songs – Techdirt (original) (raw)

Velcro's Hilarious Trademark Lesson Video Actually A Good Lesson In Just How Stupid Trademark Law Has Become

from the genericide-insanity dept

So, you’ve probably heard stories in the past about the fear some trademark lawyers have about “genericide” — where their product’s name becomes so attached to the product that it’s considered generic and the trademark no longer applies? Think kleenex and xerox for example. We’ve found, over the years, that people get a bit too worked up about this, leading trademark lawyers to make some really dumb demands along the way to try to “prevent” what is generally impossible to actually prevent. We also often see people claim (falsely) that this means companies are required to stop any and all uses of their mark, even when not infringing (or, even worse, seeing people falsely claiming that the same thing applies to copyright). Either way, the company Velcro has taken… well… quite a unique approach to the fact that everyone calls their most famous product “velcro” — even when made by competitors. They made an absolutely hilarious “We are the World”-style video begging you not to call it Velcro and telling you, in no uncertain terms, that they it’s “fucking hook & loop.” Really.

When I first saw it, I thought it was a John Oliver or SNL-style parody video, but nope. It’s real. It’s on Velcro’s official YouTube feed, and they even have a behind the scenes “making of” video to explain how the video was made and how it came about (including the fact that two actual Velcro lawyers are in the video).

Of course, they insist they’re doing this to get people talking about the importance of calling it “hook and loop” though I think at best, it will just get people talking about how incredibly dumb trademark law has become, where this kind of thing is seen as necessary. The only people who will now start calling it “hook and loop” are likely to be people doing it ironically. In which case, they may go with the longer “this is fucking hook and loop,” as the song suggests. But, as the song itself suggests, it’s totally ridiculous that the company has to do this to try to get you to stop saying the brand name that the company spent “60 plus years” building. The song also jokingly references other genericized brands, such as Clorox, Band-Aid and Rollerblades.

Thankfully, they don’t seem to get the finer points of the law really wrong in the song — noting that the patent on velcro expired 40 years ago, and if everyone calls everything similar velcro, the company might “lose our circle R.” Of course, they leave out the fact that if they lose the trademark… it’s actually probably not that big a deal. People will still call all similar products velcro, but Velcro-brand velcro will almost certainly still be able to charge a premium, since people will recognize the brand name.

And that’s really what highlights how dumb all of this is. Even if you lose the trademark to genericide, that doesn’t mean the company packs up and moves on. It just shows how much the brand itself has resonated, and companies have lots of ways to continue to capitalize on that brand, even without the registered trademark. So, while I can always get behind hilarious videos concerning oddities in trademark, copyright or patent law, this video seems like a much better lesson in the stupidity of trademark law (and how much lawyers overreact to the fear of genericide) than any legitimate argument against calling someone else’s velcro-like fastner “velcro.”

Filed Under: generic, genericide, songs, trademark, velcro
Companies: velcro

Lots of people like to compare the career status of husband-and-wife superstar musicians Jay-Z and Beyonce, looking at who has hit songs at what times, and who’s doing better than the other. It appears that this past Wednesday the two also had something else in common to celebrate: they both won nutty copyright lawsuits. The Jay-Z victory in the lawsuit over samples in his hit song “Big Pimpin'” got most of the attention, but Beyonce was actually similarly victorious the same day in a case brought against her by Ahmad Javon Lane, who claimed that Beyonce’s song “XO” infringed on his song “XOXO.”

Except, it didn’t. Not by a long shot. While both songs have “XO” in the title, that appears to be about where the similarities end.

There are all sorts of problems with Lane’s lawsuit. First, he only registered the copyright on his lyrics, not the music, and Beyonce’s song has totally different lyrics. The beat he used was actually produced by someone else, David Abisinito, and while Lane did have an exclusive license to use the beat, which would allow him to sue over it, he failed to show that Abisinito ever registered the copyright on the beat. While you can still hold a copyright over something without registering it, you can’t sue without registering — so any copyright claim on the beat has no standing.

Here, Lane has provided a copy of the copyright registration certificate, which clearly states that Lane is the copyright claimant as to XOXO?s lyrics…. Lane, however, does not claim infringement of XOXO?s lyrics, but only its music, and the copyright certificate excludes rights to the music. Lane?s argument as to the music is that he has standing to sue for its infringement because, under the Production Agreement, he was granted exclusive rights to use the Beat…. It is true that ?persons who have been granted exclusive licenses by owners of copyrights? have standing to sue for copyright infringement…. But Lane has failed to allege that Abisinito, the owner of the Beat who licensed use of it to Lane, has a validly registered copyright in the Beat. Such an allegation is a prerequisite for bringing a copyright infringement claim….

Lane?s copyright infringement claim must therefore be dismissed for lack of standing. However, the infirmities affecting Lane?s standing are potentially correctable: Lane could potentially amend the SAC to allege that Abisinito has a validly registered copyright in the Beat, or Lane himself could potentially obtain a copyright registration in the XOXO music.

Given that, the court suggests dismissing the case without prejudice, leaving it open for Lane to refile with evidence that the beat or the entire song was registered… but then digs a little deeper, and notes that even if there were a valid copyright registration there is no copyright infringement. What little “similarities” there are between the two songs are not even close to touching on copyright protected material. In case you’re interested, here are the two songs, with Beyonce’s XO first and Javon’s XOXO second:

They’re totally different songs. Lane argued that both use similar four-bar phrases at the beginning, but similar doesn’t matter (well, except in that one case). Here, at least, the very minor “similarity” between the four-bar phrases at the beginning doesn’t matter:

Judge Conger?s decision in Jones v. Supreme Music Corp…. which also involved allegedly similar four-bar phrases, is instructive. There, the plaintiff, an author of a song, claimed that defendants had copied that song. Id. at 990. Specifically, the plaintiff alleged that eight of the first 10 notes in the first five bars of her song were identical to eight of defendant?s nine notes in the same five bars…. Upon comparing the songs, Judge Conger found that only the ?first four bars of each piece? were similar, and held that such similarity ?do[es] not spell piracy or theft.? … Similarly, here, XO?s and XOXO?s use of a common four-bar phrase, if found, would not establish substantial similarity between them.

What about substantial similarity in the songs in general? Er… nope.

The lyrics of the two songs are reproduced in full in Appendix A to this decision. The Court, after listening to both songs and reviewing their lyrics, finds that no reasonable jury could find the lyrics of XO and XOXO substantially similar. Indeed, aside from the fact that both songs? lyrics use the letters ?X? and ?O,? there is virtually nothing common to the two songs? lyrics. The use in music or other parlance of these two letters is hardly unusual. ?XOXO? is commonly used in society, including in letters and electronic communications, to signify ?kisses and hugs.? … The letters ?X? and ?O? are also used in a host of other quotidian applications, including, for generations, by players of tic-tac-toe….

Notably, too, the two songs deploy the letters ?X? and ?O? differently. Lane sings ?Thinking about your X, O? and ?In lust, O,? whereas Beyonce sings: ?I love you like XO, You love me like XO, You kill me boy XO, You love me like XO.? Beyonce?s song thus consistently uses ?XO? as a single expression; Lane sometimes uses ?O? alone.

Broadening the analysis beyond the fact that the songs both use those two letters, the choruses of the two songs have no words in common, save the musically ubiquitous words ?I,? ?you,? ?your,? ?is,? and ?baby?

In other words, not only are the songs not the same, they don’t even have similar lyrics or concepts. Just a similar name.

Just to make sure, the court compares the music even more between the two songs and notes:

… the Court, having listened to the two songs back to back, finds little, if anything, in common between XOXO and XO.

It notes a variety of differences in styles and music and tempo, and then that “the melodies of the two songs are completely different.” In other words, there’s nothing copied here at all.

Oh, and there was one other argument that Lane made that was so ridiculous the Court didn’t even bother to respond. Lane argued that the two songs were marketed in the same way, including similar promotional artwork and images of both artists in jeans and a white tank top.

Of course, what that has to do with copyright in a song is… anyone’s guess. Once again this looks like a case where someone thinks that copyright gives one a lot more rights than it really does. It does not allow you to block something “vaguely similar, maybe if you squint.”

Either way, one hopes that Jay-Z and Beyonce were able to enjoy the fact that both of them won nutty copyright lawsuits on the very same day.

Filed Under: ahmad javon lane, beyonce, copyright, jay-z, songs, xo, xoxo

Confusing Value And Price, Choir Demands £3000 Per Download

from the let's-discuss-this-rationally----I'll-start-by-setting-an-insane,-but-&# dept

If you asked most people what a single track is worth, most would answer with the going market price, which ranges from ~$0.79-$1.29. This is what the market has shown, for the most part, that it will bear. You veer too far away from the high end of that range and you’ll find most people will opt for other music, cheaper music, or your music, fully detached from the high-end price tag.

Now, if you ask this same question of a certain 22-piece self-described “feminist alternative choir,” the answer would be much, much different. Your initial estimate would need to be upped by approximately $4,850. Gaggle, the 22-member choir, has announced that they are selling their new single for £3,000 per download (no physical option exists). Why? Because they’ve chosen to use the persuasive power of economic fallacies to get people talking about “value.”

Here’s the womanifiesto:

“The Power of Money. What does money mean to you? How do you put a value on the things you care about? Is money the same thing as worth? Like it or not, money means that some people are rich and others poor, some considered successful, others failures. It determines your healthcare choices, education, clothes and how long you have the heating on for – whether you can have the things you want. But money is made up. Without our participation in the illusion, it’s meaningless – in fact, if meaning equated to value, we would happily burn all the money tomorrow. Gaggle, of course, uses money. But Gaggle is an exercise in the power of other things as well – otherwise we wouldn’t, and couldn’t, exist. The Power of Generosity, Inventiveness, Courage. The Power of Flirting, Improvising, Blagging, Hard Work and Being Nice and Polite. The Power of Friendship, Faith, Obligation, Ambition, Anxiety…..Dreams. Without these Powers this track would not have been made. This song is precious. And yet, we’re told that ‘a single’ is almost valueless. And that pisses us off. So we have done a budget of how much this single ‘cost’. The many hours it took to write, arrange, compose, master; the expertise of all the musicians, technicians, designers, producers involved; the combination of all the Powers described above and more – we’ve totted it all up as best we can and… …we are putting this tune to market for the sum of £3000. The power of money? Let’s see.”

Well, good luck with that. It’s been said time and time before, the customer has little to no interest in your fixed costs. This factor is completely irrelevant to purchase decisions, which are most often based on a more subjective perception of “value.” While Gaggle may value their creation highly, it would be ignorant to assume that potential purchasers will value the track accordingly. In an era where creative output is at its highest, the sheer number of competing, cheaper options would be enough to bury this track’s chances, even if Gaggle decided £5 was a reasonable amount to ask. (It isn’t.)

Beyond that, there’s some questions as to Gaggle’s math. Are they intending for one sale to reimburse the entire creative effort? 10? 25? Wouldn’t it be better to sell a few thousand copies at a price that people will actually pay, rather than pin the hopes of the collective on sales in the single digits? For that matter, wouldn’t this scenario be more likely as well? And is it really fair to ask purchasers to support 22 musicians through the purchase of a single track? Aren’t you running about 10-15 members over the upper limit for potentially successful bands that aren’t named Broken Social Scene or Chicago?

But the issue at hand here really isn’t £3000 or the perceived value of a single track versus the true cost of production. Gaggle’s move here is a publicity stunt, primarily aimed at raising awareness of the band with a secondary aim of opening a dialogue about the value of artistic endeavors. All well and good except that it’s rather hard to hold a discussion with a group whose opening gambit is to hurl themselves off the deep end while everyone else looks on in bemusement.

Filed Under: choir, downloads, music, price, songs, value

from the again? dept

This seems to happen every four years like clockwork during Presidential elections. Some musician gets upset about a politician he or she disagrees with, making use of his or her music during campaign rallies. This time around the candidate is Newt Gingrich, and the upset musician is songwriter and member of the band Survivor, Frank Sullivan, who co-wrote the song “Eye of the Tiger” which Gingrich has apparently been using during presidential campaigns:

The complaint states that the violation it alleges is intentional since Gingrich is “sophisticated and knowledgeable” concerning copyright laws.

That strikes me as interesting, because I would have to assume that the campaign has paid for standard ASCAP performance license (either that or the locations they use almost certainly have such a license). And if that’s true, then Sullivan has no case. If the venue has a license, they can play whatever they want. Full stop. “Eye of the Tiger” is registered to ASCAP, so that’s all that’s needed. The campaign doesn’t need permission of the copyright holder. The Chicago Sun-Times goes into more detail, where Sullivan insists this isn’t political, he just doesn’t like the song being used without him getting paid. Perhaps he should check his ASCAP statement. If he’s not getting paid, he might want to take it up with them.

That same article also notes that Sullivan co-owns the copyright along with his song writing partner/bandmate, Jim Peterik, who seems to both (sorta, kinda) like Gingrich and not like legal actions:

“My wife is a big fan,” Peterik said. “I’m becoming a fan of Newt Gingrich. He has a mind of his own. He’s not a talking head. Originally, I didn’t like him, but look at the competition. He’s looking better and better.”

Peterik is not a party to the suit that Sullivan filed in U.S. District Court in Chicago. They share the copyright, but tend to stay out of each other’s way when it comes to cracking down on infringers.

”I hate suits,” Peterik said. “I hate being in court. I avoid that meticulously. When I [heard about the lawsuit on the radio Monday} I said I’m not surprised, but I’m surprised.”

I say this every time something like this comes up, but even if politicians can make use of such songs without getting permission from the artists, thanks to ASCAP/BMI/SESAC performance licenses, it still surprises me that the campaigns don’t seek out musicians who support them in the first place to get their “okay” just to avoid embarrassing situations like this. Either way, it seems almost certain that this lawsuit is going nowhere fast.

Filed Under: eye of the tiger, frank sullivan, newt gingrich, performance licenses, presidential campaigns, rallies, songs, survivor
Companies: ascap, rude music

Anti-SOPA/PIPA Protest Songs

from the sing-it dept

Well, well. It looks like the ongoing protests are inspiring some extra creativity from some musicians. A bunch of people have been sending around The Day The LOLcats Died, an obviously play on a song you all know:

If you’re a bit more into hip hop than rock and roll, there’s this song, by Okwerdz, called: The American Government wants to CENSOR the Internet:

If there are any others, feel free to leave some comments…

Filed Under: blackout, pipa, protect ip, protests, songs, sopa

Creativity Comes From Such Strange Sources

from the wtf,-i-wanted-an-iphone dept

Aaron DeOliveira points us to an amusing Christmas to New Year’s week diversion in the story of the song, WTF?! I Wanted An iPhone!!! (warning, potentially NSFW, if your work place doesn’t like people singing curses). Beyond being entertaining and amusing, the story behind it is a cool case study in how creativity comes from all sorts of strange sources online. The story begins with comedy writer Jon Hendren, being bored on Christmas Eve & Christmas, and playing around with Twitter search, doing searches on terms seeking particularly entitled and angry tweets from kids who didn’t get “what they wanted” on Christmas — with “what they wanted” being defined as an iPhone, an iPad or a car. Hendren then started retweeting the ones he found:

That, itself, started to go viral, at which point singer Jonathan Mann, who’s made quite a name for himself writing, recording and releasing a song a day ever since January 1 of 2009, picked up on the story and wrote the song linked above (his 1089th song, if you were wondering). The song basically takes some of the “best” of the entitled tweets and produces a fun little ditty (again, potentially NSFW):

Now, this whole thing is silly (or, potentially, a bit sickening when you look at how entitled some of those kids feel), but it really does demonstrate a few different concepts, all wrapped up in one nice holiday package:

  1. Creativity comes from all sorts of strange sources
  2. Online, collaboration can happen without people even realizing it (and that’s cool)
  3. The ability to create, promote and distribute content just keeps getting easier and easier

But, mostly, it’s just amusing.

Filed Under: christmas, creativity, john hendren, jonathan mann, songs

Big Record Label 'Innovation': Actually Release Songs For Sale The Same Time They Hit The Radio

from the this-counts-as-a-step-forward? dept

I can’t quite figure out which is more amusing: the fact that record labels are just now thinking that maybe it makes sense to release songs for sale the same time they’re sent to radio stations, or that it’s seen as newsworthy as a strategy to “beat piracy.” I mean, it’s a good sign that the labels are finally realizing that a lack of availability is often a driver for unauthorized copies making the rounds, but the fact that they’re only coming to this conclusion in 2011 suggests just how out of touch these labels are with the world. People were making this point over a decade ago.

Filed Under: releases, songs

Beatles & Apple Finally Going To Let You Pay Money For The Beatles Songs You've Been Pirating For Years

from the well-that's-compelling dept

The WSJ is reporting that Apple is getting set to announce that the Beatles’ music is finally available on iTunes, something that tons of online music stores have been trying to offer for years and years without any luck. Given that Steve Jobs allegedly named his company “Apple” after the Beatles’ “Apple Corp.” — it’s been a particular goal of Jobs to get their music into his store (even with the legal fights that have been had over the name). Either way, while I’m sure Steve Jobs will make this out to be the most amazing thing since the invention of electrical power, it’s kind of worth pointing out that the Beatles’ music has been widely available online for years via file sharing options. Putting this in perspective, all this is really doing is giving people a chance to pay money for music they’ve probably already been getting for free. Suddenly, it doesn’t seem like such a big deal, and makes you wonder what the hell took so long.

Filed Under: beatles, itunes, songs
Companies: apple

Folk Singer Just Notices That Led Zeppelin May Have Copied His Song Forty Years Ago

from the a-bit-late-there dept

Reader Tim DiPaula alerts us to the news that folks singer Jake Holmes is suing Jimmy Page for copyright infringement, claiming that the Led Zeppelin song “Dazed and Confused” is a copy of his own song, of the same name, recorded two years earlier. The TMZ link above has clips from both songs, which certainly have some pretty serious similarities. But what’s really amazing, of course, is that Holmes recorded his song in 1967, and Zeppelin did their song in 1969. And Holmes is just noticing now? TMZ notes that copyright law has a three year statute of limitation, saying that this lawsuit can only cover damages from the last three years. But, of course, as with all things copyright law related, it might not be that simple. The courts have been somewhat divided on this, but some interpret the law to say exactly what TMZ says — that it will only cover infringement from the past three years. However, others have interpreted it to mean that it’s only three years from the last infringing act. So as long as infringement has been happening all along… some courts will cover that entire period. Of course, you might think that regardless of the statute of limitations issues, Page has a pretty damn good laches claim. Forty plus years to bring the lawsuit? Yeah, the courts might not like that very much.

Filed Under: copyright, jake holmes, jimmy page, laches, led zeppelin, songs, statute of limitations

from the infringing-or-not? dept

Shocklee points us to an awesome little app that lets you type in whatever lyrics (or, well, words) you want, hit play, and whatever you type will be sung for you, using clips from various famous songs. It’s a really fun little app (though, I was amused that they have no clip for the word “lyrics” despite the service being all about lyrics) and can get pretty addictive. In fact, if you want to hear this entire post sung outloud via this system, just click here (please note, this will take a really long time to load, but it’s totally worth it). However, like with many other cool music projects, I’m left wondering whether or not some would consider this to be copyright infringement. All of the clips are tiny — one word, or in many cases, less than a full word, but they do seem to come from various popular and well-known songs. It’s not hard to identify some of them. I have no idea if the company behind this service cleared all the licenses (it’s possible), but if that’s the case, you’d have to imagine that this service would get ridiculously expensive very quickly. If a simple lyric of, say, 8 words, involves a dozen clips, with royalties needing to be paid for each, such a service would quickly become impossible. Doesn’t it say something when copyright law would effectively outlaw an awesome and fun app like this one?

Filed Under: automation, copyright, singing, songs