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Copyright and Trademark Registration

By Gord Thomson |

Lisa asked:

Our band (we play in bars & at socials) is going to start recording our own original songs in a recording studio. Do we have to copyright our songs before we record them, and does the name of the band need to be registered as a trademark or copyrighted? Also (a newer question from Garry): If the band is not making money, is there a way to protect the band name without registering a business?

Gord Thomson answered:

Editor's note: This answer was updated on February 24, 2014.

The short answer No, you do not need to copyright the music you perform or trademark the band name performing the music. But there are definite advantages to doing both.

The nature of copyright allows any idea presented in a tangible form, such as sheet music, lyric sheets, or a CD or tape recording, to have copyright protection once the author or authors of the work have been identified on the tangible form of the work. Registration is not required. The work is automatically copyrighted.

Your band's music will be copyrighted the moment the music is recorded in the studio. It may already be copyrighted if it's been written down in some way.

However, copyright registration is strongly recommend for the following reasons:

  1. It's inexpensive: The cost to register a work as copyrighted is $50 when done online or $65 in any other case.
  2. It's easy: You can file the form yourself from your computer by visiting CIPO website.
  3. It's proof: A copyright certificate is prima facie evidence in court. If someone ever challenged the ownership of works you held the copyright to, all you have to do is present the certificate for the works in question to settle the matter.
  4. It's protection: If someone is making money from your copyrighted works illegally, you can sue them for damages.

Copyright registration will take about 2 weeks. Once completed, you must note on every version and copy of the work the "В®" mark along with the date the work was first created, and the author or authors of the work. You cannot list the band as the author unless it had been incorporated as a legal entity.

Your band's name is already protected under Common Law as a trademark, but this protection is limited to the area your band is known in. For example, if you only ever played in a certain area of town, or even just at 1 spot, the protection of your band's name would only be good at those locations.

Trademark registration would give you a monopoly on the registered words, preventing anyone else in Canada from using them to describe a band. However, someone could use your band name to describe anything else, such as a line of furniture.

You do not have to have a registered business or corporation to register a trademark — a private citizen can also register a trademark.

Be aware there is a review process for registering a trademark, and it can become complicated if the name you are registering is similar to someone else's registered name, or if there are applications for the same name, or if someone opposes your name. It is recommended that you thoroughly search the trademark database on the CIPO website before starting your application.

Once you submit an application, the process can take up to 24 months to complete, all the while, complex legal documents will be exchanged between you and the agency. For these reasons, the services of a trademark agent should be sought out to make the process go smoothly.

But if you are feeling brave, you can start the process of trademark registration at the CIPO website. The prices are different depending on whether you file online or by mail. For online applications, the cost as of February 2014 is $250, plus an additional $200 once the mark is registered. Applications sent by mail cost $300, plus an additional $200 once the mark is registered.

Every 15 years you must renew your trademark, which will extend the registration for another 15 years.

Copyright expires 50 years after the death of the author, or 50 years after the death of the last author in the case of joint-authorship.

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