July 31, 2019
The music industry has been in the news a lot recently
regarding intellectual property rights and related disputes. Just this week, a
federal jury determined that Katy Perry was liable for copyright infringement.
This tracks with the ongoing
trademark infringement lawsuit filed by Gibson Brands, Inc., which
continues to fascinate me.
Though in my research of these various topics and the
feedback I have received from writing about these legal issues, I have learned
that the terms “trademark” and “copyright” are being used interchangeably by
the public. This is troubling because they are absolutely not the same thing. I
would therefore like to take the opportunity to explain the differences in
these two legal doctrines. Because not all “infringements” are identical acts.
January 2, 2019
On Friday, December 28, 2018, Nirvana, LLC sued Marc Jacobs International, Saks Fifth Avenue, and Nieman Marcus for copyright infringement, trademark infringement, unfair competition, and false designation of origin under the Lanham Act. The crux of the dispute is over a new line of clothing being introduced by Marc Jacobs dubbed “Bootleg Redux Grunge” that he intends to sell to the public at Saks Fifth Avenue and Nieman Marcus stores. In short, these “grunge” clothes are being marketed to a high-end socioeconomic demographic that is antithetical to everything Kurt Cobain and Nirvana stood for. Because of course they are.
The real dispute is over the appropriation of the iconic Nirvana “smiley face” logo and what Nirvana contends is a derivative, non-transformative use by Marc Jacobs. I will not go too in-depth on the specific claims other than to say: yes, this is an infringement and Marc Jacobs is most certainly trying to associate this clothing line with famous Nirvana trademarks and copyrighted works. It is shameless. Everyone involved should be embarrassed. Yes, including Nirvana’s own lawyers – for reasons I will address.
Of course, I am biased. Nirvana is my favorite musical group of all-time and hearing “Smells Like Teen Spirit” for the first time when I was 14 years old was nothing short of a life-changing experience. Like millions of others, I also own one of the famous “smiley face” t-shirts and other merchandise bearing that image. This is a blog about trademark and copyright law, meanwhile – so let us break down the claims made against Marc Jacobs.
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.