Hey everyone! I thought I’d mix things up a little bit on Etsy Stalkers and introduce you to Michael Prywes from Prywes Schwarz, PLLC. Who is this Michael you ask? He’s an attorney dedicated to helping others start and run their own businesses. And he has a creative background. And he’s an all-around good guy who has some amazing tips to share with Etsy shop owners.
So without further ado, I bring to an article that actually contains actionable information…
The short answer? Because they can. You may have heard that Etsy sellers have been sent “Cease and Desist” letters for incorporating Taylor Swift’s lyrics, or that an entrepreneur sculpting a 3-D likeness of the “Left Shark” from Katy Perry’s Super Bowl performance has been accused of copyright infringement. But, really, why go after the “little guy?”
Even if musicians and other entertainers make a lot of money, they often see legal fees as the cost of doing business in a “360 degree” world. They want to make more money and may not want their personal brands co-opted by strangers. But intellectual property law–copyright, trademark, patent, and licensing–is complicated, and small business startups are often surprised when they hear from lawyers from other parts of the country. There are a few issues in intellectual property law that have made small businesses ripe for C&D letters and actual litigation (lawsuits) from entertainers.
The Rules for Copyright, Trademark, and Patent Differ
It seems everywhere you look, big name artists are embroiled in litigation or some sort of legal dispute. Most of these battles settle before trial, so the outcome rarely affects “case law.” However, a disturbing trend of late is the tendency of lawyers to try to make trademark out of copyright cases, copyright out of patent cases, and generaly shoehorn one type of law into another. For instance, Taylor Swift is making claims for trademark infringement of lyrics. To try to make sense of this, let’s take one of her big hits “Shake It Off.” Now, it would be impossible for Ms. Swift to claim she created the phrase “shake it off,” so she would find no refuge in copyright law. But she may claim that the phrase has become so distinctively associated with her song–maybe even has acquired “secondary meaning”–and she may use the phrase in commerce.
Related: Don’t Get Crushed By a Cease-and-Desist Letter
Trademark law requires quick response from the holders of trademark, as a failure to oppose someone else’s use of the mark (name, design, or phrase) may be seen as a tacit surrender of any claim to the mark. Trademark law is meant to be a battleground; it often becomes an area where the deep-pocketed claimant can attempt to shut down the poorer defendant. One recent example is the letter clothing entrepreneurs received from a lawyer for Seattle’s Space Needle, claiming trademark infringement for a black-and-white drawing of the Space Needle from a photo taken by one of the entrepreneurs. The idea that the owner of a building can claim a monopoly on the use of any image of that building may be anathema to creativity and innovation, but a successful defense would not be a slam dunk for a tiny retail business and is often just not worth it. A cease and desist letter for trademark infringement can be written for next to nothing, yet forces a small business into submission if it doesn’t know how to fight back.
On the other hand, lawyers sometimes try to force a square trademark or patent peg into the round hole of copyright. Copyright law is old, in need of serious updating, and comes with riders such as the Digital Millenium Copyright Act (DMCA) that can sometimes do more harm than good. Because Katy Perry and the NFL likely did not anticipate the meme of the “Left Shark,” it had not registered the Left Shark with the United States Patent and Trademark Office (USPTO). Since a creative work’s copyright begins at the moment of creation, a copyright cease and desist was sent instead. However, it does not sound like a valid claim, because the costume was not created by Katy Perry, and the sculptor selling the shark has not copied the creative expression of the Left Shark’s Super Bowl performance.
IP Law Evolves and Becomes More Difficult to Navigate
But why are lawyers using different forms of IP law to go after unsuspecting defendants? For one thing, IP law is constantly being reshaped and re-defined by the dizzying progress of technology. Google has found itself a defendant in two lawsuits that demonstrate the apparent uncertainty of copyright law: one by an actress who sent a DMCA takedown notice for film in which she appeared, claiming she had a moral right to her performance, and another by tech titan Oracle, which claimed copyright in Android source code (usually, software disputes are fought in patent court). The DMCA is likely to be overhauled. If case law is not settled as to whether an actress can claim copyright for her own performance in another person’s film and a computer company can claim that source code is a creative work, creative lawyers can find multiple opportunities and causes of action to extract money from businesses.
Music Contracts and Royalties Schemes Have Changed
In fact, the Copyright Office is aware of all of the changes technology brings to the world of music and has recently issued a 2015 report on Music and Copyright. The report, a massive 200+ page tome, acknowledges the challenges and changes of the music landscape, including the distribution of royalties to the indie artist. However, even though royalties schemes and copyright law are due for overhaul, indie labels, musicians, and agents are more likely to be focused on the fundamental and practical realities of the music business: now, more than ever, the music business is not about the music. It’s about the whole package.
Just as theatrical distribution of film is a loss leader for DVD, digital, and merchandising, a song is just the beginning of an entire branding blitz. For instance, artist management contracts and music contracts often involve a “360 deal” or “multiple rights deal” which gives music labels profit participation in all aspects of an artist’s income, not just income from recordings. While we may not be privy to the particulars of their different relationships and contracts, and the 360 deal may not be applicable in these situations, you can be sure the lawyers for celebrities such as Perry and Swift recognize that the brand is so much bigger than the music. However, as a practical matter, cultivating goodwill is also a part of their brand, and if a little entrepreneur makes big waves in the press and social media, celebrities may back down. A good lawyer knows the law AND practical consequences in the “real world.”
Sometimes, when a company or celebrity is powerful enough, a simple letter is all that is necessary to destroy the creative impulse. In the end, a small business can successfully fight cease and desist, but would be wise to investigate potential intellectual property pitfalls before making rash responses to the war drums of “Big Law.”
Related: Music Copyright, Trademark, First Amendment Legal Lessons Startup Labels and Musicians Can Learn from Disney, deadmau5, WuTang, and Pharrell
Note: The embedded images are screenshots taken from the websites Etsy.com and Thingiverse.com.