Small Businesses Need to Know about IP: An Example

14 October 2009

Last week there was a really big football game on tv.  American football.  A match between two long-standing rivals, but with an extra twist this year.  The good team’s traitor star-player left and through some manipulative maneuvering, made his way to the evil team.  It was the first time the traitor had ever faced his old team.  It was a brutal game.  The Ippers, one of whom you can tell was quite invested in this match-up, had to venture out into the land of local pubs in order to watch the game.  (It was only available on cable here.)  While out at the pub, they encountered a little trademark issue.

The bartender was sampling the wares of a local gentleman who produces and sells body oils.  She explained he’s a regular customer and often comes in to share new additions to the product line.  The gentleman carried two large, black zippered cases filled with vials.  The vials were filled with liquids of different colors, each with a white label identifying the scent inside. 

scent listWhile the bartender was busy sniffing various bottles, the gentleman handed out a yellow flyer with information about his oils.  The company’s clever and catchy name was displayed in large type across the top, followed by “Body Oils for men and women.”  At the bottom, the prices, ranging from $5.00 to $35.00 depending on the size of the bottles.  In the middle was a list of the hundred-some scents he offered.

Some of the scent names on the list were merely descriptive: Red Rasberry [sic], Coco Mango, Kiwi Strawberry.  Others were suggestive, Golden Goddess, T-Shirt and Panties, Walk Like She Taken.  And then, there were the problem ones.  Two different kinds of problems.  First, well-known brands of perfume and cologne: Juicy Couture, Dolce & Gabbana, Cool Water.  Then, names of famous people who probably have nothing to do with this gentleman’s products: Barack Obama and Michelle Obama.  And the names of plenty of people who have their own perfume and cologne products that bear their names.

This gentleman is a prime example of someone who needs intellectual property help.  Not only has he opened himself up to a huge amount of liability for trademark infringement, passing off and potentially right of publicity, the gentleman also has plenty of his own intellectual property to protect.  He has his own company name, many very creative names on his scents and possibly the scents themselves.  [Protection of scents is highly debated in the world of IP, see IP Review for a more in-depth discussion of this.]

Unfortunately, there are a lot of people out there who don’t recognize the rights they might have or the rights others do have.  They do not know that attorneys are there to help them with these types of issues, and they won’t find out.  When they do meet with an attorney, it’ll be one representing those big companies whose trademarks are being infringed.  Hopefully, it’s only in the form of a cease and desist letter.


goldenrail would like to thank Cathy Gellis for her assistance with this post.

Cover Tunes, More Fun and Safer!

10 October 2009

blinged out viola Cover songs can be really fun, especially when they’re done in such a different way than the original that you notice something new about the music.  The groups Vitamin String Quartet and Apocalyptica are famous for these types of covers, redoing heavy metal and pop music in orchestra styles.

Lately, this Ipper has discovered a different type of cover music in a similar vain.  A lone viola player covering currently popular hip hop tunes.  Oddly enough, that’s a combination that delights this particular listener.  However, this cover artist does things a little differently than the ones mentioned above.  Instead of just adapting the tunes for the viola and playing them, he plays along with the actual hip hop songs.  This is either more costly or more dangerous.

It is more costly if the artist has the permission and necessary licenses to release tracks where he plays along with the original songs.  It is more dangerous if he does not have permission.  This has to do with the different rights in a sound recording of a song as compared with the underlying composition itself.

The underlying composition, the only thing used by groups like Apocalyptica, has one copyright.  That’s it, one.  The copyright in the music itself.  That copyright might be shared by multiple writers, but that doesn’t matter.  To use the music, a person only needs to contact the song’s publisher and make an arrangement to use the work.

But to use the whole entire recording of a song requires a lot more work and a lot more money.  The recording involves a lot more people with rights.  It’s no longer just the publisher.  It’s also the performing artist, the producer, the record label and possibly other publishers depending on who has contributed to the final version of the song that gets released.  Basically, it’s a big, costly, mess.  And that’s if the user gets permission!

Of course, if the user doesn’t get permission, he doesn’t have to deal with that whole mess.  Instead, he is liable to all those people for infringing their different rights, copyrights, mechanical rights, performance rights.  If the user did a cover of only the musical composition itself, without permission, then he is only liable to the publisher.  Either way, the user is better off just covering the tune and not playing along with the original recording. 

(And one humble opinion here is that his music would actually be much better if it were just him and the viola, without the background noise of the original works.)


goldenrail would like to thank Justen Barks for his assistance with this post. a favorite of the viola tunes.

Photo credit: Blinged out Viola cc-by-sa goldenrail used Pegs of a viola cc-by-sa by Lemondedo, available at

But How do I Know if It’s Real?

07 October 2009

Copyright infringement of music is rampant in Nigeria.  It may, in fact, be one of the few places where referring to infringement as piracy is truly accurate.  Huge optical disc plants churn out hundreds of thousands of unauthorized copies of cds.  The markets, the street corners, even the shops are filled with these infringing albums, to the point that finding a legitimate album is incredibly difficult.

cd front croppedReal or not?

Artists, producers and the Nigerian Copyright Commission (NCC) have tried a number of methods to mark legitimate albums as such.  Unfortunately, it seems most of these methods are copied by the infringers as soon as they’re developed. 

There’s the Hologram Scheme (part of the Strategic Action Against Piracy program) through which optical disc plants apply for the right to use special tools to place a special holograph on legitimate albums.  That didn’t work because optical disc plants who received permission and had arrangements with artists to manufacture albums would just manufacture, and mark, more albums than their agreement allowed.  The plants would not pay the artists for these extra albums.   Thus, the plants released thousands of infringing albums with the official markings into the market.

logos on envelope cropped Then there’s the various markings of their own design that publishers, musicians and producers have put on their album envelopes in attempt to mark them as legitimate -symbols of the record label or perhaps the producer’s mark.  Infringers easily reproduce the album envelopes, special markings and all, at local print shops.  Bad quality isn’t necessarily an indication of an infringing copy, and good quality isn’t necessarily an indication of a legitimate copy.  That all depends on the particular print house used.  Quality ranges widely and it’s not unusual to find infringing products in packaging of higher quality than the legitimate versions.

clear sleeve cropped Some artists also tried using special seals on their cd envelopes or placing the envelopes inside specially marked clear plastic sleeves.  But just like the envelopes themselves, the seals can be easily reproduced.  The clear plastic sleeves are supposed to provide some indication of quality for the album inside, but they are resalable.  There is no guarantee that what the buyer gets is what was put in the envelope and sleeve originally.

In short, although many attempts have been made, it seems Nigerian artists have yet to find a successful way to indicate to consumers that the album they are buying is legitimate.  With no sure way to know, where’s the incentive to try?  The artists and government urge consumers only to buy non-infringing works, but no one can tell them how to do it.

As a side note: This Ipper recalls attempting to purchase legitimate albums by only looking at the high end, expat-geared shops.  She’s not sure that worked, but still doesn’t know of any better options.  Suggestions are very welcome!