What's in a Name? Protecting Band Names Against Unnecessary Infringement Lawsuits

Sant(o/i)gold

It’s the age-old story: artist puts out album, Pitchfork loves album, another artist claims right to use the artist’s name. Okay, so maybe it’s not that common of a tale, but it’s been the subject of more than a few confused news articles. Some recent examples: in 2004, Manitoba mastermind Dan Snaith changed his stage name to Caribou after being sued by 70s rocker Richard “Handsome Dick” Manitoba; around 2005, punk act Death from Above appended 1979 to its name after a dispute with DFA Records (this is possibly the most reasonable of the three); in 2009, Santogold (nee Santi White) changed her stage name to Santigold after a lawsuit was threatened by infomercialist Santo Gold. Although the latter claims to have copyrighted his name, the lawsuits are all theoretically based on trademark law.

In each of these cases, the alleged infringer had a good defense but acquiesced in order to avoid the costs of litigation. As a result, the artist stopped using the name under which he/she/they had recorded and toured. For lesser-known acts such as these, a name change can be a big marketing hit (although, in two cases, a small change was apparently enough). Such changes serve none of the source-clarifying functions that the law is intended to serve, but rather work towards the irrational interests of a few individuals. But is there any way to prevent these abuses?

In order to be effective, the artist would need to have a defense available at the very early stages of a lawsuit so that few resources need to be expended. While it’s unlikely that Congress will amend the Lanham Act to add such a means (some states do have such statutes), that may not be necessary. Since the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly did away with notice pleading, simply alleging that a band’s name infringes on your own should not satisfy the pleading standard. In the complaint, the plaintiff should be required to give a preliminary indication of the likelihood of confusion, of which one of the factors is evidence of actual confusion. By doing this, artists who deserve the value that they’ve invested in their name can quickly bring the merits (or lack thereof) in front of a judge.

— Steven Reilly

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