Why Did ELVH, INC Take Down My Listing??

**MissTaffy** · 05.23.07, 02:16 PM

So, here's the story, I recently made a hemp necklace for myself and thought, hey wouldn't this be cool to attach a VH pick to the end and show my support for the band? So I did, and I love it. I love it so much I thought, hey someone else would totally dig this, maybe I could make another one and sell it on Ebay.

The picks were sold to me from someone on Ebay, and were official VH picks. Not replicas or whatever. So I added the pick onto the necklace and posted it. Low and behold, someone from ELVH, Inc. removed my listing saying it was copyright infringement. How is that?? And why do they care about something that is going to sell for under $10? Do they have nothing better to do? I wish they would put that energy into getting the band back together like they have been promising their fans for years. I love the music of Van Halen, but right now I am starting to regret ever trying to show support for them.

Here is a picture of the necklace:

**jws5150** · 05.23.07, 02:33 PM

These kinds of things, although irritating, generally have nothing to do with the band. Most corporations have watchdogs that look for this. The logo is a copyright of VH so for you to profit on it in any way is copyright infringement.

**Foamfoot** · 05.23.07, 02:37 PM

It's stupid, but yes, it is nothing more than an attorney protecting a copyright. I sure would buy one though... pretty cool...

**Lodewijk** · 05.23.07, 02:40 PM

Originally Posted by jws5150

These kinds of things, although irritating, generally have nothing to do with the band. Most corporations have watchdogs that look for this. The logo is a copyright of VH so for you to profit on it in any way is copyright infringement.

Exactly ! Making one for yourself is OK. But to make them to sell and profit from, is not.

I can paint my guitar with red and white stripes, but I can't buy 100 guitars, paint them all that way, and sell them.

**Jape Man** · 05.23.07, 02:42 PM

It's kinda like stamping a generic football with a logo from an NFL team, and then selling them to the public. You just can't do that. It's basic copyright infringement.

**Glenn** · 05.23.07, 02:44 PM

Because Eddie wants to smoke your necklace!

**Lodewijk** · 05.23.07, 02:52 PM

Originally Posted by MissTaffy

I love the music of Van Halen, but right now I am starting to regret ever trying to show support for them.

Boo hoo hoo, Maybe you should have been a Metallica fan, I'm sure they wouldn't mind you hocking your wares with their name on them......I hear they're really "fan friendly" on issues like this.

**willy4pres** · 05.23.07, 02:55 PM

Is this an actual question or do you just want sympathy?

**vhrocker** · 05.23.07, 03:03 PM

Originally Posted by Glenn

Because Eddie wants to smoke your necklace!

Cool fuckin' necklace MissTaffy!!!

I want one of those!!!

**MissTaffy** · 05.23.07, 03:05 PM

Originally Posted by Lodewijk

Boo hoo hoo, Maybe you should have been a Metallica fan, I'm sure they wouldn't mind you hocking your wares with their name on them......I hear they're really "fan friendly" on issues like this.

So I can sell the pick but not a pick attached to a necklace. Okay. I still don't get it but whatever.

And its not about the money. I could care less. The point is that there are hundreds of these guitar pick necklaces on Ebay, most of them abide by the same rules I used, a licensed guitar pick attached to a handmade necklace and they get sold everyday.

And has anyone else hear about the trademark eddie made on his guitar? It states that any guitar with red black and white stripes is a copyright infringement because those colors are owned by EVH.

I understand sticking to rules and laws. I am a law abiding citizen. But there are some rules that are just so silly. EVH has more money than god why would they care about a guitar pick necklace, which is official VH merchandise, that will sell for less than $10?

**MissTaffy** · 05.23.07, 03:06 PM

Originally Posted by willy4pres

Is this an actual question or do you just want sympathy?

I actually want to understand why this is illegal.

And yes sympathy is nice but I am new to this whole 'copyright infringement' law and need a friendly explanation.

**TheresOnlyOneWay** · 05.23.07, 03:12 PM

Ed would be happy to answer, but he's too busy spitting out albums to bother with such things.

**Olen** · 05.23.07, 03:26 PM

Originally Posted by MissTaffy

So, here's the story, I recently made a hemp necklace for myself and thought, hey wouldn't this be cool to attach a VH pick to the end and show my support for the band? So I did, and I love it. I love it so much I thought, hey someone else would totally dig this, maybe I could make another one and sell it on Ebay.

The picks were sold to me from someone on Ebay, and were official VH picks. Not replicas or whatever. So I added the pick onto the necklace and posted it. Low and behold, someone from ELVH, Inc. removed my listing saying it was copyright infringement. How is that?? And why do they care about something that is going to sell for under $10? Do they have nothing better to do? I wish they would put that energy into getting the band back together like they have been promising their fans for years. I love the music of Van Halen, but right now I am starting to regret ever trying to show support for them.

Here is a picture of the necklace:

DISCLAIMER: THIS IS NOT LEGAL ADVICE. THIS IS IDLE ACADEMIC SPECULATION. IF YOU NEED LEGAL ADVICE, PAY AN ATTORNEY FOR THE ADVICE.

Can you post the text of the take down notice that you received from eBay? There are several reasons why I ask.

First, most ISPs (yeah, eBay is not really an ISP, but is treated as a quasi-ISP under the DMCA) will respond quickly to a take-down request from an intellectual property owner. But, there are means for having the take-down reversed - you just have to follow the policy / procedure of eBay.

Second, it may be that ELVH, Inc. does not realize that these were authorized "goods" sold to you in an aftermarket transaction. This is important b/c of the doctrine of exhaustion (or the "first-sale doctrine" in the US). Exhaustion is more accurate as it includes a first act not dependent on a sale.

For instance, most likely, these guitar picks appear to be authorized productions of custom guitar picks that were later collected by someone over the course of time. The picks were given (or perhaps sold) to the person you bought them from. Exhaustion would dictate that once the good has left the control / possession of the one legally entitled to possess and sell the good (most likely EVH or his legal proxy ELVH, Inc.), then any future transfers of ownership of the tangible good are exempted from allegations of copyright infringement (NOTE: as to the tangible good(s) - as opposed to the copyright still controlled by the ownership group).

Thus, the act of "giving" or "selling" the good to another (even if non-specific - such as tossing a guitar pick into a crowd), exhausts the rights of the copyright owner in enforcing a copyright infringement claim against the later possessor if that later possessor chooses to sell or give the pick to another.

If the picks were not authorized productions, then that is a different animal.

Also, it would surprise me if the actual legal claim was copyright infringement -- the more appropriate claim would be trademark infringement, as you have not reproduced the copyright, but are using the trademark (as depicted on the pick). However, the doctrine of exhaustion applies to trademarks as well. Coca-Cola, Inc. cannot sue a vendor for trademark infringement and / or copyright infringement for selling bottles / cans of Coke (R) -- once Coca-Cola, Inc. has placed its product(s) into commerce (i.e. once it has been paid for by someone or once they have given over ownership of those particular containers of cola to another party), Coca-Cola, Inc. is not permitted to sue for trademark / copyright infringement of the later sale / sales of those containers.

*Apologies - I know folks on this board really enjoy legalese and academic blathering - but we all have talents to exploit -

*

*DISCLAIMER: STILL NOT LEGAL ADVICE. SEEK AN ATTORNEY.

*ADDITIONAL DISCLAIMER: NOT ALL THE FACTS ARE KNOWN - SUBJECT TO REVISION AS FACTS EMERGE.

**jws5150** · 05.23.07, 03:38 PM

Olen rules!

**AVH Blues** · 05.23.07, 03:42 PM

Olen- Are you saying reselling a Tops baseball card with the Tops logo is not a copywrite problem. I don't understand how reselling a product that you bought would be against the law. People sell their cars with the Ford or Honda logo on it without having to worry about it. If you built a car (or painted a pick) and put the Ford logo on it that seems to be a violation of copywrite laws but not merely reselling a product you bought.