The GPX take on the recent Warm Audio 'Replicas' - Josh Scott asked did they go too far with their recent editions?
Many who read my blog don’t know that I used to work in advertising - mostly brand origination / development - and we dealt with a lot of copyright and trademark issues over that time. You quickly get a feel for how close you can sail into the wind - and the truth is mostly not that close at all! Of all of these replicas only probably the first one could be argued away against a top copyright lawyer - the other 5 would pretty much come under straight-up plagiarism - but there are other factors at play here too - as we shall see.
Copyright - like Patents is time-limited - so that a copyright licence can expire, and companies can go bust leaving no one owning or controlling a particularly copyright / licence - so it’s a mix of timing and key head-to-head Trade Dress comparisons alongside other pertinent legal and scientific criteria.
The Roland AP-7 Jet Phaser : Produced 1975-1978 : Not an active Product Moniker
This design is well out of copyright now - it hasn't been produced for several decades - and there's currently no Roland product on the market or has been for several decades bearing that name. There are also multiple points of differences in the nature, styling and composition of the enclosure - such that you could argue that the the Warm Audio Jet Phaser is rather more 'inspired-by' than a total rip off - the time component and lack of distinct similarities means that the Warm Audio copy can be deemed to be absolutely fine every which way - a really nice tribute in fact with some significant aesthetic differences.
The Foxx Tone Machine Fuzz : Produced 1971-1978 : Not an active Product Moniker
Similar stats as the above Jet Phaser at a basic level - while the format of Warm Audio's Foxy Tone Box is much closer to the original than the Jet Phaser example. Both pedals have nigh identical details while some of the positioning of controls is slightly different - but the overall nature and 'flocked' finish of the device brings this squarely into the area of straight up plagiarism - while since the original has been out of production since 1978 and there is no active licence holder for that design - also the Moniker is sufficiently distinct to mostly get away it. So overall this pedal does fall within the reasonable bounds ruling - where it's kind of OK if you consider all the criteria and terms - while aesthetically it's obviously a direct rip-off!
The Klon Centaur : Produced 1994-2000 : Not exactly an active Product Moniker : Bill Finnegan does sill make the occasional edition though : so not totally out of production unlike the first two
This is an interesting one - where the overall product name is out of licence - and since Bill did not trademark and copyright his enclosure design - then it kind of gives people free reign to make copies. In terms of whether you could confuse the Warm Audio Centavo with the actual Centaur - then the asnwer is not really - it actually looks like a cheap knock-off - the graphic is quite different, and the colour of gold doesn't look quite right. There is a degree of Trade Dress infringement with some of the aspects of the pedal and the style of the enclosure in particular - use of similar colours and knobs - while there are enough differences to mean that the Warm Audio Centavo can sort of get away with it. Depending on the licensing and trademarking - a good copyright lawyer could easily win a case against the Centavo - while a lawsuit just isn't likely. There are so many different Klones out there already that haven't been challenged - that one more really doesn't matter that much!
Hermida Zendrive (by Lovepedal) : Still in production since 2004 by licence-holder Lovepedal who took over the licence in 2013 : Active Product Moniker for Active Brand
Buy an original Zendrive - www.lovepedal.com/zendrive/
Just about everything is wrong with this pedal that can be - Trade Dress wise it's a pretty direct rip-off with the same knobs and YinYang graphic - and just some orange colour accents which do nothing to distance the obvious origins of the pedal - and therefore in the domain of straight up plagiarism - the moniker is slightly different sure - but this is full on plagiarism every other way. Considering Lovepedal is still actively producing this pedal - Warm Audio should be nowhere near this - they are essentially ripping off the existing licence-holder and could and should be sued for this infraction - loss of earnings etc!
Musitronics Mu-Tron Phasor II : Produced 1976-1981 : Mu-Tron brand revived in 2015 by Mike Baigel they have an updated smaller Phasor III based on the same circuit
Buy a Mu-Tron Phasor III - mu-tron.com/shop/pedals/phasor-iii-vintage-silver/
This is most definitely a total Trade Dress Ripoff - same shape, colours etc. - just smaller - and minus the rocker switch. Warm Audio are using the Mu-Tron 'Phasor' Moniker, and ripping off a classic Mu-Tron product wholesale - from an active fellow American company. Wholly unacceptable in my book. There's probably a reason that they did not sail to close to the wind with their Jet Phaser replicas - because Roland Corporation could have crushed them if provoked - you don't poke a bear - especially not a Grizzly or Polar!
Fulltone OCD Obsessive Compulsive Overdrive : Still in production, first launched in 2015, brief hiatus in 2022 - went back on sale a month or so ago!
Buy an original Fulltone OCD : store.fulltone.com/collections/standard-line/products/ocd?variant=14769416710
And this final one is the worst of all really in so many ways - where Warm Audio have even copied the OCD's style of side-mounted fixing screws. The only notable difference is that the swooshes around the knobs on the Warm Audi ODD don't have arrows on their ends - obviously one character different. Some of the guitar magazines have been talking about the 'democratisation of gear' - which is ill-informed utter tripe and is sort of endorsing the plagiarists of the world - including Behringer and Warm Audio.
Conclusions
There is nothing wrong with replicas in my book - or subtle tributes or even rehashes and evolutions - there are lots of different ways to replicate a circuit without ripping off its trade dress - this is not a service to the public - it's profiteering off someone else's Intellectual Property. This is unmistakably brazen and callous really - and ironically in this case it's hurting American companies.
I'm not playing people politics here - and for sure Mike Fuller is no saint - but the OCD is his design - and he should be allowed to make money from it while he's still able to. Anyone who supports that it's OK to almost exactly copy someone's design is supporting dangerous darkside and black marketplaces, and counterfeiting of the worst kind. If Warm Audio were a Chinese company like Demon FX - people would be up in arms about it - like they already are - there's no difference between any of those though - they're all profiting from someone else's IP. It's the same as companies that profit from counterfeit designer handbags, sneakers, mobile devices, shades, Rolexes - you name it - there is a dark and dirty side to the world our there - but that is usually restricted to back alley markets off-grid and off the beaten track. Behringer and Warm Audio are doing it in plain sight and live on the internet - it it inexcusable and should be shut down like any other counterfeit activity and operation.
Warm Audio can carry on making the Jet Phaser, Foxy Tone Box and Centavo as much as they like - but their 3 latest sail way to close to the wind - those are out and out rip-offs and Trade Dress Plagiarisms - the industry should close ranks and get Federal enforcement to stomp out such pseudo-counterfeits!
If any of those 3 cases ever went to court Warm Audio would loose by a landslide. I don't understand why they can't respectfully replicate in the same way they did with the Jet Phaser - they could have continued that aesthetic - just adding wood side panels on their pedals and subtly moving around the essential settings - they have gone too far instead - and anyone who doesn't agree doesn't understand copyright and counterfeit law - you have moved to the dark side - and are now alas a Sith!
I stay away from the outrageous rip-offs - while there are other companies I do support - who make respectful replicas - with changes and innovations - I will support them as long as they're adding something new to the mix and creating something new - not just ripping off someone else's hard work - and especial their Trade Dress - which should be sacrosanct - this is not the American Dream - this is just all-out profiteering and greed. 'Democratisation of Gear'- what a load of utter b*****1t
And my friend Josh Scott does not cover himself in glory for this episode - he continues to promote both brands via lip-service and justifying it as this is what the public wants!
If someone starts plagiarising your work and taking money out of your pocket you're not going to argue that this is just the democratisation of your industry - and people should be allowed to shortcut all the hard work of your R&D and creative process and just copy and undercut you without checks and balances.
You cannot justify counterfeits - they cheat lives, taxes and ruin businesses and create inflation - Lovepedal, Mu-Tron and Fulltone may not be your favourite companies - but they deserve to have their rights protected too - Josh saying that the pedal industry is over-sensitive about this is utter nonsense - there are loads of industries that are impacted by Trade Dress infringements and copyright issues. All this is just another form of exploitation really and it should be stomped out. If someone made a straight up copy of a Fender Stratocaster or Gibson Les Paul and just kept the same font but altered the spelling very slightly to Feuder and Gibbons - those two original brands would not be happy and would litigate the hell out of the offender - as should be happening here.
Of course I'm happy for you dear readers to weigh in on the debate - but let's have it properly scientific and not emotional!
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