Fender issuing cease & desists everywhere

Philly_Q · June 3

Cig35 said:

I checked now and you can get automated subtitles in English for the video, but they may not be that reliable…

I did look at the subtitle options earlier and somehow couldn't find English, but I've found them now, thanks. The translation can't cope with names and brand names very well, but otherwise seemed to make total sense.

It's too much to try to summarise, but although it seems that Fender theoretically could go through with much of what they're threatening, there are many avenues for defence and counterclaims.

Incidentally I stumbled on another video by Kilian Kost, the legal expert featured in the Bernd Kiltz clip, which starts with him playing a bit of guitar himself...

fretmeister · June 3

crunchman · June 3

I had a look on a couple of US based forums earlier to see what their take on it is. There is a German lawyer on TDPRI. He made 3 or 4 comments in on of the threads (before it got locked). He said that Germany doesn't have case law in the same way that we do and that this doesn't set a precedent. Another case come up in another regional court, and the regional court could make a different decision.

He wrote a lot more than that, and I won't try to paraphrase it, but from what he said Fender are on very dodgy legal ground.

Plectrum · June 3

ICBM said:

Plectrum said:

My first decent electric was an Aria bought in 1985. They'd done a few things on it do differentiate it from the Strat. It didn't have a scratch-plate and the middle pickup was angled instead of the bridge pickup. I can't remember much about the control layout. Aria did have a reputation for building quality guitars in those days and it was significantly cheaper than a Strat. Fender at the time didn't have the greatest reputation for quality.

Aha... the RS Esprit, also famously used by Alan Murphy and (allegedly - he was pictured in an ad with one) Yngwie Malmsteen.

Mine is the much plainer RS Standard, which is essentially a 50s Strat copy but with the RS shape and only two controls, and (I'm sure @Revolutions will approve of this!) no teardrop jackplate - quite likely an idea borrowed from the then-current first version of the USA Standard Strat.

The question is whether Fender would consider this a copy - personally I don't, because although the overall design is the same as a Strat, no parts other than the bridge, pickups and knobs are identical to a Fender - but it is clearly a derivative.

Nice guitar

A bit closer to a Strat than mine was though. I think mine might have been an RS Classic

https://futureworld.ocnk.net/data/futureworld/product/20210619_5a212b.jpeg

only mine was black.

Plectrum · June 3

crunchman said:

I had a look on a couple of US based forums earlier to see what their take on it is. There is a German lawyer on TDPRI. He made 3 or 4 comments in on of the threads (before it got locked). He said that Germany doesn't have case law in the same way that we do and that this doesn't set a precedent. Another case come up in another regional court, and the regional court could make a different decision.

He wrote a lot more than that, and I won't try to paraphrase it, but from what he said Fender are on very dodgy legal ground.

This is what I've been saying all along so it's it's good to know that I've not been misleading people. This brings up the interesting (to me anyway

) point that Bird and Bird must know that their legal case is incredibly weak and so they're essentially threatening people under false pretences. I expect that in due course they'll be referred to whatever body oversees lawyers in Germany.

crunchman · June 3

Forgive me for my cynicism, but I see Bird and Bird as a bunch of parasitic lawyers just in it for the fees they can charge their clients.

stickyfiddle · June 3

crunchman said:

Forgive me for my cynicism, but I see Bird and Bird as a bunch of parasitic lawyers just in it for the fees they can charge their clients.

I mean, yes. Law firms do what their clients want in return for fees.

It's not their fault if their client is an idiot.

fretmeister · June 3

stickyfiddle said:

crunchman said:

Forgive me for my cynicism, but I see Bird and Bird as a bunch of parasitic lawyers just in it for the fees they can charge their clients.

I mean, yes. Law firms do what their clients want in return for fees.

It's not their fault if their client is an idiot.

At least 30% of the stuff I’ve worked on has included a letter somewhere on the lines of:

”Those instructions are lawful but they are very unlikely to be successful, and in the event they are not you are likely to be ordered to pay your opponent’s fees, possibly at a higher amount than you might otherwise pay. If you still wish to proceed please sign and return this letter to confirm your understanding.”

it’s no more “parasitic” than a plumber replacing pipes after telling the customer it’s not needed but the customer wants it done anyway.

Still, it’s a very good job that memoirs aren’t allowed!

Bigsby · June 3

Litterick said:

Cig35 said:

Bluebeard said:

crunchman said:

Beato is not the only one saying that new Fenders aren't very good. In his video, Tim Pierce said it in a more measured way in his video, but he still said that he has six S style guitars from other manufacturers, and they are all better than what is coming out of the Fender factories.

I doubt Beato will be caught criticising Gibson though, as he has an endorsement deal with them as far as I know.

The first time I came across Rick Beato was a video of him, Rhett Schull and Dave Onorato criticising Gibson but that was made a long time before his endorsement.
His Fender video is a bit odd - his rant about about Alan Holdsworth insinuates they are suing artists

I have looked at a number of German IP lawyers’ sites and interviews and if Fender’s copyright claim would be approved in future legal court cases and finally approved by the German Supreme Court, one of the lawyers said that Fender would at least theoretically have the right to sue artists who have monetized videos/pictures/performances in Germany where the Stratocaster is being displayed. But he added that it was in theory and he could not see it happening in reality…

I find that hard to believe. Copyright does not work like that. Do you have a link?

Well, back in the early 2000s I had several friends who were still life photographers; they removed portfolio shots they'd taken of Apple products from their websites over fears that Apple could go after them for copyright infringement. It surprised me, but the argument was that these shots were for their own self-promotion, however, they relied on Apple's (copyright) design work to enhance their photography. At the time Apple products were the hight of cool in the design world. If the images had been from paid advertising or editorial jobs then it's a different story; someone had employed them to produce photos of Apple goods & the images simply reflect this. But if they're relying on the quality of Apple's designs to enhance their promotional work, it's a different story.

There's a potential for Fender to take this approach, (a slim one, even if the body-shape copyright sticks), should they feel their reputation being in the gutter isn't enough, and it really needs to be flushed down a toilet once and for all...

The only person who can legitimately say that 'copyright doesn't work that way' is a judge, (or another judge in a higher court).

skullfunkerry · June 4

Bigsby said:

Litterick said:

Cig35 said:

Bluebeard said:

crunchman said:

Beato is not the only one saying that new Fenders aren't very good. In his video, Tim Pierce said it in a more measured way in his video, but he still said that he has six S style guitars from other manufacturers, and they are all better than what is coming out of the Fender factories.

I doubt Beato will be caught criticising Gibson though, as he has an endorsement deal with them as far as I know.

The first time I came across Rick Beato was a video of him, Rhett Schull and Dave Onorato criticising Gibson but that was made a long time before his endorsement.
His Fender video is a bit odd - his rant about about Alan Holdsworth insinuates they are suing artists

I have looked at a number of German IP lawyers’ sites and interviews and if Fender’s copyright claim would be approved in future legal court cases and finally approved by the German Supreme Court, one of the lawyers said that Fender would at least theoretically have the right to sue artists who have monetized videos/pictures/performances in Germany where the Stratocaster is being displayed. But he added that it was in theory and he could not see it happening in reality…

I find that hard to believe. Copyright does not work like that. Do you have a link?

Well, back in the early 2000s I had several friends who were still life photographers; they removed portfolio shots they'd taken of Apple products from their websites over fears that Apple could go after them for copyright infringement. It surprised me, but the argument was that these shots were for their own self-promotion, however, they relied on Apple's (copyright) design work to enhance their photography. At the time Apple products were the hight of cool in the design world. If the images had been from paid advertising or editorial jobs then it's a different story; someone had employed them to produce photos of Apple goods & the images simply reflect this. But if they're relying on the quality of Apple's designs to enhance their promotional work, it's a different story.

There's a potential for Fender to take this approach, (a slim one, even if the body-shape copyright sticks), should they feel their reputation being in the gutter isn't enough, and it really needs to be flushed down a toilet once and for all...

The only person who can legitimately say that 'copyright doesn't work that way' is a judge, (or another judge in a higher court).

Didn't Prince try to do something like that once, with people who'd taken photos of him at gigs?

fretmeister · June 4

skullfunkerry said:

Bigsby said:

Litterick said:

Cig35 said:

Bluebeard said:

crunchman said:

Beato is not the only one saying that new Fenders aren't very good. In his video, Tim Pierce said it in a more measured way in his video, but he still said that he has six S style guitars from other manufacturers, and they are all better than what is coming out of the Fender factories.

I doubt Beato will be caught criticising Gibson though, as he has an endorsement deal with them as far as I know.

The first time I came across Rick Beato was a video of him, Rhett Schull and Dave Onorato criticising Gibson but that was made a long time before his endorsement.
His Fender video is a bit odd - his rant about about Alan Holdsworth insinuates they are suing artists

I have looked at a number of German IP lawyers’ sites and interviews and if Fender’s copyright claim would be approved in future legal court cases and finally approved by the German Supreme Court, one of the lawyers said that Fender would at least theoretically have the right to sue artists who have monetized videos/pictures/performances in Germany where the Stratocaster is being displayed. But he added that it was in theory and he could not see it happening in reality…

I find that hard to believe. Copyright does not work like that. Do you have a link?

Well, back in the early 2000s I had several friends who were still life photographers; they removed portfolio shots they'd taken of Apple products from their websites over fears that Apple could go after them for copyright infringement. It surprised me, but the argument was that these shots were for their own self-promotion, however, they relied on Apple's (copyright) design work to enhance their photography. At the time Apple products were the hight of cool in the design world. If the images had been from paid advertising or editorial jobs then it's a different story; someone had employed them to produce photos of Apple goods & the images simply reflect this. But if they're relying on the quality of Apple's designs to enhance their promotional work, it's a different story.

There's a potential for Fender to take this approach, (a slim one, even if the body-shape copyright sticks), should they feel their reputation being in the gutter isn't enough, and it really needs to be flushed down a toilet once and for all...

The only person who can legitimately say that 'copyright doesn't work that way' is a judge, (or another judge in a higher court).

Didn't Prince try to do something like that once, with people who'd taken photos of him at gigs?

I think he did.

The 02 residency also had some reports of anyone getting their phone out in the arena got ejected.

I think he allowed about 15 seconds of footage to be used for the news channels and that was it.

stickyfiddle · June 4

fretmeister said:

stickyfiddle said:

crunchman said:

Forgive me for my cynicism, but I see Bird and Bird as a bunch of parasitic lawyers just in it for the fees they can charge their clients.

I mean, yes. Law firms do what their clients want in return for fees.

It's not their fault if their client is an idiot.

At least 30% of the stuff I’ve worked on has included a letter somewhere on the lines of:

”Those instructions are lawful but they are very unlikely to be successful, and in the event they are not you are likely to be ordered to pay your opponent’s fees, possibly at a higher amount than you might otherwise pay. If you still wish to proceed please sign and return this letter to confirm your understanding.”

it’s no more “parasitic” than a plumber replacing pipes after telling the customer it’s not needed but the customer wants it done anyway.

Still, it’s a very good job that memoirs aren’t allowed!

Exactly. I've spent a big chunk of career advising government departments on how to plan projects and how to structure deals to get the results they want. A lot of that advice is conversations that start "Ok we could do that, but here's why I don't think it's the best way forward". And at least half the time they actually listen!

fretmeister · June 4

stickyfiddle said:

fretmeister said:

stickyfiddle said:

crunchman said:

Forgive me for my cynicism, but I see Bird and Bird as a bunch of parasitic lawyers just in it for the fees they can charge their clients.

I mean, yes. Law firms do what their clients want in return for fees.

It's not their fault if their client is an idiot.

At least 30% of the stuff I’ve worked on has included a letter somewhere on the lines of:

”Those instructions are lawful but they are very unlikely to be successful, and in the event they are not you are likely to be ordered to pay your opponent’s fees, possibly at a higher amount than you might otherwise pay. If you still wish to proceed please sign and return this letter to confirm your understanding.”

it’s no more “parasitic” than a plumber replacing pipes after telling the customer it’s not needed but the customer wants it done anyway.

Still, it’s a very good job that memoirs aren’t allowed!

Exactly. I've spent a big chunk of career advising government departments on how to plan projects and how to structure deals to get the results they want. A lot of that advice is conversations that start "Ok we could do that, but here's why I don't think it's the best way forward". And at least half the time they actually listen!

The funniest ones are Americans. They seem to think they have the same level of Client Confidentiality in the UK as the USA when they don't.

First duty in the UK is to the court - not the client. When American lawyers requalify for the UK they are often amazed and even appalled that a lawyer would actually have to report their own client for certain offences irrespective of confidentiality.

Terrorism / sexual offences against under 16s / money laundering, that sort of thing. Doesn't apply if the lawyer is representing them in defending those allegations but if a client privately admits to committing an offence then the lawyer is not allowed to present any evidence in court that they didn't do it because that would be a lie to the court and you get struck off for that.

They can challenge the prosecution evidence of course but when it comes to the Defendants case they have to stay silent "Offer no evidence" is the usual phrase. Basically relying on the jury not believing the prosecution.

The yanks usually sit their gobsmacked when they find this out!

Litterick · June 4

Bigsby said:

Litterick said:

Cig35 said:

Bluebeard said:

crunchman said:

Beato is not the only one saying that new Fenders aren't very good. In his video, Tim Pierce said it in a more measured way in his video, but he still said that he has six S style guitars from other manufacturers, and they are all better than what is coming out of the Fender factories.

I doubt Beato will be caught criticising Gibson though, as he has an endorsement deal with them as far as I know.

The first time I came across Rick Beato was a video of him, Rhett Schull and Dave Onorato criticising Gibson but that was made a long time before his endorsement.
His Fender video is a bit odd - his rant about about Alan Holdsworth insinuates they are suing artists

I have looked at a number of German IP lawyers’ sites and interviews and if Fender’s copyright claim would be approved in future legal court cases and finally approved by the German Supreme Court, one of the lawyers said that Fender would at least theoretically have the right to sue artists who have monetized videos/pictures/performances in Germany where the Stratocaster is being displayed. But he added that it was in theory and he could not see it happening in reality…

I find that hard to believe. Copyright does not work like that. Do you have a link?

Well, back in the early 2000s I had several friends who were still life photographers; they removed portfolio shots they'd taken of Apple products from their websites over fears that Apple could go after them for copyright infringement. It surprised me, but the argument was that these shots were for their own self-promotion, however, they relied on Apple's (copyright) design work to enhance their photography. At the time Apple products were the hight of cool in the design world. If the images had been from paid advertising or editorial jobs then it's a different story; someone had employed them to produce photos of Apple goods & the images simply reflect this. But if they're relying on the quality of Apple's designs to enhance their promotional work, it's a different story.

There's a potential for Fender to take this approach, (a slim one, even if the body-shape copyright sticks), should they feel their reputation being in the gutter isn't enough, and it really needs to be flushed down a toilet once and for all...

The only person who can legitimately say that 'copyright doesn't work that way' is a judge, (or another judge in a higher court).

I could not comment on the case of the photographers and Apple, because I do not know where it occurred, or what copyrights Apple holds.

I can legitimately say that Article 9 of the Berne Convention states:

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

German copyright law includes a specific exception for reproduction as caricature, parody and pastiche, as well as a general exception for fair use: § 23 UrhG.

(1) An independent work, created freely using the work of others, may be published and utilized without the consent of the author of the work used.

In any case, why would Apple or Fender want to stop anyone advertising their products at no cost?

crunchman · June 4

Whether Fender could try go after people being pictured with Fenders (or Fender like guitars) doesn't really matter. Even if their current idiocy doesn't sink the brand, that definitely would. Name guitarists being pictured with Strats (or Strat shaped objects) is the best advertising they have. Going after those name guitarists would drive them elsewhere, and they would lose what small shreds of credibility and coolness that they have left.

Litterick · June 4

It won't happen.

skullfunkerry · June 4

Litterick said:
In any case, why would Apple or Fender want to stop anyone advertising their products at no cost?

See my earlier comment about Fenner* suing their own distributors for using their trademark when advertising that they were a stockist...

*it only occurred to me today how similar that name is to Fender...

Bigsby · June 4

Litterick said:

Bigsby said:

Litterick said:

Cig35 said:

Bluebeard said:

I find that hard to believe. Copyright does not work like that. Do you have a link?

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

In any case, why would Apple or Fender want to stop anyone advertising their products at no cost?

Watch the German video, it's discussed in there.

SPECTRUM001 · June 4

crunchman said:

GoFish said:

In this and many other industries, while innovation decreases (or the market for innovation shrinks) Intellectual property protection begins to play a larger role in regulating commerce. Copyright I find to be particularly contentious as it applies automaticaly and the extension of the period to life +70 years is a closed shop proprietorial nightmare for innovation and a gift to outfits who are basically surviving on the rent collecting aspects of old IP.

Copyright lasts far too long at the moment.

I said it earlier in the thread, but if someone creates something while they are young, and then lives a long time, then the length of time that it takes for something to become public domain is ridiculous. To Kill a Mockingbird will still be in copyright 125 years after it was published. There is no way that copyright should last for over a century.

As you stated, it does restrict innovation. It also allows the copyright holder to jack up prices as they essentially hold a monopoly.

It varies around the world. A lot of countries are 50 years after the death of the creator, which is less bad, but still too much as far as I am concerned.

It should be 25 years after the death of the creator subject to a minimum term of 70 years. You need the minimum term to protect against someone dying young. If you croak immediately after creating it, then two generations of your descendants will benefit, which is plenty. If you do create something when you are young and live another 60 years, then 25 years after your death would give a copyright of 85 years, which is plenty.

Every December; representatives from the UK’s music publishing industry congregate for the annual MPA (Music Publishing Association) Christmas Lunch.

A thousand execs are duly wined and dined and then entertained by a top flight comic. But instead of Marcus Brigstocke, Dara O Briain etc, I reckon it would be interesting if you pitched your theory on copyright protection duration.

They do like a good laugh

Voxman · June 4

crunchman said:

Forgive me for my cynicism, but I see Bird and Bird as a bunch of parasitic lawyers just in it for the fees they can charge their clients.

..and your point is??!!!?

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Fender issuing cease & desists everywhere

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