Very Small Independant Musician - Possibly ran afoul of a trademark
April 7, 2014 3:56 PM Subscribe
So I did a potentially bad thing: i released an album through CD Baby, and the title of the album is a Trademark for an entity that might be none pleased.
I have no intent to make money through my effort, and I would be OK to lay down and do whatever they demand, but am in a really bad position here? Should I worry that there might be other damages taken beyond whatever revenue I might make (zero right now). Should I take action now to fix things? How would I even do that, this album is now "out there"...
I have no intent to make money through my effort, and I would be OK to lay down and do whatever they demand, but am in a really bad position here? Should I worry that there might be other damages taken beyond whatever revenue I might make (zero right now). Should I take action now to fix things? How would I even do that, this album is now "out there"...
It's somewhat hard to assess without knowing the actual title/trademark in question here. Feel free to MeMail if you'd like a more specific take. It's possible you're not even doing anything particularly worrisome. I'm an IP lawyer, but speaking NOT as a lawyer or representative but just very informally:
1. Isn't it sort of easy to go into CD Baby and revise? It's not like it's really "out there" as, say, one thousand physical discs in a warehouse somewhere. My understanding is that this is "out there" as a digital specification that is made on a per-order basis, so the details should be modifiable relatively easily. That would cut off your concerns at the head. Even if a few of the older CDs are already out there in the world, making that step to change will solve any issue 99% of the time.
2. You're not going to get into any big trouble right out of the gate. If anything it'll start with a cease and desist letter, and if you don't comply with that or come to an understanding over the phone, further steps might be taken. You seem perfectly willing to comply with a letter once it arrives. So personally I'd relax about it - maybe you're completely off their radar, or doing something unobjectionable - and worry about that if it happens. Remember, those guys probably want to avoid legal hassles as much as you do, especially with the 'small fries' it's barely worth time for...
posted by naju at 4:35 PM on April 7, 2014
1. Isn't it sort of easy to go into CD Baby and revise? It's not like it's really "out there" as, say, one thousand physical discs in a warehouse somewhere. My understanding is that this is "out there" as a digital specification that is made on a per-order basis, so the details should be modifiable relatively easily. That would cut off your concerns at the head. Even if a few of the older CDs are already out there in the world, making that step to change will solve any issue 99% of the time.
2. You're not going to get into any big trouble right out of the gate. If anything it'll start with a cease and desist letter, and if you don't comply with that or come to an understanding over the phone, further steps might be taken. You seem perfectly willing to comply with a letter once it arrives. So personally I'd relax about it - maybe you're completely off their radar, or doing something unobjectionable - and worry about that if it happens. Remember, those guys probably want to avoid legal hassles as much as you do, especially with the 'small fries' it's barely worth time for...
posted by naju at 4:35 PM on April 7, 2014
Looking around on CD Baby, I find not one, but two things from you that are named after trademarks owned by large IP-oriented corporations.
I've heard of lots of examples of bands having to change their names due to trademark conflicts (Panasonic, Jedi Knights, and Manitoba, all spring to mind). I believe that these are usually settled out of court, because who wants to spend a bunch of time and money fighting a giant corporation when you just want to make music. But I think that means the settlement isn't a matter of public record, so it's hard to know if money had to change hands or not.
Apparently Negativland made an album called U2, got sued, lost, and wound up having to destroy all copies of it, plus pay $90k for U2's legal fees. That's a pretty bad outcome, but it is a not-that-obscure band naming an album after another band (which could legitimately lead to customer confusion), plus they took it to court instead of just complying right away.
Of course that doesn't really tell you what to do about it. The conservative approach would be to stop selling the album, and re-release it under a different name. If you don't have hundreds copies you'd have to eat the costs of, that might be relatively painless, and worth the hassle. The only other option I can think of is wait and if anybody notices you and sends you a cease and desist.
My not-a-lawyer advice is to re-release it under another title right away, and then just stop worrying about it completely.
posted by aubilenon at 4:44 PM on April 7, 2014 [3 favorites]
I've heard of lots of examples of bands having to change their names due to trademark conflicts (Panasonic, Jedi Knights, and Manitoba, all spring to mind). I believe that these are usually settled out of court, because who wants to spend a bunch of time and money fighting a giant corporation when you just want to make music. But I think that means the settlement isn't a matter of public record, so it's hard to know if money had to change hands or not.
Apparently Negativland made an album called U2, got sued, lost, and wound up having to destroy all copies of it, plus pay $90k for U2's legal fees. That's a pretty bad outcome, but it is a not-that-obscure band naming an album after another band (which could legitimately lead to customer confusion), plus they took it to court instead of just complying right away.
Of course that doesn't really tell you what to do about it. The conservative approach would be to stop selling the album, and re-release it under a different name. If you don't have hundreds copies you'd have to eat the costs of, that might be relatively painless, and worth the hassle. The only other option I can think of is wait and if anybody notices you and sends you a cease and desist.
My not-a-lawyer advice is to re-release it under another title right away, and then just stop worrying about it completely.
posted by aubilenon at 4:44 PM on April 7, 2014 [3 favorites]
I have no intent to make money through my effort, and I would be OK to lay down and do whatever they demand, but am in a really bad position here? Should I worry that there might be other damages taken beyond whatever revenue I might make (zero right now). Should I take action now to fix things?
Trademark is a funny thing. The owner of a trademark has an obligation to defend her trademark in order to maintain it. Even if your intent is not commercial, if what you do could possibly remotely cause some sort of confusion with the legitimate trademark, you could have some liability and the owner of the original has to do something about it.
My not-a-lawyer advice is to re-release it under another title right away, and then just stop worrying about it completely.
This seems like good advice. Waiting for a cease and desist - when you seem pretty sure what you are doing isn't kosher - only increases your potential liability and you do not wish to be made an example of.
posted by three blind mice at 12:48 AM on April 8, 2014
Trademark is a funny thing. The owner of a trademark has an obligation to defend her trademark in order to maintain it. Even if your intent is not commercial, if what you do could possibly remotely cause some sort of confusion with the legitimate trademark, you could have some liability and the owner of the original has to do something about it.
My not-a-lawyer advice is to re-release it under another title right away, and then just stop worrying about it completely.
This seems like good advice. Waiting for a cease and desist - when you seem pretty sure what you are doing isn't kosher - only increases your potential liability and you do not wish to be made an example of.
posted by three blind mice at 12:48 AM on April 8, 2014
Response by poster: Relevant?
Some of this could be difficult because of the realities of music distribution nowadays. I don't have any physical copies, and the music (and album name / image) has been distributed through all of the digital partners...
posted by joecacti at 12:57 PM on April 8, 2014
Some of this could be difficult because of the realities of music distribution nowadays. I don't have any physical copies, and the music (and album name / image) has been distributed through all of the digital partners...
posted by joecacti at 12:57 PM on April 8, 2014
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I remember in the 90s when there was a band called Green Jello, and Kraft made them change their name to Green Jelly.
I have a vague memory that it possibly hurt their brand, but they were sort of a one hit wonder/novelty act, so they might have just faded from the spotlight regardless.
Since this is an album title and not the entire basis of your brand/identity, I doubt it would even be that big a deal. It is noteworthy that Green Jello was together for a decade before Kraft even became aware of the infringement.
If I were you, I would do a little research into what it would take to comply with a cease and desist. Would you have to pull stock from store shelves? Dump a bunch of physical inventory? Or would it just be a revised cover image and album metadata?
posted by Sara C. at 4:08 PM on April 7, 2014