The N.C. Truth in Music Advertising Act (TMA Act),[230] enacted and effective in 2009, prohibits advertisements for a live musical performance or production that falsely or deceptively represent to consumers that the performing group is connected or affiliated with a group that has previously released a commercial recording of the music being performed.[231] Instigated by the lobbying efforts of the Vocal Group Hall of Fame in Pennsylvania, more than 30 states now have enacted such laws.[232] In basic terms, so-called “Truth in Music” laws are an attempt by states to limit the conditions under which groups can promote and hold a live musical performance using the name of a well-known commercial recording group.[233]
North Carolina’s TMA Act applies to musical groups performing in the state when they “seek[] to use the name of another group that has previously released a commercial sound recording under that name.”[234] The act specifically makes it illegal to “advertise or conduct a live musical performance or production [in North Carolina] through the use of a false, deceptive, or misleading affiliation between a performing group and a recording group.”[235] Each performance or production that violates the act subjects violators to a civil penalty of between $5,000 and $15,000.[236] However, by its terms, the act does not apply to a performing group that has no connection or affiliation with a recording group and conducts a live musical performance or production that is advertised as a “tribute” or “salute” to the recording group.[237] It is important to note here that anyone performing music and/or lyrics that are copyrighted under federal law should have the permission of the copyright owner to perform the work in public.[238]
North Carolina’s TMA Act does not apply if the performing group is the owner of the group name it uses and has the name registered with the U.S. Patent and Trademark Office.[239] In addition, the act does not apply if at least one member of the performing group was a member of the group that previously released commercial recordings of the music being performed and has a legal right to perform under the recording group’s name; does not apply if the performing group is so different from the recording group that consumers are unlikely to be confused or misled into thinking that there is a connection or affiliation between the two groups; and also does not apply if the recording group has expressly authorized the performing group to use the recording group’s name.[240]
[230] N.C. Gen. Stat. § 75-125, et seq.
[231] N.C. Gen. Stat. § 75-126.
[232] Matthew D. Bunker, You Can’t Handle the Truth (In Music): Does the Lanham Act Preempt State “Truth in Music” Laws?, 16 Comm. L. & Pol’y 1, 3-5 (2011).
[233] See id. at 2, 4.
[234] N.C. Gen. Stat. § 75-125(b)(1) (defining “performing group”). The TMA Act defines a “recording group” as a “vocal or instrumental group” that contains at least one member who “has previously released a commercial sound recording under that group’s name and [has] a legal right by virtue of use or operation under the group name without having abandoned the name or affiliation with the group.” N.C. Gen. Stat. § 75-125(b)(2). A “sound recording” is defined in the act as a “work that results from the fixation on a material object of a series of musical, spoken, or other sounds regardless of the nature of the material object, such as a disk, tape, or other phono-record, in which the sounds are embodied.” Id. at (b)(3). The act does not apply to advertisements for live music performances or productions in other states. N.C. Gen. Stat. § 75-126(4).
[235] N.C. Gen. Stat. § 75-126.
[236] N.C. Gen. Stat. § 75-127. The civil penalties under the TMA Act are “in addition to any other relief which may be granted under other applicable laws.” Id.
[237] N.C. Gen. Stat. § 75-126(3).
[238] See generally 17 U.S.C. §§ 101, 102, 106.
[239] N.C. Gen. Stat. § 75-126. The extent to which North Carolina’s TMA Act is in conflict with, or preempted by, federal statutes related to trademark law (specifically, covering federal regulation of service marks) remains undecided by the federal courts. For a general discussion of the relationship between state “Truth in Music” statutes and federal trademark law including remedies that might be available under the federal Lanham Act, see generally Bunker, supra note 232.
[240] Id. at (2), (3), (5).
