Owners of registered trademarks targeted for deceptive notices

Do you have a trademark or service mark registered with the United States Patent and Trademark Office (USPTO)? If you do, chances are you have received, or will recieve, a “notice” or “notification” from one or more private businesses trying to get you to send them money for a variety of registration services. While the fine print usually contains a disclaimer of any government affiliation, the notices are designed to look like official government documents that require an immediate response (along with payment of a fee).

An outfit calling itself the “United State Trademark Registration Office” (USTRO) has particularly deceptive notices. The following notice promises to record your trademark with U.S. Customs and Border Protection (USCBP):

USTRO Deceptive Notice

The Notice looks like an invoice, and includes the phrases “FEE $375.00″, “NOW DUE,” “DETACH AND MAIL YOUR STUB WITH THIS PAYMENT,” and “Please Remember to Enclose Your Payment.”

The notice is really an offer to record a trademark registration with the USCBP. Some mark owners may benefit from recording their registration with the USCBP, but such recordation is not required to maintain the registration and you do not need to hire a company that engages in deceptive marketing to record your mark. Recording your mark with the USCBP can be accomplished at this site: https://apps.cbp.gov/e-recordations/. The Customs Office fee is $190. If you are unsure whether such a recordation would be helpful, contact a trusted attorney to find out.

Notices from a company calling itself the “U.S. Trademark Compliance Service,” (USTCS) are slightly less deceptive than those from the USTRO. The following is an example of a renewal notice:

USTCS Renewal “Notice”

This notice also looks like it is from an official government agency and appears to be an invoice. It has more warnings and disclaimers than the USTRO notices, such as stating under the fee amount ($475.00) that “this is not an invoice.” The USTCS notice contains accurate information about trademark renewal and affidavit of use filing requirements  and offers to perform those maintenance filings for a fee. As with USTRO, I have no knowledge of their record of performing those services.

If you get one of these notices, consider contacting the attorney who performed your original trademark application (or another trusted attorney) to see if your mark registration requires any action.

Much Ado About Sidereus

What do slavery, denying women the right to vote, and musical borrowing have in common? They all existed in the eighteenth century. Why is that relevant? I’m not sure, but it appears that Register-Guard reporter Bob Keefer thinks it is to show us that musical borrowing is very bad. In his commentary printed today, he asks “where’s the outrage” regarding the fact that Osvaldo Golijov used large portions of a pre-existing work to compose “Sidereus,” a work commissioned by the Eugene Symphony.

His commentary sheds no new light on the issue, and is merely repeating the facts and arguments made (by others) in his earlier articles. But he remains unsatisfied with responses by the Eugene Symphony and other orchestras that commissioned the work because they find no problem with the piece and the borrowing and do not want to engage in a discussion about the issue. How this “silence,” according to Keefer, makes classical music “stuffy” is unclear.

In any event, I think the reticence by these orchestras to discuss the matter may have something to do with the tone of Mr. Keefer’s original articles and the outrage of the critics he channeled in those article (see my earlier blog entries for details). Can we have a constructive dialog about musical borrowing and the nature of the creative process in the twenty first century? I think we can, but perhaps not in the context of this current “controversy.” For now, I think we should continue to be thankful for, and enjoy, the incredible performances that the Eugene Symphony brings to our humble city.

Everything Is a Remix – Great Series of video shorts about the history of copying

Everything Is a Remix is an impressive series of four video shorts by filmmaker Kirby Ferguson, examining the nature of the creative process, copying, and the implications of our laws on this creative process.

Some of legal information is oversimplified (e.g., copyright does not protect ideas but only the expression of ideas, and ideas are still generally free for copying unless that idea is the subject of a patent or trade secret), but his explanation of the history of intellectual property law, its purposes, and the current state of affairs in the intellectual property law field are spot on.

There is a lot of good stuff here. Ferguson obviously spent a great deal of time compiling examples of copying of ideas and content in the realms of music, film, and computers. The result is a high quality work that hangs together nicely as a compelling story.

While much of this is not new, I find intriguing his proposition that loss aversion is the root of greater and greater intellectual property protection. Recommended viewing for anyone interested in copyright and the creative process!

Borrowing, stealing, and great composers

Lesser artists borrow, great artists steal.”  -Igor Stravinsky

The Register Guard (R-G) had another story about Osvaldo Golijov in yesterday morning’s paper (Tuesday, February 21, 2012). This story raised questions about a prior Golijov composition, but also confirmed my speculation that the composer (Michael Ward-Bergeman) whose melody was the basis for Golijov’s recently performed “Sidereus” did have a clear agreement with Golijov about using Ward-Bergeman’s “Barbeich.” Even with this clear statement, the R-G reporter continues to try to find sometime wrong with Golijov’s borrowing: “Ward-Bergeman’s explanation raises the question of whether Golijov . . . essentially hired another composer’s music for “Sidereus.” Since Golijov publicly gave credit and Ward-Bergeman’s “Barbeich” piece is free for anyone to hear, he was certainly not duping those who commissioned the work. And, by all accounts, there has been much praise of both Barbeich and Sidereus. So what is the problem?

This obsession with musical borrowing as “theft,” “stealing,” or being otherwise unethical or wrong is one implication of the trend beginning in the late eighteenth century of what has been described as the notion of the “romantic author” that rewards only the creation of completely original works by a single person and discounts or punishes any creative process that deviates from this (arguably unobtainable) ideal. As discussed in my previous post, before this trend gradually became the new orthodoxy, sharing was prevalent in the European classical music tradition and was not merely incidental to the development of this form of music, but an integral part of it. For instance, Handel borrowed from just about everyone and many borrowed from Handel, including Beethoven, Brahms, and even the twentieth century composer Arnold Schoenberg. The simple fact is that the masterpieces of Western classical music would not exist without the rather large amounts of appropriation and borrowing that occurred.

A particular event surrounding Handel’s “Messiah,” nicely illustrates the tradition of borrowing and modern critics’ misplaced faith in the orthodoxy of the romantic author. In 2009, music critic Tom Manoff (Golijov’s most vocal critic of his “Sidereus” piece), despite his protestations of not being a “stuffed shirt about classical music tradition,” panned a re-write of the Messiah commissioned by the Oregon Bach Festival that year. Any such re-write, according to Manoff, would need to be “respectable” or “serious.” Finding the melodies in the rewrite lacking, Manoff opines that, “[o]ne remembers here that Handel was an extraordinary genius with melody.” This is a perfect example of placing the composer on the astronomically high pedestal of the romantic author. Not only is Handel a genius, but an extraordinary one that a modern composer can’t come close to in “respectability” and “seriousness” (here read as “originality”). Except that one of the melodies Manoff refers to could be contained in the portion of the work that starts with “Let All the Angels of God,” which Handel lifted from Viennese organist and composer Johann Caspar Kerll. Or perhaps the melody of which Mr. Manoff speaks is the famous halleluiah chorus, likely lifted by Handel from a different contemporary of his,  composer Arcangelo Corelli. These observations are not meant to diminish Handel’s stature and importance, but to acknowledge the long tradition of musical borrowing and to honor that tradition.

Despite the dominance of the romantic author regime, the last 200 years have seen many examples of borrowing and copying in creative expression, including appropriation artists like Andy Warhol, sampling in hip-hop recordings, and the current mash-ups we see on YouTube every day. Indeed some of the most important art ever created has been the result of borrowing and copying and interactions among various artists, including whole genres like hip hop and the blues, or particular styles like the cubism paintings of Picasso and Braque. Consider Warhol’s pop art works “Marilyn,” “Liz,” and “Elvis,” that were all based on preexisting photos for which no credit was given, or perhaps more similar to the current Golijov “controversy” the incredible similarities between Picasso and Braque’s cubist works. Some of their paintings are nearly identical.

It is unclear why rules and norms against copying music now appear to be stricter than those against copying visual art. Especially given the fact that (at least within Western classical and popular music) composers are constrained by the use of only the 12 notes of the chromatic scale when visual artists have an almost limitless range of subjects, possible lines, shapes, motifs, millions of colors and an incredible variety of media with which to work.

One can argue that works that are the result of such copying are not as good as, or do not deserve as much credit as, supposed purely original works. But this is not about copyright infringement because use of the pre-existing work was authorized and it is not about plagiarism because the pre-existing work was attributed to its composer.

I opened this blog post with a Stravinsky quote acknowledging that great composers borrow as a matter of course.  I end it with a quote about the nature of classical music and our approach to it, as a society:

“The trouble with music appreciation in general is that people are taught to have too much respect for music they should be taught to love it instead.” -Igor Stravinsky.

Let’s spend more time learning to love music and less time making up rules about what is “respectable” and “serious” based on outdated notions of sharing, borrowing, and attribution.

For more information, see this fascinating presentation about musical borrowing by Duke Music Professor Anthony Kelley: http://youtu.be/EQdoByYgQzg; and other general information on the public domain and traditions of sharing can be found at Duke Law School’s Center for the Public Domain, here: http://www.law.duke.edu/cspd/.

Obsessed with theft

The top story on the front page of Eugene Oregon’s Register-Guard this morning, Composer’s originality questioned by critics, reports about concerns of two classical music professionals that Osvaldo Golijov’s 2010 work “Sidereus,” is too similar to Michael Ward-Bergeman’s 2009 work, “Barbeich.”  The print version begins with a quote from UO Music Professor Brian McWhorter: “Oh my God, it was like verbatim. … What I worry about is the credit.”  I had to read to the fifth paragraph and turn the paper to page A6 to find out that Ward-Bergeman was credited. Apparently what McWhorter took issue with was the fact that Ward-Bergeman was given credit only for the melody, but according to McWhorter, Golijov used much more than the melody.  I had to finish reading the article to learn that other music professionals who have intimate knowledge of the work (Sidereus), and the development of the work, have no problem with the situation.  I also learned that the R-G reporter could not reach either composer for comment.

Why was this front page news? Given the fact that the composers have apparently been close friends, colleagues, and collaborators for years, isn’t it likely that they agreed on the nature of the attribution that Ward-Bergeman would receive? If there was such an agreement, why is this an issue at all? Why couldn’t the R-G wait to hear from the composers before printing the article – or deciding whether to print it at all?

For Tom Manoff, a National Public Radio classical music critic, this situation reflects nothing less than “the general decline of the classical musical culture.” On the contrary, Manoff’s comment, the prominent placement of the article, and the content therein all reflect the obsession by the media and others with “theft” of creative works and misunderstanding the nature and history of the creative process.  To be sure, issues of copying and attribution are not simple, and authors, composers and other creators deserve credit and rewards for their work.  But we need to acknowledge the costs of a regime that requires strict personal, original authorship. There is a history of borrowing in music from blues musicians in the American South to the European classical masters that was not just incidental to those forms of music, but integral to their development.  This history is illustrated (literally) in “Theft: A History of Musical Borrowing from Plato to Hip Hop.” Although you can view portions of the work, publication of the finished product has been postponed due to the untimely death of one of the co-authors and illustrator of the work, Keith Aoki.  I’ve been told that the other co-authors, James Boyle and Jennifer Jenkins plan to find a way to complete it.

What the RIAA Won’t Tell You

Some thoughts on this opinion piece in the NYTimes:  What Wikipedia Won’t Tell You – NYTimes.com.

The CEO of the RIAA who penned this opinion piece won’t tell you that: 1) the Congressional sponsors of PIPA and SOPA were top recipients of campaign contributions from the TV/movie/music industry, 2) that whole domains could be shut down for any amount of infringement (but the RIAA doesn’t count that as “censorship”), and 3) the RIAA and other content owners industry leaders (e.g. MPAA) have for years used secret backroom negotiations to enact international agreements that force Congress to do their bidding (e.g., the Digital Millennium Copyright Act of 1998 implemented two 1996 WIPO treaties – and the newer ACTA treaty was the result of backroom negotiations). Who is abusing trust and misusing power?

 

Know your rights and get them in writing ahead of time – “Friday” video cautionary tale

The popular “Friday” music video, produced by ARK Music Factory and sung by Rebecca Black, was removed from YouTube apparently as part of a dispute regarding the rights to the video.  It is unclear whether Ms. Black or her mother signed any sort of contract with ARK, but if something was signed, it appears that it was not clear about ownership of the various rights involved in such a project.  Whether you think ARK is unfairly exploiting Black or that Black is asking for more than she paid for, one thing is clear: Both parties would have benefited from a clear contract at the outset of their relationship.

If you put time, energy or money into any kind of creative project (e.g. writing, painting and other graphic arts, video, music), it is important to know your rights and to know your options for using, licensing or selling those rights.  Rights of Publicity, Copyright and Trademarks are just a few areas to consider and each of these has very different rules regarding what is protected, how it is protected and how rights are transferred or licensed.  Make sure you know your rights before collaborating with anyone on creative works.

Tattoo artist sues makers of Hangover 2 for copyright infringement

See the ABC Story here.  Moral of the story?  If you get a tattoo, negotiate a copyright assignment or license – especially if you work in the entertainment industry!

Copyright law impedes access to archive of 1930s Jazz Recordings

This story is another example of the failure of current copyright law in the United States to produce one of its primary objectives: “the creation and dissemination of information.”  See Eldred v. Ashcroft, 537 US 186, 244 (2003) (J. Breyer dissenting); See also Harper and Row v. Nation Enterprises, 471 US 539, 558 (1985).  While the Supreme Court, in Eldred, has larger washed its hands of enforcing this constitutional objective, we should hold Congress and the President to their constitutional duty.  Here’s hoping another Orphan Works bill (like the Shawn Bentley Orphan Works Act of 2008) is timely introduced, passes both houses and is signed into law.

FCC adopts “traffic rules.”

The FCC adopted rules many are dubbing Internet “traffic rules.”  This term is appropriate because it falls far short of mandating net neutrality.  According to news stories, the new rules would merely ban Internet providers from completely blocking content, but would allow them to discriminate among traffic depending on the type of traffic and who was providing the content.  Even these tepid rules are expected to be challenged in court, given many Republican’s resistance to any regulation of the Internet and given prior successful attempts to limit the FCC’s authority to regulate the Internet.

With Republicans in control of the House, it is highly unlikely that Congress will act with regard to net neutrality any time within the next couple of years.  Ultimately, however, Congress should set rules for net neutrality so that all providers and consumers have some certainty with regard to providing Internet services.  Ideally these laws will provide for strong net neutrality principles.  It is time for all to recognize that 1) the Internet is regulated via ICANN, and other organizations (mostly standards-setting bodies) and that 2) the Internet is and should remain a public resource.  No one person, country, company, or other entity owns the Internet, and no person, country, company, or other entity should be allowed to create a filter or bottleneck or any other obstacle to full access to the Internet based on monopoly or other coercive power.

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