Generic Fair Use

... where pop culture meets intellectual property law

Tag: lawsuits

Something in the Way: Online Guitar Tabs and Copyright Law

Americans buy millions of new guitars every year.[1] 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?

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Deep in the TC Heartland of Texas: Supreme Court Reverses 25 Years of Patent Venue Practice

June 5, 2017

Marshall, Texas is a town of less than 25,000 residents in East Texas.[1] It is closer to Shreveport, Louisiana than it is to Dallas or to Houston. Nevertheless, since the late 1990s, Marshall has become the epicenter for a series of high-profile patent litigation cases. In 2015, there were nearly 6,000 patent infringement cases filed in the United States. At least 1,500 of these filings ended up before Judge Rodney Gilstrap,[2] a judge for the Eastern District of Texas, in the Marshall, Texas division. This was no accident.

As of last month, however, this may all be subject to change.

On May 22, 2017, in TC Heartland LLC v. Kraft Foods Group Brands LLC, the United States Supreme Court addressed a dispute regarding the patent venue statute and unanimously held that civil actions for patent infringement may only be brought in the judicial district where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business. Prior to TC Heartland, patent owners could choose to file suit in most any state given that most corporations made or sold products nationwide. This allowed certain courts to set up shop as patent “rocket dockets” which encouraged litigators to choose their venue.

This is how one judge in Marshall, Texas came to oversee, on average, nearly a quarter of all patent infringement cases filed in the United States. Now that TC Heartland is the rule of the land, there are three primary issues to address and explore: (1) how did Marshall, Texas become a “rocket docket” for patent cases?; (2) what rule did the Supreme Court actually change?; and (3) what is likely to happen now?

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President Donald Trump and Intellectual Property: what can he claim as his?

April 20, 2017

In a world of fake news, clickbait, and alternative facts, there is a bit of comfort in knowing at least one undeniable fact. Donald J. Trump is enthusiastic about stamping the TRUMP name on most any goods or services and reaping the benefits of the ancillary trademark rights. He first sought trademark registration for a Trump-branded product in 1985 and has since sought to register in excess of 300 other trademarks with the United States Patent and Trademark Office, including the now ubiquitous MAKE AMERICA GREAT AGAIN® mark, which was registered on August 16, 2016.[1] While he often files applications through his various corporate entities, the fact remains: Donald Trump loves him some trademark rights.

This may elicit a few questions though. First, can a sitting POTUS own trademark rights? Also, what about other intellectual property rights: patents, copyrights, trade secrets? Can a U.S. President acquire, assert, enforce, or use with impunity certain types of intellectual property?

I shall do my best to answer these, though I will try to avoid addressing in detail the emoluments clause elephant in the room. For now.

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