Rhapsody In Blue goes public domain--impact on United Airlines?

Steven G, I’m not sufficiently familiar with “Rhapsody in Blue” to say how recognizable the different parts of the song are. But the question before a court would be “Would the typical person recognize this as being the same song used by United?”. If it would be recognized as such, then trademark law would apply, and if it wouldn’t, then it wouldn’t.

In any event, whatever the trademark status of the song may be, it will be unchanged when the song’s copyright status changes, because copyright and trademark are two completely different things. What will happen to United when the copyright ends will simply be that they’ll no longer have to pay royalties when they use the song (except possibly for the specific performance they use, but they’ll probably commission their own performance as a work for hire, so that wouldn’t matter, either).

Can you trademark someone else’s work like that? United licensed it for use in their commercials but what IP rights does that give them re: trademarking? My argument would be something like this. If I have the rights to “Rhapsody in Blue” and allow United non-exclusive rights to use it in advertisement then how can they via trademark law prevent me - the IP holder - from licensing the same song to Jet Blue.

I know you could counter-argue that I can still license the rights but JetBlue can’t use them and who would buy the license for something they can’t use. So in effect United used trademark law to impair the value of my IP. That does not make sense.

Of course United can use the Disney/Apple defense of “Fuck 'em. We’re a lot bigger and can afford to drag this out. They can’t”

Again, the question isn’t whether you can “trademark” something. It’s whether you can use something as a trademark. Think about it from the point of view of use.

Most trademarks are single words, short phrases, simple shapes, common symbols, typographic characters–things that are not eligible for copyright protection.

However, it’s certainly possible for a trademark to be made up of something more creative, perhaps a work of visual art? Say it is so. So what are the questions to ask–if you use someone else’s creative work as a trademark, are you infringing any rights? What kinds of rights does an owner of a copyright interest have–reproduction, distribution, display. Certainly, putting your mark on goods or services might infringe these kinds of rights.

Essentially, before you can assert trademark ownership, the question is going to be asked whether this trademark use interferes with a copyright owner’s rights. But if that copyright owner licensed that use to you, you’ve got it.

If you allow Party X to use your work as a trademark, that’s going to limit your ability to license the same thing for trademark use by Party Y, so get the value of that use in your licensing agreement.

Adverts are in themselves creative works, protected by IP law. If someone makes an advert that is or looks too similar to someone else’s advert then that is a copyright infringement.

There’s also a question of timing. If the owner of the copyright on Rhapsody in Blue licensed it to United for use in their commercials, and then the very next day Jet Blue decided that that was a good idea and licensed it too, then both companies would be allowed to use it. The only way that it became a trademark for United was that, for a significant length of time, they were the only airline using it in their commercials, to the point that customers began associating the song with United specifically. Once that happens, only then are other companies no longer allowed to use it in a way that would be likely to cause confusion.

And consider that most trademarks are for things that are never under copyright at all. Quite often, a trademark is a single word. The word “apple”, for instance, can be and is used by everyone, and nobody ever needs to pay royalties to use the word. And yet, a computer company started using it as a trademark, even though they certainly didn’t create the word, and so if you decide to make your own line of computers, you’re not allowed to use the word “Apple” to name them.

How does it work in other English-speaking spaces?

So far as I know, unregistered or common law trademarks based on use in commerce can be valid in the United Kingdom, Canada, and Australia.

I was thinking the same thing; haven’t heard RinB in a United ad in ages. It’s still been an interesting discussion about the ins and outs of trademarks, though.

Does anyone know who still owned the rights to Rhapsody in Blue? According to wikipedia, George Gershwin died intestate (he was only 38) and his estate passed to his mother. I wonder if it was still with his family in any way.

And if I wanted to use an old piece of music for a commercial purpose like that, how would I find out if the rights are still owned, an by whom?

You would hire a lawyer to do the research and advise you of its status.

How would the lawyer go about it, then? Is there some central repository of who owns the rights to creative works, some place you can ask “does anybody own Rhapsody in Blue” and if you don’t get an answer you can take that as a ‘no’?

RIB is public-domain now, even after Disney and Bono tried to kill the PD. I plan to play RIB loudly all day, and I won’t even charge admission, so there. Now I just need to learn to play it on dobro.

No, there’s no such central repository. That’s why it requires a lawyer. You can start with trying to find it in the Copyright Office’s registration records, but registration isn’t mandatory. And how will you know what to search for? The name you know it by might not be the title as registered.

Furthermore even if you find a registration, the registration has the information for the original claimant. If registration is quasi-optional, then recordation—filing a statement of change of ownership—with the Copyright Office is completely optional.

And apart from trying to find a copyright owner there’s also the question of whether a work is under copyright protection. How do you know for sure when it was fixed? Determining the expiration date can be complex. These are all legal questions requiring legal advice.

Some uses are easier to handle. If you operate a business that plays music, there are blanket licensing agencies that cover most popular music.

But using a song in an advertisement Or a film (synchronization licenses) or trying to use it as a trademark isn’t covered by any blanket license.

This didn’t happen.

I’m not entirely sure what you’re proposing to do, but it doesn’t seem like it would have been a public performance covered by copyright law.

Is there any obligation on the copyright holder to make their claim known in a timely manner? Suppose I own the rights to some piece of music. If someone contacts me and wants to use that work in a series of TV commercials, we can negotiate a fee that we both agree to. But if the company thinks the work is public domain, and I come forward after they’ve put significant time and money into the campaign, seems like I’d be in a better bargaining position and could get a larger fee. What would happen then? Seems like it might be an issue of when I knew of their interest in the song, and whether I deliberately waited to assert my claim.

And no one has commented on who owned the rights to Rhapsody in Blue. Does anyone know if they were still held by the Gershwin family in some way?

Many consider the Sony Bono copyright act an attempt to kill the public domain. If nothing else, it put off new works entering it for a few decades.

It is also important to remember that what will enter the public domain is the sheet music for Rhapsody in Blue, not necessarily any particular recording. So, you can’t (for some amounts of public performance) blast a recording of it on New Year’s day, but you can make copies of the sheet music, pass them out to your orchestra, record your own version, and blast that. Or just hand out copies of the sheet music while waiting for your connecting flight in Terminal 1 at ORD.

  1. Good news: Some recordings of RiB have entered public domain due to copyright not being renewed back when that was a requirement.

  2. Bad news: trying to find out if a particular recording is definitely public domain is a pain.

You can always just commission your own performance, or find a performance that was created under Creative Commons or some other similarly permissive license.

Generally speaking no. The burden of the risk falls on the alleged infringer.

However, the Copyright Act does have a three-year statute of limitations, which limits liability.

There have been many proposals to accommodate uses of “orphan” works, works whose owners can’t be located or identified, but so far those efforts have been blocked, mostly by photographers.

You could bring an action under the Declaratory Judgement Act, asking a court to find in advance that the work is in the public domain. Then any putative owner would have to come forward to fight the claim.

That’s what happened in the “Happy Birthday” case.

That’s an issue with Stephen Malinowski, a YouTuber who sets classical music to animation. He constantly has people making requests and has to tell them to find a recording that is under Creative Commons or get permission – he can’t, for example, put up an animation to Beethoven’s 9th symphony by the Berlin Philharmonic Orchestra produced by Deutsche Grammophon without permission from DG.

I see a couple dozen public-domain renditions of RIB at archive.org.