Patterico's Pontifications


Two Interesting Intellectual Property Cases

Filed under: General — Patterico @ 7:44 am

While I sit here refreshing the opinions page for the D.C. Circuit Court of Appeals, let me bring to your attention a couple of interesting intellectual property cases: one new, and one a few weeks old that I meant to write about at the time.

The more recent one is a suit brought by the heirs of John Wayne, otherwise known as “the Duke,” complaining that a certain university in North Carolina keeps suing them when they try to use the name “Duke”:

[U]niversity spokesman Michael Schoenfeld wrote in an email that “the university doesn’t object to the use of ‘Duke’ on alcoholic beverages, as long as it is clearly linked to John Wayne’s likeness.”

However, he wrote, Wayne’s estate wants the rights to use the word with or without the star’s image attached.

“While we admire and respect John Wayne’s contributions to American culture, we are also committed to protecting the integrity of Duke University’s trademarks,” Schoenfeld wrote in a statement.

“As Mr. Wayne himself said,” the statement continues, ” ‘Words are what men live by … words they say and mean.’ ”

Richard Howell, John Wayne Enterprises’ attorney, disputed Schoenfeld’s assessment.

Howell said that the company has proposed “over and over” a truce of sorts: A co-use agreement wherein the company will only use the name ‘Duke’ in connection with John Wayne’s name, image or likeness.

I come down on the side of the Duke with this one — partially because I hate universities, partially because I don’t like lawsuits. But let’s assume these two spokesmen are telling the truth. The Duke’s legatees want to use the nickname “in connection with John Wayne’s name, image or likeness” and the university wants to limit it to situations where it is “clearly linked to John Wayne’s likeness.” It sounds like the university wants to ban any mention of the Duke’s nickname without an “image” attached — even if John Wayne’s name is used. Bollocks. Patterico hereby enters judgment in the court of public opinion in favor of the Duke’s legatees, and orders the president of that university to go soak his head.

The second lawsuit is several weeks old, but I have been meaning to blog it for a while. It’s the copyright infringement lawsuit brought by the estate of Randy California against Led Zeppelin, for copying material from the Spirit song “Taurus” in the far more famous “Stairway to Heaven.” I told you about this musical similarity in June 2013, saying: “Led Zeppelin opened for Spirit early in their careers, and heard this song live. You will not have to listen closely to hear the inspiration for Stairway to Heaven.”

In May of this year, California’s estate filed suit, in anticipation of a monster re-released of the Zeppelin catalog.

I have mixed feelings about this one. On one hand, if you listen to the piece, it’s pretty clear they ripped off part of California’s piece — and the fact that they were touring with Spirit at the time just solidifies the conclusion that you would have come to anyway regarding the similarities. It would have been nice for them to credit California and give him a piece of the royalties. And, as I say, I pointed out the similarities last year, long before the lawsuit — so it’s clearly not a made-up claim. (Do any of the lawyers read this blog?)

That being said, California himself never filed suit. And in “Stairway to Heaven,” while Zeppelin took some of California’s music, the more famous band also transformed the germ of that idea into something quite different, taken as a whole. Patterico reluctantly hereby enters judgment for defendant in the court of public opinion, but awards no costs — and encourages Led Zeppelin to give California his writing credit anyway.

P.S. During the writing of this post, I continued to refresh that first link, and (although I could be wrong) it appears there will be no Halbig decision today. There are four new opinions in other cases; it looks like that might do it for the day.

21 Responses to “Two Interesting Intellectual Property Cases”

  1. How about that?

    Patterico (9c670f)

  2. Perhaps, they’ve taken their cue from the Imperator and will simply vote “present.” After all, the ACA has become “too big to fail” and subsidies delivered through the Federal Exchange are (minimally) a load-bearing wall, without which the entire structure might fail.

    Lorem Ipsum (cee048)

  3. Greetings:

    Just another tricky day in the Land of the Perpetual Copyrights and All-encompassing Trademarks.

    11B40 (844d04)

  4. Maybe the University should sue Gene Chandler for his “Duke, Duke, Duke of Earl” song.

    Loren (1e34f2)

  5. Copyright stuff gives me a pain. Where do you draw the line between “this is a common riff that’s been used in countless songs” and “well this is too similar because its blah blah(musical jargon that I don’t understand)” ? More to the point, where does a judge who doesn’t know a tuba from a piccolo draw the line?

    Mark Johnson (27da80)

  6. Led Zep ripped off quite a few old blues men, by stealing songs, riffs, melodies and then pasting Page & Plant’s names for songwriting credits, so nothing new there.

    As a 15 year old, I saw Spirit open for Cream in ’68 at the Anaheim Convention Center and my friend and I agreed Spirit – amazingly enough – got our nod as top band for that night. We had seats about 10 rows back and I can still recall my jeans vibrating on my legs from Jack Bruce’s loud bass, lol.

    Colonel Haiku (2601c0)

  7. Let them duke it out. If it walks like a duke and quacks like a duke …. Duke is too common a a word to be trademarked all by itself.

    Duke nk (dbc370)

  8. Will Duke U go after Duke nUkem, too?

    All kidding not aside, the Duke Wayne estate ought to be tempted to borrow from the famous (and according to, intended as a publicity stunt) Groucho Marx letter to Warner Brothers.

    You claim that you own Casablanca and that no one else can use that name without permission. What about “Warner Brothers”? Do you own that too? You probably have the right to use the name Warner, but what about the name Brothers? Professionally, we were brothers long before you were. We were touring the sticks as the Marx Brothers when Vitaphone was still a gleam in the inventor’s eye, and even before there had been other brothers — the Smith Brothers; the Brothers Karamazov; Dan Brothers, an outfielder with Detroit; and “Brother, Can You Spare a Dime?” (This was originally “Brothers, Can You Spare a Dime?” but this was spreading a dime pretty thin, so they threw out one brother, gave all the money to the other one, and whittled it down to “Brother, Can You Spare a Dime?”)


    Peter B (b74e27)

  9. @ #5 Mark Johnson:

    Ask John Fogerty. Taken to court by Saul Zaentz, who owned Fantasy Records (all of CCR’s albums/singles are on that label) & holder of the CCR copyrights. When “The Old Man Down the Road” came out in Fogerty’s solo comeback, Zaentz sued him for copyright infrigment because it sounded too much like “Run Through the Jungle”, a CCR tune written by Fogerty.

    Fogerty was sued because he sounded too much like himeself, and, wanting to get away from the man who had invested and lost most of CCR’s earnings (the aforementioned Saul Zaentz) signed over a few too many rights. Fogerty won at trial and even won attorney’s fees.

    Saul Zaentz died 3 Jan 2014. Fogerty’s sole reaction was to post a link to the official video of “Vanz Can’t Dance” (originally named Zanz Can’t Dance, which triggered a defamation suit from Zaentz).

    Captain Ned (ff2d65)

  10. It’s a special kind of nerd that F5-frenzies a court of appeals.

    What’s the link and when do they update?

    JWB (c1c08f)

  11. Duke clearly has the right to claim the trademark wrt institutions of higher ed. If I tried to set up John Wayne University and then called it “Duke” they’d crush me and rightly so.

    But Duke Beer? That would seem to be another line of product entirely, and no more the University’s than the Wayne Estate’s. Or mine for that matter, if I’m first to USPTO, so long as I do not attempt to connect it to Wayne or Durham.

    Kevin M (b357ee)

  12. OTOH, John Wayne;s people might want to sue Duke for bringing the Duke name into widespread disrepute. Outside of the Carolinas, when people think of Duke, they probably think of false rape accusations and the terrible treatment the accused students got from their school.

    Kevin M (b357ee)

  13. I think I remember that video, Captain Ned, wasn’t it rife w/cartoon piggies?

    Colonel Haiku (2601c0)

  14. Duke Kahnanmoku’s estate should sue the both of them. They should sue Spirit and Led Zeppelin too, just ’cause the courts aren’t already clogged up enough.

    JVW (feb406)

  15. Duke Ellington must be spinning in his grave…

    Colonel Haiku (2601c0)

  16. Outside of the Carolinas, when people think of Duke, they probably think of false rape accusations and the terrible treatment the accused students got from their school.

    That’s what I thought of at first. The Duke has been gone for so long, and frankly, if he were around during this period in history, he would be ridiculed and mocked for his love of country and patriotism. (I remember a great statue of the Duke in front of the Beverly Hills Great Western Bank… sadly, it was later purchased by Larry Flynt for his publishing enterprise, and there the uke remains).

    Dana (4dbf62)

  17. Until the “Duke 88″ are disciplined or fired, I root against Duke in all things. Those were the faculty who took out a full page newspaper ad condemning the lacrosse team for rape without bothering to wait for the facts. Only one ever expressed any regret publicly, most are still at Duke. Screw them and screw Duke.

    Zeppelin was a great band, but they were serial plagiarists, and have either lost or settled suits on over 20 songs, and there are many more never taken to court.

    This is just the one part of the song, but George Harrison had to pay out the butt for “My Sweet Lord” which was similarly a small part of the old soul song.

    Estragon (ada867)

  18. 15. Colonel Haiku (2601c0) — 7/11/2014 @ 12:28 pm

    Duke Ellington must be spinning in his grave…

    Duke Ellington is on a coin – the district of Columbia quarter, dated 2009.

    People may not have seen too much of it, because the usage of quarters declined around then, partly because of the 2008 recession and partly because started to use electronic payments more and more.
    so I think a lot less where made than the state quarters till Alaska and Hawaii,

    Sammy Finkelman (069ee3)

  19. Wow, you can also hear the influence Spirt had on Zeppelin for their song “In the Light”.

    School Marm (228bed)

  20. In realated news, the US Naval Academy is standing up against unbridled greed in college athletics by opposing SDSU’s money grab in their attempt to trademark the popular cheer “I believe that we will win”

    prowlerguy (3af7ff)

  21. This reminds me of Spike Lee suing the newly named SpikeTV back in 2003 (originally The National Network, or TNN) for name infringement. IIRC, Spike Lee ending up getting some kind of payoff –er payout. I wondered at the time how many dog owners Lee sued because they named their dog ‘Spike’? I mean, c’mon, who names their dog ‘Spike’, right?

    RickZ (3ccc8a)

Powered by WordPress.

Page loaded in: 1.1317 secs.