I am a copyright and trademark lawyer and I thought I would provide some nitpicky context (ignore this post if you are in the ‘whatever’ camp and are not interested in the details).

Unfortunately it’s true that many reporters freely intermix the concepts of “copyright” and “trademark,” in the same story and even in the same sentence. (I have caught the Wall Street Journal doing this so they are in good company). Even more unfortunate, the majority of general practice attorneys, and even the majority of corporate and commercial transactions attorneys, have a tendency to throw these terms around and not focus on exactly which rights are being violated. (Tip of the day: do not hire a trademark attorney who says that someone has “trademarked” a phrase. Experienced trademark lawyers do not use “trademark” as a verb.)

Copyright and trademark rights are completely dependent on subject matter and situation. What type of subject matter, and what type of use in what situation, is the basis of the claim? While it was not clear from the linked story exactly what was happening here, there’s enough information to say that under a number of likely scenarios the station would be violating one or the other or both.

Let’s say the station has one of its announcers record a promotional tag phrase in combination with its call letters: “XHNZ — LET’S GET READY TO RUMBLE!”. Buffer has several federal trademark registrations in a number of variations of this phrase for sporting, entertainment and cultural events and related services and media uses. (His trademark attorneys were admirably thorough: he also owns trademark rights in all variations of this phrase for clothing, mugs, t-shirts, computer software and multimedia, and even personal care products such as shampoo). This hypothetical use is clearly use in entertainment and would be the basis for a very viable claim of federal trademark infringement.

Now let’s say that instead of using its own announcer, the radio station does basically the same thing but inserts the words “LET’S GET READY TO RUMBLE” in Buffer’s own voice, taken from a sound clip of a recording of an actual event. The recording is copyrightable as a sound recording and use of a portion of a sound recording usually constitutes copyright infringement. (In that “usually,” I am condensing a lot of finer points of law such as how much digital sampling constitutes infringement, and whether there are fair use defenses due to a relatively small amount of the whole work being used, and whether Buffer owns the recording). Let’s just say that as an experienced IP attorney, I am positive that if a recording of Buffer’s voice were used like this, there is no judge that would throw the lawsuit out on a motion to dismiss, and it would therefore go forward to a very expensive trial. Under copyright law, if you have a registration in advance of an infringing use and you win a court case, the other side pays your attorney’s fees, as well as a pre-set amount of damages, regardless of the actual monetary harm. The same is not true for trademark claims: you pay your own lawyers no matter what. So, if you can possibly claim copyright infringement, that’s what you do, because the other side could very well have to pay your attorneys’ fees of $50,000 to $250,000 (high end but typical). This is the kind of ten-ton leverage that makes the RIAA so successful in forcing its victims to settle. RIAA has very, very expensive lawyers.

There is also the question of a claim of copyright in just the phrase “Let’s get ready to rumble” (i.e., as a ‘literary work’). As the article and one commenter pointed out, slogans and short phrases standing alone, typically are not copyrightable subject matter, because they are too short to constitute an ‘original work’ (once again, condensing a lot of finer points of law explaining why this is the case).

And there’s yet a third way that Buffer’s intellectual property rights could be violated: if the radio station used an announcer’s voice to sound as much like Buffer as possible, and thereby impersonate him, without using an actual recording of him. This violates another set of common law rights which are not strictly trademark rights. The law in most states provides a right of publicity which protects a celebrity’s image and persona against commercial use by another party. There are several famous cases protecting a celebrity’s ‘persona’ against a soundalike (i.e., you can’t use a really good impersonator to give the impression that Arnold Schwarzenegger endorses your dog food). On the federal level, doing this type of thing would also be a violation of federal trademark law for something called “false association” or “passing off.”

Net net, if you throw a bunch of miscellaneous vague copyright and trademark allegations against the wall, something’s gonna stick.

Carol Shepherd, Attorney
Arborlaw PLC
Ann Arbor, MI