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Vanderbilt Journal of Entertainment & Technology Law

Suzanne Kessler

First Page

515

Abstract

The changing nature of the music business presents earnings challenges for both record labels and recording artists. Historically, labels and artists entered into recording contracts pursuant to which the artists created music which the labels funded, distributed, marketed, and promoted. Many artists made good livings from music sales, earning dollars per album, while the labels profited even more. However, as digital delivery, especially streaming, now supplants physical records as the primary music consumption manner, the money that labels and artists realize from music sales has significantly decreased. In particular, artists earn fractions of pennies per track streamed. Labels, too, are dissatisfied with their returns on digital sales, which are in substantial compared to the returns on physical product.

In response to the lower revenue from recorded music sales, labels instituted so-called "360" deals. Under 360 recording contracts, which increasingly are standard, the labels share in artists' income streams beyond recorded music alone, such as touring, merchandise, sponsorships, endorsements, music publishing, and more. Labels justify this participation by claiming that but for their investments in the artists' careers, the artists would not have achieved the success required to generate that additional income. Artists, however, generally view 360 deals as unfair--as just another way that labels take financial advantage of them.

Struggling to make livings solely from sales of recorded music and wary of sharing their ancillary income with labels, savvy "artist brand entrepreneurs" are steering clear of confining or overreaching recording contracts and are expanding into non-music areas. These artists do not identify primarily as "recording artists" but as multifaceted "brands,"undertaking ventures completely outside of the music industry (e.g., restaurants, alcoholic beverages, cookware lines, fashion lines, and television shows). While the initial source of the artists' popularity may be the music business, the non-music branding endeavors sustain the artists' long-term fame and fortune.

This Article examines how artist brand entrepreneurs use trademark law to construct, reinforce, and maintain the artists' brands apart from conventional recorded music-centric means. Artist brand entrepreneurs develop non-music goods and services and non-music related trademark portfolios, extending their music based personas into broader lifestyle brands. While not necessarily entirely relinquishing their music careers, artist brand entrepreneurs refocus their ambitions and pursuits to remain relevant and profitable.

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