Generic Fair Use

... where pop culture meets intellectual property law

Category: Music (page 2 of 2)

How do I avoid copyright infringement as a songwriter?

It has long been a running joke that if you only know how to play the G, C and D chords on a guitar, then you already know how to play hundreds of different popular songs. Many musical acts have been ridiculed for only playing the same three chords over and over. “Three-chord” rock music is practically its own genre. The I-IV-V major key chord progression is even considered the “standard” blues progression. Within that construct, there are only 12 basic “notes” or tones in the musical spectrum: A, Bb, B, C, C#, D, Eb, E, F, F#, G, and G#. From there it is just a matter of octaves to achieve different ranges of an “A” note. In short, there is a finite amount of discrete notes along with a relatively limited amount of chord progressions that are available to a songwriter.

Copyright law, meanwhile, only protects “original works of authorship” in musical works and sound recordings.[1] It is right there in the statute: the song or sound recording must be original. Without the element of originality, there is nothing protectable under the law.

Knowing this, and with hundreds of years of the history of songwriting, are there any songs that are truly “original” anymore? Is there any progression or riff that is so unique as to stand apart from every song that has been previously written? If not, how are musical works still subject to claims of copyright infringement and why should we care?

Continue reading

Hey, Stop Using My Song For Your Campaign!

Can musicians and artists legally demand that politicians not use their works?

Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.[1]

Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:

Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
Continue reading

Lady Gaga is not famous – according to the Trademark Office

Lady Gaga is an American recording artist.[1] She is a singer, a songwriter, and a performer. She recently won a Golden Globe® for her work on the American Horror Story television show. She also was nominated for an Oscar® in 2016.[2] As of 2016, she has sold over 27 million albums worldwide. She also owns registrations for her “Lady Gaga” stage name.[3] I feel confident in stating that Lady Gaga is famous.

Yet in an opinion dated March 30, 2016,[4] the Trademark Trial and Appeal Board determined that “the evidence in the record does not rise to the level needed to show that LADY GAGA has achieved true fame among consumers…”[5] Apparently, not even Lady Gaga’s trademarks are commercially recognizable enough to be deemed legally famous in certain areas.

If LADY GAGA is not famous, then how does one reach the level of “fame” in the context of trademarks? This appears to be an absurdly high standard of proof. How do we explain a legal opinion that seems so entirely disconnected from reality?

Continue reading

Stairway to Infringement? Led Zeppelin facing copyright claims

On May 31, 2014, the estate of Randy Craig Wolfe filed a lawsuit in the Eastern District of Pennsylvania against James Patrick Page, Robert Anthony Plant, and John Paul Jones, among others.[1] The primary cause of action is copyright infringement. There does not appear to be anything special about such a lawsuit until you realize that the Defendants are famous musicians that performed under the name “Led Zeppelin” and the “among others” includes Warner Music Group. The alleged basis for copyright infringement? Stairway to Heaven. Yes, the 1971 song that continues to be a staple at every middle school dance. Suddenly this lawsuit seems like kind of a big deal.

How is such an iconic song subject to a copyright infringement lawsuit 45 years after its initial release? How was this suit not dismissed as frivolous right away? Does the judge not know about this little thing called a ‘statute of limitations’? This all seems highly unfair, right?

Well, a jury gets to decide all of these issues as early as next month. On April 8, 2016, the district court judge denied the relevant parts of Led Zeppelin’s Motion for Summary Judgment and the lawsuit is set to proceed to trial.[2] In the meantime, a quick overview of this case and how 1970s copyright laws are still relevant today.

Continue reading

Seek and Destroy: Metallica is antagonizing its fan base over IP rights. Again.

Metallica has always had a love-hate relationship with its fans.  Beginning with its controversial decision to film a music video for the first time for the anti-war song “One” and continuing with the shift from heavy metal thrash to more “commercial” rock songs on the Black Album, Metallica has routinely challenged the expectations of the public.

More famously, on April 13, 2000, Metallica inflamed the good nature of its fan base by suing Napster in federal court for copyright infringement, racketeering, and unlawful uses of digital devices, among other causes of action.[1] As part of this lawsuit, Metallica identified over 300,000 individual users who allegedly copied and unlawfully acquired digital copies of Metallica’s songs through the Napster peer-to-peer (P2P) file sharing service. These users were “temporarily” banned as a result of Metallica’s investigation and lawsuit.[2]  Not surprisingly, Metallica faced a severe public backlash for attacking its purported fans through lawsuits and allegations of copyright infringement. It even inspired a classic South Park episode.

Metallica is accordingly well-known to be litigious. They will strongly enforce trademark rights and all of their copyrights, when necessary. This often does not sit well with music fans that view the band as entitled and out-of touch millionaires. This leads to the most recent unfavorable public relations snafu by Metallica.

On December 30, 2015, Metallica’s lawyers sent a cease-and-desist letter to a Canadian tribute band performing under the name “Sandman.” Why did Metallica go after a tribute band? How is this different from the Napster case?

Continue reading

Coca-Cola is trying to claim trademark rights to “ZERO.” Billy Corgan must be inconsolable.

Did you know that The Coca-Cola Company applied to register a federal trademark for the term “COCA-COLA ZERO”?  It is true.  Coca-Cola filed the application with the USPTO on March 4, 2005.[1]  The application was published for opposition on April 17, 2007.  Not surprisingly, the companies that own Dr. Pepper and 7-Up immediately opposed this registration.[2]  The battle has been ongoing for over eight years now.

Without going into too much detail, an executive for Coca-Cola testified recently that there are twelve Coke products that use the term ZERO in the product name.[3]  This includes Coke Zero, Cherry Coke Zero, Vanilla Coke Zero and others.  This is consistent with Coca-Cola’s trademark application, which identified the relevant goods and services as “Beverages, namely soft drinks; syrups and concentrates for the making of the same.”[4]  Nevertheless, the “ZERO” part of the mark almost certainly refers to the marketing of these specific products as having “zero calories” per serving size (i.e., one can or bottle).  This presents a series of interesting trademark concepts.

Continue reading

Newer posts »

© 2019 Generic Fair Use

Theme by Anders NorenUp ↑