My company is hosting a music festival. On our website, I have constructed a polling system for bands. I have written a disclaimer clearly stating that NONE of the bands are guaranteed to play at the festival. The bands listed will be pursued. The bands listed will be national and international acts. Are their legal issues to listing potential bands in a voting system? It is a system designed to provide attendee feedback as to what music acts they wish to see more. Further more, my ticket purchase policy states that no bands are guaranteed, and attendees are purchasing a pass to the festival, not to any certain band. Am I at risk of infringing on Artist Publicity rights?
There are so many music-loving lawyers: get one of them to work with you on this project. The number of legal issues that can arise at a music festival can't be listed in 4000 characters.
Yes you can name the bands for "voting" purposes.
But, were are your contracts, lease for venue, liability protection? Concert promoting is a very complex business. Good luck.
The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
Intellectual Property Law Attorney
Q: "Am I at risk of infringing on Artist Publicity rights?"
R: Very likely not, unless (1) there is no reasonable expectation that the band would perform at your festival [The Rolling Stones, Bruce Springstein, etc.] or (2) you know the band will not perform at your festival. The potential to invade the "right of publicity" of the bands that you list should be, however, much lower on your risk ladder -- there are many, many other more important issues that require your attention. Speak with an Indiana-licensed entertainment attorney. Good luck.
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Intellectual Property Law Attorney
My reaction on reading your question is that you know very well none of these bands will ever play at your music Festival. I think you are here asking because you are nervous about the false advertising and fraud you are committing by conducting this voting poll knowing that none of the bands are going to perform. I think you would be much better off contacting Legends and signing them up to perform a tribute concert to a selected legendary band that is selected. Legends likely has already licensed the right to do that, as it is probably the best selling tribute show in the world. That way you are not false advertising if you do it right. To do it really proper you need to hire an entertainment lawyer with industry connections so there is some believability in your advertising.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
It should be possible to construct this polling system in a way that does not infringe the publicity rights of artists. I certainly would refrain from showing photographs of the artists---the poll should resemble the type of surveys that you frequently see on-line, where questions are asked concerning political preferences or preferences among companies that are competitors of each other. And I would include a prominent disclaimer indicating that this survey is not associated with any of the bands.
An interesting question is whether it is appropriate for your poll to indicate that it is sponsored by your company and its music festival. In so doing, you might be indirectly suggesting some kind of official association with at least those bands and performers who appeared at previous festivals sponsored by you and your company. Also, if you associate your poll with the music festival, you may be leading consumers to believe that music festival is capable of booking all the artists in the poll---which again may suggest a relationship which does not exist.
One further point--aside from the right of publicity/trademark issues, you need someone to do a patent search to make sure you can operate your online poll without violating someone's patents in this space.
One thing is certain here----you will need to retain intellectual property counsel to advise you on many rather complex issues relating to this poll. It would not be wise from a business perspective to pursue this poll project without IP counsel. You may think this is a self-serving statement coming from a lawyer--but it is not self serving. None of us make huge amounts of money advising clients on issues such as this----we make the really big money when clients fail to hire us for advice in situations like this, and then find out that the need to hire us to defend them in costly litigation which could have been avoided if the client invested in legal counsel at the outset.