Legality: the final word

[ExNihilo]

Please let this be the official thread that will resolve this issue.

Last week, I spoke with someone at Stewart Mac. I asked how it is possible to sell a Les Paul plan (as a luthier supplier) and not get sued. I had always thought that the headstock was the Gibson trademark. So, I asked Stewart Mac, "Am I allowed to build a Les Paul exactly like the plan -headstock and all?" "Yes," was the answer. "You can make it exactly to spec, just don't try to pass it off as a Gibson." So said Stewart Mac.

I would think that this must be true if Stewart Mac has been selling the LP plan for so many years. Surely Gibson knows about Stewart Mac and this plan. However, in searching all of the forums, I find nothing but confusion and differences of opinion; some conflicting with what Stewart Mac said.

Now for the big question. Can one (a hobbyist) put the Gibson logo on his own personal build if he is not going to sell it? (as a side note, most of the builds here are every bit as high quality as Gibson, so it's not like cheap knock offs are entering into circulation by a few hobbyists...)

I would love to put "Gibson" on my headstock. Why? Not out of vanity (i.e. like I am trying to fool people that I own a Gibson). And not to sell it. I simply believe that the logo "Gibson" on the headstock is so iconically connected to the whole shape of the guitar that the two go together (shape and logo). The logo has become part of the beauty of the design itself. I know that most of you agree with me, because I read your posts asking questions about plans down to the thousands of an inch. Anyone that concerned about getting the exact shape right must also want to get the logo right too. Am I correct?

So, how legal is it?

Sincerely Scott

 

[Jason]

How/why are they going to sue you for doing something in your own privacy for yourself? Would Warner Bros. sue you for drawing a picture of Bugs Bunny and hanging it on your wall?

It becomes a problem when you're selling/distributing copies.

 

[Mr Bones]

You can do whatever you want as long as you don't sell it.

I agree about the logo FTMP.

 

[SKATTERBRANE]

What if you sell it and TELL the person it is a copy?

 

[xsouldriverx]

i thought it was legal as long as you dont sell it saying IT IS a gibson. but when im done with my guitar im not going to put someone elses name onto it. its my man hours and my dedication that built it so im going to do something for myself. i can see you liking the gibson name on the headstock and it does look classy and correct.

 

[Jason]

i thought it was legal as long as you dont sell it saying IT IS a gibson. but when im done with my guitar im not going to put someone elses name onto it. its my man hours and my dedication that built it so im going to do something for myself. i can see you liking the gibson name on the headstock and it does look classy and correct.

Even if you make it clear that it's a copy you're still using their trademarked/copyrighted design and logo. That would be illegal. This is why you'll notice all the "legal" non-Gibson copies have slight variations in the body and neck shape.

 

[DRF]

I always thought the cutaway horn was a trademark issue also. Its to bad for Gibson that so many people and companys ripped off all the little ideas that was incorporated in the L.P.

 

[Ole'Lefty]

http://s85.photobucket.com/albums/k65/edmunds4bar/electrics/?action=view&current=DSC_0005.jpg This one caused a wink or two on the Strat Forum. All Fender or Fender Licensed parts. I'll probably keep it, but I have two more!

 

[Ole'Lefty]

This raises the question even closer. Truly, I have 3 more Fender original trademarked necks, and 2 or 3 licensed only. The body is Fender, pickguard is F, machines are F-Schaller. Bridge etc, all legit but those are super hot Suhr Aldrich HB's that push-pull for single coil tap. It is now finished with jack, and strings and relief and intonation set. A killer. And, I have a quilted natural and cherry sunburst almost identical. Legal? PS- I actually hate trems so all have a Tremol-No and /or 5 springs and set tight to the body. I built these because I am a believer in ebony fretboards for best controlled bends and vibrato-medium jumbo frets. Weighs darn near as much as a Les Paul. Must be those heavy wound pickups.mt

 

[Jason]

DSC_0005.jpg - Image - Photobucket - Video and Image Hosting This one caused a wink or two on the Strat Forum. All Fender or Fender Licensed parts. I'll probably keep it, but I have two more!

That's more of a debate right there. To me, Fenders are kind of like Legos. And I mean that in a good way!

 

[ExNihilo]

I think it may be a case of apples and oranges when it comes to LPs and Strats. (I own and love my Strat, so I am not bashing them). The Strat was designed as a modular guitar. Each Strat almost begs for an interchange of parts. That was part of the genius of the design. It encouraged players to "do-it-yourself" interchange. The set neck LP is a different animal. It either is or isn't an LP (you can't really hybrid it).

In any case, we might be straying off topic a bit.

Thanks for your comments.

Sincerely, Scott

 

[River]

We had an intellectual property attorney weigh in on this subject in another thread IIRC, and I have consulted mine. Many don't seem to want to believe what they say, so I don't think the real question is "what's legal?". I think the question being asked here is "what can I get away with?".

 

[dennistruckdriver]

Why would you rather not put your own name on it, if you built it?

 

[IceGator8]

I think this is an interesting issue. If Gibson fails to defend the design the precident is set. Yet when Gibson sued PRS for the SC PRS won. This would lead me to believe that there was enough difference in that guitar that it was deemed different from the Gibson design.

So what was different with the PRS Singlecut?

1. 25.5 Scale Length
2. Headstock
3. Inlay
4. Inner Horn Carve

And problably some other things.

What was the same?

1. Single Cutaway Body Shape
2. Two Humbuckers

To me this says that the single cut design wasn't enough for Gibson to prevail against PRS. Certianly there were non-Gibson acoustic guitars that were using a singlecut type of design that preceeded the Les Paul. The Maccaferri acoustic guitar is one of these.

I think maybe the scale length and the headstock are the two things that may allow Gibson to defend their design in court. I find it interesting that PRS came up with the SC245 which has a 24.5" scale length. (Great guitar btw) Why not issue the SC 2475 with a traditional Gibson scale length? Maybe PRS decided that would make their guitar too much like a Gibson Les Paul. Maybe not though because there are other companies that manufacture guitars in the 24.75" scale length.

This is interesting stuff.

 

[River]

The only true resolution is to get ahold of Gibson's legal department, tell them what you're doing, and ask them for permission in writing.

 

[Ole'Lefty]

Well, the fact is that scale length and the principle of a cutaway are not protected. What is protected is a logo, or a shape associated almost automatically, with a particular brand(think of the most often cited "Coca-Cola, Coke"). The similarity has to be close enough that there is the likelihood of "initial interest confusion." Where it is a closer call,an interested consumer can be presumed to educate himself-think $3-4 K guitar buyer- as to what he or she is really seeing and pondering. Gibson could have trademarked the unique shape of the LP when it was new and still proprietary. Too late for that long ago. But, the open book was unique enough to develope a common law copyright/trademark which was then converted into statutory protection. Fender is waiting right now on a decision regarding the Strat, but that is the proverbial equine gone to join the choir invisible. Same with the Tele. An owner can not "sit on his rights" and then demand protection. Fender does have trademark rights in the S headstock and probably the T as well but it is still difficult to enforce because they have been so sloppy about it. Another one that got away was "humbucker." Properly protected, we would all be finding neat ways to say "cyclic hum cancelling magnetic double coils for stringed instruments." Though grabbed by Gibson, Seth Lover just wanted thanks for a good thing and you know, a fair number of people actually remember that he gave us Humbuckers.

My dilemma is a bit clouded by the mass licensing allowed by F. They can't rake in the royalties and whine when the components get used, especially when you were paid for it. I am not a trademark specialist(lawyers call it intellectual property) but I have done some copyright. You cannot contribute to your own injury and expect a court to help you.
In the era of what we call the "lawsuits" most all of these matters were settled. That is why there are plenty of open book headstocks out there- same with some of the F's. Compromises were reached. Perhaps the biggest soft underbelly for G is Japanese "Orvilles by----.
If a court finds that a manufacturer does not need or deserve protection, they will still look to protect the consumer-that is where the gray comes in.G says the open book makes people think "Gibson" and an accepting belief that the OB headstock means what G wants to call quality, depending on what their standards are day to day, year to year. If a low quality guitar has the OB then G's reputation is harmed and if they can show harm, the matter comes full circle again to protect G and Joe the Guitarplayer(don't even start!!!)
Where a trademarked/copyright shape, phrase, logo is used to mislead, then there will be consequences and they can be commenced by company or consumer. Since it is expensive, a bunch of similarly situated people or a well-funded company has to be truly interested.

NOTE- you may have noticed that I made it sound like I was giving an actual answer one can rely upon. Then you noticed that I have you back to the beginning "if's." See, they do that to us. You go to law school and they snatch your brain and substitute grey matter with gray areas and you are no longer quite a real human being anymore. Oh, and someone needs to PayPal me $660 for this detailed definitive opinion. Mike T.

 

[xsouldriverx]

i think the prs sc body is pretty different looking that an LP. the top has a bit more "shoulder" to it and it seems to also be a bit more bottom heavy. its shaped a tiny bit more like your dreadnought acoustic than an LP. i mean the prs sc body alone REEKS of the classic prs styling, add in the neck, inlays, and headstock and you you see they are way different.

 

[River]

NOTE- you may have noticed that I made it sound like I was giving an actual answer one can rely upon. Then you noticed that I have you back to the beginning "if's." See, they do that to us. You go to law school and they snatch your brain and substitute grey matter with gray areas and you are no longer quite a real human being anymore. Oh, and someone needs to PayPal me $660 for this detailed definitive opinion. Mike T.

Good one, Mike. And you're cheaper than my IP counsel.

 

[IceGator8]

i think the prs sc body is pretty different looking that an LP. the top has a bit more "shoulder" to it and it seems to also be a bit more bottom heavy. its shaped a tiny bit more like your dreadnought acoustic than an LP. i mean the prs sc body alone REEKS of the classic prs styling, add in the neck, inlays, and headstock and you you see they are way different.

Yeah but it's close enough that Gibson decided to try and make an example of them.

 

[Ole'Lefty]

Since I was among friends-at least as far as anyone can befriend a lawyer(not counting Great Whites)- I estimated what we call the "brother-in-law" rate. Did anyone notice the clever dual spellings of "between black and white?"