Ant Horn is an Administration Officer at Arts Law. This article was written with assistance from Alison Davis, Legal Officer.
More. More. The crowd is hungry for some more Chisel. The Cold Chisel tribute band "Gold Chisel" launch into their version of Khe Sanh. The crowd goes wild.
Tribute bands have become an increasingly common phenomenon. Groups such as Abba tribute band, Bjorn Again, tour internationally and do very well out of looking and sounding like the real thing. Arts Law is regularly asked the question – how do tribute bands get away with performing and profiting from other people's songs? There are a number of areas that need to be considered.
Performing the Songs
A common question is whether you need to get the permission of the original artist or copyright owner to perform their songs. The simple answer is, unless the song is in the public domain, permission from the copyright owner in the song will be necessary. The next question then is, "who is the copyright owner of that song?". A good place to start is the Australasian Performing Rights Association (APRA). The copyright owner of the song may be registered with APRA, who can organise for the necessary licence to perform the song. The licence fee will depend on the type and extent of usage required. APRA's contact details are (02) 9922 6422 or www.apra.com.au.
It is very important when promoting or advertising a performance to take care not to infringe on the rights of any third party with respect to their name. It should be made clear that the band performing is a tribute band. Do not assume that, because tickets are a particular price and the performance is at a particular venue, people will know that it is a tribute band.
For example, although the name "Gold Chisel" is different, it may not be different enough from "Cold Chisel" to clearly indicate that the band is actually a tribute band and not the real thing. It is, therefore, a good idea to include a by-line saying something like "One of Australia's greatest Cold Chisel Tribute bands".
Another matter for "Gold Chisel" to consider is trade mark infringement. Although it is not possible to trade mark a personality, certain aspects of that personality may be registrable. For example, portraits, pictures, surnames, famous names, signatures and possibly slogans may be trade marked. Even sounds are now registrable, although it is unlikely that 'sound alike' versions of a celebrity's spoken or singing voice would be registrable under trade mark law. As long as it is made clear that "Gold Chisel" is not promoting itself as the original it should be able to avoid any infringement under trade mark law.
Trade marks do not have to be registered to be capable of protection. For example, if a different "Gold Chisel" could establish a reputation in the name then they would be in a position to prevent others using it.
Promoting the Band
A final thing for our tribute band to consider is the nature of their promotional material. Care should be taken that any artwork does not too closely resemble that of any third party, in particular the original band, and thereby infringe copyright in the original material. Again, make sure that the promotional material doesn't mislead people into thinking that the tribute band is authorised by the real band.
It is important to note that there are other issues to consider if you intend to record, publish, distribute or sell someone else's songs. Contact Arts Law or APRA-AMCOS (www.apra-amcos.com.au) for information about what is involved.
- Music Business by Shane Simpson