If you want to put up a website all about your favourite band make sure not to step on any toes. When it comes to unofficial websites some groups take a pretty harsh stand. In 1997 the managers of Oasis tried to shut down hundreds of unofficial sites devoted to the British lad band. This vigilance is not restricted to the music industry. The Fox Network has spent the last five years waging an ongoing campaign against unofficial sites for a number of their shows, including The Simpsons and The X-Files.
It's virtually impossible to tell whether this would happen to you. A lot depends upon the practical side of things: How popular is the band? How popular is your site? How likely is it that the band or artist might take offence? On the legal side, it's important to know where you could be breaking the law (or at least where a claim could be made) when your musical devotion goes online.
This is generally the main legal issue. The band, or more likely their representative (management, record company, music publisher), will usually cite copyright infringement when trying to shut down a website. Oasis' management gave each website owner 30 days to remove any copyrighted material or face legal action (a 'cease and desist' order). Internet Service Providers were also asked to terminate any accounts featuring illegal material or face legal action themselves.
The majority of material you put online could well be copyright-protected. Here are a few things to keep in mind:
The Image Gallery
Have you got any photos of the band on your website? Where did they come from? Chances are they are owned by the photographer or his or her client (perhaps the band or magazine). Copyright law states that you can't reproduce these in any way, be it online, in poster form, or otherwise, without the permission of the copyright owner (the photographer or client) – it makes no difference whether the photo comes from a magazine, a mate, or is cut and pasted online. And for goodwill see that the photographer gets a credit for the shot (there is no legal obligation for this in Australia, but there be may soon if the moral rights legislation is passed.)
The same considerations apply to CD sleeve artwork and band logos. These may all be considered 'artistic works' under the Copyright Act. The Act states that you need to get permission from the copyright owner (either the original artist or the record label) before you can reproduce them on your website.
Music and Video Clips
Just like artwork, music is also protected by copyright. There is separate copyright protection for song lyrics, the music itself, and the sound recording of that song. If you want to post up song lyrics, you will need permission from the songwriter or their music publisher.
If you are making songs available for listening from your website, as an audio file or as part of a video clip, you should talk to APRA (telephone 02 9935 7900) who are running an interim licensing scheme for putting music online. You will also need permission from the appropriate record company to reproduce the sound recording on the Internet. This may also be seen as a 'public performance' of the sound recording – you will need permission from the record company to do this.
Moving images are also protected by copyright, and you must get the permission of the record company before making available any music clips, or other video footage through your website.
Many bands trade mark their name and logo to stop others marketing dodgy merchandise. So watch out for bands or artists who use the encircled “R” or “TM” symbol – this is a tell-tale sign that they are protecting their logos with a trade mark. Trade marks are used in business to indicate that goods or services come from a particular source. If anyone else uses that trade mark or something similar, they could have an action brought against them by the trade mark owner.
In the United States organisations have to keep a tight rein on the use of their trade marks or run a real risk of losing any future ability to defend them. Trade mark “dilution” can occur where a trade mark owner fails to take action against someone else who is unlawfully using their mark. If a company makes no attempt to prevent a website from using their trade mark, a court may view this as implied acceptance of the use. This has even been considered evidence of abandonment of the trade mark altogether. However, trade mark dilution is not an issue under Australian trade mark law, and any action by an American company against an Australian-hosted fan site would have little grounds for success.
Misleading or deceptive conduct
Trade practices law forbids commercial conduct which misleads or deceives consumers. If you set up a website devoted to a band there could be an argument that the average punter thinks your site is endorsed by, or in some way associated with the band. The more famous that band or artist is, the stronger the claim. Labelling your site 'unofficial' may help reduce possible confusion. You should also be careful about using other people's images.
Consider whether any content you want to use could be considered defamatory. In simple terms, defamation can arise from statements or images which could reasonably be taken to refer to an identifiable person (or persons), even if only by inference, and which tend to lower that person's reputation.
Finally, care should also be taken when linking to another site. There may be potential legal liability if the other site is unhappy to be associated via a hyperlink. It is safest to ask permission first.