Unauthorized sales of band t-shirts deprive artists of income. But it doesn't have to be this way
The t-shirt has always been a top fan choice when it comes to purchasing merchandise of favourite musicians. Whether it is a special t-shirt commemorating a tour or one featuring an album cover, music fans have always expressed their loyalty to their favourite artists by buying and wearing official t-shirts.
And it is no different in Bangladesh, except that Bangladeshi bands have only recently begun to dip their toes into the world of selling official merchandise. But that didn’t mean there weren’t band t-shirts in the market.
Thanks to the rise of a number of small online entrepreneurs in recent years, music fans have been buying t-shirts of their favourite local bands more than ever before. Young fans are often seen wearing t-shirts with logos or artworks of popular bands like Artcell, Arbovirus, AvoidRafa, and others.
Some of these businesses made enough profit to set up their own physical shops as well. On the bright side, it is serving the local consumers and meeting their demands. But do local bands get anything from the sales of these t-shirts?
The truth is that most of these business owners are not selling legally and lack transparency with the owner of the intellectual property.
Artcell in its 20-year celebration concert released four new t-shirt designs to a wide fan reception, showing that there is a demand for merchandise and locally produced products can be sold to the fans legally and artists can profit from them.
Whether or not official, other major rock bands like Black, Cryptic Fate, Nemesis, Arbovirus, avoidRafa, Chirkutt, Powersurge, among others also have their merchandise out in the market.
While some of the third party sellers actually sought permission from the artists before selling their t-shirts, there are businesses that are not authorized to sell these merchandise. But that hasn’t stopped them from selling through Facebook and other online platforms.
The fans are buying the band t-shirts without any clear idea about who is officially authorized to sell them, causing significant economic loss to these bands. But taking legal action against the unauthorized sellers is not always very straightforward because of some legal gaps.
According to Bangladeshi copyright and trademark laws, the owner of copyright and trademark can assign licenses for business purposes. Such licenses can be given legally to a third party for reproduction of the intellectual property owned by the artist. And these can be reproduced in the form of t-shirts, mugs, caps or any other forms of merchandise.
The practice of such license assignment began sometime around 2013-14 where bands mostly gave oral permissions to these sellers and did not settle on profit or royalty clauses, or terms of the agreement, or any other details.
Moreover, most bands never familiarized themselves with the legal formalities of such merchandise licensing agreements or standard business practices.
The lack of transparency it caused between business owners and band members, as well as the lack of clarity regarding lawful distribution of rights are now finally coming up to the surface, which is creating grounds for future disputes and possible legal battles. So what can be done?
If you are an artist, there are few issues that you need to acquaint yourself with when considering giving or having already given the intellectual property to any third party for reproduction in the form of business.
The first is a valid written contract specifying all the key issues such as the type of rights allowed, what products the license covers, the duration of the agreement, compensation and payment terms, how to ensure transparency, what happens when a breach of contract happens, etc.
You also need to ensure that the company you intend to deal with is a valid legal entity.
If you don’t have it already, apply for a trademark for your band’s name, logo and the kind of merchandise you intend to sell.
And finally, have your band’s songs, artworks, lyrics, slogan or famous words of lyrics copyrighted.
What bands often overlook is that without owning the trademark, they, as the lawful owners, will struggle to bring a legal claim when infringement takes place. The same applies for not having the copyright of their singles, albums, artworks, lyrics, etc.
If all these issues are dealt with correctly, entering into a merchandise licensing agreement with a business could create a very rewarding experience for the bands and artists in general.
For Bangladeshi bands, there probably aren’t millions of dollars lying around in the market for them to rake in, at least not yet. But do not hesitate to claim what is rightfully yours.
Afif Sarker is Barrister at Law of Lincoln’s Inn and a practising lawyer of the High Court Division of the Supreme Court of Bangladesh. He is also a musician known for his work in bands such as Mirrorblaze and Exalter.