to have clients in 23 countries on 6 continents. Feel free to contact - Martin F. Frascogna (mff@frascognalaw.com or marty@frascognamusic.com)
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concert poster designed by Louis Frascogna
