the Memphis law firm that represents Elvis Presley Enterprises, Inc., which was created by the late singer’s estate to make money from his intellectual property. “The Net poses a real challenge to copyright,” Bradley says. “The rights to protect against unauthorized reproduction are simply too hard to enforce. You’ll be chasing everybody.”
To better protect and serve Elvis, the estate in recent years has been on a trademark tear. It first trademarked the name Elvis Presley and his Graceland mansion in the mid-1980s. Then the company moved to trademark Elvis’s hit songs, even though Elvis didn’t actually write any of them. In the mid-1990s, the company trademarked “Heartbreak Hotel” for a licensed restaurant chain, then for use on pants, shorts, shirts, sweatshirts, jackets, hats, and socks, and then on shot glasses, martini glasses, goblets, and tumblers. Turns out, there is money to be made in such officially licensed stuff.
So now, the estate is moving to trademark “All Shook Up” for use on key chains, cigarette lighters, Christmas tree ornaments, float pens, and snow globes. Also in the works are “Love Me Tender” spoons, bumper stickers, and golf balls, as well as trademarks for merchandise bearing the marks “Don’t Be Cruel,” “Hound Dog,” “Jail-house Rock,” and of course “Blue Suede Shoes,” which alas may eventually be used to brand everything except navy leather footwear.
All this has symbolic significance because copyright law affords no protection whatsoever to song titles, album titles, book titles, or movie titles. Remember, a copyright simply protects a unique expression. I can release an album tomorrow called Sgt. Pepper’s Lonely Hearts Club Band. I can market a movie called Gone with the Wind. I can publish a book called Harry Potter. And I can record a song called “Margaritaville.” As long as I’m not copying someone else’s unique expression, no one can stop me. However, if I wanted to make Sgt. Pepper’s cocktail sauce, Gone with the Wind foot powder, a Harry Potter magic wand, or “Margaritaville” brand tequila, I may encounter some serious legal turbulence.
More importantly, if I wanted to advertise my performance services—give a Harry Potter reading or a Sgt. Pepper’s concert—I’d probably also encounter some legal roadblocks. This is how trademarks can work to protect copyrights and extract additional value from them. And this is why trademarks are so important to artists, writers, musicians, and other producers of intellectual property, even though most are only now coming to realize this. Sgt. Pepper’s was never trademarked by the Beatles, but Harry Potter is vigorously trademarked in several categories of goods and services. And Jimmy Buffett is already kicking back and collecting royalties from officially licensed tequila. Nowadays, trademarks are simply much easier to enforce than are copyrights.
Once you begin to feel the power of trademarks, you’ll see that something like Napster can actually help generate income. If you’re an artist whose intellectual property is being swapped around for free online, then every download can potentially enhance the awareness of your trademarks, including your name and the titles of your works. This is precisely why so many unestablished artists are fully supportive of Napster. They know that any increased awareness of their songs might lead to interest not only in purchasing their CDs but in their trademarked performance services, their brand.
A former Grateful Dead lyricist, John Perry Barlow, likes to say that intellectual property is a misnomer, that it’s not really property at all, but should be thought of more as an intellectual relationship between the artist and the audience. As a writer, I don’t think I’d go so far as to renounce all of my property rights. But I do believe strongly in the relationship thing. And I believe the two can coexist.
And so John Alderman’s book couldn’t have arrived at a better time. In addition to being a great story in itself, Sonic Boom details the new rebellion in rock, defines the raging conflicts posed by new technology, and points the way toward striking a new balance between property and relationships. Hopefully, established artists will be able to adapt to this new music environment. The up-and-coming ones already seem to be well on their way. Those blokes from Devon, wherever they may be right now, are recording and have already played at their local Cavern Club. Maybe they’ll even make it to the original one—in Liverpool.
BY HERBIE HANCOCK
I’m deeply concerned about the outcome of the online music conflict, and with good reason: playing music happens to be my livelihood. Now the Internet comes along and offers not only wonderful promise and incredibly seductive dangers, but it also is helping to inflame long-running conflicts within the current music distribution system. Sonic Boom documents both the possibilities and the pitfalls, as it points to the tough choices facing all sides of online music players. Like others in my profession, I make the best music I can, drawing from experience, years of practice, and plenty of dues paid. In return, audiences seek out and listen to my recordings or attend live performances, mostly paying for the privilege. In the middle of that relationship stands the record company, hopefully making sure that listeners get a chance to hear me, so that I am able to continue my career doing what I love.
For the hard work involved in being a middleman, the label is certainly entitled to a decent profit. But not a killing. To make huge amounts of money on the backs of artists who are not fairly compensated sours the relationship and creates bad will that lasts a long time. Believe me, I’m not happy about the business model that the record companies have been running until now. They have proven again and again that they are far from angels, far from having even a casual interest in giving artists and songwriters a fair share. They have been ripping off artists, writers, and the public for close to a century, to the point where I can honestly say I don’t trust them at all. Knowing what they do about past bad faith makes artists bristle when the industry says it’s just trying to “defend artists’ rights.” Who wouldn’t resent being used as a pawn this way?
Napster, on the other hand, is no solution. So far, it’s even worse than the labels. On the way to making millions for its owners and investors, Napster has yet to give anything to artists other than the chance to spread their music, for free, and whether they like it or not. Its supporters hide behind claims that labels misuse artists and consumers, as if that entitled them to take everything they want absolutely free. Excuse me, but just because record executives give artists a bad deal doesn’t mean that everyone else can then go and do worse. Although the appeal to consumers is obvious—who wouldn’t want free music?—the law, and common morality, forbids stealing. I’m not afraid of technology, and I hope that a system can be worked out that enables consumers that would also reward artists. Maybe this is even the beginning of what might grow into something great. I’m still a little worried. Looking at the past behavior on either side of RIAA vs. Napster makes it hard to get behind any new industry plans for the future.
I understand that the RIAA’s idea is to shut Napster down, or force them into legitimate business deals, such as Bertelsmann has proposed. What I’d like to know is what these deals will mean for musicians, singers, and songwriters—the people without whom there would be nothing to fight over, nothing for these multinational companies to make money from, and nothing for music lovers to enjoy. I’d feel like a fool if Napster were shut down or forced into a deal, and the courts gave millions to the record companies but the artists received zilch.
If the RIAA gets some kind of injunction or other legal action supported by the courts that will allow the artists and writers to have a choice regarding how their music is distributed on the Net, then that is a great and positive step. If there is a great deal of money to go to the record companies and the RIAA has no idea how those labels will compensate artists, then a big gaping hole is left to fester. Who represents artists in this picture? So far, it seems like no one.
The advent of the Internet has been a relentless series of wrenching headaches and embarrassing mistakes for the music industry. It has also allowed