When OutKast rapped in the ubiquitous hit single "Hey Ya" the catchy refrain "shake it like a Polaroid," the company initially took offense. As posted on the company's Web site, the camera's pictures no longer need a shake in order to dry -- in fact, it could distort the image -- and the company worked to set the facts straight. Polaroid Corp. soon partnered with the powerful marketing muscle of OutKast and brokered a deal that resulted in members Big Boi and Andre 3000 snapping Polaroid pictures in everything from the Grammy Awards to Saturday Night Live.
This marriage of music and marketing is a far cry from what local musician Ben Glover is now enduring as a result of his run-in with Polaroid. The singer, songwriter and guitarist for Bipolaroid, Glover, 25, formed the group in 2001 and has since sought to build a groundswell of fans through steady gigs and a 2003 studio album, Transparent Makebelieve. Glover describes his five-piece band's sound as having influences as varied as German space rock and Syd Barrett-era Pink Floyd, and the CD even features the playing of Louisiana Philharmonic Orchestra members. Bipolaroid found a home on college radio stations across the country, and several indie labels have expressed interest.
Yet, Glover says, such momentum is now on hold due to a petition from Polaroid to cancel Bipolaroid's federal servicemark for use of the name Bipolaroid. "Who wants to sign a band involved in a legal dispute?" Glover asks.
Polaroid spokesman Skip Colcord says the company will not comment in-depth on matters of pending litigation. "I can confirm that we did initiate a petition to cancel the servicemark, as the band name is an infringement of our trademark," he says. "It's not just limited to this case. We maintain an active, ongoing search for use of Polaroid, done in everything from database searches to anecdotal type things."
In paperwork sent to Glover, Polaroid cites conflict of interest concerns, noting that the corporation has sponsored musical acts such as Britney Spears and *NSYNC. Plus, typing the band's name into Google, Colcord says, returns 27 hits. "They might be a small local band, but they're on the Web and thus available to the world," he says.
Glover's legal woes began innocently enough. In December 2001, anticipating an independent release of Bipolaroid's first album, he applied for a servicemark with the United States Patent and Trade Office (USPTO). (A servicemark differs from a trademark in that a trademark is for goods, and a servicemark for services, which includes entertainment and music.) As per standard procedure, Bipolaroid's application was published in the USPTO's Gazette for 120 days, which allows people to peruse the applications and file any complaints. Bipolaroid received no opposition, and in March 2003 was granted a servicemark.
Then, on April Fool's Day, Glover received a package in the mail from the USPTO informing him of a petition to cancel Bipolaroid's servicemark. "I'm optimistic that both sides will be reasonable," Glover says. "But this has the potential to get really ugly."
The losses to Bipolaroid could be significant. Glover estimates the cost of obtaining the servicemark was more than $1,000. Add to that several thousand dollars more to press Transparent Makebelieve and a few hundred more to package and mail it to radio stations across the country. But even with the advantages of hindsight, Glover says he remains perplexed as to how he could have handled his business differently and avoided such an expensive and time-consuming obstacle to his career.
"I went through all the proper, legal avenues," Glover says. "I did what I was supposed to do; I didn't want to just use the name without checking it out first. Should there have been initial opposition from Polaroid, I might have opted for another name. But I did things right.
"If I were going to beat myself up over something I should have done, it would have been from a musical standpoint, a gig I should have played or changing some arrangements on the album. I'm much more detail-oriented about my music than the business side of things."
Helping musicians gain a better grasp of cumbersome business and legal concerns is a primary goal of the Mayor's Office of Music Business Development, an initiative started with Ray Nagin's administration. The business issues confronting local musicians are complex, says director Scott Aiges. "With all the issues around downloads and intellectual property rights, musicians have a lot to consider as far as copyrighting their work," he says.
One outreach of the new city office is the New Orleans Music Co-Op, a joint venture with the Tipitina's Foundation located at 4040 Tulane Ave. and open 9 a.m. to 5 p.m. Monday through Friday. The Co-op works to assist musicians with business matters; last fall, it held a series of workshops and panel discussions related to protection of intellectual copyrights, including issues of servicemarks. (Streaming video from the workshop is available at www.realneworleansmusic.com.)
As a former manager for local bands Astral Project and Royal Fingerbowl, Aiges has encountered the problems facing Glover. Astral Project was once asked to change its name by a Florida-based "industrial-trance band" of the same name, he recalls. Newspaper clippings and other documentation of the jazz group's storied history helped the local Astral Project prevail. Though that dispute never required a legal fight, the band realized it hadn't applied for a servicemark and was thus vulnerable.
When Astral Project developed the song "Big Shot" and later planned to use the title for a 2002 album, it first contacted the company of the same name that makes the popular soft drinks, Big Shot. The company asked what type of music Astral Project played. When it learned it was instrumental jazz, it agreed to allow use of the name "Big Shot" and even its logo -- a fat-cat in a top hat, smoking a cigar -- that appears on the album cover and T-shirts. Big Shot, the soda company, did enter into a legal dispute with a Cleveland-based rap group named Big Shot that used profane, violent lyrics. But with the local jazz musicians, a quasi-sponsorship was born. Astral Project sent the company CDs to give to clients, and the soda makers sent the band T-shirts.
Servicemark and brand-name issues arise repeatedly in the music industry -- even multiple times over the same name. Bipolaroid is also the name of the 2004 debut album from the Pittsburgh rock band sixtyfour; a call to the band revealed that it had not been contacted by Polaroid Corp. and currently has no plans to sue Glover (and Glover has no plans to sue sixtyfour).
Also, fast-rising local rockers Supagroup were forced to change their name from Supergroup after an existing band with that name contacted them and told them to discontinue its use. The now-disbanded Royal Fingerbowl took its name from a company manufacturing moist towelettes. While the band never raised the ire of the company of the same name, Aiges says they consulted with lawyers, who assured them that they are on solid legal footing if consumers won't likely be confused between the two names -- in this case a rock band and a moist towelette.
And could anyone confuse Polaroid's famous photo technology with Bipolaroid? "In this case, I don't think so," Aiges says. "I think [Bipolaroid] is an ironic use. It's a play on words."
Plus, Aiges says, corporations should recognize the inherent value in the exposure of such name usage, as Polaroid did with OutKast. "You would think that these companies would learn to take advantage of the fact that these bands promote their name and publicize them a little bit," Aiges says. "And, worse, when these corporations go after these small, indie bands, they come off looking bad, like giant, humorless corporations."
The name Bipolaroid actually predates the band, Glover recalls. "[A former girlfriend] offhandedly spoke about something and I thought she said, alternative bipolaroid.' I was trying to think up a band name at the time, and Bipolaroid sounded good." (Glover's girlfriend was actually referring to Guided by Voices frontman Robert Pollard.)
Now, as Polaroid's and Glover's lawyers negotiate, Glover is deciding his next move. He anticipates losing rights to the Web address www.bipolaroid.com, so he registered domains for the band's CD title and alias, www.transparentmakebelieve.com and www.televisionaries.com. For a May 14 show at Lounge Lizards, the band will perform under the name TELEvisionaries -- which might become its permanent title. Bipolaroid is raising money for its legal fund through sales of rare tracks and live recordings, and Glover has offered to pen a song at a donor's request for a $1,000 contribution. "We'll continue to play, no matter what our name has to be," he says.
Several legal outcomes are possible. Polaroid's petition could be decided before a USPTO board. Polaroid could sue for a cease and desist order during the process. Plus, any decisions can be appealed. "I could fight this for years and spend a fortune -- money I don't have," says Glover. "It's tough. I'm trying to get inside the mind of a giant corporation and guess what they'll do next."