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Tuesday, April 12, 2016

“Stairway to Copyright Infringement”- Step Two in Spirit's uphill climb to prove Led Zeppelin's 'Stairway to Heaven' infringes its copyright



Followers of this blog and classic rock fans everywhere with a keen interest in the nuances of copyright infringement will recall that Led Zeppelin is being sued by the band Spirit for copyright infringement based on Zeppelin's immortal song which Spirit alleges lifted portions from its guitar instrumental, Taurus.  The judge in the infringement suit has just now cleared the way for the 'Stairway to Heaven' copyright case to proceed to trial next week (reported on WTOP.COM).  

This morning, I again listened to both the introduction of Zeppelin's Stairway to Heaven and Spirit's Tarsus instrumental (links to both at the bottom of this post).  While there are similarities, there are differences as well.  As one commentary to my original post put it, the Spirit instrumental is a standard chord progression whereas the introduction to Stairway to Heaven is much more than that.

The group, Axis of Awesome, very creatively demonstrated that a series of four chords makes up hundreds of popular songs, tens of which are featured in their song "Four Chords" (link below).  Yet most would agree that each of the songs featured are themselves unique creative works.




Previously reported in my 2014 post entitled, “Stairway to Copyright Infringement”- Step One in Spirit's uphill climb to prove Led Zeppelin's 'Stairway to Heaven' infringes its copyright", Led Zeppelin was sued by the band Spirit for copyright infringement based on Zeppelin's immortal song which Spirit alleges lifted portions from its guitar instrumental, Taurus.  Spirit has now advanced past step two, convincing the judge that there is sufficient evidence to conduct a trial for copyright infringement.




Turning to substance of the debate, does "Stairway to Heaven" infringe Spirit's Taurus guitar instrumental?  In order to infringe an original work's copyright, the alleged infringing work must be deemed "substantially similar" to the original work and the alleged infringer has to have had "access" to the original work.  In this case, "access" would not appear to be an issue as Led Zeppelin and Spirit toured together in 1968 and 1969. 



Below are links to YouTube clips from Spirit's "Taurus" and  Led Zeppelin's "Stairway to Heaven."  See if you think that the opening notes in Stairway to Heaven are substantially similar to the middle guitar instrumental in Spirit's "Taurus" (e.g. starting around 0:43).  Since most are familiar with the iconic guitar progression in "Stairway to Heaven," I present Taurus first.  Please let OP-IP know what you think.








© Stephen J. Weyer 2016
Send email feedback- sweyer@stites.com



Monday, February 2, 2015

Bitter Truth Behind the Cadbury Chocolate Import Ban


United States' lovers of authentic, original British Cadbury chocolate will have to book a flight to the UK to enjoy the cherished confection.  Hershey's, manufacturing licensee of Cadbury's chocolate in the U.S., uses a different recipe than the one Cadbury uses in the UK.  Not surprising to many, the first ingredient to Hershey's made U.S. Cadbury chocolate is sugar, whereas milk is the first ingredient in Briton-made Cadbury.  Chocolate connoisseurs say that Briton-made Cadbury chocolate tastes creamer and is smother than U.S. Cadbury chocolate made by Hershey's.  These British chocolate aficionados argue that U.S. Cadbury chocolate is pure humbug.

Hershey's was concerned that if Briton-made Cadbury chocolate, made with a different recipe, were imported into the U.S., Americans would be confused and mislead by two different chocolate experiences.  As the U.S. trademark licensee of Cadbury, Hershey's believes that two different tasting chocolate would negatively affect its licensed intellectual property.

However, as a lover of chocolate, might there not be a middle ground betwixt unrestricted Briton-made Cadbury flooding into the U.S. and a complete abolition of the milky-sweet delight?  Can't we have our cake and eat it too?  Options include special labeling of U.S. imported Briton-made Cadbury chocolate so that unsuspecting U.S. consumers who like their current U.S. (Hershey's made) Cadbury chocolate will not be confused with Briton-made Cadbury chocolate.


© Stephen J. Weyer 2015
Send email feedback- sweyer@stites.com

Tuesday, January 20, 2015

Attempts to Register Intellectual Property Rights in the Slogan "JE SUIS CHARLIE" have Missed the Mark

At last count, over 120 trademark applications have been filed in the French trademark office for the phrase "JE SUIS CHARLIE."  Included is an application by Joachim Roncin who is a graphic designer in Paris who claims that he is the true creator of the now ubiquitous phrase and the graphic design (shown to the left) of JE SUIS (white) above CHARLIE (gray) on a square black background.

The French trademark office, the INPI, issued a press release (in French) saying that it has rejected over 50 registrations based on a "lack of distinctiveness" in the phrase.  Translation: (into both English and plain non-legalese language), the phrase, "JE SUIS CHARLIE", does not qualify for trademark protection since the phrase is "too general" and not associated with (or identify) a specific origin (originator, owner) of goods or services.  As reported by a colleague, Amy Cahill of a sister publication of OP-IP, Trademarkology, in her article "Lawyers Make Good Lovers", it is not always so easy to secure trademark protection for slogans and phrases.  Examples of registered trademark phrases/slogans which are associated with a good or service include "You deserve a break today" and "i'm lovin' it" both for McDonald's and "JUST DO IT" for Nike.

Although JE SUIS CHARLIE may miss the mark for trademark protection, Joachim Roncin has other intellectual property protection avenues to pursue.  For example, the JE SUIS CHARLIE logo (shown above) is entitled to copyright protection for the artistic expression of the layout, e.g. the white font JE SUIS over gray CHARLIE on black square background.  In addition, design registration (e.g. European design registration (OHIM) and U.S. design patent protection) may be available to cover the design if applied to a specific article of manufacture or product.

© Stephen J. Weyer 2015
Send email feedback- sweyer@stites.com

Monday, December 29, 2014

Second Annual top OP-IP Intellectual Property News Stories

'Tis the season for the mainstream media to wax nostalgically over the past year's memorable events.  This past weekend, there was a reprieve from the "year in review" on at least one news outlet as CNN went into its trademark 24-7/wall-to-wall coverage of missing jetliners to report the disappearance of Asia Air Flight QZ8501.  Notwithstanding this one outlier, we are once again inundated with stories of the ALS Ice Bucket Challenge, the Republican takeover of the U.S. Senate, the polar vortex, etc.  Not to disappoint, here at OP-IP, we too, look back on the memorable blog posts of 2014.

In the tradition of Casey Casum once again enjoy the Top Ten OP-IP blog posts of 2014....

10.  Love on the Rocks:  Trademark Custody Battle When Going Through a Corporate Divorce

9. IP and Innovation: Are we heading for Star Trek or Star Wars as Science Fiction becomes Science Fact? 

8. GPS (Guidance for Patent-eligible Subject matter) to Direct the U.S. Patent Office in view of Alice Corp. v. CLS Bank Int'l and the USPTO Preliminary Instructions

7. Aereo's Online Streaming Broadcast TV Caught Between a Rock and a Hard Place

6. iPhone "dressed" in Blackberry's clothing?  The 'keys' to understanding a 'case' for trade dress infringement

5. Increasing wave of secret Internet communication

4. Supreme Court says, "'No, You CANNOT Hear Me Now!' Let Alone Search my Cellphone Unless you get a Warrant" in RILEY v. CALIFORNIA

3.Patented Tobacco Plant Genetically Engineered to Produce Antibodies Against Ebola gets Boost to Treat Dr. Kent Brantly and Nancy Writebol






2. “Stairway to Copyright Infringement”- Step one in Spirit's uphill climb to prove Led Zeppelin's 'Stairway to Heaven' infringes its copyright'



1. Disney's "Frozen" in Hot Water Over Alleged Copyright Infringement



Happy New Year 2015!




© Stephen J. Weyer 2014, 2015

Send email feedback- sweyer@stites.com

Wednesday, December 3, 2014

Love on the Rocks: Trademark Custody Battle When Going Through a Corporate Divorce


Companies often own valuable intellectual property including trademarks which companies use to identify themselves and their goods and service.  For example, the intellectual property rights may include the name of the business.  But what happens to the trademarks including company name if a company breaks up or splits apart.  For example, if a company splits in two or a partnership dissolves, who among the parties to the breakup owns the trademarks.

This breakup scenario is common place among musical bands where eventual break-ups strike a familiar cord.  Examples of this can be seen in the breakup or departure of members of the band Boston, Van Halen, Herman’s Hermits, the Animals, and New Edition to name just five.

One possible way to plan for the possible breakup is the use of an analogous tool to a prenuptial agreement prior to marriage.  A partnership agreement, articles of incorporation or like instrument, signed by the principals to the business entity, can spell out who will get the rights to trademarks including business name upon dissolution of the company.


© Stephen J. Weyer 2014
Send email feedback- sweyer@stites.com

Thursday, October 23, 2014

“Stairway to Copyright Infringement”- Step one in Spirit's uphill climb to prove Led Zeppelin's 'Stairway to Heaven' infringes its copyright

Led Zeppelin is being sued by the band Spirit for copyright infringement based on Zeppelin's immortal song which Spirit alleges lifted portions from its guitar instrumental, Taurus.  Spirit has advanced past step one in its upward climb to prove that "Stairway to Heaven" infringes Spirit's copyright by successfully defeating Led Zeppelin's initial Motion to Dismiss the copyright infringement suit.  However, Led Zeppelin has been invited to take the next step by submitting new evidence showing why a Motion to Dismiss should be granted.


Leaving the procedural issues aside, and turning now to substance of the debate, does "Stairway to Heaven" infringe Spirit's Taurus guitar instrumental?  In order to infringe an original work's copyright, the alleged infringing work must be deemed "substantially similar" to the original work and the alleged infringer has to have had "access" to the original work.  In this case, "access" would not appear to be an issue as Led Zeppelin and Spirit toured together in 1968 and 1969. 

Below are links to YouTube clips from Spirit's "Taurus" and  Led Zeppelin's "Stairway to Heaven."  See if you think that the opening notes in Stairway to Heaven are substantially similar to the middle guitar instrumental in Spirit's "Taurus" (e.g. starting around 0:43).  Since most are familiar with the iconic guitar progression in "Stairway to Heaven," I present Taurus first.  Please let OP-IP know what you think.









© Stephen J. Weyer 2014
Send email feedback- sweyer@stites.com



Tuesday, October 14, 2014

IP and Innovation: Are we heading for Star Trek or Star Wars as Science Fiction becomes Science Fact?

Technology today would have seemed like science fiction to people fifty years ago.  In fact, wireless Bluetooth earpieces, handheld smartphones and tablet computers all appear ripped from science fictions novels, movies and television programs for the 1950’s and 60’s.  Recently NASA’s Ames Research Center reported its progress in creating a real-life tricorder, a device known well to Star Trek aficionados, which detects the health conditions of a patient (as well as detecting other things).  While the tricorder of Star Trek only collected data and perhaps generated a diagnosis, today our “real” technology includes innovations in which human made devices are acting like humans, generating “their” own IP content. For example, the IBM supercomputer WATSON has been tasked to analyze medical databases, patient records, journal articles, etc., to identify disease conditions, create new medical diagnostic tools, and identify new therapeutic treatments.
As more and more technologies that once were science fiction are now becoming reality, we look at how IP laws can deal with futuristic technology today.   While our technology continues to evolve we ask whether IP laws with their genesis in the Industrial Age are sufficient to to deal with technology of today and of the future.
On Friday October 17, at the 2014 ITechLaw Conference in Paris, Joren De Wachter and I will lead a discussion to explore these issues.  We will explore:
·               Who or what can create Intellectual Property?
·               Can devices, software, etc., create Intellectual Property?  If so, “who” owns the IP?  The owner of the machine? The operator of the machine? The inventor of the machine?
·               Can/should IP rights apply to inventions or creations made by machines?
·               If one interacts with a computer game, and the “game” generates IP content, who owns that content?  The gamer?  The game platform creator?
·               Are current IP laws and associated rights and restrictions adequate to cover emerging technologies?
·               What are the IP rights / limitations of third parties who implement technological innovations?
After the presentation and discussion, OP-IP will summarize the insights and remarks of the participants. 

© Stephen J. Weyer 2014
Send email feedback- sweyer@stites.com