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Liability And Legal Issues With Copying Guitars

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I have an issue, what happens with RAN guitars, that factory that recreates or "copy" (how do you want to call it) models from ESP, Dean, Jackson...?

Frank.

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I have an issue, what happens with RAN guitars, that factory that recreates or "copy" (how do you want to call it) models from ESP, Dean, Jackson...?

Frank.

Having recently found out about RAN guitars, I'm wondering the same thing.

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It is interesting how Fender was always more concerned with trademarking headstocks more than body shapes. Seriously, at least Gibson was smart enough to go after Ibanez and the other imports early on to protect the Les Paul design. I wish they hadn't gone after PRS over the Singlecut, but I do understand why they had to do so.

That was a great post, Jeremy. I think a lot of people go to Ed Roman's site and see his "conversions" that are flat-out copies and think they can get away with slapping a JEM decal on a mutilated, left-handed RG. Such actions will only lead to the big guns tightening their grip on their trademarks and going after reputable builders who aren't doing anything wrong.

I don't know. There are not that many ways you can make a headstock shape or a body shape before it starts looking like some other guitar. I think Strats, Teles, Les Pauls, Jems, PRS... are fairly generic and easily reproducable. I think the problem lies in what the build purpose is. If you build a copy of an instrument to trick people that is is a real model and sell it I think that is wrong. But if you are like me who is not made of money, I am sure am not the only one and you want to build nice Les Paul or something for yourself or a gift I think its okay. As long as you are not profiting off the design.

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Realistically, thinking only about the chances of getting into trouble, if you're building something for yourself, pretty much anything goes and you don't have to worry very much. Although you are infringing on a trademark if you put "Fender" or something on the headstock, no one is going to come after you if you're not selling it.

People here (including myself) will give you a rough time for not putting your own name on the thing though. :D Be proud! Sign that piece of art!

There's also always some chance that you'll give it away or sell it at some point and then lose control of the real story on it; someone else might try to pass it off as something it's not. That reason alone is a good one not to use someone else's brand name.

As far as copying other shapes, well, there are only so many. The first guitar I built has a body virtually identical to a Carvin Bolt, though I changed the headstock and the body contouring a little. I would not consider putting a Carvin label on it (why would I want to? *I* built it!).

Edited by Rick500

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Interesting discussion.

Intellectual property protection is something I've thought about quite a bit, as I post my own ideas on the web. In some ways, the issue is similar to music copying and distribution...ultimately only partially enforceable. I believe the issue of copying is one of morality, and as such will vary widely both across borders and from individual to individual.

I could spend time and money to attempt to protect one of my ideas — and it might work — but only in nations that respect the concept of intellectual property. Instead, I've been kicking around an alternate idea based on an honor system, and mutual respect. I posted the full version on my website (excerpt here):

1. If you love my ideas, or body shapes, and want to duplicate them...simply ask me first. Get permission from me in writing.

2. I will say YES — provided you are building one copy yourself for your personal use.

3. I will likely say YES — even if you are making multiple copies for profit — as long as your quality is exceptional, your business practices are ethical and ecologically sustainable, and you share your profits with me. We will negotiate a fair (win-win or no deal) arrangement.

4. If you see anyone exploiting my ideas or designs, call them on it. Explain to them they are hurting me — the source of the idea — and they would benefit more if they helped me. When someone supports me, pays me fairly for my work, then I am free to create new and better ideas.

5. Credit my ideas. Explain to the world you have built a (insert idea here) with permission from the designer, Rick Toone.

Interested to see how folks respond. Feel free to contact me.

Edited by Rick Toone @ TOONE GUITARS

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Interesting discussion.

Intellectual property protection is something I've thought about quite a bit, as I post my own ideas on the web. In some ways, the issue is similar to music copying and distribution...ultimately only partially enforceable. I believe the issue of copying is one of morality, and as such will vary widely both across borders and from individual to individual.

I could spend time and money to attempt to protect one of my ideas — and it might work — but only in nations that respect the concept of intellectual property. Instead, I've been kicking around an alternate idea based on an honor system, and mutual respect. I posted the full version on my website (excerpt here):

1. If you love my ideas, or body shapes, and want to duplicate them...simply ask me first. Get permission from me in writing.

2. I will say YES — provided you are building one copy yourself for your personal use.

3. I will likely say YES — even if you are making multiple copies for profit — as long as your quality is exceptional, your business practices are ethical and ecologically sustainable, and you share your profits with me. We will negotiate a fair (win-win or no deal) arrangement.

4. If you see anyone exploiting my ideas or designs, call them on it. Explain to them they are hurting me — the source of the idea — and they would benefit more if they helped me. When someone supports me, pays me fairly for my work, then I am free to create new and better ideas.

5. Credit my ideas. Explain to the world you have built a (insert idea here) with permission from the designer, Rick Toone.

Interested to see how folks respond. Feel free to contact me.

Rick,

I like that you give credit to instrument makers who came before us (I don't think enough people remember what we have been given by them). The fact that it often times takes us 10,20,30... or so odd years to finally understand something that was done by our predecessors grasped hundreds of years before us really keeps my ego in check. I have always figured for every idea that may have some chance of not having been done before that I think up (or finally grasp), there are 100's of concepts that I have learned and used (royalty free) from the teachings of the luthiers before me. Who am I to ask for royalties when I have paid nothing and have recieved so much for the vast majority of what I know. Actually when was the last time someone gave credit to the first person who developed a truss rod, a tuning peg, the bridge they use, the bone nut(or brass or well you get the idea), the person who first developed the potentiometer, or conceptual elements such as the scales we use. Then again if I invest in marketing of a design and brand, so I can sell my guitars to put food on the table. Why should someone be able to come along and share or compete with me in the market I developed (after all I spent the money and effort to develop that market, they spent nothing). Of course I am kinda riding on the buzz developed or market created by larger companies who sell 1000's of guitars to every one I sell. It makes for a hard balance to strike. It sounds to me like you want to do your best to be fair in these matters, and cheers to you for that.

Peace,Rich

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Rick and Rich, you guys have touched on the respect aspect of this whole issue, and I completly agree, we shouldnt abuse their designs because they have paved the way for this entire industry.

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...duplicate the PRS look and they change a minor little thing and they can get away with it, I say be original and different and avoid all this crap all together...

After finishing two of my favourite guitars I stood back and looked at them and thought "They look familar somehow" Then I realised I had subconsciencely copied PRS!

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Not sure exactly where to put this, but I thought I'd make a post regarding this after reading the thread with the Nuno N4 replica that was being sold on ebay.

Now, please first understand, this is nothing against that auction or how it was listed, this is simply put, a post regarding design theft etc.

I have just completed filing of patents and trademarks for the LGM Leviathan models. This is a brutally expensive process so when somebody goes through the hassles, time and expense of doing it, they expect their design protected.

Under law, once a design is Patented, be it the Leviathan, a Strat, a Les Paul or otherwise, copying that design for more than personal use is completely illegal.

The minute you post pictures you can be held liable for design theft if it can be concluded that you are using those pictures for personal gain, (ie: promotion)

This is not a concern with posting project pictures really because no company is going to spend the money involved in a lawsuit on trying to nail somebody who is attempting to copy a guitar, the exception might be PRS, they seem to try to sue everyone. Well, maybe the Van Halen camp as well.

If you try selling that guitar, you are immediately liable for design theft. You are stealing a patented design plain and simple and looking to profit from it. This includes but is not limited to, trading items for the guitar, even if you sell it for only a penny, it is considered profit reaped from another persons/companies design.

In short, everyone was complaining about that particular auction being fraudulant due to a description that was misleading, making it sound like it was an original guitar, thats true, that's what I thought when I read it as well. However, being a hobby builder for yourself is fine, when you start selling the guitars, be aware of the legal issues you may face. Typically if you're just a small builder there will be no problems, as you become higher profile people start to notice.

This is one of the reasons I designed the Leviathan. Everyone knows I started out by customizing Ibanez's to look like Custom Jem's. I don't want to do that forever and end up in trouble with Ibanez, I have a "handshake" agreement with them (which really doesn't protect me from anything, just an act of good faith) that says I can make custom Ibanez guitars provided I do NOT put "Ibanez" on a non Ibanez neck, never put "JEM" on a guitar that was not originally a JEM, and do not try to ever sell guitars that weren't original Ibanez parts as Ibanez guitars.

That's all fine and good, but now more people are wanting 8 strings and I am not going to build an 8 string that looks like an Ibanez when Ibanez doesn't even have one, hence the Leviathan.

Anyway, this is not in any way meant to discourage anyone. Just to make you aware, if you want to sell your guitars you build on ebay, and they are replica's, remember, the big companies are watching Ebay looking for fraud, that is where you'll start to get in trouble.

Be careful, be smart, and have fun!

Jeremy

Mmmm.it's an interesting notion, but if just Fender were to legally be able to say "we have sole rights and ownership of this "shape", how many other guitar manufacturers would go out of business. Here's a thought. Who came up with the truss rod? who came up with the "shape" for guitar frets? If they were able to TM it, what then? ......A song is "copyright" the owner. One point worth mentioning here as well is...., having "copyright" on a song doesn't mean I can't re-record it and sell it, AMCOS will issue you with, for a small fee, a "license" and you will pay "royalties" to the composer, which again is very little.

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That is a great notion and point you have. As small builders you can make body styles similar and sell them but when building entire guitars that resemble other brands the thing to watch or not copy is actually the headstock. Fender lost a Supreme court battle over body style copying, because the courts said that electric guitar bodies are all so similar they cannot copyright the body design and expect it to stick in court unless it is so unusual it is no doubt a brand, so companies can copyright the headstock instead. So trying to sell an exact replica is illegal, but selling similar guitar is not if you happen to change the headstock. Making a replica is called counterfeiting, and of course is illegal, so if your really so inclined to build a guitar that is really like another brand, change the headstock out of respect, and to make it all legal. Gibson won a suit against PRS regarding the les paul body design, and won, but the ruling was later overturned in favor of PRS for the same reason Fender lost it's guitar body design court case. So it's all good to sell a guitar you build, just don't copy anyones headstock, or special patent or unusual copy written item. Its not cool, and can cost you lots of money. If you really want to copy guitars of another brand.......buy a license from them, and your good to go. It took my company 6 years and thousands of dollars to design guitars and headstocks that have been trademarked, etc.... We literally had to do 100's of hours researching headstock designs that someone else has never done before. After all this time and money we came up with only three. It is very expensive and time consuming to build nice guitars, and if someone were to copy my stuff, I would either one, ask politely to cease and desist from selling them on eBay, then secondly send my lawyers to ask, and finally take em to court and sue them for back royalties owed. If people continued to do it to me, like in Eddie van Halen's case........I would go after everyone big and small.

Edited by Luthee

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This is an interesting topic. I have often wondered about small shop builders buying a CNC machine and cutting out Fenders or a popular choice is the Ibanez Jem. It seems like eBay is littered with Jem "replacement bodies" and necks. Most of the necks even go so far as to inlay the Steve Vai vine inlay on the fretboard. Do you think these people could get in trouble for reproducing these?

As far as the major companies go, most courts have upheld that companies, like Fender, can't patent or copyright their specific body design because it is too vague. Look at the Peavey case. I guess theoretically Fender could probably patent or copyright their exact dimensions, but as soon as a copying company slightly altered those dimensions, they would not be infringing on Fenders' property. Plus, think about it; most electric guitars are based off of two main designs in one way or another: Fender Strat and Gibson Les Paul. The solid body electric guitar industry is a copy of these two original designs for the most part.

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This is an interesting topic. I have often wondered about small shop builders buying a CNC machine and cutting out Fenders or a popular choice is the Ibanez Jem. It seems like eBay is littered with Jem "replacement bodies" and necks. Most of the necks even go so far as to inlay the Steve Vai vine inlay on the fretboard. Do you think these people could get in trouble for reproducing these?

As far as the major companies go, most courts have upheld that companies, like Fender, can't patent or copyright their specific body design because it is too vague. Look at the Peavey case. I guess theoretically Fender could probably patent or copyright their exact dimensions, but as soon as a copying company slightly altered those dimensions, they would not be infringing on Fenders' property. Plus, think about it; most electric guitars are based off of two main designs in one way or another: Fender Strat and Gibson Les Paul. The solid body electric guitar industry is a copy of these two original designs for the most part.

I dont know about Ibanez, but Fender explicitly points out their trademark for the Stratocaster and Telecaster body shape and headstock design in every ad they publish. Same goes for Charvel and Jackson San Dimas body and HS shapes. My understanding is that all manufacturers using those body shapes are doing so under license from Fender directly. The other guys just havent made a big enough impression to be noticed and therefore havent been sued yet... Its a pretty safe bet that any of the guys making any significant sales of "replacement" Jem bodies or necks are either under a license from Hoshino, or they are about to be sued.

Edited by MuffinPunch

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for the most part body shapes are ok (every body copies the lp and strat) just change the headstock (very important for fenders) but yeah if you chage a lower horn you will be fine and put your logo on there dont ever put another compainies logo on your guitar.

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Very interesting conversation. I think Tim37 has the easiest answer. Change a head stock, horn, hardware... something to make it distinguishable, and don't use anyone else's name.

I've seen Gibson sue several independent luthiers right into early retirement, and I've also seen large scale makers (Ed Roman) get off for making an admitted knock off when Turner stopped sending him product.

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This has been a big threads but very worth while. Here is my question:

Is it legal to sell templates to help guitar builders to make replicas of braded guitars including headstocks. For example copy routing templates made from MDF or plastic????

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Simple answer. You would need to consult legal advice in your own country and/or the customer's country.

In general when you are copying the trade dress of a product - such as making a Gibson style guitar with a Gibson style logo or other aspects which identify a product a "Gibson", it can be construed that confusion would exist in the market as to which product is which. The easiest parallel is the Apple vs. Samsung madness of late.

Equally it could be argued that a product has become so generic or the form of the product become subject to convergent development (such as the familiar IBM keyboard layout in front of most of us for example?) that intellectual property of that item is invalid due to ubiquity.

Here in Finland a while back there was a legal wrangling (I think between a local company/individual and Gibson) over the term "Les Paul" denoting a style of instrument. It was deemed that a "Les Paul" is now such a generic term that it no longer held weight as a Gibson-specific term. You'd need to find out more about this one as I am repeating from memory.

That said, a headstock that is distinctive such as a Fender Strat can define a product strongly and would hold intellectual property water as Fender's fervour in protecting it proves.

Could you sell an "authentic" Strat template for example? A body template or a pickguard template....more than likely yes. These are pretty generic now. The headstock? That is where you would run into trouble as Fender would want you to pay a licence fee for every "Fender" headstock that came off the template. This is why aftermarket non-Fender necks are "licenced" Fender necks. You pay a fee through each neck for that company to be able to make products which fit Fenders.

Not surprisingly, Apple do the same for their proprietary connectors and suchlike.

Your question, "Is it legal...." is unfortunately a very imprecise question which is broad enough to cover many aspects of trade dress and intellectual property law. How do all the other companies out there manage to sell templates which are obviously direct copies of branded instruments? You would have to ask them, and whilst you are at it you should ask how many cease and desists they have received! :peace

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Here in Finland a while back there was a legal wrangling (I think between a local company/individual and Gibson) over the term "Les Paul" denoting a style of instrument. It was deemed that a "Les Paul" is now such a generic term that it no longer held weight as a Gibson-specific term. You'd need to find out more about this one as I am repeating from memory.

This is the lawsuit Prostheta is referring

http://www.legal500.com/assets/images/stories/firmdevs/atto13961/les_paul_dilution_legal500.pdf

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This has been a big threads but very worth while. Here is my question:

Is it legal to sell templates to help guitar builders to make replicas of braded guitars including headstocks. For example copy routing templates made from MDF or plastic????

No that's not illegal. you're selling a product in an ambiguous legal gray area.

If you're talking about buying a template, then making copies from that to sell, then yes...

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On that basis it would be legal to sell instructions and/or tools on how to make X item which is otherwise protected in its finished form? I understand this is a complete minefield with all sorts of obscure workarounds and pitfalls....

I would tend to err on the side of caution since most legal action has the potential to leave poorly-financed defendents bankrupted whether they are legally in the right or not....

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