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Liability And Legal Issues With Copying Guitars

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Doesn't Slash have a well-documented counterfeit LP? I'm pretty sure I've seen pics of it in magazines. Where's Gibson on that?

It seems to me that, right or wrong, Gibson only goes after the "trademark infringements" that are a threat to its market.

PRS has been making the Santana I II and III for quite a while now and they are clearly the same shape as the LP junior or TV or whatever the hell that model is. Hamer has used that silhouette since the early days to no consequence.

Gibson's recent policies have become like a paranoid schizophrenic. And suing Fender for trying to protect its designs? Gimme a break.

Does anyone else think this is absolutley ridiculous?

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So, ok, question for the lurker....

I draw up some plans, lets call it the Pezcastor. I build a guitar from those plans. I market, and sell those guitars world wide. I out sell the fender strat. Everyone wants a piece of the action, and hence they copy the design.

The plans are copyright. Therefore, the object cannot be made, without breaking that copyright. Same as you can build a building from someone elses plans, with prior approval.

What about sculptures?? They are art right?? They are objects. Because they arent pen on paper, does that mean anyone can copy them?? Thats exactly what you're saying.

Mr. Ormsby,

No, that's not how it works. If you publish and copyright your plans, copyright applies only to reproduction of the plans, not reproduction of the object depicted in the plans.

Example: one of my neighbors just bought plans for the fancy New Yankee Workshop Router Table. He can not only make one for himself, he can go into business manufacturing and selling the tables if he wants to. What he can't do is copy the plans and start selling them.

The only way to protect objects depicted in plans is to trademark the trade dress of the object -- if it qualifies. A router table would never qualify, but a guitar can if its design is distinctive enough to be identified with its maker instead of just as a guitar.

A sculpture is an object, but it can be copyrighted because it's defined under the laws as a work of authorship, not an article of commerce. Of course, it has to be an original work of authorship to qualify.

I wouldn't want you or anyone else to think that you're protected against copying of an object just because you've copyrighted the plans. You're not.

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Hi everyone;

Wow! Made a few enemys, havent I?

YES, trademarks and patents are, of course, the most obvious issues to deal with, however, I stand behind my comments about copyright.

The 'authorship' element is in the DESIGN of the instrument (the drawings of the plans). Rights DO accrue to these as well- THIS is how scupltues (as Perry has said correctly said),  and aretecture are protected. think about it- patents couldnt apply, TMs couldnt apply to protect these works? 

If you stand by your comments, then you're an ignoramus giving false advise. I don't mean to be harsh but there's no other way to put it. You don't know what you're talking about.

Please read my reply to Perry.

Found it:

"An important provision in this regard is s 21(3) CA, which provides that the production of a thyree dimensional version of a two dimensional artistic work is deemed to be a reproduction of that work (and vice versa, where a two dimensional version is produced of a three dimensional work). This means that copyright in drawings or plans may be infringed by the creatyion of the item shown in those drawings or plans - even if the item in question is not in itself an artistic work."

Intellectual Property in Austr, 3rd ed, 2004, p 225

You're completely misinterpreting this. A guitar is not an artistic work as defined under the law.

What this means is: if someone creates an original two-dimensional work of art --- say, an oil painting of a man playing a fiddle -- then someone else can't get around the copyright by making it into a sculpture or even into a non-art object like putting a reproduction of the painting onto an article of clothing, furniture or anything else.

It does not mean that you can't make a fiddle like the one in the painting.

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Oh god, not again....

1. Lets not get into name calling.

2. I am trying to help, not cause people to to egt upset

3. Just to clarify, this is an extract from an Australian text; were both Perry and I live

4. Please read the final sentence in my quote -'even if the item in question is not in itself an artistic work'

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GE do you know if the "fair use" tag extends to countries out side of the US? I would imagine it does or there is some form of equivalent to this. I think a lot of the confusion in regards to this is because everyone on this forum does live all over the world where of course the different countries have different laws. However it does go to show with the whole copyright and trademark issue that it can obviously be attacked in several different ways ( at least thats from what I can see in this post ). Maybe we could take the best points from this discussion and enter them into a bullet point reference of what can and cannot be done? It may be easier for people toi understand than having to read through this entire thread and could be a good quick reference tool??

I think we all generally understand that you can build your replica, the problem comes with selling or passing that replica off as the real thing. I so hope I got that right!!  :D

As far as I know all countries have fair use provisions, but they differ greatly from country to country, they even differ greatly from year to year in the same place. Fair use (at least in the US) is part of the common law, that is - AFAIK - there aren't a lot of "fair use statutes" written in law books, it's basically evolved from court rulings over time. The most famous of which (off the top of my head) was the ruling that VCRs are not, in and of themselves illegal because they can be used for more than just making bootleg videos, for instance they can be used to "timeshift" television shows so that people can watch shows they would ordinarily miss.

I think the thing to do is to not trust 100% the advice of a bunch of guys (many of whom aren't even lawyers) on a guitar forum and do some quick research. Probably the easiest thing is to go to the business/law department of your local college/university and talk to the intellectual property law teacher for five minutes.

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In the US there is a such thing as "fair use." Fair use basically says that there are situations where you are technically breaking the copyright/patent/trademark, but it has been determined that you don't significantly injure the copyright owner.

Examples of fair use:

Taping television shows

Making a photocopy of a couple of pages in a book.

Making a backup copy of a CD

Yes, fair use is also important. Not having a go, but you arent "technically breaking the copyright/patent/trademark"- it is a licence to use SOME of the intellectual property in the said medium. I know it sounds pedantic to mention this point, but 'fair usage' trumps the ownership of the copyright/patent/trademark- you are not breaking anything.

Fair usage is differs in all juresdictions, but the theory behind it is the same- in Australia, you can photocopy 10% of a book (or one chapter- whichever is greater) - you CANNOT copy a CD to tape (even if you had bought the CD),

UNLESS you have prior license to do so.

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If I create a 100% exact copy of a 1959 Les Paul this has been determined to not be injurous to the financial wellbeing of the Gibson corporation.  If I sell said copy, this is injurous.

If you build a 1959 Les Paul copy for yourself, aren't you depriving Gibson of the money you would have spent on a real one as much as you are depriving them of the money that they would have made from the person to whom you sell it? It seems just as injurious, doesn't it?

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Ok, let's just say that it's against the law to tape that show off of television, make a backup copy of that CD, or in our case make a guitar from someone elses design. First off, do you really think that Gibson or Fender, is gonna spend the time and money to sue you over one you made for your own personal use? Legal or not? It's very obvious and unfair to make a replica and then start selling them, that's not a good thing no matter how few you sold. I would never advise someone to make a guitar and put a decal on it trying to pass it off as some factory job, that's illegal no matter how you look at it. But, if your building them to learn the trade and for educational purposes, I don't see why they would care one way or the other. I already have Fender and Gibson guitars, but I decided to build some to learn the process and understand the thinking that went into each design, so that I can learn something and hopefully improve upon them. But as far as Fender trying to get the patent on their body designs, I think that they waited way too late for that, since alot of guitars like Ibanez, etc. are direct knockoffs of the Strat, even LGM's design is a Strat shape with parts cut out of it and slightly different horn, body size. Let me just say that there is only so many designs you can have that actually looks good. Most guitars are gonna be double cutaway, (strat, lp junior, etc. ) or singlecutaway ( Les Paul, etc.) anyway. I'm just wondering why someone hasn't got a patent on air yet? What are you breathing my air? You must pay!!!! That's about how obsurd some of this has become. We are a society that sues anyone over anything. Heck, I think I'll sue Taco Bell because they forgot the special sause on my taco yesterday.. lol

Don't get me wrong, if anyone made an exact copy of a Strat, LP, LGM model.. etc. and started selling them on a big scale, I think they should be liable for every penny they made though. I say if someone wants to sue me over making a guitar for learning and personal use then bring it on. I'm sure we'll both lose alot of money for nothing.. :D

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This is getting ridiculous now, I didn't start this thread to start a pissing match.

I started it for the builders who want to try selling their guitars and are building copy guitars. Just some information for people.

From what I know, the information I posted is correct for North America, I can't say 100% for the rest of the world, but it's correct for North America.

As for Copyright status, virtually nothing to do with a guitar can be Copywritten in North America. Blueprints do nothing to protect the design. My father is an architect and we have been around the books on this issue, none of his drawings can be protected against the design by copyright. Copyright will state only that you can't use his specific drawing as your own. Anyone could build a house from his drawings.

In order for him to protect the house he would have to file a design patent as well, which would be ridiculous to have to do. Like many big companies, he doesn't care if one or two people rip off his design. If a large housing firm started building subdivisions using his design, then perhaps he would regret not having a patent on the design.

COPYRIGHT DOES NOTHING FOR GUITARS I state again! Copyright is a word that gets tossed around a lot, simply because it is the most commonly used and seen word.

Copyright on a guitar COULD be used for a logo or artwork on a guitar however. The F in the word fender could be argued a logo and be copyright. The checkmark in the Ibanez logo could be copyrighted. The double diamond on the Gibson headstock could be argued a logo and be copyrighted. The names themself, Fender, Gibson, Ibanez, Leviathan, those are trademarks, you cannot copyright a word. You trademark that word for use with YOUR product. I believe shapes (like a headstock) can be trademarked, but as I understand, this is much more difficult to prove, that is why I went with the industrial design patent for my body shape and headstock. The design patent offers the best protection for a shape, it means that if somebody tries to steal my design I could realistically take it to court on my own for less costs. When it's a trademark it becomes more difficult to prove, why, I don't know, I could be incorrect in saying that, but it's as I understood it.

Personally, I don't care how many people build les paul or PRS copies, I also don't care if you're selling them, if you get caught and get your ass sued though, at least I can say "hey, I made mention of it".

A prime example of a patent and protection is Novak with their fanned fret system.

If I build a guitar with that system, and sell it, they can sue my ass. If I contact them first and tell them I plan on doing it, I can purchase a license to do so (their license is $75 for one time use) First they have to review my application to decide if they want me to do the system or not. If they decide no, then to bad so sad for me, I can't do it. They only have a US patent though, so I COULD legally stilll use the system for customers anywhere else in the world. If somehow my guitar ends up in the US at some point, I'm liable though unless I can prove that it was never supposed to be in the US.

Same with Buzz Feiten, anyone can build a shelf nut and do the system, but they can nail your butt to the wall if you do so. They are a company that not only hold a US patent, but international patents as well, I bought the license to do the Buzz Feiten tuning system.

Most companies will offer some form of license if you want to copy their design, utilize it, or sell it. They will review your work/business likely first to make sure you're not some hack that will give them a bad name, but most times you can get a license. That license might cost you $100,000, it depends on what they think their product is worth, and what your intent is with it.

Anyway, enough with the pissing matches here, the law probably is different from country to country, and this thread is getting ridiculous. I wasn't trying to give law to the letter, just reiterating what I've learned and WHY I did it.

Jeremy

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Oh god, not again....

1. Lets not get into name calling.

2. I am trying to help, not cause people to to egt upset

3. Just to clarify, this is an extract from an Australian text; were both Perry and I live

4. Please read the final sentence in my quote -'even if the item in question is not in itself an artistic work'

1.It's not name calling, it's an accurate description. You're obviously utterly ignorant about intellectual property laws. You're making false statements that, if people relied on them, could cause them to fail to protect their designs. And you persist even though it's been reasonably explained to you.

2. You're not helping, you're harming. The law is what the courts say it is, and you obviously haven't a clue what they say. You won't find any case law anywhere on this planet to support what you are saying.

3. There are no essential differences between Australian IP statutes and case law and those of any other countries that are part of international IP treaties.

4. I read the final sentence of your quote, and I already explained that you were ignoring the first sentence. That covers a three dimensional reproduction of a two dimensional artistic work. A plan design of an article of commerce is not a two-dimensional artistic work under the law. It's not an artistic work, period.

In any case, when you copyright an original drawing, photo or picture, what's copyrighted is the image itself, not the objects in the image.

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First off, do you really think that Gibson or Fender, is gonna spend the time and money to sue you over one you made for your own personal use? Legal or not?

i read this...time and time again,every time this is brought up.this is no argument...this is conjecture.

IF it is illegal(i don't know if it is or not,but for the sake of the argument),then it is just as illegal whether or not you are ever found out.

this is civilization...try living like it sometime.

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Hi,

As Jeremey and others have said, it looks as though the law is very differnent between juresdictions.

Which is confusing for all of us. Obviously, the law where YOU live is the most applicable. The US and Canadian system is obviously very differnt to Australian law on this point. Which makes life fun on an international forum.

Not posting this to stir up the flames; just trying to correct inincorrect information-

One final note- in regards to copyright in Australia (garagerocker), that entire qoute is from the text. If you doubt its validity, you should talk to them.

In regards to caselaw, there is a multitude of Australian cases- anyone interested (with nothing better to do) give me a PM and Ill point you in the right direction.

Not posting this to stir up the flames; just trying to correct inincorrect information.

NB- this is AUSTRALIAN information.

Cheers,

Luke

Edited by LukeR

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Hi,

As Jeremey and others have said, it looks as though the law is very differnent between juresdictions.

Which is confusing for all of us. Obviously, the law where YOU live is the most applicable. The US and Canadian system is obviously very differnt to Australian law on this point. Which makes life fun on an international forum.

There are minor differences between countries, but (once again) no, it's not very different. The US, Canada and Australia all subscribe to the same international conventions and treaties. In addition, AUSFTA (the Australia/US Free Trade Agreement) brings the US and Australian provisions even closer together.

Of course, you can keep repeating your false claim, but it won't change reality.

Not posting this to stir up the flames; just trying to correct inincorrect information-

One final note- in regards to copyright in Australia (garagerocker), that entire qoute is from the text. If you doubt its validity, you should talk to them.

Where did I ever doubt its validity? Of course it's valid, and the same provisions can be found in US copyright law. What you can't seem to understand is that it doesn't have anything to do with reproducing objects pictured in an image, only with reproducing the image itself.

In regards to caselaw, there is a multitude of Australian cases- anyone interested (with nothing better to do) give me a PM and Ill point you in the right direction.

Not posting this to stir up the flames; just trying to correct inincorrect information.

NB- this is AUSTRALIAN information.

I challenge you to find even one case and post it here. Find one case in Australia or anywhere else where a copyrighted portrayal of a guitar or any other useful article has prevented someone from reproducing that article.

Here is a direct quote from the US Copyright Office, and you had better believe that the same thing applies in Australia:

Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed. For example, a drawing or photograph of an automobile or a dress design may be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.

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My final post in this topic:

The only ways to prevent someone else from reproducing your guitar design are to obtain a trademark on some or all of its "trade dress", if it qualifies, or to obtain an industrial design patent on part or all of it, if it qualifies.

A copyright will not protect you at all, in the US, Australia or anywhere else.

Seek the advice of an attorney who specializes in trademarks.

Edited by GarageRocker

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i'm new here but am a new builder and this has been a topic of close interest for me. Gibson, at least in the transcript does make extensive use of the term "Trade Dress" in their case.. The body shape of the single cut can be different, but to the "quick glance" when switches, pups, knobs, etc. are in identical positions the "quick glancer" can easily mistake something for something else.. classic optical illusion, your brain fills in the details your eyes miss.. we're very good at quick pattern matching. That's the danger too with fender copies, a strat pickguard with 3 pups and 3 knobs can make any body look like a strat in a quick glance. Thats what scares me.

Fender has shut down some small builders which is what is disturbing to me, like Lentz and some others.. Maybe that's just positioning so they can prove that they have been actively policing their designs when it comes time to argue their case for a design patent or shape trademark..

Someone mentioned Slash's copycat earlier.. which i read at one time was an Aria.. his favorite axe.. This made me chuckle and all I would say is that little Aria copy has sold as many Les Pauls for Gibson than probably any other guitar out there.. I doubt gibson cared a bit what slash played as long as his legions of fans all thought he played a gibson :D

I'm sure a lot of folks are awaiting the fate of Fenders case, as I am. Right or wrong, the vintage designs have endured for a reason, and as the companies that own them sink deeper and deeper into a quality rut, small builders that can make a copy that is actually a finely crafted guitar will always have business. From a market standpoint, that actually helps the companies somewhat. Thanks to boutique builders, you still hear recording after recording of unmistakeable strat, tele and paul sounds, whether the guitar may or may not actually be what it sounds, or looks like. My 2 cents.. This is a great thread.. hopefully it will stay free of the negativity..

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I don't think Fender is so much worried about small-time custom builders ripping off business from the Custom Shop. I think they're more worried about cheap mega-builders ripping off business from the rest of Fender.

Put simply, a small-run custom builder like Suhr isn't going to pose a huge threat to American Strat sales. But a builder that's right on the edge of being a powerbroker like Tom Anderson is a big threat. Just think if TA became to Fender like what PRS has become to Gibson. The Fender name will only get you as far as the first guitar that can really beat the original. G&L beat the original Teles and Strats with the ASAT and Commanche, but the quality there isn't even a threat to Fender now days.

With Fender swallowing up every other American guitar name that Gibson hasn't and basically controlling Cort over in Korea, they're definitely shoring up every bit of control they have over the traditional Fender designs.

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I hope I didn't miss this somewhere in here and look dumb. There is a LOT of reading however and I skipped over several. So here is my quesiton/scenario

Guitar Body: Lets say I do want to start making and selling guitars. I like the shape of an Ibanez body. In order to be able to sell something like that, do I need to manipulate the dimenions. And if so, by how much. I mean, you can only vary a guitar shape so much without leaving the realm of tradition and just looking stupid. Is a body something they can even trademark? That's kinda like trademarking a circle, or the infinity sign. Do the courts allow it?

Headstock: I can understand trademarking this. It's what I recognize a manufacture from. So again, I like the Ibanez headstocks the best. However, I like them better reversed. So same scenario, I make a neck with a reversed Ibanez looking headstock, yet I change the tip of it somehow. Is that enough?

I am sure many can see my concern on some of this. As people, when we really like something, it sticks with us. When we go to create something that is original, it has influences in it from those things we like. This shows in eveyone. So I like the Ibanez guitar shapes. If I start making my own guitars, yes I am going to change these things, but there will be certain inspiration in my changes, and just things set in my mind. Where is the line drawn for me getting sewed?

I have an idea of a guitar that I want to make that is shaped like a Les Paul but has some cutouts from the back of it, will have a Floyd Rose, EMG's, 1 volume, and one pickup selector, and a battery compatment routed out of the back. It will be a bolt on as well. So while there are influences in this guitar, it is my idea and creation. What would happen in that event? Any assitance would be helpful. I am just doing this as a hobby right now, but if it turns into something more, I want to have my bases covered. (no pun there, I'm making 6 strings!)

-Reamer

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Market confusion is a big deal to the big manufacturers, and it's something that the courts will pay attention to. it falls under misleading advertising and selling practices.. If you intentionally make your guitar with enough points of comparison to a big name instrument then you would risk being in trouble.. That's why the headstock is so important. Where do we look when we want to know what someone is playing? 99.99% of the time it's the headstock. In seconds I can tell a PRS from a Gibson ro a Strat from a Hamer.. or a Taylor from a Martin.. it's the easiest way to tell a make of an instrument. But now they seem to care about the body too.

Neither fender nor Gibson want any instrument on the market that folks think is one of theirs if it's not. Following that rule of thumb and making your instrument noticeably different enough that there isn't a question, will be your best bet. If you find yourself asking "how much should I change to squeak by.." then you're splitting hairs and the offended party can likewise, split hairs..

As for the PRS/Gibson thing.. I'll take a PRS over a Gibson any day.. however, as PRS becomes more and more mass produced, their toleranced get looser, etc.. they will wind up in the same boat as Gibson.. a bloated company protecting their assets because the quality doesn't speak for itself anymore. I went to the gibson store in nashville and played about 20 guitars.. none with a price tag any less than 5k.. many upwards to 6 and 7k. I would not have taken a single one home if you gave it to me and that's sad (well, maybe if it were free i would).. I love the look and the sound but they simply all played horribly. Poor fret work, sloppy setup, just had that "cheap" feel to them. It's no wonder why brands like Dillion, Agile and Tokai are such a hot commodity.. But i think Gibson bulldogging PRS proves that the biggest market takers will raise the more ire from the big name manufacturer.. That and anyone who BLATENTLY copies a headstock. Body shape seems forgivable, historically, but you copy a headstock and you'll get a C&D letter faster than you can spit..

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Just a quick question, if you take a neck from say Ibanez and build a body for it, is it still illegal to sell it then?

Edited by Slabbefusk

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Just a quick question, if you take a neck from say Ibanez and build a body for it, is it still illegal to sell it then?

depends. If you sold it on ebay as a "project guitar" and listed the parts you'd be ok.. but if you were selling it for a profit like a custom guitar then you're using ibanez's name and that's not kosher. Fender got around it by doing the "fender licensed parts" thing.. technically they are only for use as replacement parts..

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ok, heres a question

Lets say, for example the ibanez jem STYLE guitar i am building (TOM bridge, 3x3 head, its not a copy really) got stolen, and was sold on, say ebay for 500 bucks because it was a rare only 5 built orignal jem, since i have my name inscribed in the control cavity, could they come back on me?? for producing a copy and trying to pass it off as rare jem?

Curtis

Edit, i read that and it sounds weird, what i really mean is when my Jem copy is complete, and say i did, god forbid sell it, i put it in the newspaper and listed it as "Hand made Jem Style guitar, 3x3 headstock, tune o matic bridge, seymour duncan pickups, etc... etc... and someone bought it, just to scam someone, like sell it on ebay, since my name is on it, can they come back (ibanez) and charge me for fraud?? or producing a fake??

Curtis

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To the last question.. To file suit against someone for an offense, you generally have to show intent to offend.. If someone stole your guitar and sold it, that's out of your control.. you are not acting with intent to defraud anyone.

If you tell someone that your guitar is a rare ibanez custom, insinuating that it came from an ibanez custom shop then that is fraudulant (sp?) if you say Ibanez guitar, heavily customized, letting them know they are user mods then there is no intent for harm or fraud.

Someone would have to prove that you are using ibanezs name and/or style to make a profit.

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Jeremy, thanks for the great post. I was in the process of writing a thread on this myself. I was curious as to the costs asssosciated with copywriting, and any steps a small time builder can do prior to building that will help protect your designs. I assume not showing anyone is one key step. How close do they have to be to be considered ripoffs? Does it have to be blatant? Or just a resemblance and youre screwed? Thanks for the thread

Although not a guitar, I personally have an invention which is currently being reviewed by a mnfg. company. My invention, of course, was researched to insure no infringements. My patent has been filed (prior to going to mnfg co.). My total cost for all the research and development (including a prototype) was about $9600!

My understanding is that if your idea has a "25%" variation of another, then you can legally design it.

Robert

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