Re: riff stealing in music industry

Tom Maliska writes:
>
>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.

On the trademark issue, I take it that likelihood of consumer confusion is required. So if no one would think that George Harrison and the Chiffons were the same people, no cause of action, right?

Two caveats to this: (1) many states have "antidilution" laws that prevent you from using a trademark which people associate with its owner, even if they are not confused as to source or sponsorship. But marks generally must be famous and highly distinctive to qualify for antidilution protection; I doubt if many musical riffs meet this standard.

(2) there is a case from the 8th Circuit which holds that consumer confusion about trademark law is actionable. The case (Anheuser-Busch v. Balducci) condemned a parody of an A-B ad on the grounds that, while most everyone knew it was a parody and not a real ad, 50% of those surveyed thought that *Balducci had to get permission* to run the parody. I think this case is wrong [can you imagine the result if popular conceptions about the law determined what the law actually was in other contexts?], but I guess you shouldn't copy riffs in the 8th Circuit.

Mark Lemley
Assistant Professor
University of Texas School of Law
mlemley[_at_]mail.law.utexas.edu Received on Tue Feb 07 1995 - 19:53:22 GMT