Chico, CA asked in Copyright for California

Q: I have a copyright for a song (It's a cowgirl thing) on Esty, Amazon, Redbubble etc. products being sold with these word

Some of the products include extra wording (boots & bling it's a cowgirl thing) a few years back I notice the same thing going on, I contacted the sellers and ask them to stop and they did. This time the number of sellers has gone way up. One even put 2020 copyright. logo on there web page. I ask a lawyer a few years ago was worth sueing? He said it would cost me more then I would get..

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1 Lawyer Answer
Timothy John Billick
Timothy John Billick
Answered
  • Intellectual Property Lawyer
  • Seattle, WA

A: You are bouncing between copyright law and trademark law; and a competent attorney would need more information before giving you some useful guidance here.

Copyright law is intended to protect your creative expressions, whereas trademark law is designed to protect words/phrases/logos/(and non-traditional TMs) that are used to identify a *source* of goods. Generally speaking, unless a song title is also being used as a trademark (i.e. put it on T-shirts or start a business around it), that song title is not protectable under trademark or copyright law. There are exceptions, but that's the general rule.

Also, assuming "Boots and Bling" is a protectable trademark, the more words someone adds around that phrase, the harder it will be to prove infringement. Again, these are general principles that don't dictate every single fact scenario. Based on this hypothetical, unless you're using "Boots and Bling" as a trademark, or if these sellers are directly copying your song and/or lyrics; you will have a tough time proving infringement.

Another issue I see her is the potential for "laches," "statute of limitations," or "equitable estoppel." On a very basic sense, if you wait too long to sue someone after you find out about the infringement, you may not be able to pursue a claim. This is also very fact intensive, so it's difficult for me to know if that would be in play here.

I don't want to discourage you, though. You should walk through all of the particular facts of your case with an IP attorney before making a decision to sue. Good luck.

Kathryn Perales agrees with this answer

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