Re: riff stealing in music industry

From: Christopher Pesce <chrisp[_at_]corbis.com>
Date: Tue, 07 Feb 95 10:06:00 PST

CR:

"In the United States, a standard set by a case against George Harrison indicates the lower limits for "riff" copying. Infingement -- even copying -- need not be intentional. Harrison authored "Oh My Lord". Key elements, including the refrain, to this song are similar in musical expression to the an earlier tune, "He's So Fine" by the Chiffons."

     I don't see that the "My Sweet Lord" case (not "Oh My Lord") has anything to do with the question of riff stealing. In that case, not only was Harrison's refrain/chorus substantially similar to the Chiffon's, the harmonic progressions of the two compositions (verse and chorus) were essentially identical. Like it always should, the court (or perhaps the jury?) compared the two works in their entirety, it did not take the two refrains out of context and hold that the earlier one was copyrightable and infringed.

TM:

"There is no legal or logical reason why a riff cannot become a trademark of an artist, provided it is used consistently, is original, and is used to designate the artist's work. Further, it is clear that "sound envelopes" will become a common resource on the networks for identifying origin of works of authorship, and there is no reason they cannot be trademarked"

     Perhaps if an artist set up a web site which featured a riff that acted as a signature musical greeting, trademark law could be used to prevent another from setting up a competing web site. But wouldn't it be an illogical and pernicious extension of the idea of intellectual property to use trademark law to prevent a later artist from incorporating an uncopyrightable riff into an original composition? First of all, there can be no likelihood of confusion, because in order to purchase the recording (or license the composition) the purchaser needs to know the name of the artist and the song. When the song gets airplay both of those are stated -- clearing up any potential confusion before the purchaser goes to the marketplace to make a purchasing decision, which is the time at which the likelihood of confusion should be evaluated. Second of all, think of all the great music that alludes to or quotes from its influences. Future creators would be at risk.

     Am I the only person who sees everywhere an attempt to extend CR, TM, publicity, and unfair competition beyond their proper bounds? It seems there is a widespread and growing tendency to overrreach in the service of greed and shortsightedness -- at the expense of future creative efforts. (I'm thinking of the Vanna White case, the McDonald's "Nothing but Net" proceedings, the Elizabeth Taylor biography/perfume dispute, the list is endless . . . . ).

Christopher Pesce
chrisp[_at_]corbis.com

---

> From: cni-copyright
> To: Multiple recipients of list
> Subject: Re: riff stealing in music industry
> Date: Monday, February 06, 1995 11:06PM
>
> In the United States, a standard set by a case against George Harrison
> indicates the lower limits for "riff" copying. Infingement -- even
> copying -- need not be intentional. Harrison authored "Oh My Lord".
> Key elements, including the refrain, to this song are similar in musical
> expression to the an earlier tune, "He's So Fine" by the Chiffons.
> Although Harrison did not intentionally copy the refrain, he had heard
> the song, and the court held that, although subconscious, unauthorized
> copying did occur.
>
> The case is reported at 420 Federal Supplement 177 (S.D.New York 1976).
>
> It was probably important to the court that the refrain, or "hook" to
> the song was copied. Moreover, the earlier group could claim original
> authorship of those few notes in the refrain (something less common
> today as much of the musical spectrum for rock has been explored and
> recorded).
>
>
> > Notably, the earlier work was still in its copyright term -- not public
> > domain, as is so much of the jazz, blues and classical music drawn on
> > by other artists today. The bottom line is that consciously performing
> > soundalike music is a copyright infringement. The minimum musical
> > segment that one can take from others will depend on the circumstances;
> > there is no fixed rule.
>
> On the trademark question:
> There is no legal or logical reason why a riff cannot become a trademark
> of an artist, provided it is used consistently, is original, and is used
> to designate the artist's work. Further, it is clear that "sound
> envelopes" will become a common resource on the networks for identifying
> origin of works of authorship, and there is no reason they cannot be
> trademarked as distinctive works identifying the source of a work. This
> is consistent with recent holdings allowing shapes of containers, scents,
> and color schemes to be trademarked when used appropriately.
>
> As an extension of this concept, various artists, including rap singers
> The Fat Boys, singer Bette Midler, and saxophonist Tom Wait have
> successfully sued an advertiser to prevent use of their distinctive
> musical style and voice by replacement performers -- even parodists.
>
> -------------------------------------
> Name: Tom Maliska
> Heller, Ehrman, White & McAuliffe
> E-mail: tmaliska[_at_]hewm.com
> Date: 02/03/95
> Time: 15:14:46
> -------------------------------------
Received on Tue Feb 07 1995 - 18:17:31 GMT