Henry goes a-hunting - again...

[Dave W]

fantastic video, Dave.  And IMO it makes a point to the absurdity of the recent copyright rulings. Many, many things are similar. Inspiration isn't always free form, and to me, if it's a distinct new piece of music I'm happy to consider it new. I don't care if it gets two measures of beat from X or a few notes from Y.

Now can we argue about whether sampling three notes from another piece of music, stretching them out, changing their pitch and playing them backwards is infringement?   

Excellent article by Mike Masnick here Years Of Brainwashing The Public Into Thinking Everything Creative Must Be 'Owned' Has Led To This New Mess

[Pilgrim]

Nice article!

"Joe Escalante, an early member of the Vandals punk rock band and an entertainment law attorney, said he was concerned that the jury's decision had been driven by emotion rather than what's protected under copyright law.

"This may put a smile on the Gaye family's face, but it's a dark day for creativity, and in the end, this will be a net loss for music fans," he said. "Good news for lawyers and the bitter everywhere."

That's it in a nutshell.  Just because a lawyer figures out a way to make something happen does NOT mean that it's a good idea, good precedent, or a positive societal development.

[nofi]

bob hite of canned heat was singing and recording the phrase "let's get it on" many years before marvin gaye's song came along.

[westen44]

bob hite of canned heat was singing and recording the phrase "let's get it on" many years before marvin gaye's song came along.

If the Bob Hite Estate sued the Marvin Gaye Estate and won then, it would be poetic justice as its finest. 

[Granny Gremlin]

When the government grants you an exclusive right to anything marketable, whether it covers a general area or a specific product or service, that's a monopoly by definition. No ifs, ands or buts about it.  You can play devil's advocate all you want and we can debate whether or not a monopoly is desirable, but a trademark is as true a monopoly as any other.

You are stretching the defenition of monopoly.  Monopolies are only meaningful when they apply to an entire class of product or service vs a singular option within such a class.

So a TM on the LP guitar is not a true monopoly because there are other products that are similar enough to be direct substitutes (some even superior).  Gibson cannot just raise the price on an LP indefinitely (as a true monopoly could - that is the argument against them) because then folks will just go buy any other solidbodies with dual humbuckers instead and they would lose sales/market share. Further, it cannot be a true monopoly because consumers can still DIY an actual LP legally (have one built if they don't have the skill/time) - since there are substitutes and alternative sources this fails to pass the test of a monopoly. I am certainly no fan of monopolies (or even oligopolies).

You also fail to address the point I made as regards the Anderson being more than just a copy of the shape vs the Dano (which severely weakens your point about monopoly and stifling advancement of the art). The Anderson doesn't advance the art at all; the Dano does.

Sure, Gibson was a bunch of jerks to App, but look at those guitars.  The shape is similar (NOT identical) yes, and he did innovate the solid body (he should have patented it before he showed it to Gibson, or registered his own IP of any sort that applied - Fender and indeed all other makers of the time, benefitted from App's innovation too), but other than that (and the headstock) it looks nothing like a Les Paul - no carved top, no tuneomatic w stop tail, no dual humbuckers, no top upper bout switch and the horn isn't even pointy.  The Anderson is actually a near-exact copy, with just the minimal amount of changes (Anderson ADMITS THIS!) so as to avoid suit (or so he thought; he underestimated).  If I were a Gibson lawyer I would present that quote in court (it was in one of your original links, to his forum IIRC) because it is pretty much case closed right there; proof of intent.

You can't possibly be making the argument that because one company understands the law and is able to take advantage of it with people who don't even try to protect themselves (I'm not a lawyer but yet I have at least a basic understanding of protections that exist - that is no excuse for Appleton's loss - if I had something to protect I would find out more; do my homework and cover my ass), as a reason to completely eliminate the law.  That is unfair in the opposite direction to the one you are complaining about.  I sympathise with Appleton; he acted on good faith and assumed Gibson to be honourable, but he didn't do his due dilligence - he could have been protected.

Note the purpose: To promote the Progress of Science and useful Arts. Not a word about profiteering by permanently keeping others from the market.

Yes.  It is odd because I am usually the one bringing this point up to other people, but I do not believe that the progress of the art is being impeded here (and in fact I brought this up already).  Your use of economic terms such as monopoly and market is very incorrect.  The market is electric guitars (maybe solidbody electric guitars), not Les Pauls.  The desirability of an LP (vs any other electric) is down, purely and exclusively, to branding and marketing; if Les Pauls did not exist, we'd still have rock n roll.  This would not be the case with a monopoly.

It's like the pushback on Citizen's United (and similar) laws where the folks argue to codify that corporations are not legal persons.  This is a very bad argument/solution (even though I agree that CT is a very bad thing as well).  I don't want to get into it due to tangent/politics, but if corporations are not considered legal persons then they cannot be held legally accountable (you wouldn't be able to sue one for example). The solution is, in part, to clarify that there is actually no such thing as "Constitutional Rights" but only natural rights, which corporations do not have, that are protected and codified by The Constitution. A better explanation of that by experts here: http://www.democracynow.org/2015/3/13/should_mcdonalds_monsanto_have_the_same

I disagree with your argument about locking down various TV shapes if invented today because flatscreens and tablet computers all look pretty much the same (tablets especially).... I disagree that this is merely about shape at all actually (again, looking at the Dano), this is about all the elements that make a Les Paul a Les Paul, and not just the shape.

[Dave W]

Jake, leave it to you to beat it to death. You can define things the way you want in your own mind, but in the real world, monopoly has a definite meaning.

Guitars are functional articles. You can't trademark function but (unfortunately IMHO) you can trademark design elements that set it apart in appearance if they have "acquired distinctiveness". The same test applies to furniture design, and it would have applied to TV cabinets if it had been part of the law back then. It wasn't part of US law until 1988.

Gibson and Rickenbacker trademarked their body shapes in the 90s when other manufacturers weren't paying attention. When Fender tried, starting about 10 years ago, there was such an uproar that a group of other builders got together and blocked it.  And yet Fender seems to be doing quite well in sales despite all the debt they took on in acquisitions. It's possible that Gibson's trademarks could be voided because copies had already been on the market for years, but at this point it would take $1 million plus in legal costs, including appeals, to try, and victory wouldn't be easy.

[uwe]

I don't see why, just because Fender were slow, Rickenbacker and Gibson now have to surrender their grip on their iconic shapes too? I'm quite happy that not every Far-Eastern knock-off bass can pretend to look like a TBird (unless it is from Epiphone of course!) or a 4001/4003. Danke schön, Gibson and Ric, for retaining at least a semblance of individuality with your products. Monopolize all you want. I don't want to live in Dave's design-trademark-free world swamped with wannabe Rics and Donnervögel.

I'd be playing a (boutique) P Bass if I wanted to look like everyone else. I've just discovered my elitist love for trademarks. And Henry J has preserved a part of my individuality, who'd have thought that about the ole wood smuggler. 

[Dave W]

Then you must like trademark bullies like Rickenbacker, who make claims that would never hold up in court because they know their victims don't have the money to fight it.

[drbassman]

I'm sure glad Henry Ford didn't get trademark rights to shapes like the automobile wheel, 4 doors, a hood and a trunk!

[Pilgrim]

Not to mention the steering wheel!

[drbassman]

Not to mention the steering wheel!

For sure, or we'd all be driving cars with square ones!   

[Granny Gremlin]

Jake, leave it to you to beat it to death. You can define things the way you want in your own mind, but in the real world, monopoly has a definite meaning.

That's what I am saying -  you don't know what that real meaning is.  You are using the term much too loosely, this is fine in a colloquial board game sense, but not in the proper economic sense.  I have outlined this (I didn't make that up; I studied economics) and you ignored it . 

It may not be a good thing, and it may be a relatively new development, but that has nothing to do with your thesis.  You are being dismissive, following it up with a brand new terrible argument (such as the following steaming pile I will dissect) - this is what politicians do, and it's, IMHO, a major problem for society.  You have dropped a buzzword that you expect to ellicit an emotional reaction from the audience (Yeah, monopolies are bad!) which it did, but this word is not appropriate.  My intention here is to fight what I see as the epidemic of bad reasoning everywhere in society, you just happen to be carrying the torch for it at the moment.

you can trademark design elements that set it apart in appearance if they have "acquired distinctiveness". The same test applies to furniture design, and it would have applied to TV cabinets if it had been part of the law back then. It wasn't part of US law until 1988.

This boils down to "change is bad" which, come on Dave, you know is bullshit.  This change may have been bad (that is the argument we are having) but if it is bad, it is not bad because it is a change.  That is non sequitor and circular argument.  In fact, lets go look at some other legal changes from 1988... oh look, there's The Civil Rights Restoration Act.  I'm not saying all legal changes are good, mind you, just that the fact that something is a change has no bearing on whether it is good or bad. Sometimes we actually have progress.

Seriously, don't spout such malarky, it insults us and it insults yourself to behave like a common politician ignorant of the rules of rhetoric.  You can disagree with me if you want, and I can leave it at that, but I cannot let such logical fallacy slide, especially when I see the peanut gallery pip pip along to you with horrible automobile analogies (horse drawn carriages had doors, sometimes 4, and trunks too dammit... also not all steering wheels are round, and in any case, they are FUNCTIONAL devices, vs the shape of a guitar).  Construct a proper argument.  The problem with discourse and debate in society today (leading to the various needless divisions and zealous factioning we have) is exactly the sort of thing you are demonstrating here.  Sure, doing it properly takes time and effort- if you don't think it's worth it, or can't be bothered, then just don't. You can state your opinion without defense and it will stand as your opinion, to which you are entitled; nobody will argue.

[uwe]

  Entertaining as this is to read, I would appreciate it if you two - bearing in mind that you are both smart men - would now not try to assassinate each other over how the term monopoly should be used in a bass forum and whether intellectual property is a good thing or not. It's certainly one thing: very human - as the history of hiding knowledge from others and not being willing to share it (be it the druids and their alchemy or the Catholic Church) shows. And I don't think that a credible case can be made that absence of intellectual property has a track record of bolstering civilisation, never mind how that is unpopular to say in current discussions driven by the internet-fuelled desire how everything should be free. There is even a theory that Islamic Empires of the past fell behind the West for their lack of having a real concept of intellectual property. Whether trademarked Thunderbird shapes would have helped their cause is another matter though.

[Granny Gremlin]

Fair enough, I am done as I think I made my point clear.

I was just coming back here to say that despite how that last post may sound (depending on one's reading) I do respect Dave (and all fellow posters here really) as intelligent people whose opinions and knowledge on many things I value greatly. 

[uwe]

Dave doesn't like trademarks and Deep Purple, no matter what credible arguments you bring against his erring views. 

Trademarked or copyrighted Deep Purple would probably be his worst nightmare: