In the last post I discussed the oddities found in the fine print on the side of a cosmetics package. We found a funny statement that seemed to declare that the package design for the box shown at rights is protected as a trademark. Apart from the strange wording of this notice, the fact that the package design should be protected by a trademark seems, well, as artificial and absurd as putting on too much makeup. There is of course nothing wrong with protecting package design as a trademark. Many companies protect the design of their packages, containers, and even certain design features of the product itself as trademarks. After all, just as a word, logo, or slogan can identify a company as the source of particular products or services, the packaging enveloping a product can also identify the company that made the product. Often, product packaging is even more effective. Maybe thats what prompted branding expert Martin Neumeier to say in his book The Brand Gap that packaging “is the last and best chance to make a sale.” 

Sometimes when I go to the store I pick up random things and read the labels. When I was younger, it used to be a form of entertainment before smart phones were created because it helped me fill the time while I stumbled through the store, parents in tow, struggling to find anything to keep me from lapsing into a state of crushing boredom. Even today, despite all the conveniences (and escapes) brought on my modern technology, I still like to pick up different items and read the labels, even if I have absolutely no interest in purchasing the product. So this past weekend, a trip to Target with my significant other presented no opportunities for variation from this trend.

Walking down the cosmetics aisle, I came upon this label while looking for some makeup stuff (concealer, whatever) for my significant other. Take a look at what the label says. Now read it again. Am I the only one confused by the statement “Package design trademark and all copy © e.l.f. Cosmetics”? Maybe it’s the way I read, but it seems like the maker of this cosmetic is trying to say that the text and stuff that describes the cosmetics (including pictures) are copyrighted and the package design is trademarked. Or is it that the package design, trademarks, and all text are copyrights? Still a third way to look at it could be that the ® symbol in front of this whole clause is referred to the package design and all other trademarks. But there is still that phrase “and all copy” to haggle with.

I’m not much of a country music fan, but I listen to a tune every now and then. I’m not a moonshine fan either, so I won’t ruminate too much on moonshine or country music. Perhaps the two go together just as well as heavy metal and tattoos? But I do know a thing or two about trademark conflicts.

I just happened to be doing a search for “florida” and “oranges” on the U.S. Patent Office’s online trademark database (its a pretty nice tool and a wealth of information, and definitely a great place to start if you want to make sure a choice phrase is available for a trademark, hint hint). I pulled up a recently-filed application for the mark “FLORIDA GEORGIA LINE ORANGE AND PEACH MOONSHINE”. As soon as I saw this search record I was like “Huh, isn’t there a band named Florida Georgia Line? What would they think about this?”

There is a band; they are called Florida Georgia Line; and, oh yeah, they recently filed a trademark for the same name (and the characters “FGL”). The goods and services (as you might guess) cover sound recordings and entertainment services, namely live performances by a musical band. For all those concert goers that demand keepsakes, the band also filed for protection for select merchandise items like T-Shirts and Hats. They filed the trademark on February 13 of this year, but I know that the band has been using the name FLORIDA GEORGIA LINE far before that date (the band claims October 2009). The owner of FLORIDA GEORGIA LINE ORANGE AND PEACH MOONSHINE filed on June 11.

Okay, so I know this blog is mostly about trademark law (it is in the name, after all!) but copyright law is also very interesting. A few of the posts as of late have included some reference to copyright law. There isn’t much overlap between the two, as copyright law is mainly about protecting works of authorship in order to stimulate additional creativity in society (this aspirational goal is captured by the phrase  “to promote the progress of science and the useful arts” language in the constitution) while trademark law is about protecting consumers through the protection of symbols which have source identifying significance. Copyright law touches an area that is near and dear to many people’s hearts: entertainment and art. You know, the interesting stuff. 

A few of you cats may have heard of a song called “Blurred Lines”. Its this song that was supposedly written in less than an hour during an impromptu studio session by Robin Thicke and Pharrell Williams. The motivation for the song was Marvin Gaye’s “Got To Give It Up”, an iconic song from the Disco era, which took much more than 1 hour to record. In fact Robin Thicke said that “Got To Give It Up” was one of his favorite songs of all time. Who would have thought that the source of such a song would become the target of a copyright lawsuit? 

Yes it is true. Robin Thicke, Pharrell Williams, and TI (Clifford Harris Jr.) have preemptively sued Marvin Gaye’s family over the track “Blurred Lines”, a relative new comer to the pop-music scene and already placing number one on the U.S. Billboard top charts list (if anyone is off-put by my unfamiliarity with hip hop music, please forgive me as I just don’t “roll” with hip hop or pop music, as it were). Marvin Gays’s family was originally threatening litigation against Robin Thicke and Pharrell Williams to secure financial compensation for T.I.’s inclusion of elements of Marvin Gaye’s well-known tracks “Got To Give It Up” and “Sexy Ways”. Now there is word that Thicke and Williams offered Marvin Gaye’s family a very cool six-figure cash settlement offer to make the case go away, but to no success. So Thicke and Williams filed the lawsuit.

Why is Marvin Gaye being sued, you might ask, when his song was copied by someone else? Good question. It is actually a relatively common strategic move that many copyright infringers pull in order to put themselves in a more favorable venue, and it is also a way for T.I. to set the table for the lawsuit. For example, they will get to argue that  Marvin Gaye’s claim is really to a particular genre and not specific melodies or lyrics in a song (which is what copyright truly protects).

In their suit against Marvin Gaye’s family, Thicke and Williams are claiming that Gaye’s copyright claim in “Got To Give It Up” is just too funky (I mean not exactly valid), because what Gaye is claiming a right to is actually a genre or a particular sound. As the argument goes, copyright doesn’t extend to entire genres. Rather, copyright only protects the particular composition of music, lyrics, and the sound recording itself because to allow one artist to exclude everybody else from writing or performing any other songs following a particular genre is just too extreme. Also, Thicke and Williams argue that simply because “Blurred Lines” brings to mind another song or even a sound is no reason for a song to be found infringing. 

So who has a more viable claim in this case? Copyright law gives a copyright owner the exclusive right to reproduce their work and make derivative works (which is a fancy word for other works that are based on the original work). This means that other people cannot copy any portion of the copyright owners’ work without permission of the copyright owner. The easiest way to prove that a work was copied is that the infringer admits to the evil deed. But how often does that happen? More then you might think, especially given the tendency of some musical artists (as the free spirits that they are) to talk a little too much.

Take the case of Thicke and Williams. In a recent GQ interview, Thicke explained the motivation behind making “Blurred Lines”:

With that kind of an admission, a court’s job may be relatively easy in determining that Thicke and Williams copied Gaye. Even from a cursory listen through both songs, it is relatively simple to identify the similarities both in the rhythms, note progression, and use of short clips (what is referred to as “sampling” in the music industry) by “Blurred Lines”, borrowed from “Got To Give It Up”. Even if what Thicke and Williams claims to have copied is deemed a “groove”, the arrangement of the groove with certain sound elements could be enough to show substantial similarity. Two songs need not be identical in order for a later song to be found infringing.

Perhaps Thicke and Williams really just want to lay a fine line between copying and inspiration. After all, it isn’t necessarily copyright infringement if an artist is inspired by an earlier song, especially if the later artists’ inspiration has more to do with the genre than the particular song. Unfortunately for Thicke and Williams, the line between copying inspiration in this case is, might I say, somewhat blurry.