Fair Use of Trademarks

Most Heavy Metal fx pedals are adaptations of the circuits of commercial pedals. While many of the original circuits have been discontinued, some are commercially available.

We’re a normal and reasonable company, and we’re going to assume you are too.

However, since the first thought is often toward legal remedy, we have to first offer some legal perspective before we get to the broader discussion of ethics.

Comparative use of trademarks

We generally try to include the name of the commercial product that one of our pedals is based on, and many of those company or product names are trademarked. In using trademarked names to compare our circuit, it falls squarely under fair use and is fully allowable under United States trademark law with regard to comparative advertising, as the Heavy Metal fx product does in fact compare to the commercial pedal in the ways that we claim.

We do not in any way represent our products (printed circuit boards and electronic components) as a replica or imitation of a fully assembled and working pedal, and we do not use copyrighted logos or artwork anywhere except in photographs of the original pedal. There is no chance that anyone would mistake our product as being endorsed by the commercial entity whose name we mention for comparative purposes, and we are in no way attempting to pass it off as such. We disclaim any and all affiliations with commercial entities unless otherwise noted.

Intellectual property

At times, there have been claims that a schematic or printed circuit board layout (even if it is re-drawn) is intellectual property. Legally speaking, “intellectual property” is just an umbrella term for its subsets: 1) patents, 2) copyrights, 3) trademarks, and 4) trade secrets. Therefore, any legal claim of an intellectual property violation must more specifically invoke one of the subsets. “Intellectual property” has no legal meaning on its own.

Schematics

Speaking broadly, a schematic—the representation of electronic connections between components—cannot be copyrighted or trademarked, and it is not a trade secret if the circuit was independently reverse-engineered. Patents are the only avenue by which someone may have a claim against what we do here, but they are extremely rare in analog electronics today and very few are granted by the USPTO. We are aware of most of the active patents that apply to analog guitar effects pedals and we do our best to respect and avoid them.

The only way a schematic can violate copyright is if it was a copy of the original artwork, for example a factory schematic that was drawn by the company who manufactured the pedal.

Printed circuit board layouts

The PCB layout itself is another aspect of a pedal that can potentially be covered under copyright. However, some have misunderstood this to again refer to the circuit—the connections between the components—when it’s actually only covering the layout as a work of art.

We do not produce replicas of circuit boards, vintage or otherwise, and no part of the original PCB layout is reused in our work. Therefore, as with a re-drawn schematic, the PCB itself is not subject to any copyright claims.

Circuit names

All of our projects have their own names, we research each potential name for originality before assigning it to a project. However, due to the sheer number of commercial pedals and the prevalence of small builders, with many new products entering the market every week, we sometimes miss the fact that someone else has used the name within the industry.

If one of our project names is in violation of your copyright or trademark and you’d like us to change it, please contact us and let us know. Please include proof of prior commercial use, e.g., a sales record that predates the release of our project.

DMCA takedown notices

We work hard to ensure that nothing on this site infringes any copyrights. With that said, we have carefully chosen a web host who doesn’t play games with DMCA intimidation. We are informed and experienced in the legal process behind DMCA notices, and we have a DMCA counter-notice template ready to go in case it is necessary.

In addition, be aware that frivolous DMCA notices can backfire on the copyright owner. See Lenz v. Universal Music Corp. 572 F.Supp.2d 1150 (N.D. Cal. 2008) where a district court ruled that because fair use was not considered, the claimant failed to act in good faith.

Legally Speaking

Legally speaking, nothing we do is in violation of trademarks, copyrights, patents, or trade secrets as they related to United States law, and any attempt to intimidate or threaten frivolous legal action will be recognized and understood for what it is.

Conclusion

We understand that your circuit may be the product of a great deal of time and research. However, this is just one of the risks of entering the market and having a good product. Every single pedal manufacturer out there is subject to the same possibility of having their work traced and publicized. It’s not piracy, it’s not unethical, and it’s most certainly not illegal.

We develop new pedals as well and have been doing so for years. We understand that by putting them out there for other people to use, there’s a chance that someone else could build off our work and even make money from it.

These are the table stakes for getting into the analog pedal business. Regardless of the amount of development time that was spent initially in getting it to market, if your product is something that can be traced out in a matter of a few hours, and a comparable version built using off-the-shelf parts ordered from electronic component distributors, then it’s not something that you can expect to protect or to prevent people from analyzing.

Here’s how we see it: Having your circuit traced is a badge of honor, and if anything, it raises the profile of the product. Having the schematic publicized will confirm to people that it is in fact what it claims to be. If your pedal shows the signs of hard work and thoughtful design, you have nothing to worry about.

The other thing to understand is that we’re not marketing to your intended customers. We aren’t dissuading potential customers from buying your pedal—very much the opposite. Due to the amount of spillover between the DIY communities and commercial gear communities, a good reputation among DIYers will pay dividends. If we traced your pedal or created a project based on it, this means we have a lot of respect for what you’ve done. We think of ourselves as a museum of sorts, an archive of analog circuits—some of which are largely forgotten, and others that are at risk of being forgotten in the future if they aren’t conserved today. We believe it’s an honor to be included in the Heavy Metal fx archive and we hope you can see it that way too.