In May 2019, Gibson Brands,
Inc. sued Armadillo Distribution Enterprises, Inc. for trademark
infringement, unfair competition, and counterfeiting.
Armadillo may not be a well known name, but it is affiliated with the guitar
brands Dean Guitars and Luna Guitars, which compete with Gibson.
Gibson is one of the most prominent names in the electric guitar industry,
alongside Fender. In this lawsuit, Gibson accuses Armadillo/Dean of infringing
at least four “body shapes” of its electric guitar models: the Flying V, the
Explorer, the ES, and the SG, each of which Gibson cites as a registered
This case caught my attention because I am a guitar player
and I often write about music and the music industry as it relates to
trademarks and copyrights. Here
I do not personally own any Gibson-branded guitars (they are too heavy in the
neck), but I do own one acoustic Dean Guitar – though not one of the types that
is accused of infringement in this case. With regard to electric guitars, I
prefer Schecter Guitars. Always a
Armadillo has not yet responded with an Answer to this
lawsuit, but I anticipate Dean Guitars will present a substantial defense to
all of Gibson’s claims. It is important to note that this is not a patent case.
This is not about who “invented” the particular shape or style of an electric
guitar. Any patent rights for these designs would have expired decades ago.
Instead, this dispute concerns trademarks. It essentially seeks to determine
whether a particular shape of a guitar evokes a specific source in the minds of
the relevant consuming public. With regard to the guitar industry, there is a long
history associated with these particular “body shapes” and how they impact pop
culture and the competition between the most popular brands and manufacturers.
Americans buy millions of new guitars every year. Many of these are “entry-level” guitars intended for those trying to learn a new instrument. Yet somewhere in the range of 90% of new guitar players quit trying within the first year. When the electric guitar first became popular in the 1950s and 1960s, there were few ways to accelerate the learning curve. By the late 1990s, along with the advent of the internet, a tool for learning guitar and how to play popular songs reached the masses: guitar tablature or “tab” for short. The concept of tablature was not new, but the ability for an individual to read and acquire tabs through the internet was groundbreaking.
Guitar tab is essentially a shorthand method for transcribing the specific notes and chords of a song in a format that mimics the finger positions on a guitar’s fretboard. Instead of having to learn to read and translate formal sheet music, tablature is simplified. Each note is represented by a number that corresponds to a particular string and location on the fretboard. The beauty of guitar tab is that most anyone who plays guitar can transcribe a song into this format and share it with others as a teaching tool.
Naturally, it did not take long for the internet to respond in kind. Sites with collections of thousands of tabs populated the web seemingly overnight. To the surprise of no one, this also caught the attention of the music publishing industry. And their lawyers. Copyright law concerns threatened to shut down online guitar tab publishing in its entirety.
My question today is simple: while guitar tablature is likely a “derivative work” restricted by copyright law – should it be? Or should there be some sort of expressed fair use exception for guitar tablature? And if not, why not?
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. 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?
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. 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. In the meantime, a quick overview of this case and how 1970s copyright laws are still relevant today.