A few years ago, one of my clients said it wanted to include on its CD artwork an image of Freddie Krueger from the "Nightmare on Elm Street" movies. I advised them the character Freddie Krueger is the intellectual property of the movie studio. In addition, the individual portraying Freddie Krueger (Robert Englund) has a separate intellectual property right in how his likeness is used. Consent would have to be obtained from both the studio and individual in order to use the image. There would likely be some hefty licensing fees involved as well. You should consider issues like this when creating your album artwork and CD booklet.
The most prominent item on your artwork will likely be the album title. The general rule is you can use any title you want, as long as it does not infringe on a famous trademark. Titles of books, songs, movies and other albums are not protected by trademark or copyright. But you cannot use a title that's been made into a series, such as "Star Wars" or "Mission Impossible." The reason is those titles are extremely well known and the consumer may believe your record is associated with that specific source (movie). Also, do not use a movie title if that movie has a well known soundtrack, i.e., "Grease."
If you use a photograph of an object or scenery as your album artwork, the copyright in the photo belongs to the photographer. Use a work-for-hire agreement or similar contract so ownership of the photo is transferred to your band. The same goes for any graphic art created by an artist. You may allow the photographer/artist to continue using the work as part of his portfolio, but otherwise, all uses belong to your band. If the photo contains the image of an individual, you will need that person's permission in addition to consent from the photographer. A Model Release Agreement will allow you to use a person's image, usually in exchange for a fee. Absent permission from the individual, your band is open to a cause of action for a violation of a Right of Publicity, which is profiting from someone's image without his or her consent. If that person alleges they suffered embarrassment or any other emotional harm, they can also add a claim for violating their Right of Privacy. And any lawyer will add claims for Intentional/Negligent Infliction of Emotional Distress.
The bottom line is, always obtain written consent. Naturally, if the cover photo is a band photo, the band members do not have to provide written consent.
There are a few copyright notices you may want to include in the booklet or tray card (the sheet in the back of the jewel box). You'll want to provide notices for the sound recording, artwork and song lyrics, especially if you printed the lyrics in the booklet. The owner of the sound recording is your band, or label if you have a recording contract. The owner of the lyrics is the songwriter, or publisher if you have a publishing contract. And ideally, the owner of the artwork will be your band, if you executed a transfer of rights with the artist/photographer.
Lastly, there is the basic information such as song titles, song lengths, music publisher, performing rights organization affiliation (BMI/ASCAP), credits and acknowledgments. As a final touch, you could individually number the first 100, thereby making each one a collector's item. This will bring the record geeks to the forefront of your fan base.
If you choose not to obtain the proper releases mentioned above and you are selling only a few hundred records locally, the chances of being sued are small; however, the risk increases if you have distribution or sell records online. Being on the losing end of this type of lawsuit could mean recalling records, destroying artwork, attorney's fees and creating new artwork from scratch.
The information in this column is for general information purposes only. It is not intended to provide advice regarding a specific legal situation. Legal advice can only be obtained after consultation with a specific attorney.
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