Ads Ape Apple's Air Guitarists. Upstart BuyMusic.com is doing more than just offering a music service that mimics iTunes. Its commercials are strikingly similar to Apple's ads, too. Flattery? Perhaps, but it also could be a lawsuit in the making. By Danit Lidor. [Wired News] [A blog doesn't need a clever name]
"The fair-use doctrine does provide a defense to copyright- and trademark-infringement claims," Crowther said. "The critical issue will be whether the BuyMusic.com is a parody of the Apple ads."
"When the second work just borrows from the first work to get attention or to avoid having to develop something new or fresh and does not make fun of the original work ᠩt is not a parody and may not have protection," Crowther said.
Parody or not, a copyright-infringement suit wouldn't necessarily be an open-and-shut case. "The dichotomy between 'ideas' and 'expression' is hard to get across," said Blaney Harper, an intellectual property attorney at Jones Day.
"Showing average people air guitaring their way through a song against a white background" is not enough to show BuyMusic is copying Apple's expression, he said.
I haven't seen these ads, but I admit that they would really annoy me. It would seem that BuyMusic is stealing numerous ideas of Apple. But this happens all the time - in business, in art and science. Stealing an idea (unless it's patented) is different from violating intellectual property rights. This is a really good thing - even if it is infuriating to see BuyMusic use this legal point to peddle its lame Windows knock-off of the iTunes Music Store. It's corny, but the law is meant to be blind, (if people stay within its bounds) it protects the good and the bad, the creative and the exploiters. To change the law to stop the "bad" BuyMusic would be opening the possibility of flooding more of the "good" public domain under a torrent of copyright claims. It could shut down or severely damage the blogosphere. The idea / expression of idea dichtomy is being undermined enough already by contract law, without this happening. So what can be done? Protest this protected form of idea theft in non-legal ways. Try to shame BuyMusic into changing its behaviour.
Music (legally downloaded from iTunes): Moby, 18, I'm not worried at all