Does Rockabye Baby!, a company that produces and sells “lullaby renditions of baby’s favorite rock bands,” have to seek permission from the bands themselves in order to create and market their products?
Rockabye Baby! (the exclamation point is in their name; don’t worry, I’m not that excited about them) sells baby-safe versions of the music of a variety of rock artists, from AC/DC to Zeppelin. My fiancee and I recently gave their “Pixies” CD to the indie-rock loving parents of a newborn. They were excited to receive the CD, and we all enjoyed listening to the mellow instrumental take on “Where is My Mind?” Let’s just say the experience was a bit calmer than the ending of Fight Club. And I’d like to thank the proud new father for suggesting that the copyright and trademark questions brought up by this series of CDs might make an interesting blog post. I have trained my friends well.
After the jump: a brief discussion of musical copyright issues and the trademark questions raised by Rockabye Baby!2 Forms of Musical Copyright
When you listen to a CD, you’re hearing at least two copyrights at once (isn’t that exciting?). Under U.S. law, there are separate copyrights for the musical composition – which can be imagined as the music and lyrics written on a page – and for the sound recording – the actual performance that was captured on the CD. While, in most cases, you need permission from the owner of the sound recording to reproduce it, you don’t need permission to record your own version of the song (the musical composition). Instead, you simply have to pay a “compulsory license fee” to the owner of the musical composition copyright. The fees are currently set at 9.1 cents per song, per copy, for both CD and “permanent download” copies (for example, MP3s).
I’m simplifying the above information just a bit*, but this covers the basic idea. If I want to record myself playing a song by Bruce Springsteen, I don’t have to call up the Boss and beg his permission. I just have to pay the set license fee when I sell copies of the recording. However, if I want to make and sell a compilation CD with his original recording of “Jungleland” on it, then I do have to go to the Boss himself (or whoever owns his copyrights).
* In future blog posts, I look forward to covering some of the twists and turns, including transformation, sampling, etc.
All of which brings us to the following conclusion: Rockabye Baby! didn’t have to get permission from the Pixies to record their version of “Where is My Mind?,” they just have to pay the compulsory license fee to the entity who administers the Pixies’ copyrights.
What About Trademark Issues?
I’m glad you asked. In most cases, artists will enjoy trademark rights in their name and in any band logos. Taking a look at their products, Rockabye Baby! avoids using the exact logos associated with the bands they cover. For example, AC/DC’s logo looks like this:
While their “AC/DC” CD cover looks like this:
So the concept is suggested, there are lightning bolts and whatnot, but there’s nothing that’s an exact or even an approximate copy of the iconic logo.
At the top of each CD cover, it says:
lullaby renditions of (Aerosmith, Tool, etc.)
They’re careful to feature their own brand front and center, and the layout conveys the (accurate) impression that this CD does not contain music performed by the original band, but rather a dramatically different take on the band’s songs. My sense is that this is intended to avoid creating confusion in the minds of consumers – the key question on which trademark law turns. Rockabye Baby! doesn’t use any band’s name as a trademark – meaning, “Hey, fan of U2, here’s another CD from that Bono and friends” – but rather, they use the band names in the minimal sense that’s required to convey to the public what collection of songs are found on the CD.
That said, some of their images do get dangerously close to the real thing. Here’s the Ramones’ actual logo:
And the Rockabye Baby! version:
A lot of these issues are in the eye of the beholder, but to me, that looks pretty similar. Glancing at the CD on a store shelf while I’m strolling the aisles, I might be fooled into thinking it was a Ramones CD. This is referred to as “initial interest confusion” – fooling the consumer just long enough to get them to look at and consider your product rather than a competitor’s – but that’s a topic for another blog.
As a general matter, I think the Rockabye Baby! folks are on the right side of the law. They’re free to record their own versions of the songs, and they appear to be avoiding most trademark issues. I don’t know if they seek permission from the original artists when they produce and market their CDs (following the example set by “Weird” Al Yankovic), but they probably can get away with what they’re doing without needing the artists’ OK. Maybe they follow the old rule: “It’s easier to ask forgiveness than it is to get permission.” Important legal note: I do not advise that my readers follow that rule.