INTRODUCTION this and the following chapter 'm going to look at the whole area of branding: frst by looking at merchandising deals, at how you get a trade merk and at the benefits of building up a reputation in your name and how to protect it; and then, in the next chapter, by looking at sponsorship deals. Branding is the way in which you use your name, logo and reputation to b "t relevant for an starting out in the business. It’s true that new artists are going to be more concerned at getting that first record deal th and some of the more successful US artists like Beyonce, to be able to see that putting a bit of thought into branding even at its simplest level can pay big dividends. Not everyone can be or wants to be The X Factor winner, but all artists should think about getting some of the basics of branding right from the beginning. it can be as simple as getting a good, memorable name and registering it as a domain name. With those two small and cheap steps youve already started to establish a brand, Branding is big business and the growth of onine activites on the internet has added to the commercial outlets for the brand. At its most straightforward is the building up of an artist's narne and reputation in order to help to sell more records and concert tickets. At its more sophisticated, a name, reputation and public image can help to sell other things, not necessarily ones that involve music. Artists like The Spice Girls used their names, likenesses and the ‘girl power’ image originally to sell everything from crisps to soft drinks and sweets and are reviving tat with their 2007/08 reunion tour when once again they are being used to sell products and supermarkets in TV advertising. Also bear in mind many successful ‘ive’ artists make as much money from sales of merchandise at the venues or online off artist websites than they do from the ticket sales. This idea of branding ist anything new. All successful companies have invested alot of money in the company name and logo and in establishing name recognition for their products. Think of Heinz, Sainsburys, CocaCola or McDonalds. Companies such as Virgin ‘umed branding ito an artform. Sir Richard Branson realised the value in the Virgin name, in the fact that the consumer immediately recognises it and the familar red and white colours, By puting that recognition together witha reputation for being sight antrestabishment, he ‘got consurners to buy into almost everything that the name was linked with. A healthy dose ‘of self publicity from Sir Richard himseff Kept the name anc the brand in the public eye. Significant mark on the record successes to keep them going, if unite ta have a chance. ieve one or more big hits, and some more moderat Rotting the marketing camnaion rioht is therefore en audience of about 8 chart success but only some or all of the successful they have relatively litle barg amongst many people that i's 297 to get a break, get on television, get a increasingly the case that the record companies rely on excellent marketing to not dampen this In the last seven or eight years there has been an explosion in the number of acts ‘hat seek fame and fortune not through the traditional route of hard slog on the gig ci but on a fast track through appearances on realty television shows. These are, if you lke, the twenbfirst century equivalent of the talent show. This started with Pep: spaimed Hear'Say. The runnersup on that programme were Liberty, who, as a result of an unsuccessful court case, had to change their name to Liberty X but nevertheless went ‘on to international success. Then there was the Pop Idol phenomenon, where telephone voting by members of the public spawned a lucrative new source of revenue for the TV broadcaster and maker of the programmes. The final of the first Pop Idol contest had an in voting for Will Young and Gareth Gates. Both achieved No. 1 ll Young continues to feature largely both as a recording artist but also as a live performer and a stalwart of events such as the Queen's Jubilee concert at Buckingham Palace and the VE 60* celebration concert in Trafalgar Square. Pop Idol was followed by Fame Academy, which was 2 cross between the reality TV programme Big Brother and a Pop Idoltype talent contest which did not live long before the phenomenon which was Simon Cowell and X Factor hit our screens, intialy as a __ traditional competition for late teen/early twenties artists out then cleveriy widened to appeal to a much wider audience through having categories for older wannabes. in. most cases the contestants, or at least the finalists, are required as a condition of their participation to sign up to recording contracts and often also to sponsorship and ing contracts. The TV production company takes a piece of al this income. In ists. The artists offered these contracts at a time when ing power and, although there can be some tinkering around the edges, the basic deal is usually already set and non-negotiable. OF course, once the artist is successful renegotiation becomes a possibilty but not a guarantee. This type of programme also took off in the US with the American Idol series being ‘a huge success and making a TV celebrity out of judges such as Simon Cowell There are few signs thatthe British public has lost its appetite for these shows even | though record sales of winners have generally been much lower than those achieved by I Young's first single, and apart from him itis difficut to think of any UK winners or “finalists who have gone on to sustain a pop career beyond the first single or in some cases album. The albums are often rush released to capitalise on the winner's fame _ before the fickle public moves on. These albums rarely do much more than present cover scordings of other pe songs and it is difficult for the artist to really show what he capable of or to build a longer term career. One UK artist who may buck the trend on this is Leona Lewis who for various reasons waited quite 2 long time before her album was released after she won X Factor in 2006. it went to the top of the download and physical album and singles sales charts and managed to stay the course running up the second highest weekly sales figures of 2007 behind Arctic Monkeys. ‘One of the main drawbacks for me to these shows is that they create an evidence of all the one ef. work. effort and time that oes into making a tru ise that there is a huge amount of reer in this business. KT Tunstall‘worked for about six years around the clubs before she got her big break on Later With Jools Holland as a last minute standin. Many so-called overnight successes have in fact laboured away for years honing their craft until they are finally spotted. Reality television shows lead many young people to believe that they are somehow entitled to their fifteen minutes of fame, that everyone has a record in them and that its really rather easy. Why else is almost everyone on MySpace plugging their own records? There isn’t that much ‘quality around — most is rubbish — and there is a danger that tue talent will get lost in the noise. Hence the need is greater than ever for an angle that will bring you to the foreground. BRANDING OF ARTISTS Many attsts are now recognising the value in the name, the ‘brand’, and are actively trying to put themselves into a position where they can make some money out of that brand. They may not have followed exacty in the footsteps of The Spice Girls, but do pick and choose the products they wish to be involved with, for example, clathing shops or ranges. ‘To a greater or lesser extent, a successful artist is ahvays going to be a brand, in the sense of being a name that people recognise. The more successful the artists, the more itis thatthe name, likeness and image will be recognised by members ofthe put want to know more about him buy things that ike books, magazines and records. They'll buy products that have his name or likeness on it such as calendars, posters, screensavers, ‘shirts or other items of clothing. ff an artist is associated with a computer game, new phone or fast car then those items become desirable and the manufacturers of those goods pay for the associat and, Witness also the number of perfumes being endorsed by celebrities — there are his and hers Beckham perfumes, for example. Part of this branding process involves doing merchandising deals for these products. If ‘you have taken steps as early 2s you could afford to protect your brand then you wil rave an easy means of stopping cthers from cashing in on your name without your ap Cross-mecia branding is becoming increasingly important. It has been shown that consumers are spending more time onine, reading and researching as well as being entertained. No branding strategy should ignore online uses. At the very least the artist’s official website should be dynamic and regularly updated. Some labels are using linkage of a wellknown artist brand with a website hosted by the label to cement their relationship with the artist and share revenues from products bought on the website such as mobile ringtones or video clips, It’s usually @ good idea to use the same name, tagdine/slogan — which could be the tite of thie new album or the name of the tour ~ and imagery and logo across all forms of marketing. This ensures a consistent message and enkiances the brand. Make sure that all media carry your name and contact details. Check that any online links between sites work well and link to a website that carries a consistent message. inking up with other sites with 2 view to drawing traffic to your ree to share revenue with that site. For example, if you ‘come from that site to yours ie ringtone supplier to pay them fee of 35% and viee varea if the name, likeness or logo is one that can be trademarked, you can apply to register a trade mark or marks. Not all names are registrable. If it's too common a name or its descriptive of something, the Trade Mark Registry won't let you register it. Even if you haven't got a trade mark registered, if someone tries to pass themselves off as you in order to cash in on your reputation and this results in loss or damage to you, you have the means to try and stop them. This is called an action for ‘passing off. if 2 company wants to use your name to promote their product they will do a sponsorship deal. You lend them the use of your name and may agree to provide some other services, such as recording a single or performing in an advert or turning up at a ‘rade show or event, and they give you money and sometimes goods or services such as airline tickets or cars in return (see Chapter 9), #f your fans are looking for information about you or where to buy your records they will look under your name. They aren't usually going to start looking under the record company name. in fact, many fans may not know or care what label your records c out on as long as they can find copies of them in their record shop or online whic partly why record companies are concerned to own, or at least control, artists’ websites and domain names. A fan is going to search for the artist's name. ff you wanted to find information on Tim Westwood on the Internet you would search under ‘Westwood! rather than under his record company, Mercury/Def Jam. There are record company websites and they are getting better. At fist they tended to be corporate affairs where the services and information provided was intended for other companies or businesses; now they're generally more of a magazine format where news on all the major artists on the label is brought together in one place. Some have links to specialised websites, many of which are owned and put together by the artist or his management team. These links open up many new possibilities for marketing an artist. Many now also require the artist to submit regular uodates to a blog or diary of what the artist has been up to/is listening toAwhat films they like etc. 's branding a good idee? There are some that thought the ubiauty of The Spice Girls ‘was taking the idea too far. While | believe we can never underestimate the public's interest in the inside story and behindthescenes glimpses of artists, you do have to be careful to avoid overkil. To some artists the whole idea is anathema. Most artists know that they have to work on building up a name and a reputation in order to sell their records. Some, though, think thet they're somehow seling out if they put their name to other products ~ ir soul as it were, Hts obviously a personal thing, Some artists, jarly those boy or gir bands with @ relatively short shelf life before @ new favourite comes along, do embrace branding in order to make as much money as they can as quickly as they can, Others are content to limit their branding activities to tour merchandise or sponsorship deals to help support a tour that would otherwise make a loss. It all comes back to the game plan {see Chapter 2). Tve also worked with artists who take the sponsor's or merchandiser’s money and into charitable funds rather than spending it on themselves. Some make a point of ‘the public they have done this, others keep it quiet. {s ita sel out? | don't think it is. If t's not right for you, dor't do it. However, before ‘you come over ail credible and refuse to entertzin any form of branding, just remember that yourre already doing itto some extent when you use your name to promote sales of vouir rears or tickets to vour gigs.There are many artists and bands whose image doesr’t easiy lend itself to seling loads of posters, T-shirts and so on or whose image is not going to be user friendly for familyfocused adverts ~ fm thinking here of some of the Death Metal bands. If that is you then fine, don't waste time or money on it. You also don't have to have your name if you do decide to do merchandising deals for your name, logo or likeness, you also need to decide how far you're prepared to go in protecting that merchandise from the pirates who will inevitably come along and try to steal your market, often with inf products. Even if you don't do merchandising deals, you may find that the pirates example, not to do a merchandising de: calendars, only to find that unofficial versions appear in the shops anyway. AS an is there is at least one enterprising charity which teams up with legal pirate merchandise that has been seized at the artist's concerts to MERCHANDISING DEALS In its simplest form a band is involved in merchandising when they sell tickets to their gigs. The band name attracts the fans that have bought the records and now want to see ‘them perform live, The ticket to the gig is bought on the back of the band name. ff the ‘band's core business is performing live then the band name is being used to sell records or other goods Shirts and posters. At this time it is live concerts which are making ‘the money, not sales of records ~ see the chapter on touring. if the concer attended then the artist may also sel of merchandise. Even the most credible as been big business for years. People can buy the T-shirt, the football strip, the video game and the duvet cover bearing ‘the name and image of their favourite cartoon character, football team or pop group. Disney and Manchester United Football Club are good examples. They know that there's allot of money to be made from maximising the use of the name and likeness. HOW DO YOU GO ABOUT GETTING A TRADE MARK? Before you can begin to use your name to sell merchandise outside your core business of seling records, fs essential that you have a name or logo that’s easiy marketable and set a reputation that people can relate to. if your game hould think of a distinctive name and find a name that no one else has ieck this out. The same thought must go into plan is-to do a fair amount logo from the beginning. We al iding off the pirates, you need to protect your if you want to prevent others jumping on merchandise to satisfy market demand, If you are going to go for trade mark protection you should do so early once your career has started to take off as you wat too long then it may be too late. It’s important. ‘0 get trade mark protection as early as possible. Ehis Presley's estate was not able to protect the use of the Elvis name for merchandising as a registered trade mark in the UK because it waited until ten years after his death The Eis Presley Case In 1989, Elvis Presley Enterprises In, the successor co che Esate of Elvis Presley fled UK ‘made mazk applications for ‘Elvi, ‘Elvis Presley’ and the signature ‘Evis A Pi ‘The UK trade mark applications were accepted by the Trade Masks Registry but were then opposed by Sid Shaws, a sader who'd been marketing Elvis memorabilia in the UK since the late 1970s under the name ‘Ehisly Your’. He opposed the registration of the satis by the Ehis Estate on the grounds, among others, chat they conflicted with Sid Shaws own prior trade mare registrations for Eh applications; Mr Shaw appealed to the High Court, which allowed the appeal. In 2 judgement which was quite critical of character and personality merchandising in general the court decided chat the public didrit care whether Elvis Presley memorabilia was approved by the Estate of Elvis Presey or not. The Estate took the case o the Court of Appeal ‘The Court of Appeal refused the Estate's appeal and refused registration ofall three sade marks, The court concluded thatthe trade marks were not in themselves distinctive and, as there was no evidence produced by the Escate of any use of che marks in the UK which might have indicated that che marks had become distinctive of the Estate of Elvis Presley in the minds of the public, there was therefore no reason at all why the marks should be registred. The Wer Wes Wee Case The cours have shown that they aren't prepared wo interpret the Trade Marks Act too narrowly in favour of someone who has registered a ade mark in a band name. One example is a case invelving the band Wet Wet Wee: the Bravado and Mainstream case? Bravado had rights in a cade mark in che name Wer Wer Wet. Bravado asked for the Scottish law equivalent of an injunction to be ordered against Mainstream to prevent it from infringing that trade mark. Mainstream was publishing and marketing a book entitled A Swees Lise Mystery ~ Wes Wes Wet — the inside Sto, Mainstecam argued thas they were rot using ‘Wer Wet Wet in a trade mark sense, bur rather that it was used to describe the subject matter of the book. They also said that chey weren't suggesting in any way that it was published by Bravado and, as suck, somehow ‘official’. Bravado argued that if they couldait prevent this use chen ie would be meaningless having the trade mark, because they coulda then stop it being used on other merchandise cating to the band. yur decided tha the words were being used in the course of trade but reused to ie said thac would be interpreting the meaning of the Trade so ineerpreced then any mention of the group name couldThe Saxon Case ‘The area of trade marks and band names was also recently reviewed by the Fligh Court in the case of Byford v. Oliver and Dawson (2003). This case involved the use of the name ‘Saxon’ by Biff Byford, the original singer with the British heavy metal band. Byford had ‘member since its formation in the late 1970s. Steven Dawson and Graham in 1995. Biff Byford continued asa member ofthe band through numerous new line-ups always called Saxon. Oliver and Grabam continued to petform but used a vatiery ‘of names, often including their own names with 2 reference to Saxon. Oliver and Dawson never challenged Byford’ right ro use the name Saxon but in'1999 they registered ‘Saxon! ‘sa trade mark and arempted to prevent Byford using the name. Byford applied to the Trade Mark Registry to have the trade mack declared invalid on she basis chat the registration had been obtained in bad fith (under the Tiade Mask Act 1994) and that Dawson and Oliver were guilty of ‘passing off and misrepresenting shemuclves and cher trade mark as Saxon! when Byford was the ‘real ‘Saxon’. Byford fled +o have the trade mask declared invalid with the Registrar deciding that with band _members (all of whom may have some claim on a band’s name) it was 2 ‘rst come first served’ rule with regard 10 registration. Byford then applied to the High Court who overcurned the Registrar’ decision and dedared che Olives/Dawson registration invalid. There was no formal agreement beoween the original band members governing wse of the band name. Mr Justice Ladi held that, in the circumstances, the band name must be ‘owned by all ofthe original band members as ‘parmer’. What this means is that ifa band ‘parmership’ was split up NO member would own the name unless there was a formal agreement governing its use. However, the judge held that, in the cixcumstances, both Dawson and Oliver abandoned their rights to the goodwill and ownership of the ‘Saxon’ rnaine which was now owned by Byford and the new members ofthe band, This suggests that bands must have a written agreement governing ovmership of the band name — because otherwise, if the band spits, no member of the group or members, could use the band name without agreement of any one, or more, original members who ‘may not wish to continue. HOW TO APPLY FOR A TRADE MARK You don't have to be already rich and famous to register a trade mark in your name or logo. in fact, as we saw in the Elvis case, there are dangers in waiting too long to apply ‘or a trade mark. As soon as you can afford to, you should think about doing it. You can apply to protect your name or that of your brand woridw this would be expensive. To start wit, | usually advise that you aoply to register the name in your home market, for example the UK for a Britishrbased band, and then in other places where you have, of hope to gain, a market for your records and other merchandise, for example the US, Europe or Japan. 's own special rules for registration of a trade mark and, in many register a trade mark in one country can help you with cases, an applicati mark registration on 1 July, you have until 31 December to apply in the US and stil backdate itto 1 July. Just making the application itself can trigger trade mark protection. dif its mark lawyer or a sp trade mark agent and a good music lawyer should have a working knowledge of trade mark law. While you may be happy to leave allthis to your manager to sort out for you, do remember that the name should be registered in your name and not that of your manager or record company,* ‘Once youve decided the countries where you'd lke to apply for a trade mark ~ finances permitting - you have to decide what types of product or particular goods you want to sell under the trade mark. in most countries, goods and services are split for trade mark registration purposes into classes and its important to make sure that you cover all relevant classes of goods and as soon as possible. You can add other classes later, but then you run the risk of someone selling goods with your name in a class that you haven't protected. For example, you the class that covers records, but posters. In theory, someone get into the whole area of ps costs saving by applying for several classes at a time.* A registered trade mark has distinct advantages over an unregistered mark. Actions +o stop infringements of registered trade merks are generally quicker and more cost effective than when you're relying on unregistered rights. A registered trade mark puts the world on notice of your rights. A registered trade mark is attractive to merchandising companies, as it gives them a monopoly over the goods for which the mark is registered and gives the merchandising company more of an incentive to do a deal with you. PASSING OFF you haven't registered a trade mark then, inthe UK, you can try and rely on the common Jaw right of passing off in order to prot ‘your name and reputation. Before you can do is may not be the case if you're it in the name. You have to show ‘that someone else is trading on your reputation by passing themselves off as you, using your reputation to confuse the public that they are you or are authorised by you. As well as having this goodwill or reputation, you also have to show that this has actually caused confusion in the mind of the public resulting in damage band using the same name as yours, or one confusingly gig in the same town as your planned gigs. Fans mi syre coming to see you. This loses you ticket sales anc