On a recent episode of America’s Got Talent, a young man performed a very clever rendition of Ozzy Osbourne’s Crazy Train on an instrument he and his father had built at home. It was a sort-of xylophone made of PVC pipes cut and arranged to produce different notes when struck with a device reminiscent of a ping-pong paddle.
The problem I noticed with this is that, but for the way the young man’s instrument was painted, it could have come directly from the stage of any Blue Man Group theater in any city in which they have an engagement. Reference this: BMG Instrument. Clearly the kid and his dad are ripping off BMG. In fact, if I were in any way employed by the Blue Man Group’s parent company, I’d be contacting our Legal Department right about now.
The General Question is, would I have a case? I know that legally I can sue anyone for anything, but what I’m asking is if this case has any merit. In a general sense, do any intellectual property laws come into play in this situation?
If the BMG had a patent on such an instrument perhaps, although I’m not too sure whether patent would come into play if the other group don’t actually build these instruments to sell.
PVC instruments are nothing new. If BMG was the first to widely use or popularize them I didn’t know it. Pretty much since that pipe came out people have been using it for all sorts of musical creations.
If they started touring, called the instrument a Tubulum or a Drumbone and hooked it up to a MIDI controller, BMG would probably have reasons to object, but as noted above, acoustic PVC instruments are not terribly new.
BMG. I saw this and immediately thought Bertelsmann Music Group (now folded into Sony Music). Now they would claim IP on anything and everything they could, and a lot they couldn’t.
Obigligatory IANAL.
They will own the rights to the name “The Blue Man”, Tubulum, Drumbone, and maybe some others, through trademarks. They own the copyright to their own compositions, and they own the copyright to recordings of those performances. They would probably be able to sue if there was some reasonable confusion that the kid and his father were actually associated with BMG. If the kid went on tour and called himself the green man he might have problems. (Unless he was sending BMG up, in which case he would probably be fine.)
Beyond that, nope. BMG didn’t invent PVC drums, they didn’t invent MIDI, and they most certainly didn’t invent the basic idea of their shows - which owes a great deal to Eastern drum performances.
This would be like Andre Rieu suing some kid for playing a waltz with a violin.
There are three very distinct legal entities encompassed under the rather silly umbrella of “intellectual property”. Two of them are, in fact, primarily property rights, and one is a consumer protection law that gets confused for a property right.
The most familiar is copyright law, which exists to turn specific creative works fixed in tangible form into defensible pieces of property for limited amounts of time in a limited fashion. The only thing the BMG would have copyright over would be specific musical works (specifically, sheet music and audio and video recordings) and the choreography behind their dances.
The next most familiar is patent law, which exists to turn novel and non-obvious ideas into defensible pieces of property for limited amounts of time in a limited fashion, in exchange for those ideas becoming publicly known. The BMG may well have patented some of their instruments, in which case they could indeed prevent anyone else from using them commercially, even if the other person invented them independently.
The last (that I’ll go into) is trademark law, which exists to protect customers by making some kinds of fraud impossible by protecting the look and logos of a product on the market for a potentially unlimited amount of time but in a very limited fashion. Trademark law exists to keep customers from being confused into buying an inferior product instead of the superior one they think they’re getting. Thus, there is no time limit involved, as there is with patents and copyrights: A trademark can last as long as someone is using and defending it. However, its scope is very narrow, only applying to a single field of endeavor. The BMG may, for example, own a specific shade of blue, but only in relation to musical performances. Trying to create the Indigo Fellas Collective to make raucous and exciting tribal drum and synth music would thus be very unwise, but a Blue Man Group that fixed cars would very likely be safe.
So, the drumbone may be patented, if the BMG was able to convince the US Patent and Trademark Office (or the equivalent where they’re from) that it was both novel and non-obvious at the time they filed the patent and assuming the patent hasn’t expired yet. In that case, yes, they could take a shit on that kid’s head. However, I really don’t see how either copyright law or trademark law come into play at all.
Just copying a PVC instrument isn’t going to get you in trouble. However, Blue Man Group does use Crazy Train as part of their act.
If you built a PVC instrument and played Crazy Train without giving Ozzy and Blue Man Group credit you might get yourself into trouble.
That said, people do cover songs on America’s Got Talent all the time. I don’t see where this is any different than someone singing a cover song by another artist. I’m sure the show takes care of all of the necessary legal and financial issues.
Typically, for a simple cover, doing deals with ASCAP, BMI, and SESAC will get you the ability to do every song anyone’s ever heard of or cares about. In fact, there’s a simple, standard, flat-fee deal you can make with each of those that would allow your nightclub or radio station to perform everything in their respective catalogs.
Anyway, my point is that licensing isn’t difficult and there are, in fact, companies established to make it as painless as possible.
If the performance was in any way similar enough to make people think “this must be a BMG show” then they would have a case under trademark. Unless the guy was bald, acted robotic and made as much of a show out the setup and performance as he did with the musical performance itself, and was a colour other than his normal skin, so as to confuse people - not likely.
Unless BMG or someone has patented using PVC tubing in specific format for musical instruments, they can’t sue about the instrument. I have trouble imagining it is in any way sufficiently new. If the “look” of the instrument is close enough to what they’ve made famous they might again have a trademark case, but I suspect if the shape is pretty obvious - “it’s too long to hang down, so it has to bend out and forward” BMG wouldn’t win.
As for the songs - unless BMG has their own music or arrangement - it’s copyright by Ozzy and his label.
I don’t think PVC instruments pass the notability threshhold for patents. Certainly not for copyright. Maybe trademark.
Specific color schemes can sometimes be trademarked.
Anyone who uses the phrase “ripping off” should be banned from any discussion about intellectual property on the grounds that the phrase itself is beyond cliché and therefore violates the spirit of creativity, and also on the ground that it simplifies the issues so much as to make them meaningless.
Maybe trademark. I don’t think the run of the mill DIY instrument manages to pass the ‘novel’ obstacle of patents unless it involves a really clever improvement. While the specific songs made with the instrument would fall under copyright, the instrument itself wouldn’t. But even so, I would consider it a travesty if the trademark people were boons waggled into approving a trademark to someone giving ownership to all instruments made out of PVC.
They’re not exempt. There isn’t a de minimize rule fir this situation. Insuspect it’s not considered a “dramatic performance” either. But if it is, there’s a licensing scheme available.
Yes, in fact if you look at the definition of “dramatic performance” that Derleth links to, it doesn’t apply to what they do on America’s Got Talent, which is a straight public performance of a musical composition in recorded audiovisual format.
