Hey, You Got Music in My Baseball!

This evening, the Ippers went to a little going away pub crawl for a friend who’s heading off to the wonderful(?) world of SoCal.  We did the mini-version, making it through only one pub (hey, some people get to work in the mornings).  Of course, that pub had the mandatory large flat screen television airing ESPN’s Sports Center.  In the course of the repeated runnings of highlights, the image to the left caught my eye.  Probably familiar to many, this is the logo of the New York Yankees baseball team. 

This Ipper, however, is far less into baseball than she is into hip hop.  So the first thing she thought of when she saw the logo was Lil’ Wayne’s record label, Young Money Entertainment.  That logo is the one on the right.

Likelihood of confusion anyone?  Since these are both US marks, let’s play around with the Polaroid factors for likelihood of confusion.  (Assuming NY, as the longer established mark, as Plaintiffs.)

1. Strength of the plaintiff’s mark. The Yankees mark is very strong.  Probably recognizable around the world.  A google image search for “New York Yankees” brings up mostly pictures of the logo and almost no pictures of players or games.  The logo has gone beyond something used to show fan support and has practically become a brand in and of itself.  Hats bearing the logo come in ever color, including black on black, and are worn by people across the US regardless of their baseball team affiliation.  (I once saw a fan at a Giants game remove his Giants cap as soon as the game ended and put on his everyday Yankees cap to leave the stadium.  No, the Giants had not lost.)
2. Degree of similarity between the two marks. Both marks have the same font and the same layout.  In addition, the letters M and N are very similar, thus giving the two marks the same general look and feel, despite the different letters.  Although the Yankees' specific team colors are navy and white, the mark appears in many different colors, as does the Young Money mark.  Black white color combinations are very common for both marks.
3. The proximity of products or services. A baseball franchise and record label seem pretty far apart, however there is lots of overlap here.  To start with, there’s the New York Yankees Greatest Hits albums.  Then there’s the merchandising aspect.  Hip hop labels and baseball teams both deal in clothing and accessories bearing their marks.  The products and services of the two marks aren’t directly related, but do have a lot of side-overlap.  Incidentally, the Yankees mark happens to be one that is very common for hip hop artists and fans to wear.  Just another area where the marks might be seen in close proximity.  (Compare this NY bling to this YM bling.)
4. Likelihood that plaintiff will bridge the gap between markets.  As discussed above, the gap is pretty much already bridged, especially since the Yankees have put out music albums.
5. Evidence of actual confusion.  For this, I can only give my own antidotal experience.  Several times while preparing this post, I accidently copied one mark thinking I had the other one, or opened a new webpage for the mark that was on an open page instead of the one I needed.  It appears others have at least noticed the striking similarity.  Link (WARNING!!! foul language and what is best described as ‘ignent’ behavior on that link.)  That’s not much, but it’s all I’ve got.
6. Defendant’s good faith in adopting the mark.  Without asking Lil’ Wayne himself, I have no idea why he chose this mark.  I am guessing it’s partly in homage to the Yankees, but also partly because the Yankees logo is so popular in hip hop.  The style and familiarity of the logo express a message that, on some level, associate with hip hop.
7. The quality of defendant’s product or services. Judging the quality of hip hop…. I think we’re going to skip this factor this time.
8. The sophistication of the buyers.  I would guess that buyers of Yankees logo emblazoned items span the whole gauntlet of sophistication.  Purchasers of Young Money items are probably less likely to be sophisticated in the way courts would think of it, but they’re more likely to be very street smart and able to protect themselves from being ripped off by the wrong mark. (Ripped off in the sense of not getting what they thought they were paying for.)

Seems to me, the Yankees would have a decent case.  But I don’t think they would (or should) bring an action.  The mark is very strong; most people who care will know which mark they want, and a suit would probably bring nothing but bad PR.

But what do our readers think?  Likelihood of confusion?  If you were the Yankees, would you bring suit?

Did You Read That?

I actually, occasionally, read the terms of service and licensing agreements before clicking “Agree” for websites and software programs.  Apparently I’m a bit odd in that sense.  Even my Intellectual Property Licensing professor said she doesn’t read them.  Sometimes I’m just curious, sometimes I really care, sometimes I don’t have the time or energy.  One of the biggest factors in my decision to read is whether there are other options for similar services or if I can tailor my use of the site to fit only the terms to which I agree.

A Little Comparison

For example, I reluctantly joined Facebook a few months ago but my only ‘picture’ is a black box.  Why?  Because this is the Facebook Terms for users’ content include:

“you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License")” (emphasis added)

Facebook has really cleaned up their terms of use (compare to prior), but I don’t like that “transferable” part in there.  Why does Facebook need the right to transfer the license I gave Facebook for my work?  If another company were to buy Facebook, it would want all the license rights to the content on the site, but I might not trust the new owner anymore than I trust Facebook.  [And, when I joined, Facebook’s terms included a provision allowing Facebook to use my content commercially.  I presume this was because Facebook runs ads on the side of the page, but it was a term with which I am not comfortable.]

I was able to choose not to post photos on Facebook because there is another option; Flickr.  The Yahoo! Terms of Service that govern for Flickr include this nice little tid bit:

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. (emphasis added)

See that nice little “solely for the purpose of…” clause.  I love that.  Yahoo! needs the mentioned license rights in order for Flickr to do what it’s supposed to do.  But, I have no desire to give Yahoo! those rights for something like handing my photos out on flyers at a conference (unless, of course, they’re cc-licensed in a way that allows this).  Yahoo! doesn’t try to grab more rights than it needs.  Beautiful.

Surprises

Sometimes, a license agreement or terms of service can be pleasantly surprising.  Sometimes, surprising in a not so pleasant way.  The Microsoft Terms of Use are actually pretty easy to read and navigate.  On top of that, the company does a decent job of explaining the nebulous concept of fair use, explaining that “[I]n limited situations, you can use copyrighted works without permission from the copyright holder.”  But the really great, and extremely surprising, piece in the Terms of Use is the mention of and support of Creative Commons licenses.  Creative Commons and Microsoft are usually assumed to be on opposite sides of the battlefield.  It’s great to see Microsoft recognizing the value CC licenses provide:

Creative Commons licenses are a simple way for you to let people know what uses they can make of your creative works and under what conditions.

Google Chrome, on the other hand, has a not so great surprise in its terms:

“12.2 Google may at any time, terminate its legal agreement with you if: (A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms)”

In general, the way software licenses work is that if you use the software, you’re agreeing to the licensing terms and therefore using it with permission.  If you were to use the software without permission, you would be committing copyright infringement because of the unauthorized reproductions of the copyrighted elements of the software.  So, if you breach a provision of the Terms so that you are no longer an authorized user, you are now an unauthorized user and continued use constitutes copyright infringement.  Copyright infringement is very expensive if you are found liable.

Incidentally, Creative Commons licenses have a very similar provision in them.  “This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License.”  This term makes sense in CC licenses because the license is specifically granting particular copyright rights for a copyrighted work.  If the person won’t agree to the terms for these rights, then the person who owns the rights doesn’t need to grant them.  i.e. If I’ll let you sit in my chair as long as you won’t stab it with your pocket knife and you insist you want to stab it with your knife, there’s no reason I should let you sit in it.

The license agreement for a piece of software, such as Google Chrome, contains many more issues than just copyright rights.  For example, Google’s Terms include provisions about information storage, disrupting service, removing content and protections for their software that go beyond that covered by normal IP laws.  In this case it’s like I’m saying you can sit in my chair, but only if you don’t stab it with your knife, do eat potato chips tomorrow, never step on my lawn, and only cry on Thursdays.  If you happen to cry on Wednesday, you can’t sit in my chair.  Whether or not I let you sit in my chair has a great deal to do with how you’ll treat my chair; it has nothing to do with when you cry or if you step on my lawn.

Will I still use Chrome?  Yes.  Why? Because there aren’t any terms I see myself not being able to follow.  The other terms are generally agreeable to me.  And, I find Chrome to be my best option for browsers.

The key to reviewing terms of service is to know what you are willing to accept for a specific service and what will never be acceptable no matter how great the service.  And have fun reading, you never know, you might be surprised!

Oh Timbaland!

Dear Mr. Timothy Mosley,
I must say, I am a bit surprised. You’ve been in this game long enough to know better than this. You’ve been a producer nearly 15 years now, you ought to know all about sampling.

It’s not that you’re being sued (again) for copyright infringement – that happens to even the best of them – it’s your comments in response that make me shake my head. Before we take a look at those, I want to let you know that I am aware these comments are from 2007, when the video comparing your song and the Finnish song you allegedly used first appeared on YouTube. I am also aware that a Norwegian court has already dismissed a case about the two songs, which is now on appeal. It’s quite possible the Flordia court will find no substantial similarities or no access for copying – a friend of mine listened and said they didn’t sound alike – but, that still does not excuse your comments from 2007, when this whole mess started. Let’s go over those, shall we.

"That mess is so ridiculous." "I can't really discuss it because it's a legal matter. [And that is where you should have stopped.]

But that's why people don't believe it. [I’m not sure what ‘it’ is, so we’re going to leave this alone.]

It's from a video game, idiot. [Bad move, you just ruined one of your defenses. You admitted to having access to the allegedly infringed work. The person bringing the lawsuit, Glenn Gallefoss, claims the song was done for the Commodore 64. My family has one of those, it’s a computer, used to play video games. However, there is hope. If the video game you are mentioning came out before the allegedly infringed song, you might be able to show that Gallefoss (and the original creator, since Gallefoss remixed, Janne Sunni, actually took the song from a game themselves. ]

"Sample and stole is two different things. [That depends on whether or not you cleared the sample, and judging by the lawsuit, you didn’t.]

Stole is like I walked in your house, watched you make it, stole your protools, went to my house and told Nelly, 'Hey, I got a great song for you.' [Yes, that is stealing too, even without taking the protools with you.]

Sample is like you heard it somewhere, and you just sampled. [If that sample isn’t cleared, it’s still stealing. As you should well know, being a creator yourself, creators automatically get certain rights in their works, the moment the works are created. These rights – we call them copyrights - include the sole right to copy, publicly perform and make derivative works. That’s why there are things called licenses. I assume you’ve heard of licenses, and I’d bet a lot of money you frequently get paid for them from organizations like SoundExchange and (if you write as well as produce) ASCAP. Licenses are how creators arrange to let others do the things only the creators have the right to do. If I create a song and you want to make a derivative work from it, I license you that right for that work and you pay me a licensing fee.]

Maybe you didn't know who it was by because it don't have the credits listed." [This, Mr. Mosley, is called an orphan works problem. There’s been a lot of debate about orphan works lately, including in Congress. Orphan works are works for which the creator is unknown or unable to be found. Basically, the work has no parent, hence the term orphan. Just as it’s very hard to ask a parent you can’t find if his child can come out to play, it’s very hard to ask a creator you can’t find for a license to his work. Unfortunately, it does not also mean you can just use the work.
Part of the reason there are so many orphan works now floating around is the very long term of copyright and the effects of the retroactive Sonny Bono Copyright Extension Term Act. One solution to the orphan works problem would be a shorter copyright term. (Did you know it was originally only 14 years?!) But somehow, as a music producer, I’m guessing you’d be against that.]

This might sound sort of bleak, but don’t give up. There’s plenty of music out there that you can sample all you want without having to worry about lawsuits. First, there’s something called the public domain. This might be a bit hard to sample because you will only be able to use very old sound recordings of even older songs, and that’s only if the sound recording copyright owner didn’t renew their copyright (another mess from extending copyright terms.) Figuring out what’s in the public domain can be almost as much hassle as trying to license something that isn’t.

There’s an even better option. Check out ccMixter. It’s a place where people put music they want others to use and sample. You don’t have to license the music because the creators have already licensed it using Creative Commons licenses. These licenses say specifically what others can do with their work. Just don’t use anything that has an “nc” license it; that means no commercial work, and you, my friend, do commercial work.

As for the law suit, don’t worry. You’re very rich, so I’m sure you have very good attorneys. (Although, that didn’t help P.Diddy.) Just keep your mouth shut.

Sincerely,
goldenrail

Yes, Virginia, there is Piracy

Andrew Rens’ blog, Ex Africa Semper Aliquid Novi has a post today on “Piracy in Africa,” which deplores the North/South battle where the North (developed countries with large intellectual property industries) encourages the South (Africa) to prevent copyright infringement by increasing copyright enforcement.

While I agree with the author’s point that African countries should not be forced to use their limited resources to get already over-bloated (and in my opinion rather useless) foreign industries, I also believe that the post deserves some criticism.  I encourage you to check out his post; it has some good points, and it’s only fair that you see his whole side rather than just the pieces I pick at.

Piracy, there are many who have taken issue with using this term in regards to copyright infringement.  Rens briefly alludes to this at the end of his post.  In terms of the few examples of infringement mentioned by him: downloading music, copying CDs or DVDs for personal use, using a copied version of Windows, I agree, this is not piracy.  However, Africa does have levels of copyright infringement than can legitimately be called piracy.  In Nigeria, for example, huge optical disc plants churn out incredible numbers of unauthorized copies of CDs, DVDs and VCDs.  The quantities of unauthorized copies can far out-number the amount of authorized copies on the market.  These optical disc plants do this solely for the sake of profit, often times delivering less than quality goods.  This is piracy.

It is these infringing materials that prevent the real threat to copyright in Africa, not downloads (a developed-country problem).  These types of infringing materials do not hurt the “large monopolies” Rens fingers as the supposed beneficiaries of tighter enforcement laws.  These infringing materials are very often unauthorized copies of local artists’ works.  These infringing materials hurt the local industries, the barely-bourgeoning, attempting to grow, potential industries.

Rens also says, “The 547 million people living in Sub-Saharan Africa without electricity (World Bank) have no use  for CDs and DVDs.”  For a statement from someone living in Africa, this really surprised me.  Any African knows that you do not need electricity to have use for such things.  There are always work-arounds; things like small generators and car batteries.  I have seen mud huts with satellite dishes, thatched roofs with antennas reaching to the sky, for the battery powered television far down below.  The biggest problem with DVDs and CDs is not the lack of electricity, but how easily they get scratched.  But for that, there’s cassette tapes, which can also easily be reproduced.

In terms of the developed world pushing down on developing countries to enact stricter copyright laws, to spend more on enforcement, and to protect these foreign rights, Rens is correct, there are “high barriers to joining the Information Society” and they do “require us to critically examine” attempts to “impose greater barriers to access to knowledge.”  But, these laws also play an important role in local economies, for the benefit of the local people.  We cannot overlook this.

[I have completely ignored the other aspect of benefits that come with strengthening IP laws, which is of course encouraging foreign investment, in order to focus on the purely domestic aspects.  I’d be happy to explore the other side more if anyone should be interested in discussing it.]