99 problems but a name aint one
February 23, 2009 10:38 PM   Subscribe

Can I use a song lyric/title as my business name? Or is it copyright protected?

For example, if I wanted to name my consulting firm '99 problems' or something equally as cheesy, would I need to request Jay-Z's permission first?

I've seen this which indicates that I don't need to - but just double checking to see if anyone knows otherwise.
posted by jourman2 to Law & Government (22 answers total) 1 user marked this as a favorite
I Am Not a Lawyer but here's the thing: you're starting a business. Most businesses fail. You don't want to create any problems that don't already exist. Suppose I were Jay-Z's lawyer and I found out about your business. I would definitely write you a letter and claim that you were ripping off my client by using his trademark. Now, you and I in the real world know that this claim is crap. I don't know if we should accept the line that his song's name is a trademark, but your business almost certainly isn't in the same line as Jay-Z. So why do I write you a letter? Because I'm a lawyer (not really, remember?) and I can charge my client for writing letters.

Now, let's say that you get a letter like this. You can ignore it, and eventually I get to issue you a summons and you either have to pay your own lawyer to get him to settle or pay me to withdraw the action. Either way, you've lost money and time and your fancy name. Or I guess you can go to court - I'm suing you in California, by the way, unless you live in the West Coast, in which case I'm suing you in Delaware. Fancy a trip across the country? Alternatively you can reply, in which case I get to write you a second letter, and that way I bill Jay-Z for the cost of reading your letter, remembering what it was about, and then writing a second letter. Eventually we go through the summons thing and you settle. But here's the thing: whatever happens, you lose. Because you can't afford to defend yourself against a law firm backed by the time and money of Jay-Z. And even if you somehow win - and I can't see how you'd do that - you've lost all that time and money and so forth for the sake of a business name that you don't actually have anything invested in.

So my advice - not as a lawyer, even a pretend one - is to avoid the whole issue. Think of a name, avoid anything that sounds like or resembles any of your competitors, avoid anything that's obviously a steal from something still within copyright. Your business will only succeed with your care and attention, and the best way to get distracted is by being forced to attend to a whole lot of legal stuff that's not necessary.
posted by Joe in Australia at 11:16 PM on February 23, 2009 [2 favorites]

Depends on the song I guess. I named my business Harvest Moon, partly after a Neil Young song. All legal, no problems, here in British Columbia. If you were to open a business called Bohemian Rhapsody, someone might have something to say about it.
posted by salishsea at 12:28 AM on February 24, 2009

I don't agree with the other two replies. I've seen lots of businesses with "names from songs". You can't write a song and expect to automatically gain control over the world's usage of the two or three words in the song title.

For your example, if your business is selling Jay-Z merchandise, I might worry. Otherwise I wouldn't. But I would also ask a lawyer.
posted by devnull at 1:27 AM on February 24, 2009

One possibility would be to ask the permission of the owner. If they say no you will have circumvented potential legal problems - if they say yes the artist might be willing to endorse you.
posted by rongorongo at 2:43 AM on February 24, 2009

A restaurant in Hawaii called Cheeseburger In Paradise was sued by Jimmy Buffet for use of his song name.
(Reference in this old article)
posted by jozxyqk at 2:52 AM on February 24, 2009

jozxyqk: A restaurant in Hawaii called Cheeseburger In Paradise was sued by Jimmy Buffet for use of his song name.
The crucial distinction between that situation and this one is that Cheeseburger in Paradise is also the name of Jimmy Buffett's chain of restaurants.
posted by Doofus Magoo at 3:07 AM on February 24, 2009

IANAL either, but the key all comes down to customer confusion. Is there any POSSIBLE chance that a customer might be confused and think that your company is related in some way to the musician who wrote that song?

Of course, as Joe in Australia mentioned, even if you think that there's no way any SANE person would possibly confuse it, some lawyer somewhere might go after you. Maybe. (example: Monster Cable going after Monster Golf? Give me a break-- but they did!)
posted by gregvr at 4:27 AM on February 24, 2009

Definitely depends on the song. At some point down the line your lawyer may be asked to prove that 99 Problems doesn't play a source-identifying role for Jay-Z. Hopefully, by then your firm will be successful enough to pay for a good lawyer.
posted by thejoshu at 5:00 AM on February 24, 2009

IANAL either, but so many bands have named themselves after other bands' songs, after the titles of books, and so on that I can't help but think it's not a problem most of the time.

I'd agree with devnull--if it's clear that the naming is a tip of the hat to Jay-Z and not giving the impression that the busines is actually connected to him in some way then it's probably going to be ok. If it's a case where people might be confused about whether or not you're actually connected to him, or if he doesn't approve of the business you're in or what you're selling, then you are probably asking for trouble.

And there is or was a shop in Austin, TX that was called "Bohemian Wrap City."
posted by K.P. at 5:02 AM on February 24, 2009

I'm wondering what the logic behind asking for permission is. With the "ask permission" logic, if you are legally allowed to do it, but you ask permission and they say no, you won't do it. I say the permission part is irrelevant: the law is all that matters. Ask a lawyer!
posted by devnull at 5:21 AM on February 24, 2009

1/ Go with Joe in Australia's advice.
2/ There's a subset of us that will see your copied business name and be impressed mainly by your lack of creativity and puerile fan behavior.
3/ You've cited a publication of the Copyright Office that in no way authorizes you to do anything. The problems with your plan are based on trademark and unfair competition law, not copyright.
posted by JimN2TAW at 6:15 AM on February 24, 2009

I'm neither a lawyer nor a businessman. But common sense tells me that unless you're so well capitalized that you can afford to litigate a possible lawsuit - whatever its merits - you'd be insane to take the additional risk.
posted by Joe Beese at 6:19 AM on February 24, 2009

You can't copyright a title. Otherwise, The Beatles would have sued The Replacements when they released "Let It Be." The song publisher's copyright pertains to the lyrics of the song. So if the title is also contained in the lyrics, is it covered then? No. Because the name of your business is a trademark, not a copyright. You can trademark anything you want, as long as nobody in the same line of business has beaten you to it. That's why you'll have to pay for a trademark search when you apply for your trademark. The difference with "Cheeseburger In Paradise" is that it is not just a song title or a lyric -- it is also a trademark. Think about how many songs get written and published every single day. If every word was never again to be used in any other context, we'd be out of words pretty fast.

So carry on without fear. File for a trademark on the name you want. It'll cost you a few hundred bucks, but it'll be worth it if you're really worried, or if your plans are big. If the search comes back clear, you're good to go. Copyright has nothing to do with it.
posted by spilon at 6:42 AM on February 24, 2009

The second half of that line might be problematic for you as well. I'd choose something different.
posted by electroboy at 7:11 AM on February 24, 2009

For what it's worth, and I don't know if '99 Problems' is an example or the actual name you're wanting to use, but a quick search of registered trademarks doesn't turn anything up for that name.

Trademarks don't have to be registered to be granted protection, so that's not really fool-proof, but it does suggest that Jay-Z doesn't really think of "99 problems" as being a trademark of his.

After all, he ain't passed the bar, but he know a li'l bit. (sorry)
posted by toomuchpete at 7:44 AM on February 24, 2009

Depends on the song I guess. I named my business Harvest Moon, partly after a Neil Young song. All legal, no problems, here in British Columbia. If you were to open a business called Bohemian Rhapsody, someone might have something to say about it.

I think the big difference here is that a Harvest Moon is SOMETHING (a particular kind of full moon) in addition to being the name of a song. That seems like an important distinction to me.
posted by kate blank at 7:54 AM on February 24, 2009

I don't know if this is worth mentioning, but Jay-Z's song is an allusion to a much earlier Ice T song.
posted by YoungAmerican at 9:10 AM on February 24, 2009

At some point down the line your lawyer may be asked to prove that 99 Problems doesn't play a source-identifying role for Jay-Z.

This is not a question for which it is a defendant's job to answer. You can't just sue someone and say "OK buddy, prove to the court why you shouldn't be sued."

IANAL, natch, but it's an easy defense to say that that 98problems.com was already taken (which it is) and 100problems was just too long.
posted by rhizome at 9:19 AM on February 24, 2009

Best answer: Loads of pointless and misinformed conjecture here. The main point is the difference between trademark and copyright.

Copyright has nothing to do with this issue; the songwriters (all seven of them, according to ASCAP) have no ownership and thus no legal protection here. Requesting permission from the copyright holders is irrelevant.

What you want to find is whether it has been trademarked. Even if the phrase/title you want has been registered, that doesn't automatically mean that you're out of luck. The standard is whether there could be likely market confusion. However, you'll probably benefit from consulting with a lawyer if you get to the point of making that determination.

The initial steps to perform for the trade name you want to use: TESS search for existing trademarks, a search of the business registrations in your area to ensure that someone else isn't using the same trade name, and a thorough web search to explore potential confusion in other markets.

Also, a minor point, but "99 Problems" was Ice-T's first.
posted by camcgee at 9:19 AM on February 24, 2009 [1 favorite]

rhizome, I wasn't referring to the burden of proof, but I think it's clear that if the parties find themselves arguing this case before TTAB, that is a simplistic way to consider the first pertinent question: in other words, "is it a trademark?"
posted by thejoshu at 9:50 AM on February 24, 2009

Response by poster: Thanks for clarifying camcgee - I think that's what I was looking for - so as it seems no one has trademarked the phrase '99 problems' - so I'd be in the clear in regards to usage?

btw im not planning on naming it 99 problems, just an example
posted by jourman2 at 11:05 AM on February 24, 2009

Do you want your business associated with a song that might be covered tomorrow by an artist whose association with the song or interpretation of it might be completely at odds with the song title's meaning as you interpret it today?
posted by Morrigan at 3:21 PM on February 24, 2009

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