Tag Archives: Neil Young

A Mark for the Ages

“Regrets, I’ve had a few. But then again, too few to mention. I did what I had to do. And saw it through without exemption.” My Way Music and Lyrics by Paul Anka

Mark E. Litowitz - a Princeton, New Jersey (NJ) Workers ...

For the past 40 years or so, give or take a few forays into patent law, my professional world has revolved around brands, symbols, logos, and colors–source identifying devices that we collectively define as “Marks.” But on Father’s Day 2020, my thoughts turn to a Mark of different sort, my dad, Mark Litowitz, who died earlier this year after a short illness, just one day shy of his 91st birthday.

As the above lyric from “My Way” hints at, Dad’s favorite musician was Frank Sinatra, another Jersey Boy just a few years older than Dad and whose home town of Hoboken was only a few turnpike exits north of Trenton, where Dad spent his entire life.

Like Sinatra, our Mark was a symbol of style and class. He never left the house without perfectly pressed slacks, a crisp shirt, and polished loafers with no sign of wear at either heel or toe. There was a brief flirtation with two-piece polyester leisure suits in the early 1970s when those sartorial atrocities somehow managed to infiltrate the middle-age suburban zeitgeist. But except for that short-lived fashion faux pas, Dad’s signature look, like a good brand, never varied. No jeans, no t-shirts, no shorts, no sneakers. Those restaurant signs that read “No Shirt. No Shoes. No Service” were meant for others, not our Mark.

Like the best trademarks, our Mark was distinctive, sometimes even arbitrary, the highest praise for a trademark, (but perhaps not so great for a person, especially when paired with “capricious.”) As much as Dad idolized one Vegas icon–Sinatra, he detested another–Wayne Newton. As a nod to me and my two sisters, Dad tolerated Neil Young, perhaps responding to the plaintive longing of “Heart of Gold.” But he abhorred Bob Dylan, dismissing him as “the Hog Caller,” a particularly rich rebuke coming from Dad, who had rarely, if ever, stepped foot on a farm, and whose experience with “the Other White Meat” was largely confined to enjoying an occasional “Taylor Pork Roll” sandwich, a Trenton delicacy.

And like the most enduring brands, Dad lived by well-established guidelines. For over 40 years, he was a judge who demanded that lawyers who appeared before him be prepared. If you met his expectations, you were treated with dignity. If you fell short, well, you did not want to fall short.

Dad never handled Intellectual Property matters, but he was acutely aware of the power of brands, especially the logos of the two sports teams we rooted for–the New York Giants and New York Rangers. Those two famous brands, one from the gridiron in the Meadowlands, the other from the rink at Madison Square Garden, gave us a common language, they held us together in challenging times as well as in times of joy.

In his last years, when things appeared to be spiraling out of control, Dad would blurt out in Yiddish “G’nug is G’nug”–“enough is enough.” It became his tag line. And we know taglines can be among the most powerful of brands. A final example proving the point, our Mark really did know the power of a good Mark.

Quote of the Day: “Let us endeavor so to live so that when we come to die even the undertaker will be sorry.” Mark Twain


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Profiles In Trademarks: For One Slogan, There’s More To The Picture Than Meets The Eye

All the sailors with their sea-sick mamas, hear the sirens on the shore.” “For The Turnstiles,” music and lyrics by Neil Young

Many songs are laden with “hooks,” musical barbs that implant themselves indelibly in the cultural consciousness, like Eric Clapton’s searing guitar riff in “Layla.” But how many hooks are tied to a trademark?

I can think of one. Neil Young’s “Hey, Hey, My, My (“Into the Black”), Neil’s masterpiece from the late ‘70s, complete with crushing guitar chords, a raw and piercing solo on Neil’s feedback-laden “Old Black” Gibson Les Paul, and the defiant refrain “Rock and Roll will never die.” Summing it all up—so much so that it became the album’s title—is the song’s urgent justification for why “It’s better to burn out than to fade away”—“Rust Never Sleeps.”

Now, Neil Young’s lyrics, both before and after “Rust,” typically display a poet’s cryptic lyricism. Whether “searching for a heart of gold,” or “lying in a burned out basement with the full moon in [his] eyes,” Neil Young has always been a “dreamer of pictures.” So it may come as a surprise that “Rust Never Sleeps,” one of his most iconic metaphors, came not from his febrile imagination (legend has it that he wrote “Down By The River” and “Cowgirl In The Sand” in one flu-ish afternoon), but from the world of advertising.

That’s right, the iconoclastic Mr. Young— who’s mocked fellow songsters for selling their artistic souls to the devilish Mad Men (listen to “This Note’s For You” to hear his disdain for the likes of Dylan and even The Beatles who’ve rented their hits for TV ads)—this champion of creative purity, actually adopted one of his most iconic images from an unlikely corporate source—“Rust-Oleum,” the protective paints and coatings maker “whose  long-time slogan was, you guessed it, “Rust Never Sleeps”— three words that succinctly and convincingly conveyed the inexorable fate of any piece of metal whose owner was careless or neglectful enough to leave unprotected.

As products go, Rust-Oleum has a back story worthy of a Neil Young shanty (for a taste of Neil’s nautical bent, listen to “Captain Kennedy,” his mournful anti-war lament.) According to company lore, Rust-Oleum’s founder, sea-captain Robert Fergusson, “looking for ways to keep his ship in shape, “noticed that an accidental splash of fish oil had stopped the relentless spread of corrosion on his rusty metal deck, he immediately recognized it for what it was: A valuable solution.” https://www.rustoleum.com/about-rust-oleum/our-history

Although they worked in different genres and achieved different results, both Cap’n Ferguson and Neil Young experienced epiphanies—sparks of inspiration—that yielded something enduring, be it the protective properties of Ferguson’s oleaginous paint, or the ragged glory of Young’s song, which remains a staple of his concert set lists.

Today, with the advent of social media, snap chat, and e-commerce, some experts fear that taglines and slogans have begun to fade away from the advertising landscape. While many slogans retain their cache—sometimes over decades (think “Good to the Last Drop” and “You’re in good hands with Allstate”)—some observers believe taglines have become less relevant when so many other brand-messaging options exist. http://deniseleeyohn.com/taglines-are-deadlong-live-taglines/

Neil Young’s song, with its borrowed hook providing a furious crescendo that rails against atrophy and irrelevance, ensures that the one-time slogan “Rust Never Sleeps” will neither burn out nor fade away.

Quote of the Day: ” I’m climbin’ this ladder, My head’s in the clouds, I hope that it matters.” Borrowed Tune, Neil Young.



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Free Samples? Or Risky Riffs?


“I need a unit to sample and hold. But not the angry one. A new design.” Sample and Hold, music and lyrics by Neil Young

free sampleDigital sampling has become a staple of the recording industry. What’s sampling? It’s taking a snippet from one recording and splicing it into a new one. Typically, the sample is just a few bars, even a few notes. And it’s likewise typical for the producers and artists to digitally tweak those few bars or notes to alter their pitch or key and adding additional embellishments. As often or not, the listener is unaware that the “new” recording includes a “re-purposed” sample.

But is it kosher to lift a fragment from one copyrighted recording and implant into a new one?  That question has produced judicial sparring that rivals the most thorny of Talmudic conundrums.

Until last week, only one U.S. Circuit Court of Appeals, the Sixth Circuit, whose territory includes Nashville, aka “Music City,” had weighed in on this issue. It did so with Draconian precision, laying down a bright-line test. The case was Bridgeport Music Inc,. v. Dimension Films. The sample in question consisted of a chunk of guitar funk plucked from a recording of “Get Off Your Ass and Jam” by George Clinton. Specifically, a two-second sample from a four-second guitar solo was copied, the pitch was lowered, and the copied piece was looped and extended to 16 beats. Neither the brevity of the sample nor the transformation it underwent was enough to avoid a finding of copyright infringement.In the Sixth Circuits view: “[a] sound recording owner [and only a sound recording owner] has the exclusive right to ‘sample’ his own recording.”  And while a “de minimis” exception applies to other types of works (that, is, you likely can copy a phrase or two from a 400 page book without infringing the author’s copyright), the Sixth Circuit held that sound recordings are different. Samplers hoping to invoke the de minimis exception need not apply. In other words, if you want to sample, get a license and pay the piper.

But doesn’t that rule stifle creativity, which is what copyright law’s supposed to encourage? Not according to the Sixth Circuit. Leaning towards protecting the commercial interests of record labels and artists, the Court rejected a free-ride philosophy in favor of a market-driven approach. The Court identified two main reasons why musicians sample–either the sample adds value to a new recording because listeners recognize its original source, or it adds value by saving the cost or recording the same riff a second time. In either case, the sampler gets something of value, and should be willing to pay for it. Let the market decide the price.

But just last week, the Ninth Circuit Federal Court of Appeals, which includes L.A. within its jurisdiction, took the Sixth Circuit and its bright line approach to task. That case, VMS Salsous v. Ciccone (aka Madonna) also involved mining a prior recording for a musical sliver and then sliding it into a new track. In this case, the sliver was a .23 second “horn hit”–four trumpet notes forming a single chord, that originally appeared in the mega-hit dance track Ooh, I Love It (Love Break), recorded by producer Shep Pettibone in the early 1980s. In 1990, working with Madonna, Pettibone reached back to Love Breaks to salvage that same horn hit, doctoring it up in the process, transposing it to a new key, truncating it, and even adding other sounds to the chord itself.

If Pettibone and Madonna had worked this musical alchemy in Nashville and had been sued for copyright infringement there,  they would have been found guilty under the Sixth Circuit’s Bridgeport decision.  The Ninth Circuit, however, concluded that its sister court’s logic was badly flawed and that its refusal to apply the de minimis exception was dead wrong. The panel of three West Coast judges saw no basis in the Copyright Law or its legislative history to treat sound recordings any different from other works, such as books. That’s good news for recording artists who happen to be sued in L.A. or other places within the Ninth Circuit. But the Ninth Circuit’s ruling doesn’t change the Sixth Circuit’s decision, and it leaves artists in New York, Austin, Chicago, St.Louis, and other music towns on uncertain ground.

Such a  spat between two Courts of Appeal, however, may be the overture for the Supreme Court to step in and call the tune on digital sampling. Should music sampling be free, as the Ninth Circuit found? Or should producers have to pay to play, as the Sixth Circuit concluded? The answer may not be blowin’ in the wind, but its not exactly clear either. In other words, don’t be surprised if the Supremes refuse to decide whether digital samplers must “stop in the name of law” and leave the issue for Congress to sort out. And that could prove to be a “long and winding road.”

QUOTE OF THE DAY:  “People go back to the stuff that doesn’t cost a lot of money and the stuff that you don’t have to hand money to over and over again. Stuff that you get for free, stuff that your older brother gives you, stuff that you can get out of the local library.” Frank Black aka Black Francis.

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Puffery: It’s Not Just For Pastry

“Puff the magic dragon lived by the sea and frolicked in the Autumn mist in a land called Honolee.” Puff The Magic Dragon by Peter, Paul, and Mary

I love satellite radio, although I was late to the party. I resisted taking the plunge, figuring that the programmers at XM/Sirius couldn’t approach, much less duplicate, the eclectic, genre-bending variety provided by my favorite terrestrial station, WXPN in Philadelphia (which I enjoy in D.C. courtesy of the Internet). But when my trusty car expired, I replaced it with a new model that came with a free trial subscription to Sirius/XM. I took me less than the ride home from the dealership to be hooked. Sure, each station might play a limited range of music–but the sheer variety of music across the Sirius/XM spectrum is mind-blowing, not to mention all the news, sports, comedy, and last but not least, Howard Stern. On any given commute, I can be serenaded by old stalwarts like Crosby, Stills, and Nash and Neil Young, their modern-day progeny such as Dawes, Fleet Foxes, and Deer Tick, old-school and Outlaw country from Willie, Waylon, Merle, and McMurtry, and, of course, Elvis, Sinatra, The Boss, The Dead, and Pearl Jam, all of whom have channels devoted to them.

What does any of this have to do with Softrights? Not much I confess. But the other day, while flipping through the satellite dial, I alighted on Peter, Paul, and Mary wistfully singing “Puff The Magic Dragon.” Since I hadn’t heard it in years, I left the station on while my mind absorbed the story of little Jackie and his faithful dragon Puff. Soon, however, my mind began wandering, and as it often does, it wandered far afield, in this case, from Honolee to IP. Yes, Puff the Magic Dragon got me thinking about advertising law, and the concept know as “puffery.”

What is puffery? In ordinary parlance, the word conjures up someone inflating his or her chest while inflating the truth. As a legal term, “puffing” means pretty much the same thing–referring to statements so obviously vague, unrealistic, silly, exaggerated, boastful, or matters of opinion that no reasonable consumer would believe them. An ad that touts something as “better”, “best”, “the greatest”, and “finest” typically signals puffery. Or when an ad uses slippery terms like “helps”, “can be”, “fights”, and “tastes like,” it’s usually a sign that puff is sure to follow.

So what’s the significance of calling an ad puffery? Well, an ad that nobody believes or takes seriously cannot be considered false or misleading and thus should be immune from liability under the Lanham Act and state laws that prohibit false and misleading advertising.

But when it comes to IP law, there’s often a rub. One person’s “puffery” can often be someone else’s falsehood and can provoke a lawsuit. And indeed, the casebooks are replete with court decisions where Solomonic judges and juries have been called on to separate the false advertising wheat from the puffery chaff (or vice versa). And so, these claims have sparked lawsuits, even though all were eventually found to be puffery, not misleading: advertising a computer accessory as “redesigned and improved”; the slogans “AMERICA’S FAVORITE PASTA” and “Better Ingredients, Better Pizza”; Blue Cross/Blue Shield’s claim that its health coverage was “better than” a health maintenance organization; advertising a computerized chess game as “new” and “new technology” and “like having Karpov as your opponent”; Claiming “unprecedented clarity” in a laboratory computer imaging device used to study cells to detect cancer; Abercrombie & Fitch’s claim “Our most original pant since 1892 … Pure Abercrombie & Fitch design and fit”; the claim that Speedo suits help swimmers compete at the highest level; promoting POWERADE as “The Complete Sports Drink” ; and claims that HUGGIES diapers had a “natural fit” and “fit more naturally.” Each of these claims ultimately was found to be innocuous, benign, harmless, hyperbole, subjective, or mere opinion. But the advertisers had to put up a legal fight to defend these boastful ads.

So what’s an advertiser to do? For one thing, make sure you can prove any specific, verifiable claims about product performance or capability. And if your goal is to achieve “puffery” status, go big with your hyperbole, or be prepared to go to court.

QUOTE OF THE DAY: “The deepest thing in any one is the conviction of the bad luck that follows boasting.”
Gertrude Stein

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Pullet Surprise: Chicken Called FreeBird

“If I leave here tomorrow, would you still remember me?”  Freebird by Lynyrd Skynyrd

Let me first go on record as saying, “I am not Lynyrd Skynyrd fan.”  But I have some things in common with those men from Alabama that defined Southern Fried Rock.  They claim to have named the band after their gym teacher, a man named Leonard Skinner.  I had a gym teacher in the early 70s named Leonard Wiester who we called Lynyrd. And despite the lyrics of their enduring radio hit “Sweet Home Alabama,” which vilifies Neil Young, the band’s late leader Ronnie Van Zandt apparently had deep affection and affinity for Mr. Young, as do I.  And of course, like most music fans who have been attending live performances for decades, I am fascinated by the cult of Freebird–the most-requested song in the history of music.  The song title that the most obnoxious or drunk audience member (usually the same thing) predictable shouts out during a concert’s  most poignant or pensive lull, hoping to elicit mild and perfunctory amusement from his (and it’s always a “him”)  fellow concert goers, if not the performers (who must absolutely hate the Freebird intrusion).  The Freebird moment has long grown stale, if not putrid, to the point where its begun to wane.  And despite decades of louts abusing the title, the song itself remains immune from any spill-over stigma. 

Freebird– it’s the quintessential Southern Rock anthem. It  begins as a meandering, sentimental ballad in which a commitment-phobic man voices his wanderlust against the thin and brittle strains of a slide guitar.  Then, with the singer plaintively chanting “Lord knows I can’t change,” the tempo builds, then gallops into an extended three-guitar jam-packed with more virtuosic pyrotechnics than a Fourth of July fireworks extravaganza.

With Freebird, Skynyrd struck a chord that’s been sustained over five decades.  It’s a bravura performance  that cannot be ignored, even if we’d rather dismiss it as cliché or mock it as little more than redneck pathos drenched in melodrama.  Simply put, Freebird rocks.

So when I recently grabbed lunch at a local salad production line (a place that minces lettuce and fixin’s nearly into a puree), I was struck to see that their organic, liberated chicken had a brand name–FreeBird chicken.  Had Skynyrd gone into the poultry business?  Unlikely, I thought.  But still, using Skynyrd’s signature song title as a trademark without even paying chicken feed seemed oddly like plagiarism.  And there is precedent for giving famous song titles quasi-trademark status.  Years ago, Jimmy Buffett scored a legal win against a restaurant that wanted to call itself Margaritaville. Buffet’s trump card in that dispute was his plan to open his own  chain of restaurants called Margaritaville.  That fact, along with the distinctiveness of the name and the strong association between that fictional place and the musician who created it, gave Buffet a legal basis for calling “Margaritaville” his own. 

Could Skynyrd marshall similar facts if it wanted to ruffle some feathers and start a legal faceoff with the FreeBird chicken folks?  Surely, Freebird is associated as much with Skynyrd as “Margaritaville” is with Jimmy Buffett.  But what about the restaurant angle?  A quick internet search gave me hope.  A news story announced that the band would have a stake in a Las Vegas restaurant to be called “Lynyrd Skynyrd BBQ and Beer.”  And in fact, the joint opened in late 2011, earning some critical praise for both its food and rock and roll atmosphere.  But Skynyrd’s box office cache did not translate to the highly competitive Las Vegas restaurant arena dotted with lavish establishments manned by Michelin Star chefs.  Lynyrd Skynyrd BBQ and Beer declared bankruptcy and closed less than a year after it opened. 

So today, you can dine on FreeBird chicken if you don’t mind it all chopped up in a melange of lettuce.  But you can no longer dine to the strains of “Freebird” while enjoying deep-smoked savory meats and cold refreshing brews.  Does it rankle the members of Lynyrd Skynyrd that there’s a brand of chicken called FreeBird? Do salad craving diners hum Skynyrd songs in their heads while they munch on arugula, kale, and romaine laced with shreds of FreeBird chicken?  These questions are as imponderable as “which came first, the chicken or the egg?”   Just as we’ll never know the answer to the enduring question posed in Freebird–“If I leave here tomorrow, would you still remember me?”

QUOTE OF THE DAY:  “No bird soars too high if he soars with his own wings.”  William Blake



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Summertime Things

Do You Know The Way To San Jose?” Hal David and Burt Bacharach.

It’s been a long time between posts–largely because a trial in San Jose, CA beckoned me out West and I’ve just begun to settle back into the blogging routine.

While I was away, the Olympics took place in London, largely without any of the ambush advertising/trademark incidents many feared might infiltrate the event. Hanes, the underwear maker, produced a tv commercial featuring a well-muscled model swinging on a series of metal rings, perhaps bringing to mind the Olympic rings symbol without paying to become an official Olympic sponsor. But mostly, the advertisers that aired commercials during the Olympic fortnight played by the rules while the athletes swam, ran, dove, dressaged and rhythmically tumbled their way to gold, silver, and bronze, if not to lucrative commercial endorsements.

Neil Armstrong, the first man to walk on the moon, and the quintessential American hero, passed away, but not without NBC committing one of the most egregious gaffes in recent memory. “Astronaut Neil Young, first man to walk on the moon, dies at age 82,” read the online report’s headline at NBCNews.com. One small step for man, one giant screw up for journalistic kind. Neil Young, by the way, is alive and well, tearing up stages with his longtime band Crazy Horse adding their unique brand of raw rock to Neil’s Ragged Glory for the first time in years.

The Republicans held their convention in Tampa, undermining their claim to competency by scheduling the event in Florida during the height of hurricane season, and by inviting Clint Eastwood to interview an empty chair.

And just last week, legendary lyricist Hal David died. David teamed with Burt Bacharach on a string of top 40 and Oscar-winning hits during the 60s and 70s, including “Do You Know The Way To San Jose,” “Alfie,” and “Raindrops Keep Falling On My Head.” His keen and provocative lyrical sense was typified in this line from Alfie: “What’s it all about, Alfie? Is it just for the moment we live? What’s it all about when you sort it out, Alfie? Are we meant to take more
than we give or are we meant to be kind?” I vote for kind.

On the trademark front, the Court of Appeals for the Second Circuit give Christian Louboutin a qualified victory in the “Red Shoes” case I wrote about in one of my earliest posts. The lower court had kicked out Louboutin’s claim of trademark rights for the red outer soles of its shoes, reasoning that a single color could never function as a trademark in the fashion industry. But the Second Circuit booted that categorical rule, concluding that an earlier Supreme Court case upholding a single-color trademark for an industrial product applied equally to the realm of fashion. Still, Louboutin again failed in its effort to block YSL from selling a monochromatic shoe that was red, top to bottom. The appeals court ruled that Louboutin’s trademark only covered red soles with contrasting uppers, where the red created visual “pop.” So, in the spirit of Neil Armstrong, we can conclude that the Red Shoe decision was one small step for Louboutin, but not a giant leap for shoe-kind.

QUOTE OF THE DAY: “Imagination will often carry us to worlds that never were. But without it we go nowhere.” Carl Sagan

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Once You’re Gone, You Can Never Come Back? Golan v. Holder Takes Copyright to New Heights

“Out of the blue and into the black.  They give you this but you pay for that.  And once you’re gone, you can never come back.”  Neil Young

In “Hey Hey, My My,”  Neil Young lamented the fates of Elvis and Johnny Rotten.  But his lyrics could have applied as well to the fates of  many songs, books, and other creative works that originated outside the United States, were protected by foreign copyright, but had entered the public domain in the United States.  Those works  free for anyone to perform, reproduce, or use in this country.  That situation was a boon for orchestras, singers, publishers and others, who had a trove of material to use for free.  At least that was the case until the U.S. Congress stepped in.  In 1994, Congress passes a law to implement treaty obligations imposed by a global agreement–the so-called Uruguay Round.  The law essentially rescued a large volume of foreign based works from the public domain and put them back under copyright.

The law threatened to impose a hefty toll on users who had become accustomed to using those works on the public domain’s “freeway.”  So a coalition of orchestra conductors, educators, performers, motion picture distributors, and others challenged the law.  They argued that the law violated the Constitution, challenging Congress’s right to resurrect works whose copyrights had died.  They also complained  that the law trammelled their freedom of speech.  The case is known as Golan v. Holder.

The U.S. Supreme Court, in a 2012 opinion by Justice Ginsburg, rejected the challenge across the board.   The Court confirmed Congress’s power to restore copyrights, just as the Court had previously affirmed Congress’s power to lengthen their term.    The Golan v. Holder decision confirms that works protected by foreign copyright also enjoy the protections of the U.S. Copyright law for the rest of their term in their home country, even if those works had entered the public domain in this country.  And the Court showed no sympathy for the challengers’ claims that plucking works from the public domain would put free-riding performers on the sidelines or in the poorhouse.

So now, orchestras will have to pay to play Prokofiev’s Russian-born Peter and The Wolf,  just as they pay to perform Aaron Copeland’s quintessentially American “Fanfare For The Common Man.”  But the United States will be able to honor its Uruguay Round obligations, U.S. copyright law will be harmonized with international standards, and, to paraphrase Neil Young, everyone can “Keep on Rockin ‘In the Free World,” just not for free.

Quote of The Day:  “If music be the food of love, play on. ”   William Shakespeare

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