Walking the fine line of copyright???
December 27, 2018 11:30 AM Subscribe
** You are not my lawyer. You are not my Uncle Ned. You are not the guy who use to cut my hair (when I had hair)....*
I run an extremely small food condiment business. We are talking less than 7500 units sold in a year. Very regional with mail order business that does reach points across the country, but 95% of my business resonates pretty locally.
I am in the process of launching a new product. I have named it "Heaven Sent" (not the real name. Used for this post.) The name is taken from one of my favorite songs over the last 10 years. The color scheme of the label, I'd like to use the same color scheme from the album art from which this song is taken from....
The band in question is a very niche band currently enjoying their 15 minutes of fame. The album in question has won many critical accolades over the last few years, so while the actual audience isnt that large, the album itself has had a lot of mainstream exposure.
I am not using the band's name on the label or marketing materials. The name 'Heaven Sent' is a song on the album but not the title of the album. In no way, am i trying to associate the two or make this look like a collaboration with the band itself.
Just using a song title and the color scheme used in their album artwork. I'm pretty confident that 998 of 1000 people will not get the reference when they see the final product...
My question is if I am infringing on any kind of copyright the band or record label may have. I'm pretty sure you cannot copyright 'song titles'. And my label outside of the flashes of 'the specific color', does not look like anything like the album cover itself....
Am i setting myself up for any kind of cease and desist, do you think?
Again, I am too small of a company to even bother a true copyright lawyer with this, so I am starting my due dilligence with you fine folks....
Thanks
I am in the process of launching a new product. I have named it "Heaven Sent" (not the real name. Used for this post.) The name is taken from one of my favorite songs over the last 10 years. The color scheme of the label, I'd like to use the same color scheme from the album art from which this song is taken from....
The band in question is a very niche band currently enjoying their 15 minutes of fame. The album in question has won many critical accolades over the last few years, so while the actual audience isnt that large, the album itself has had a lot of mainstream exposure.
I am not using the band's name on the label or marketing materials. The name 'Heaven Sent' is a song on the album but not the title of the album. In no way, am i trying to associate the two or make this look like a collaboration with the band itself.
Just using a song title and the color scheme used in their album artwork. I'm pretty confident that 998 of 1000 people will not get the reference when they see the final product...
My question is if I am infringing on any kind of copyright the band or record label may have. I'm pretty sure you cannot copyright 'song titles'. And my label outside of the flashes of 'the specific color', does not look like anything like the album cover itself....
Am i setting myself up for any kind of cease and desist, do you think?
Again, I am too small of a company to even bother a true copyright lawyer with this, so I am starting my due dilligence with you fine folks....
Thanks
IANAL, IANYUN, The first question I have is if you are not trying to associate the band with the product, why are you using that colour scheme? Do you pick different colour schemes for all your products? Is this new scheme similar to other colours you have used? Having asked that, I would look at this as a probability situation. What is the probability of you actually inadvertently being in violation times what is the probability of someone from the band or their management team finding out? Seems pretty low. If you cannot afford to spend money on a lawyer, make a business decision. Even if you are sent a cease and desist, what is the harm in ceasing and desisting? Put a new label on the bottles?
posted by AugustWest at 11:53 AM on December 27, 2018 [2 favorites]
posted by AugustWest at 11:53 AM on December 27, 2018 [2 favorites]
I'm not a lawyer and can't speak to the legality, but I think this would be uncool. If I were the band and you did this without my permission, I'd be ticked off. Using their song title seems borderline, mimicking the album art seems like it's going too far. Now, if I were the band and you did ask my permission, I'd probably be tickled and tell you to go ahead. So maybe it's legal and maybe not, but if you actually like this band, maybe don't release a tribute hot sauce (or whatever it is) without asking first.
posted by Anticipation Of A New Lover's Arrival, The at 11:54 AM on December 27, 2018 [8 favorites]
posted by Anticipation Of A New Lover's Arrival, The at 11:54 AM on December 27, 2018 [8 favorites]
> Am i setting myself up for any kind of cease and desist, do you think?
Of course you are.
Will everything be Ok in the end? Probably. But if you receive that C&D, you have to trash all your time and effort invested and any momentum built up.
I've never seen a case made for "You can't copyright a song title."
The way copyrights work is that they created a copyright at the moment they created the work. If someone infringes on that under copyright law, they have to prove it in court.
posted by humboldt32 at 11:56 AM on December 27, 2018 [3 favorites]
Of course you are.
Will everything be Ok in the end? Probably. But if you receive that C&D, you have to trash all your time and effort invested and any momentum built up.
I've never seen a case made for "You can't copyright a song title."
The way copyrights work is that they created a copyright at the moment they created the work. If someone infringes on that under copyright law, they have to prove it in court.
posted by humboldt32 at 11:56 AM on December 27, 2018 [3 favorites]
Just using a song title and the color scheme used in their album artwork.
One cannot copyright either of these things. Titles are not protected by US copyright. Color schemes are not protected by copyright either.
posted by DarlingBri at 11:58 AM on December 27, 2018 [5 favorites]
One cannot copyright either of these things. Titles are not protected by US copyright. Color schemes are not protected by copyright either.
posted by DarlingBri at 11:58 AM on December 27, 2018 [5 favorites]
There's a real limit to the kind of useful advice that you can get from a question like this, in this context. The absolutely rock-solid answer you can get is: don't do it. It probably infringes on copyright, trademark, or both, or is close enough to infringing to invite a cease-and-desist letter.
It might not infringe, but determining whether you are in safe territory here is a highly fact-laden inquiry. Nobody here can do that for you, because you are -- rightly -- not sharing the label or the other factual information that would form the basis of that sort of determination. Even if your lawyer thinks it doesn't infringe, it might still invite a cease-and-desist letter and then you are in the same place. You might prevail in a lawsuit, but prevailing is expensive.
I think it is worth considering what your intention is with respect to this product. I understand the way that an idea, a pun, a title, a design can grab you and seem perfect for something. That is a good feeling. You can have this feeling, though, without bringing the good to market. Maybe you can give it away to people that you value, or your business values. If you absolutely need to bring it to market, know that there may be a cost and a controversy to doing so, and be clear about your intentions.
posted by gauche at 11:58 AM on December 27, 2018 [5 favorites]
It might not infringe, but determining whether you are in safe territory here is a highly fact-laden inquiry. Nobody here can do that for you, because you are -- rightly -- not sharing the label or the other factual information that would form the basis of that sort of determination. Even if your lawyer thinks it doesn't infringe, it might still invite a cease-and-desist letter and then you are in the same place. You might prevail in a lawsuit, but prevailing is expensive.
I think it is worth considering what your intention is with respect to this product. I understand the way that an idea, a pun, a title, a design can grab you and seem perfect for something. That is a good feeling. You can have this feeling, though, without bringing the good to market. Maybe you can give it away to people that you value, or your business values. If you absolutely need to bring it to market, know that there may be a cost and a controversy to doing so, and be clear about your intentions.
posted by gauche at 11:58 AM on December 27, 2018 [5 favorites]
I've never seen a case made for "You can't copyright a song title."
Allow me to introduce you to copyright.gov.
"Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks."
posted by DarlingBri at 11:59 AM on December 27, 2018 [7 favorites]
Allow me to introduce you to copyright.gov.
"Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks."
posted by DarlingBri at 11:59 AM on December 27, 2018 [7 favorites]
Will everything be Ok in the end? Probably. But if you receive that C&D, you have to trash all your time and effort invested and any momentum built up.
Plus it took like six seconds to figure out from this question / profile who you are and what you're selling. So ...
posted by uncleozzy at 12:00 PM on December 27, 2018 [1 favorite]
Plus it took like six seconds to figure out from this question / profile who you are and what you're selling. So ...
posted by uncleozzy at 12:00 PM on December 27, 2018 [1 favorite]
Best answer: Thank you for the responses. I won't be thread sitting.
The sample sizes of responses have given me my answer, and in the end it is better to err to the side of caution.
A C&D won't bankrupt me as the size of the item and having to trash what I have done will not 'end' me..But I'd rather play it on the safer side, and proceed with respect and caution. I have the ability to get in contact with the band, and will do just that....
Happy New Years all....
posted by TwilightKid at 12:09 PM on December 27, 2018 [2 favorites]
The sample sizes of responses have given me my answer, and in the end it is better to err to the side of caution.
A C&D won't bankrupt me as the size of the item and having to trash what I have done will not 'end' me..But I'd rather play it on the safer side, and proceed with respect and caution. I have the ability to get in contact with the band, and will do just that....
Happy New Years all....
posted by TwilightKid at 12:09 PM on December 27, 2018 [2 favorites]
A song title, and your product name, are both subject to trademark law, not copyright law.
While copyright law gives very wide rights to the owner, including all distribution, derivative works, and so on, trademarks and service marks are established for specific categories of goods and services, and do not cover ones unspecified.
If you check out the song title in TESS, the USPTO's trademark search engine, is the mark registered, and if so, does its registration include any kind of food product?
If you can afford to trash the item, you can likely afford a trademark attorney to either register your mark or give you at least a good risk assessment of an infringement claim against you.
posted by Sunburnt at 12:37 PM on December 27, 2018 [6 favorites]
While copyright law gives very wide rights to the owner, including all distribution, derivative works, and so on, trademarks and service marks are established for specific categories of goods and services, and do not cover ones unspecified.
If you check out the song title in TESS, the USPTO's trademark search engine, is the mark registered, and if so, does its registration include any kind of food product?
If you can afford to trash the item, you can likely afford a trademark attorney to either register your mark or give you at least a good risk assessment of an infringement claim against you.
posted by Sunburnt at 12:37 PM on December 27, 2018 [6 favorites]
Will merely mention that Abba the band asked ABBA the Swedish food company for permission to use the same name, permission was granted, and musical history was made. Am hopeful that you get the permission to do what you like and food condiment history is made. Good luck!
posted by Bella Donna at 1:26 PM on December 27, 2018 [1 favorite]
posted by Bella Donna at 1:26 PM on December 27, 2018 [1 favorite]
A marketing genius would made the sauce, wait for the C&D, then use the resulting press to push the new renamed and relabeled sauce. Google “beer cease desist” for a million news stories about breweries doing exactly this.
posted by Juliet Banana at 2:07 PM on December 27, 2018 [6 favorites]
posted by Juliet Banana at 2:07 PM on December 27, 2018 [6 favorites]
On the one hand, the romance fiction market is full of books whose titles are the same as/taken from popular songs.
On the other hand, Duluth Trading Company just tried a little pun when advertising their Henley (a style) shirts. They said, "Don a Henley" and yep, Don Henley's lawyers got involved and yep, DTC had to desist.
Moral: if they feel like coming after you, they will.
posted by Lunaloon at 2:19 PM on December 27, 2018 [2 favorites]
On the other hand, Duluth Trading Company just tried a little pun when advertising their Henley (a style) shirts. They said, "Don a Henley" and yep, Don Henley's lawyers got involved and yep, DTC had to desist.
Moral: if they feel like coming after you, they will.
posted by Lunaloon at 2:19 PM on December 27, 2018 [2 favorites]
My husband sells a condiment, and if you plan on going to the Fancy Food Show or any similar trade event, how will you handle questions about your product and your relationship to the band? And yes, it took me only about 5 seconds to find you and your product.
posted by Ideefixe at 3:49 PM on December 27, 2018
posted by Ideefixe at 3:49 PM on December 27, 2018
Ask a Music Lawyer.com: Is my song title protected by copyright?
"Thank you for your question. This topic comes up quite often, and it helps to show the boundaries of copyright protection. Generally, copyright law protection does not extend to song titles because they usually are short and lack sufficient originality. Therefore, you can (and often do) have multiple songs with the same name, and the first to name their song, for example "Crazy," does not have the right to stop other people from releasing their own songs named "Crazy." An exception to this is that some long titles may be found to have sufficient originality to be afforded copyright protection. I suspect that my friend's song entitled "The Concept of the Quantum-Mechanical Bodymind Has Sparked a Great Idea" is one of them.
The story doesn't end here. If the song was a hit song, the song title could be protected from unfair competition as a trademark under trademark law. A trademark is a word, phrase or symbol that is used to identify and distinguish the source of a product or service. You might think of it like a brand. Accordingly, trademark law's primary goal is to protect consumers from confusion as to the source of a good or service and to prevent later users from trading on the popularity of an earlier use of a name, phrase or symbol. Importantly, trademark law not only protects against later use of the same mark but also of "confusingly similar" marks.
For example, music publisher EMI successfully argued in court that the song title "Sing, Sing, Sing (With a Swing)" constituted a protectable trademark and a golf company could not use "Swing, Swing, Swing" in their advertising without EMI's permission. Keep in mind, however, that "Sing, Sing, Sing" was a wildly successful song that was included by NPR in the list of the 100 most important musical works of the 20th century. The overwhelming majority of song titles are simply unprotectable."
(answer copyright 2011-2012 Amy E. Mitchell, PLLC)
posted by soundguy99 at 3:59 PM on December 27, 2018
"Thank you for your question. This topic comes up quite often, and it helps to show the boundaries of copyright protection. Generally, copyright law protection does not extend to song titles because they usually are short and lack sufficient originality. Therefore, you can (and often do) have multiple songs with the same name, and the first to name their song, for example "Crazy," does not have the right to stop other people from releasing their own songs named "Crazy." An exception to this is that some long titles may be found to have sufficient originality to be afforded copyright protection. I suspect that my friend's song entitled "The Concept of the Quantum-Mechanical Bodymind Has Sparked a Great Idea" is one of them.
The story doesn't end here. If the song was a hit song, the song title could be protected from unfair competition as a trademark under trademark law. A trademark is a word, phrase or symbol that is used to identify and distinguish the source of a product or service. You might think of it like a brand. Accordingly, trademark law's primary goal is to protect consumers from confusion as to the source of a good or service and to prevent later users from trading on the popularity of an earlier use of a name, phrase or symbol. Importantly, trademark law not only protects against later use of the same mark but also of "confusingly similar" marks.
For example, music publisher EMI successfully argued in court that the song title "Sing, Sing, Sing (With a Swing)" constituted a protectable trademark and a golf company could not use "Swing, Swing, Swing" in their advertising without EMI's permission. Keep in mind, however, that "Sing, Sing, Sing" was a wildly successful song that was included by NPR in the list of the 100 most important musical works of the 20th century. The overwhelming majority of song titles are simply unprotectable."
(answer copyright 2011-2012 Amy E. Mitchell, PLLC)
posted by soundguy99 at 3:59 PM on December 27, 2018
Response by poster: My last response and I will bow out of the thread so it hopefully won't get deleted.
@Ideefixe . My name and company is not a secret. It just has nothing to do with the question I asking. And considering that I have not created any label yet, and have only shared the idea with two people, I am curious to what you think my product in question is?
I have spoken with a copyright lawyer (friend of a relative who gave me a brief answer....
Using the name and color scheme my raise eyebrows with someone within the bands camp enough to want to have it stopped without their full blessing...
Using the name with a different color scheme would cause zero issues and gave me full assurance that there is nothing that could happen.... That's where I am leaning....
thanks again and happy holidays!
posted by TwilightKid at 5:25 PM on December 27, 2018
@Ideefixe . My name and company is not a secret. It just has nothing to do with the question I asking. And considering that I have not created any label yet, and have only shared the idea with two people, I am curious to what you think my product in question is?
I have spoken with a copyright lawyer (friend of a relative who gave me a brief answer....
Using the name and color scheme my raise eyebrows with someone within the bands camp enough to want to have it stopped without their full blessing...
Using the name with a different color scheme would cause zero issues and gave me full assurance that there is nothing that could happen.... That's where I am leaning....
thanks again and happy holidays!
posted by TwilightKid at 5:25 PM on December 27, 2018
Just ask Apple computer how much they have to respect Apple Music, when Apple Computer wants to sell music.
The Mouse Empire and other big producers in the USA want you to believe that you can’t use any thing they’ve used: words, tunes, or even vague likenesses to such, even for completely different purposes, but that’s just bullshit self-interested capitalism seeking to protect its power in perpetuity.
I say do the full color scheme too, you can’t copyright a palette; and a pallette should not be a substantive part of any reasonable infringement claim.
posted by SaltySalticid at 6:26 PM on December 27, 2018
The Mouse Empire and other big producers in the USA want you to believe that you can’t use any thing they’ve used: words, tunes, or even vague likenesses to such, even for completely different purposes, but that’s just bullshit self-interested capitalism seeking to protect its power in perpetuity.
I say do the full color scheme too, you can’t copyright a palette; and a pallette should not be a substantive part of any reasonable infringement claim.
posted by SaltySalticid at 6:26 PM on December 27, 2018
Just ask Apple computer how much they have to respect Apple Music, when Apple Computer wants to sell music.
Uh, there is the “respect” that comes in the form of a number with many zeros in it. Eight zeros to be percise. Also it hasn’t been “Apple Computer” in like 12 years.
posted by sideshow at 10:10 PM on December 27, 2018
Uh, there is the “respect” that comes in the form of a number with many zeros in it. Eight zeros to be percise. Also it hasn’t been “Apple Computer” in like 12 years.
posted by sideshow at 10:10 PM on December 27, 2018
Just for completeness - colors can be trademarked, too. Look up "Tiffany blue." So you're not necessarily safe from that end, either. Not that "color scheme of album art" is the most likely thing to be trademarked, but just so you know.
posted by Joey Buttafoucault at 10:27 PM on December 27, 2018
posted by Joey Buttafoucault at 10:27 PM on December 27, 2018
My name and company is not a secret. It just has nothing to do with the question I asking.
If you were to create and distribute this product in the manner originally described and without permission, and if the band were to come after you, the ability to link this AskMe to you and your company means there is now documentation that you yourself, prior to implementing your idea, were aware of the possibility that this might be IP infringement, which would make the hypothetical case brought by the band that much more compelling. I think that's why people are raising the concern and why often for this sort of question people choose to post anonymously instead.
posted by solotoro at 6:38 AM on December 28, 2018 [2 favorites]
If you were to create and distribute this product in the manner originally described and without permission, and if the band were to come after you, the ability to link this AskMe to you and your company means there is now documentation that you yourself, prior to implementing your idea, were aware of the possibility that this might be IP infringement, which would make the hypothetical case brought by the band that much more compelling. I think that's why people are raising the concern and why often for this sort of question people choose to post anonymously instead.
posted by solotoro at 6:38 AM on December 28, 2018 [2 favorites]
In my business, I have an increased chance of getting sued or wrapped up in a lawsuit if things on my project go south. In most cases I won’t likely end up being held at fault. But just the hassle of appearing, hiring a lawyer, defending or testify could kill my business. It’s not just “can I do this?”, it’s “can I defend myself to a conclusion?”
posted by amanda at 7:25 AM on December 28, 2018
posted by amanda at 7:25 AM on December 28, 2018
Best answer: I am an IP lawyer, but not your IP lawyer. Too little information to really go on, but I'd say two things:
First, if you were to just name your product Heaven Sent, I would have very little concern about the fact that the phrase is also a song title. It's a common phrase, not copyrightable, and used on its own there's likely no way anyone but you would know what inspired you to use the name.
Note that this assumes there aren't any similar products being offered under a similar brand, which would raise trademark infringement issues. That's the bigger concern, to be honest. As someone noted above, search the heck out of the USPTO and Google to make sure someone didn't get there before you, or hire a trademark attorney to do it.
Second, combining Heaven Sent with the color scheme of the album may make the source of your inspiration more clear, but I'd hesitate to gauge the risk level without seeing exactly what you have in mind. The way you're using the colors could be far less risky than you think. Still, your instincts and the other comments here are correct that even if the risk is low, if it makes you feel uncomfortable you should go a different direction. Unless you think the name/color combo is going to be the reason you sell a million units, drop one or the other and save yourself the lingering worry.
posted by schoolgirl report at 12:16 PM on December 28, 2018 [1 favorite]
First, if you were to just name your product Heaven Sent, I would have very little concern about the fact that the phrase is also a song title. It's a common phrase, not copyrightable, and used on its own there's likely no way anyone but you would know what inspired you to use the name.
Note that this assumes there aren't any similar products being offered under a similar brand, which would raise trademark infringement issues. That's the bigger concern, to be honest. As someone noted above, search the heck out of the USPTO and Google to make sure someone didn't get there before you, or hire a trademark attorney to do it.
Second, combining Heaven Sent with the color scheme of the album may make the source of your inspiration more clear, but I'd hesitate to gauge the risk level without seeing exactly what you have in mind. The way you're using the colors could be far less risky than you think. Still, your instincts and the other comments here are correct that even if the risk is low, if it makes you feel uncomfortable you should go a different direction. Unless you think the name/color combo is going to be the reason you sell a million units, drop one or the other and save yourself the lingering worry.
posted by schoolgirl report at 12:16 PM on December 28, 2018 [1 favorite]
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posted by desuetude at 11:45 AM on December 27, 2018 [7 favorites]