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Copyright and rights

Discussion in 'Luthier's Corner' started by JTGale, Jan 1, 2006.


  1. JTGale

    JTGale

    Oct 26, 2004
    Hummelstown, PA
    I have been working of a few new designs lately and have a few thoughts. I am looking to produce a small line of offerings with only a few options to help minimize workload and maximize output. But what I have been running in to is the request to "just build it like a P-bass with a nice top" mentality. How close can you get in a not-so-limited run to the real thing (not necessarily a P-bass) and not be infringing on copyrights? What makes an item unique for copyrighting? Is it the basic shape? The number of pickups? The scale length? The nut width? The exact shape of the neck? A unique headstock? A combination of all those things? Just wondering ... Thought someone here might be smarter than I am at this kind of thing.

    Thanks!

    jtg
     
  2. budman

    budman Commercial User

    Oct 7, 2004
    Houston, TX
    Formerly the owner/builder of LeCompte Electric Bass
    Are you interested in patent information?
     
  3. ii7-V7

    ii7-V7

    Aug 4, 2002
    Baltimore, MD
    Well, I'm no copyright lawyer, but heres the little bit that I do know.

    Obviously attempting to put a Fender logo on your work is illegal. I think that Body Shape and Headstock shape are your biggest areas to be worried about.

    Scale length, number and type of PU's, number of frets, number of strings, width of the neck, width of nut.....None of those things can be copyrighted.

    Chad
     

  4. Fender is currently trying to copyright their classic shapes like the Strat, Tele, and Precision basses. I don't know how far or successful they've been. The problem comes from Fender allowing free copying of the shapes for about 40 years before they decided to attempt claiming ownership. If I were the judge in that case, I would be loathe to grant something like that.

    But as far as making a P bass - you can copy anything from the original except the headstock and name. That's all the legal standing Fender has right now. That could change but for now, that's all I've heard.
     
  5. budman

    budman Commercial User

    Oct 7, 2004
    Houston, TX
    Formerly the owner/builder of LeCompte Electric Bass
  6. JTGale

    JTGale

    Oct 26, 2004
    Hummelstown, PA
    Trademarks. Maybe that is what I should be talking about? Copyright is something else entirely ... Leave it to the editor in the group to talk about copy ... :D

    And thanks, Hambone, for the info. I have my own headstock design so I am safe there. It seems that the requests I get are more for the body and neck shape than anything else. They want it to "feel" like such-and-such instrument and I didn't know how close to the original I could get. I didn't want to get 20 or 30 instruments into an open-ended run and suddenly find myself in court. And with that thought, maybe I should talk this over with my lawyer ...

    Thanks, guys!

    jtg
     
  7. Hookus

    Hookus

    Oct 2, 2005
    Austin, TX
    I think the real issue over a violation would be if someone could confuse your product with something else. I beleive it is generally accepted that a "Jazz" bass does not mean a Fender, but rather a generic style, a pickup configuration. Same with "Precisions". Fender has not lost anything from not having their styles safeguarded, and if ianything, it has done much to revolutionize electric instruments.

    Agreeing with Hambone, I think I would be pretty hard pressed to accept Fender trying to corner those designs at this point. Besides, if you make them a neck through with a different headstock shape, then neither the body or neck would be the same as a Fender, 'cause there would be no body or head, only one, young Jedi....
     
  8. Not true Bud. The only copy protection available to "designs" is copyright reservation. All originators of a design hold immediate "copyrights" - it comes with the creation of the design. If the design becomes a product, or is an identifiable part of a product, then it could and would be registered as a trademark. But the determining factor would be it's use in commerce.
     
  9. budman

    budman Commercial User

    Oct 7, 2004
    Houston, TX
    Formerly the owner/builder of LeCompte Electric Bass
    Not true, Hambone.

    From copyright.gov:

    "Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

    Several categories of material are generally not eligible for federal copyright protection. These include among others:

    Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

    Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

    Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

    Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)"

    I'm pretty sure a headstock would come under "device", thus it had to be tradmarked.
     

  10. Well, I think you've just proved me right! :D In the first paragraph, the definition supports my contention that "trademarks" are limited to commercial products. Likewise the 4th paragraph supports me by specifying that familiar designs cannot be copyrighted. This would mean that you couldn't copyright a stop sign for a logo because of it's previous widespread and easily recognized use. And all of this goes directly to how a judge would look at Fenders trademark. In this case the word "device" refers directly to an object with a particular function and not the design of the object. In that sense, the trademarked Fender headstock isn't a "device" but rather a "design" applied to a device. And that's how Fender was able to trademark their headstock - because it isn't function that gets trademarked, it's design.
     
  11. callmeMrThumbs

    callmeMrThumbs Guest

    Oct 6, 2005
    Omaha, NE
    Wow you guys are duking it out! haha... :bag:

    But seriously, it's nice to know some of this stuff incase I suddenly get the urge to create something completely not original. :rolleyes: hehe...just kidding.

    -Josh
     
  12. Nah, I've got too much respect for Bud to go postal. This is vague stuff anyway. Just when it seems that there's no way a judge would find for a plaintiff, they do and the definitions get turned upside down again. It's really going to be interesting when the newest technologies hit mainstream advertising - things like electro-luminescent papers. There you could have an image that changes form and color to where the only "fixed" form would be programming. If you didn't copy the code, you could imitate the look of your competitors ELP images - or could you? :confused: :D
     
  13. budman

    budman Commercial User

    Oct 7, 2004
    Houston, TX
    Formerly the owner/builder of LeCompte Electric Bass
    You can draw headstocks all day long and say "my piece of paper here with my headstock design is copyrighted", but that and a quarter will get you a hot cup of jack squat. All you're doing is telling folks you can't copy my piece of paper with my headstock shape on it. I guess this is where we are butting heads. While you can certainly copyright a design on a piece of paper, once that headstock is produced and is made into a device you won't be able to copyright it, which is what I'm refering to. I think that's what JTGale was asking about in the original post. I'd venture to say that unless that headstock design was a) made into a logo and trademarked, or b) made into 3D headstock and trademarked you won't be able to stop anyone from actually producing your headstock design that's on your piece of paper. Fender was able to trademark their headstocks because they are identifiable as their own. It distinguishes itself as being "Fender".

    From uspto.gov:

    "A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. "
     
  14. mheintz

    mheintz

    Nov 18, 2004
    This area is murky, but Hambone is largely right.

    Budman, you are conflating design aspects and functional aspects. As you suggested, useful articles or functional elements cannot be copyrighted. However, non-functional design elements can be copyrighted. There is a substantial body of case law on what constitutes a functional element.

    Perhaps, the most cited Supreme Court case is Mazer v. Stein, 347 U.S. 201 (1954). The Court addressed the scope of copyright protection for a sculpture that formed the base of a lamp. They found that the artistic aspects of the sculpture were protected by copyright, but not the functional aspects associated with being a lamp base.

    By analogy, a carved lion's head on a double bass headstock could be copyrighted.

    By comparison, Dingwall's Super J headstock has some elements that are purely functional, some that are purely non-functional and some (like the creative design of the weight reducing cutaway) that are somewhere in between.
     
  15. JTGale

    JTGale

    Oct 26, 2004
    Hummelstown, PA
    Sorry, guys. I didn't mean to start the New Year off on the wrong foot ... :rolleyes:

    Hambone answered my original question of what part of a Fender was copyrighted. Sounds like the headstock design/shape and their logo. All the rest is fair game, although it sounds like Fender is trying to change that. I just wasn't sure how specific/far back the copyright thing went. I suppose if someone wanted to take it all the way back, wasn't it Fender who "created" the electric bass and therefore all subsequent electric basses/bass guitars would be subject to that copyright, if they get their way?

    All in all, it sounds like I am safe to copy the basic shape and apointments as long as the headstock design is different. This answer should make my customers happy.

    Thanks, guys, for all the input. It is discussions like these that keep me coming back to TalkBass. This is one of the best communities ever!

    jtg
     
  16. budman

    budman Commercial User

    Oct 7, 2004
    Houston, TX
    Formerly the owner/builder of LeCompte Electric Bass
    The headstocks aren't copyrighted. :rollno: They are trademarks.

    "ACOUSTASONIC, AFFINITY SERIES, AMP CAN, ARTIST AWARD, ARTIST XP SERIES, AUTOMATIC GT, AUTOMATIC SE, BASS BREAKER, BASSMAN, BI-FLEX, BIG APPLE, BLUES JUNIOR, BLUESBIRD, BRONCO, BULLET, BXR, CALIFORNIA CABLES, CALIFORNIA CRANKS, CALIFORNIA TUNERS, CHAMP, CHAMPION 30, CLASSIC ROCKER, CROSSROADS, CYCLONE, DEARMOND, DECO, DELTA COMP, DELTA TONE, DELUXE 90, DELUXE REVERB, DH-1 HUMBUCKER, DUAL SHOWMAN, DYNA-TOUCH, F in Thick Script, F in Thin Script, FENDER in Thick Script, FENDER in Thin Script, FENDER-LACE, FENDER TWO TONE, FRONTMAN AMP, G, GOLD TONE, GUILD, the Guild guitar headstock profile, the narrow (Telecaster) Fender headstock profile, the wide (‘60s big Stratocaster) Fender headstock profile, the Fender (Stratocaster) headstock profile, the Fender bass guitar headstock profile, HIMASS, J BASS, JAGMASTER, JAG-STANG, JAGUAR, JAZZ BASS, JAZZMASTER, JET STAR, KXR, LONE STAR, MICRO-TILT, MR.GEARHEAD, MUSICMASTER, MUSTANG, NASHVILLE B-BENDER TELE, NOISELESS, P BASS, PASSPORT, PILOT, PRECISION BASS, PRINCETON, PRO JUNIOR, PRO TONE, PROSONIC, RELIC, ROADHOUSE, ROC PRO, RUMBLE-BASS, S100 POLARA, SC3 PALOMA, SATINKROME, SEVEN STAR, SFX, SFX SATELLITE, SHOWMAN, SHOWMASTER, SIDEKICK, SPL SERIES, SQUIER, STAGE, STAGEMASTER, STARFIRE, STRAT, STRAT-O-TONE, STRATOCASTER, STRATACOUSTIC, STRING DYNAMICS, SUB-SONIC, SUNN, SUPER BULLETS, SUPER REVERB, SUPER-SONIC, TELE, TELE-SONIC, TELECASTER, TELECOUSTIC, TEX-MEX, TEXAS SPECIAL, TIME MACHINE, TONEMASTER, TORONADO, TURBO JET, TWIN AMP, TWIN REVERB, ULTIMATE STEREO CHORUS, VALENCIA, VENUS, VIBRO CHAMP, VIBRO-KING, VIBROLUX, VINTAGE-NOISELESS, VISTA SERIES, VISTA TONE, WOOD TONE FINISH, X150 SAVOY, X160 ROCKABILLY, X170 MANHATTAN, X500 PALADIN and X700 STUART are among the trademarks and service marks of FMIC that may appear in this Web site, many of which are registered in the United States and other countries. This is not a comprehensive list of all trademarks of FMIC. All other names and marks mentioned in this Web Site are the trade names, trademarks or service marks of their respective owners."

    I don't doubt that the technical drawings of the headstocks that Fender has in its possesion are copyrighted though. And the reason Fender probably couldn't copyright the headstock and had to go for a trademark was becasue it's a ripoff of a Travis guitar headstock.
     
  17. budman

    budman Commercial User

    Oct 7, 2004
    Houston, TX
    Formerly the owner/builder of LeCompte Electric Bass
    Scultptural works are protected under copyright law. There appears to be a medium crossover though where by a "design" can not be copyright protected.

    From uspto.gov:
    "The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine."

    So if someone does a headstock design drawing (description) they are not protected under copyright law if someone else produces an actual headstock from the drawing. Now if the orignal designer produced the actual headstock and someone reproduces the headstock without permission...I can see a problem.

    Trademarking appears to be the way to go. Regardless of what medium your "design" is protected.
     
  18. Biagio139

    Biagio139 Dealer: Hipshot Products, Inc.

    Dec 23, 2005
    Ithaca N.Y.
    I know this is a bass fender but charvel used to make a strat neck steve vai made it popular, fender went after them and halted there production. I guess you cant blame them. this topic has been an eye opener for me thanks for all the info
     
  19. mheintz

    mheintz

    Nov 18, 2004
    Unlike trademarks or patents, a copyright is not created at the time of registration, but at the time of creation. By merely creating a copyrightable work, the work can be protected by copyright (although the party may not be able to collect damages for infringement without registration of the work.)

    For example, the lion's head on the double bass is protected by copyright at the time of creation whether or not the work is later copyrighted. Although there are a variety of other reasons why the lion's head might not be copyrightable (e.g. scenes a faire doctrine), the fact that the lion's head was not registered does not mean that it is not copyrighted. A lawyer might include multiple claims in a suit, e.g., trade dress, trademark infringement, copyright etc... If the work is not registered (as appears to be the case with the headstock), then the owner could not obtain damages for infringement.

    On a more theoretical note, copyright law is not based on prior appropriation like trademark law and patent law. I have posted before on this topic. If two luthiers go into their workshop and both come out with sculpted lion's heads on a headstock that look exactly the same, both may be protected by copyright and neither would infringe the other unless they copied the other's design.

    If someone creates a 3d object based on a 2d object, the 3d object likely has the minimum indicia of creativity to qualify as its own copyrightable work, given the low threshold of creativity required by the courts. If the original is a 3d work, like the lion's head, and the copy is also a 3d work, then the copy could be an infringement.

    I think what is bothering budman is actually the separation of function vs. design. The copyrightable element has to be conceptually separable from the functional element like the lamp base in Mazer v. Stein is conceptually separable from the lamp. See, e.g., the moderately debated mannequin copyright case where functional and design elements collide. See http://www.carrip.com/files/IIPam05.pdf

    The lion's head is a clear example of a copyrightable work. The subtle curve of most headstocks is more debatable, but nonetheless could serve as a basis of claim for infringement.
     
  20. budman

    budman Commercial User

    Oct 7, 2004
    Houston, TX
    Formerly the owner/builder of LeCompte Electric Bass
    This is what is bothering me.

    From uspto.gov:

    "The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine."


    You seem to fall short in your explanation. Someone can still produce a drawing of your carved lions heads without violating the copyright. The subject matter is not protected.