Due to copyright term limits, the classic song “Rhapsody In Blue” goes into the public domain on Wednesday. If you are not up on Gershwin, you have probably heard in TV ads for United Airlines. They have adopted it as their de facto corporate theme song.
I assume they have been paying royalties to use it, and probably paying handsomely for exclusivity. Now they won’t have to pay, but neither will anyone else, and for all I know Jet Blue could start using it. I would expect non-airlines to use it too, like that cleaner that turns your toilet water blue.
What is the reality on this? Will United continue to use it? Will competitors dilute its value? Does United have any other protections, like trademarking it as an audio log?
(Maybe not 100% factual since this may involve some speculation.)
You say “trademarking it,” but that’s not how trademark law works. By saying “trademarking it,” you imply that United must apply to register a trademark first.
They certainly can try to register a sound mark, and they are probably well-advised to do so, but they can jump straight into litigation against a competitor and argue that they already own a protectable trademark because they have been using it as such over several years.
Note that there is a limitation on whether creative works can be subject to trademark law after copyright protection has expired. Under Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), the author of a documentary was not allowed to use trademark law to prevent copying or re-use of the documentary once copyright protection had expired.
But in this case, United Airlines would have a pretty good argument that its case is distinguishable from Dastar. It’s not seeking to prevent all use of Gershwin, but rather is making a limited claim to a sound mark for a specific set of services.
Other big airlines might not want to use it. But a tiny little airline that nobody’s ever heard of might want to use it in their ads, to give the impression to consumers that they’re a subsidiary of United. Which is exactly the sort of thing that trademark law exists to prevent.
Can you really trademark an entire song? You might be able to trademark a few bars, or something… I would think the entire song is overreach - that the trademark office would say “that’s what copyright was for”. Plus, would it be all expressions, or just a particular instrumentation of it? Horns? Strings? Accordion?
You don’t “trademark an entire song”. You trademark the use of the song to identify a product or service. If it’s enough that a customer would go “Hey, isn’t that the song used by that airline?”, then it’s enough… if it’s used to identify an airline. But, for instance, nobody would ever think that the elevators in an office building are run by United Airlines, so there’d be no problem at all using the whole song or any part of it as elevator music.
Again, I caution about this use of “trademark.” The question isn’t whether you can file a paper with the government. It’s whether you can make a plausible case.
That’s what Dastar was about.
It’s up to you to make a plausible argument. The Harlem Globetrotters claimed that the entirety of “Sweet Georgia Brown” functioned as their trademark.
Remember, when you’re making a trademark claim, you’re making a very limited claim. It’s nowhere as broad as for a copyright claim. If United Airlines makes a claim that a song functions as its trademark, they can only try to stop uses as a trademark.
Using that as an example: If I see a basketball team, especially a trick-performance basketball team, playing while “Sweet Georgia Brown” is playing over the speakers, even if it’s a different arrangement of the song than the familiar one, I’m likely to assume that the basketball team I’m watching is the Harlem Globetrotters. And because I’m likely to assume that, the song serves as an identifier for the team, which means that it can and should be protected by trademark.
It’s so strongly identified with United that it was only a couple years ago that I realized it was an *actual *song and wasn’t just the United theme. :smack:
Slightly (!) off the subject and nit-picking, but I wouldn’t call Rhapsody in Blue a “song”. No words, and it’s a full orchestral piece of music.
But trademarking could be a difficult application to make. I doubt that any United ad ran 9 minutes (the shortest version of the work) so which bits to trademark? I assume the add uses the opening clarinet and a few bars after that. And if someone in a travel related company used a different section of the work, would that make it as an infringement?
The Flower Duet from Lakmé was used as the British Airways theme so much that most people thought it was composed especially for BA.
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Delta had the reverse situation in the 1990s: A https://en.wikipedia.org/wiki/Adiemus_(song) that was, in fact, recorded specifically for their ads subsequently became a popular composition. It hit the nerve of New Age world music that was fashionable at the time.
It’s not a question of grammar. You can use any word for any part of speech. It’s a question of the law. It’s a misrepresentation of how U.S. trademark law operates to use “trademark” as a verb because it leads people to believe that trademark rights arise from registration.
You are absolutely correct. It is off the subject and nit-picking.
Well, that’s a can of worms. If trademark rights don’t arise from registration, whence do they arise? Isn’t registration necessary to have those rights?
Trademark right arise from use in commerce of a distinctive mark. No, registration is not necessary. You can go straight to court with your evidence of use in commerce only.
So, just as copyright rights arise from fixation, not registration, trademark rights arise from use, not registration. Registration is even more optional in trademark law than it is in copyright law, because, unlike the Copyright Act, trademark law doesn’t require you to register ever.
Registration can be immensely helpful in that it takes the place of having to prove you have a protectable trademark from scratch every single time.
This is exactly why I caution people against using “copyright” and “trademark” as verbs, but “patent” as a verb is fine.
