New Fronts in the IP Wars

Jesse Walker | February 2, 2004

"The Record Industry Association of America...has launched a new campaign against DJs in an attempt to control copyright infringement," reports DJMag:

They have already confiscated $100,000�s worth of mix CDs from independent record stores across the US.

DJ mix CDs, sold in almost every independent record store, are on the whole unlicensed and technically illegal to distribute. However, DJs and producers alike often rely upon these illegal mixes in order to gain credibility, and to promote themselves to the general public.

Whether or not you think that's just, it at least involves a clear-cut violation of the law. Not so with the comic book formerly known as Super Hero Happy Hour, which has changed its name following a letter of complaint from the two goliaths of the industry, Marvel and DC. Seems those companies claim a joint trademark on the word "super-hero."

Someone will inevitably write me to say that Marvel and DC must vigorously protect their trademark if they want to keep it. This, alas, ignores a salient issue: THERE IS NO GOOD REASON FOR ANYONE TO HAVE A TRADEMARK ON THIS WORD. Unless you really believe it will cause customer confusion if any publisher that wants to can use the word "super-hero."

Comments

Xrlq|2.2.04 @ 3:01AM|#

"Someone will inevitably write me to say that Marvel and DC must vigorously protect their trademark if they want to keep it. This, alas, ignores a salient issue: THERE IS NO GOOD REASON FOR ANYONE TO HAVE A TRADEMARK ON THIS WORD."

Actually, it doesn't ignore that issue at all; it merely puts it into perspective. Speaking personally, I agree with your conclusion, but I don't expect DC or Marvel to share it. Rather, I expect them to do what any rational, profit-driven company would do under the circumstances: take whatever commercial advantage the government is willing to give them.

IP law is a bit out of my area of practice, so perhaps an IP lawyer can weigh in on this. Does the "bring stupid lawsuits or lose your protection" doctrine even apply to copyrights? I've only heard it invoked in the trademark arena, which is a very different body of law. To the extent that the doctrine applies only to trademarks, that alone would be a good reason to give DC/Marvel a pass on this one, but not the RIAA. What it would mean, in essence, is that DC and Marvel are doing what they've got to do under the circumstances, while the RIAA is pursuing a policy of rigidity for rigidity's sake.

|2.2.04 @ 3:48AM|#

Jesse Walker wrote:

Someone will inevitably write me to say that Marvel and DC must vigorously protect their trademark if they want to keep it. This, alas, ignores a salient issue: THERE IS NO GOOD REASON FOR ANYONE TO HAVE A TRADEMARK ON THIS WORD.

That depends on what the origin of the term was. I doubt that anyone would argue that Marvel and DC were the first to use the term to refer to their respective characters and it makes sense that just as the Xerox and Rollerblade companies do not want their brand names to become the generic term for copies and inline skating respectively, neither would Marvel and DC want their trademark to become generic as well.

|2.2.04 @ 3:50AM|#

Dingel wrote:

However, if they are going to go after amateur DJ mixes that are given away for free for promotional or non-commercial purposes (via CD or the internet), then they will functionally shut down the dance music industry. That's a Bad Thing

Um no, it is not. Giving away someone else�s copy-righted materials is still a violation of the owner's rights to their intellectual property and has as much of an adverse affect on their right to try and earn a profit from their IP as if this same DJ tries to sell rather than give away a pirated copy.

Jesse Walker|2.2.04 @ 4:05AM|#

The only justification for trademark protection should be to stop fraud and customer confusion. I don't want some knockoff copier-maker to tell me its products are "Xerox machines," any more than I want to buy a box labelled "MacIntosh" and find a Dell inside. But I could care less if more than two comic-book companies are allowed to refer to their superheroes as superheroes. The very fact that two businesses are somehow able to control the mark jointly suggests that they're abusing trademark law in restraint of trade.

If GeekPunk had called its book Marvel Comics Presents -- now that would be a legitimate trademark case.

|2.2.04 @ 4:17AM|#

Thorley, you're not "giving away" someone else's intellectual copy when you make a mix of a bunch of records and put that mix out there for others to enjoy. And if you ask a lot of dance music producers, they will agree. For one, it is free publicity. I can not tell you how many labels and artists that I've discovered by reading a playlist for these 'amateur' cd's. Second, you're not distributing their material in a completely unaltered form, you are actually trying to showcase your skills at mixing records.

If your sole criteria for why my mix cd's are wrong is that I'm somehow hurting the producers and their labels monetarily, you are (mostly)incorrect. Since I don't know enough about IP or copyright law to discuss whether or not it is black and white illegal, I'm obviously speaking about a more 'moral' angle.

And in case you doubt my claims, many dj's get records sent to them by the labels themselves so that they get heard. In the dance music scene, since it is still fairly underground, this is pretty much how it has to be. No one would be making any money otherwise.

|2.2.04 @ 4:27AM|#

What I don't like about this whole mix CD raiding thing is that they're screwing over the artists and, indirectly, themselves. While the distributors hate the mix CD scene for obvious reasons, the imprints themselves often encourage artists to appear on mix CDs to get a buzz out going with them. One only has to listen to the latest Kay Slay or Whoo Kid release to realize that the buzz generated by a guest appearance on a mix CD is worth more than whatever lost revenue that could possibly lose on a mix CD recording.

The artists typically do well with these mix CDs. They're usually paid for their appearances, under the table and in cash. Also, the labels sometimes make momeny by selling off the exclusive rights to a new song to a mix CD DJ. They spend the money thinking, rightly, that whatever money they spend can be made up by increased record sales for an artist...of which the distributors take a cut.

Simply put, this is a case of the RIAA cutting off its nose to spite its face.

|2.2.04 @ 4:32AM|#

I wonder if the dance music scene isn't secretly being funded by hearing aid manufacturers. All those clubs out there pumping out all those heavy decibels must do some damage.

|2.2.04 @ 4:56AM|#

Todd, I think that you're mistaking RE mix cd's with ones more like us 'amateurs' make. I'm not talking about taking someone else's song and remixing it. That's something a producer does, mostly. What I do is take 10+ records and try to mix one song into another for 60+ minutes - that's what I record and burn onto a cd or what I do when I play a club.

Yes, you're right, I've been paid under the table in cash, but it's not like I'm taking money out of someone else's pocket. I actually buy almost all of the records that I own, and I've had friends and other dj's go out and also buy the same record because they liked it so much. Besides, when I mix at a club, people aren't paying to hear the music only, but to watch me perform and to see how skillfully I use the equipment and how good I am at artfully blending the tracks together. Believe it or not, being a club/dance music dj does take artistic ability.

I just think that people who aren't into the whole scene are just ignorant of the facts. Most of the dj's and producers I know (as I said before) actually see mutual benefit with the situation. And it's not like I'm trying to change anyone's mind, just trying to me informative. :) As always, I keep an open mind!

Xrlq|2.2.04 @ 6:59AM|#

"The very fact that two businesses are somehow able to control the mark jointly suggests that they're abusing trademark law in restraint of trade."

That doesn't follow; companies share trademarks all the time. I've never heard of any company getting sued for an antitrust violation over that, as surely would be the case if courts considered such arrangements to be unreasonable "restraints of trade."

Jesse Walker|2.2.04 @ 7:09AM|#

Fair enough. I shouldn't have used the phrase "restraint of trade," since that has an actual legal meaning; I didn't intend to suggest that the companies were breaking the law. For that matter, much of what I consider to be "abuse" of trademark law now has tons of legal precedent behind it.

Jeff|2.2.04 @ 10:29AM|#

Uninteresting fact:
In the late 70s Marvel tried to trademark the term "Supervillian" by publishing a book called "Marvel Supervillian Teamup"
The book was about Doctor Doom and Sub Mariner forging a non-agression treaty between Latveria and Atlantis. Namor wanted to destroy the surface world, Doom just wanted to rule it.

|2.2.04 @ 12:45PM|#

If they are only cracking down on amateur/unauthorized mixes that are being _resold_, then I'm not terribly upset. Those are clearly illegal. However, if they are going to go after amateur DJ mixes that are given away for free for promotional or non-commercial purposes (via CD or the internet), then they will functionally shut down the dance music industry. That's a Bad Thing (TM).

|2.3.04 @ 4:24AM|#

Isn�t a mix tape legal as long as first use applies? I�m certainly no lawyer but it�s still legal for me to copy a CD and give the copy to a friend, isn�t it?

Anyway, I expect royalties as soon as the paperwork is finished on my copyright application for the word �the� and the note #G. I�m also working on a patent app for basic variations on the wheel. I figure the royalties from screws alone will support me if I can enter into an agreement with the folks who own that inclined plain thing.

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Snow Robert|9.10.04 @ 2:11AM|#

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