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Given the absolute cratering of the market for recorded music, which at this point is a financial non-issue for the vast majority of musicians, and the wholly exploitative streaming royalties scheme deployed by Spotify, Apple Music, and so on, which enriches the tech companies that own the streaming platforms while impoverishing most of the artists who supply the music that gives the platforms their value, the money a band makes playing festivals is now no less than a matter of survival. As is the money the bands make selling their merchandise (jauntily shortened to “merch” in most conversations) to festival-goers. Shirts, hoodies, hats, and so on bearing a band’s name and a photograph (or other piece of key art) are passionately rendered with as much care as a song and then offered for sale at every festival site. Each and every one of these pieces of merch, it is important to note, is saturated with all sorts of intellectual property. You have the photographer’s copyright in his photograph of the band, or the graphic artist’s copyright in his drawing of, say, a dinosaur holding a guitar. And you have the band’s trademark in its band name and logo. And, lastly, you have the band member’s name and likeness rights in connection with their personae. All of those intellectual property rights are indeed ensnared in the humble rock band t-shirt and numerous cases have arisen in connection with those rights: claims asserting that the photograph on a piece of merchandise (which, notably, often implicate both copyright and a misappropriation of likeness) was exploited without permission, or that a band’s graphic artwork was copied from another artist, or, in cases that trend toward the vitriolic, that one band member was keeping too much of the merch money for themselves. These cases tend to settle, and not inexpensively given the numerous intermingled intellectual property and accounting issues. Bootleggers peddling counterfeit merch, which almost always consists of cheap and dubiously manufactured shirts, are another endemic problem. The sale of counterfeit goods by roaming, backpack-wearing hawkers to those treading the festival’s lanes of ingress and egress cuts into legitimate sales and often involves apparel that become shrunken, faded, and nigh unwearable after a single wash. Bands have tried to combat these sales in numerous ways, but have run into difficulties given the fluid nature of the bootlegger’s sales strategy and customer service policy (the latter of which often consists of laughing and/or running away when presented with an intellectual property or quality control issue).
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