Gibson and Intellectual Property

[wengr]

I grew up lusting after various Gibsons.
However over the years I have had enough bad experiences with them that I really don't care too much what happens to the company. I will however say in their defense, while there is obviously more than enough blame to go around, one major problem exists imo that I personally have not seen mentioned:

The lack of serious intellectual property/patent protections.

I understand that Gibson has been aggressive in trying to protect it's IP, as they should be, but imo it's ridiculous that the law does not do more to protect designs. Anyone can sell a Les Paul guitar as long as it has a minor variation to the headstock?

Most of the classic Gibson designs are available from a variety of makers. Many beat Gibson on price, and many beat Gibson on quality. It would have been different if these makers were required to design and promote their own original work.

[Lobomov]

There are a lot of attacks on Gibson and their guitar business, but as far as I can see their financial troubles stem from them branching too much out buying electronics firms and other non-guitar related businesses.

Yet on guitar forums most talk is centered on their guitars production, which always has been doing fine?

[Woody Sound]

Chibson Les Paul Custom (Not a real Gibson) - musical instruments - by owner - sale

[John A.]

I grew up lusting after various Gibsons.
However over the years I have had enough bad experiences with them that I really don't care too much what happens to the company. I will however say in their defense, while there is obviously more than enough blame to go around, one major problem exists imo that I personally have not seen mentioned:

The lack of serious intellectual property/patent protections.

I understand that Gibson has been aggressive in trying to protect it's IP, as they should be, but imo it's ridiculous that the law does not do more to protect designs. Anyone can sell a Les Paul guitar as long as it has a minor variation to the headstock?

Most of the classic Gibson designs are available from a variety of makers. Many beat Gibson on price, and many beat Gibson on quality. It would have been different if these makers were required to design and promote their own original work.

Leaving aside the question of Chibsons and other pure counterfeits, the law protects original inventions for a finite period of time through patents. It protects things like like logos and features of a design that identify uniquely the company or product as trademarks essentially indefinitely as long as the owner continues to use them. Gibson has done fine under that regime.

A lot of people misunderstand patents (and copyrights), and mistakenly conflate them with trademarks under the heading "IP". Patents are not blanket, permanent protection from copying for the benefit of the author. Rather, they are a temporary monopoly granted by the state to the inventor in exchange for the details of the invention being made public. The inventor gets exclusive right to use the invention, enforced by the might of the state, for a finite period of time. Society gets the benefit of seeing how the thing works so that others can make it in the future and/or make original variations on it immediately. They are a means of encouraging innovation for society's benefit, not the author's. An inventor who does not want others to know how his invention works can choose not to patent it and try defending it as a trade secret, but in so doing lose the benefit of state protection of his monopoly and faces the risk of a competitor reverse-engineering the invention.

The Les Paul as a whole is not original invention, only some components of it are (e.g., truss rod, aspects of the bridge, specific design of the humbucking pup, etc.). Gibson patented those components successfully and defended them against infringement until the patents expired, and gained the benefits of that monopoly. The Les Paul as a whole is not a trademark, only some features of it's visual design are. It's a smaller version of a guitar shape that others had been making for many years, and Gibson has lost in court when they've tried to claim it as uniquely theirs. The "open-book" is the only part of the design that has survived litigation (actually there may be others, such as the logo, but I'm not sure about that). That's not the law failing to protect Gibson's original work; it's court cases establishing what parts of Gibson's work are unique and protectable under the law.

John

[citizenk74]

Leaving aside the question of Chibsons and other pure counterfeits, the law protects original inventions for a finite period of time through patents. It protects things like like logos and features of a design that identify uniquely the company or product as trademarks essentially indefinitely as long as the owner continues to use them. Gibson has done fine under that regime.

A lot of people misunderstand patents (and copyrights), and mistakenly conflate them with trademarks under the heading "IP". Patents are not blanket, permanent protection from copying for the benefit of the author. Rather, they are a temporary monopoly granted by the state to the inventor in exchange for the details of the invention being made public. The inventor gets exclusive right to use the invention, enforced by the might of the state, for a finite period of time. Society gets the benefit of seeing how the thing works so that others can make it in the future and/or make original variations on it immediately. They are a means of encouraging innovation for society's benefit, not the author's. An inventor who does not want others to know how his invention works can choose not to patent it and try defending it as a trade secret, but in so doing lose the benefit of state protection of his monopoly and faces the risk of a competitor reverse-engineering the invention.

The Les Paul as a whole is not original invention, only some components of it are (e.g., truss rod, aspects of the bridge, specific design of the humbucking pup, etc.). Gibson patented those components successfully and defended them against infringement until the patents expired, and gained the benefits of that monopoly. The Les Paul as a whole is not a trademark, only some features of it's visual design are. It's a smaller version of a guitar shape that others had been making for many years, and Gibson has lost in court when they've tried to claim it as uniquely theirs. The "open-book" is the only part of the design that has survived litigation (actually there may be others, such as the logo, but I'm not sure about that). That's not the law failing to protect Gibson's original work; it's court cases establishing what parts of Gibson's work are unique and protectable under the law.

John

Truth. Thank you for this.

[wengr]

I am somewhat familiar with the legal concepts. But this is about the shape of guitars, not medicines or tech. My point is that the law as it stands, at least in this regard is flawed. The Gibson Les Paul is a particular aesthetic. Competitors should develop and try to win market share with their own design, as many do. The guitar market is one where blatant copying is the norm. Society does not need the Les Paul for survival, however Gibson does.

[rlrhett]

I am somewhat familiar with the legal concepts. But this is about the shape of guitars, not medicines or tech. My point is that the law as it stands, at least in this regard is flawed. The Gibson Les Paul is a particular aesthetic. Competitors should develop and try to win market share with their own design, as many do. The guitar market is one where blatant copying is the norm. Society does not need the Les Paul for survival, however Gibson does.

I thought we had a free market? If Gibson can’t make a Les Paul as cheaply or as well as others, why do they deserve special protection?

I’m being facetious. But I do wonder why when it comes to IP we are all for heavy handed government restriction of trade. When a company like Gibson decides to offshore production to undermine the actual workers who made the guitars for decades, then that’s just good business.

It seems to me that if we are going to all chip in through taxes to protect a company’s IP they should have to also make that product here. That should go for everything from Apple to Levi’s. If they want to make their stuff in Bangalore then it should be treated just as counterfeit as any Chibson. If they want us to protect their brand then they should at least manufacture it here.


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[John A.]

I am somewhat familiar with the legal concepts. But this is about the shape of guitars, not medicines or tech. My point is that the law as it stands, at least in this regard is flawed. The Gibson Les Paul is a particular aesthetic. Competitors should develop and try to win market share with their own design, as many do. The guitar market is one where blatant copying is the norm. Society does not need the Les Paul for survival, however Gibson does.

Edit to add a point of clarity on the distinction between trademark and patent: A trademark is a means of identifying the maker of a product, so that people will know that they're buying, say, a Gibson and not some other maker's guitar. The shape of a guitar can't really serve that purpose since it's so connected to the function of the guitar itself. Only something that unmistakably announces the maker/product can do that.

If you want to say "they copied my (trademark, design, logo, aesthetic, whatever)" you have to define what that is, that definition has to be fairly narrow, and you have to show that you've been using it as your trademark continuously for a reasonably long period of time. The particular shape we're talking about was not unique to LP, and Gibson actually stopped making it for 8 years, which pretty much killed any claim they had to it as a trademark. Their defining something so narrow and specific as the "open book" headstock was actually very smart and effective; they found something they could defend from imitators, and successfully did so. As to copying in general, this is far from unique to the guitar business. Have you taken a look at cars lately? Clothing? Furniture? Pretty much any manufactured object on the planet? Ever hear the expression "form follows function"?


John

[wengr]

But I do wonder why when it comes to IP we are all for heavy handed government restriction of trade. When a company like Gibson decides to offshore production to undermine the actual workers who made the guitars for decades, then that’s just good business.

Respecting IP is not restriction of trade imo. It's restriction of theft. Do you not support copyright for songwriters and other artists? I do, and I don't see much of a difference here.

It seems to me that if we are going to all chip in through taxes to protect a company’s IP they should have to also make that product here. That should go for everything from Apple to Levi’s. If they want to make their stuff in Bangalore then it should be treated just as counterfeit as any Chibson. If they want us to protect their brand then they should at least manufacture it here.

Ok, but how much taxpayer funding is really involved in some stronger legislation on these matters?


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[wengr]

The particular shape we're talking about was not unique to LP,

No? I'm not aware of a guitar that looked exactly like an LP prior to the Gibson LP. Please correct me if I'm wrong. Keep in mind that I'm not talking about any old single cut design or whatever. I've only been talking about blatant copies that only exist because of the popularity of the original.

and Gibson actually stopped making it for 8 years, which pretty much killed any claim they had to it as a trademark.

Maybe so according to current law, but I'm suggesting that current law might need to be tweaked. Do songwriters lose the copyright to a piece if they remove it from the setlist? Do you feel that they should?

Have you taken a look at cars lately?

Sure. And I cannot think of a single example of a duplication of styling done by a competing make that remotely approaches the level of copying that occurs with classic guitar designs. Not one. It simply does not rise to anywhere near the level of copying of say a D28, Strat, 335, LP, etc.
And then to add insult to injury (and proof of what I'm saying here), is that the copyists also infringe on the name sometimes. Dreads are always a Dxx in the Martin tradition. Collings has a 335 styled guitar called x35, etc.


[/QUOTE]

[rlrhett]

Respecting IP is not restriction of trade imo.

That is pretty much my point. Why not? That is EXACTLY what it is. I made a guitar with my own initiative, materials, resources and labor. But I can't sell it because some guy made a guitar in the '50's that was configured like that? There is nothing wrong with it. It doesn't explode or leach lead into the water. People know it isn't a Gibson and they still want to buy it. Why do you want the government telling me I can't sell it?

Maybe there are compelling reasons why we create the fiction that IP is some THING that you own, and I'm not advocating doing away with IP law. But it is something made completely out of GOVERNMENT restricting trade. It isn't something that we even conceived of for 99.9999% of human history. There was no copyright at the time of Christ, for example. All it is is creating monopolies and restricting trade.

Ok, but how much taxpayer funding is really involved in some stronger legislation on these matters?

Legislation is free. ENFORCEMENT cost billions. Let see what we have now: A massive bureaucracy called the US Patent and Trademark Office costing around $3.5Billion. We have federal courts and prosecutors that handle an estimated 13,000 intellectual property cases every year. We have the Federal Circuit appeals court that handles almost exclusively IP cases. We have Customs that enforce counterfeit and trafficking laws. All told, maybe $4.5Billion? That is about as much as the government spends finding a cure for cancer.

So what additional legislation and further enforcement are you proposing? Any idea how much that would cost?

Do you not support copyright for songwriters and other artists?

Apples and oranges. Songwriters the idea IS the product being sold. Not so with patents. I won't go over the already very good discussion on the difference between patent, trademark, and copyright.

But if you want to play that game, OK:

You are a US citizen? Wrote and recorded your song here? Play by the rules and pay your taxes? Excellent! Let's do right by you.

Say you renounced your US citizenship and went to India. There you wholesale violated US IP laws by copying and "sampling" to your hearts content. You've made lots of money that way by not having to pay those pesky royalties. Back in the US someone performs your music and you call out "THEFT!!!" You want the full force of US laws to protect you. Why should we pay to protect your copyright?

How is that different from a US company going to Vietnam or Bangladesh to avoid inconvenient US laws, then demanding that we protect their "IP"? It takes money to make sure that your garment factory has fire suppression so dozens of your workers don't die horrible deaths when a fire breaks out. Here we pass laws telling factories that they have to spend the money and do right. So you go to Bangladesh to do an end run around US laws, but then come back to the US and demand we make sure no one else can sell your shoes with a swoosh on them or a phone with an apple on it?

[Thumpalumpacus]

Songwriters the idea IS the product being sold. Not so with patents.

In a very real way, a patent is in fact protecting an idea. That better mousetrap didn't think itself up. The R&D that went into it may have cost large sums; patents exist in order to encourage that R&D, and the investment it takes to take it from drawing-board to store-shelves. What incentive would an inventor have to bring something new to market if an upstart could reverse-engineer his mousetrap and grab a lead in markets the inventor hasn't penetrated yet? What investor will pour funds into a great product knowing that three weeks later someone else is going to take the research his money financed and undercut his product -- precisely because the competitor skipped the R&D stage?

In the same sense that when I write a song I (or my licensee) should be the only ones able to profit from my songwriting idea for a time (lifetime + 75 years, iirc), an inventor or his licensee should be the only one able to profit from the output of his own mind, for a time.

The fact that a mousetrap is material and a song is not is, well, immaterial. Of course patents and copyrights aren't the same, but the principle undergirding them is, it seems to me.

[Cunamara]

Respecting IP is not restriction of trade imo. It's restriction of theft. Do you not support copyright for songwriters and other artists? I do, and I don't see much of a difference here.

Copyright, patents and trademarks are very different things. However, it has become convenient for vested interests to create the fiction of "intellectual property" as a way to restrain the potential trade of potential competitors.

Copyright, as conceived under US law dating back to the early years of the republic, was a limited-time protection of a work such as a painting, book, etc. It barred reproduction without paying the copyright holder and/or the creator a royalty. The original time limitation was 20 years, IIRC, then the work passed into the public domain and could be used by anyone. The goal was to encourage creation by providing protection, and encouraging further creation by limiting the time frame of the protection.

Then along came Mickey Mouse. As Disney came up against the end of copyright protection, they (among others) pushed to have copyright protection extended.... then extended again.... and again. As I recall it was the Democrats who were most receptive to this. Now copyright is basically infinite for all practical purposes. One unintended consequence was that Disney lost its edge and most of its products have been mediocre at best for years because they don't have to create new quality art in order to be massively profitable. Resting on your laurels is rarely good and current US copyright law encourages creators to do so; it was originally intended to spur them on. The same basic principles can also be applied to patents.

Intellectual property is a legal fiction with some utility, but it is a two edged sword and can cut in unpredictable ways. It can encourage progress but is equally likely to have a chilling effect on progress. It can protect creators and can concentrate power in the hands of a select few to the dtiment of many. And it has generated an entirely new business model of the patent troll wasting taxpayer-funded resources in endless litigation and enriching lawyers, if no one else, as well as raising the costs to consumers as manufacturers pay the lawyers. And internationally it is practically unenforceable, as China's blatant infringements on so many counterfeit products demonstrate (just to use them as an example thanks to the Chibson phenomenon, but there are other countries which turn a blind eye).

Lawrence Lessig's book "Free Culture" is worth a read. There is much to be disagreed with and also much to be considered in his book.

[wengr]

Intellectual property is a legal fiction with some utility,

Yes, like pretty much everything.

Lawrence Lessig's book "Free Culture" is worth a read. There is much to be disagreed with and also much to be considered in his book.

Interesting, I'll check it out, thanks.

[Woody Sound]

Have you taken a look at cars lately?

Which is which?

mid-size SUV - Google Search

[wengr]

That is pretty much my point. Why not? That is EXACTLY what it is. I made a guitar with my own initiative, materials, resources and labor. But I can't sell it because some guy made a guitar in the '50's that was configured like that? There is nothing wrong with it. It doesn't explode or leach lead into the water. People know it isn't a Gibson and they still want to buy it. Why do you want the government telling me I can't sell it?

Because making and selling LPs because gibson Lps are popular can not remotely be considered making a guitar "with my own initiative". It's actually jumping on a bandwagon for profit based on the design/promotion work of someone else. The lutherie equivalent of being in a tribute band.

Maybe there are compelling reasons why we create the fiction that IP is some THING that you own, and I'm not advocating doing away with IP law. But it is something made completely out of GOVERNMENT restricting trade. It isn't something that we even conceived of for 99.9999% of human history. There was no copyright at the time of Christ, for example. All it is is creating monopolies and restricting trade.

Agreed. Just like everything else, and therefore not relevant here.

Legislation is free.

Agreed

ENFORCEMENT cost billions. Let see what we have now: A massive bureaucracy called the US Patent and Trademark Office costing around $3.5Billion. We have federal courts and prosecutors that handle an estimated 13,000 intellectual property cases every year. We have the Federal Circuit appeals court that handles almost exclusively IP cases. We have Customs that enforce counterfeit and trafficking laws. All told, maybe $4.5Billion? That is about as much as the government spends finding a cure for cancer.

And that is not going anywhere. You are not advocating doing away with IP law, so it is what it is.

So what additional legislation and further enforcement are you proposing? Any idea how much that would cost?

I'm thinking about enhanced language to legislation that would protect design aesthetics. So when Gibson sues the clone makers, they have a better chance of monetary award, or the desired specific performance. Legal costs would be decided by the courts, so burden to the taxpayer would possible be more cases for a time. Basically negligible.

You are a US citizen? Wrote and recorded your song here? Play by the rules and pay your taxes? Excellent! Let's do right by you.

Say you renounced your US citizenship and went to India. There you wholesale violated US IP laws by copying and "sampling" to your hearts content. You've made lots of money that way by not having to pay those pesky royalties. Back in the US someone performs your music and you call out "THEFT!!!" You want the full force of US laws to protect you. Why should we pay to protect your copyright?

False equivalence. Arranging for some offshore production is not equal to renouncing one's citizenship. It's just not. If you have problems with the multifaceted dynamic of offshore production, then I understand that as I do as well. But I am not so inclined to use my views on IP law as a lever against it. While I appreciate the partial overlap, they are two different issues.

How is that different from a US company going to Vietnam or Bangladesh to avoid inconvenient US laws, then demanding that we protect their "IP"? It takes money to make sure that your garment factory has fire suppression so dozens of your workers don't die horrible deaths when a fire breaks out. Here we pass laws telling factories that they have to spend the money and do right. So you go to Bangladesh to do an end run around US laws, but then come back to the US and demand we make sure no one else can sell your shoes with a swoosh on them or a phone with an apple on it?

It's very different in many ways. US companies do not literally "go to Vietnam". They contract with existing manufacturing concerns in Vietnam - or they set up their own manufacturing facilities in Vietnam, etc.
So a PORTION of the business has gone to Vietnam. and many portions of the business as well as a lot of tax liability remains in the US. This is why your analogy is false. If a corporation really did "renounce their citizenship", by removing all aspects of business, and transferring ownership to non citizens, then yes IP concerns for them are not our problem.
But this is not what we are talking about at all with guitars.

Actually I had no intention for this thread to become political. But with the current situation with Gibson, it's hard for me to not to think about the various local music stores that I go to to teach every week, and the walls are covered with LPs, strats, and D28's, yet none of the stores sell gibson/fender/martin product.

[John A.]

Actually I had no intention for this thread to become political. But with the current situation with Gibson, it's hard for me to not to think about the various local music stores that I go to to teach every week, and the walls are covered with LPs, strats, and D28's, yet none of the stores sell gibson/fender/martin product.

Where is that?

John

[wengr]

Where is that?

John

Northeast Pennsylvania. But it's everywhere.

[John A.]

Northeast Pennsylvania. But it's everywhere.

If you're talking about out and out counterfeits, not it isn't (though it is in Asia). If you're talking about instruments derived from Gibson, Martin, and Fender designs in some way, yes, it's ubiquitous, but obviously you and I disagree on whether this is unfair or harmful to G, M, and F as a result of mis-targeted IP law. It's worth noting that, of the three, only G seems to be in trouble, and this is plainly not because of copies-in-all-but-headstock; it's from their own financial and strategic mismanagement.

John

[wengr]

If you're talking about out and out counterfeits, not it isn't (though it is in Asia). If you're talking about instruments derived from Gibson, Martin, and Fender designs in some way, yes, it's ubiquitous, but obviously you and I disagree on whether this is unfair or harmful to G, M, and F as a result of mis-targeted IP law. It's worth noting that, of the three, only G seems to be in trouble, and this is plainly not because of copies-in-all-but-headstock; it's from their own financial and strategic mismanagement.

John

No I have never been talking about counterfeits. I see that as a serious real problem as well, but I expect far more difficult to deal with.

I'm also not talking about instruments derived in some way, as I see that as a natural evolution that cannot and should not be stopped.
Specifically, I am talking about instruments that are derived(copied) in all ways except the for minor variation to the headstock, because as noted previously, that has somehow become the precedent.

For example I will link to a site of a brand carried by one of the shops I have worked at. They are straight copies with minor variation to the headstock. Check it out and lmk if you feel they are derived from, inspired by, etc. or simply copies. This is just one brand of many, perfectly legal I suppose, but I don't personally see how anyone can believe it does not financially impact those trying to market the original.

Electric Guitars | Vintage Guitars

[wengr]

Which is which?

mid-size SUV - Google Search

Yes I have. I get it, cars are to a point designed in the wind tunnel.
But this actually makes my point. They all have some different lines and styling cues. They are trying within the engineering realities to maintain a corporate identity.
Hyundai does not sell a ford mustang with a slightly different grill(headstock).

[rlrhett]

False equivalence...
US companies do not literally "go to Vietnam". They contract with existing manufacturing concerns in Vietnam - or they set up their own manufacturing facilities in Vietnam, etc.

So a PORTION of the business has gone to Vietnam. and many portions of the business as well as a lot of tax liability remains in the US. This is why your analogy is false. If a corporation really did "renounce their citizenship", by removing all aspects of business, and transferring ownership to non citizens, then yes IP concerns for them are not our problem.

Far from a "false equivalent", I think we are dealing with an unwillingness to see a clear parallel. To quote Upton Sinclair:


“It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

In many cases only an administrative shell remains in the US. As for renouncing citizenship, hardly the key factor. Let's take the same artist and have him simply move to India where he flouts US law without renouncing his citizenship. All else the same. What is the difference?

Likewise, an individual can't splinter off parts of itself to conveniently be part here and part in another jurisdiction. It would be like saying that for the effects of a military draft your body is in Bangladesh, but for your tax refund you are all here.

Finally, companies routinely "renounce" their citizenship to evade US tax laws. Why do you think there are over 20,000 companies registered to one single building in the Grand Cayman Island? Super industrious Caymians?

Our IP laws and outsourcing are two sides of the same coin. Without our willingness to rigorously enforce IP laws on all incoming goods we would never have US companies contributing to our trade imbalance and laying off our people. Perhaps that is a Hobson's choice. But I don't think it serves us to talk about IP as sacrosanct and ignore the costs of prioritizing it over all else.

[wengr]

only G seems to be in trouble, and this is plainly not because of copies-in-all-but-headstock; it's from their own financial and strategic mismanagement.

John

No fan here of Henry - just pointing out the thought that if anyone with a cnc could not impersonate them and grab market share, maybe they would be better positioned to weather his various buffoonery.

[wengr]

Likewise, an individual can't splinter off parts of itself to conveniently be part here and part in another jurisdiction. It would be like saying that for the effects of a military draft your body is in Bangladesh, but for your tax refund you are all here.

Agreed, and part of the reason it's a pretty bad analogy.

Finally, companies routinely "renounce" their citizenship to evade US tax laws. Why do you think there are over 20,000 companies registered to one single building in the Grand Cayman Island? Super industrious Caymians?

What does this have to do with Gibson?

But I don't think it serves us to talk about IP as sacrosanct and ignore the costs of prioritizing it over all else.

No one is doing that imo. Maybe you are considering opportunity for labor as sacrosanct? I don't know. What I do know is that I checked your site briefly, and I saw images of a guitar design that I have never seen before. Now, certain elements remind me of other makers, but in total, if it's a copy, I have not seen the original. So, if it's not a copy, then I must say I respect your work and I feel that you are entitled to benefit from it. I certainly would have no problem with the pittance that enhanced legislation might cost, if it would stop me and others from stealing it from you. ymmv.

[Cunamara]

Legislation is free.

Legislation can be free and it can cost millions. It depends on how much your senator or representative charge in their "pay to play" scam (also known euphemistically as "campaign financing").