Re: riff stealing in music industry

On Fri, 10 Feb 1995, Nic Herriges wrote:
>
> Joseph Bauer writes:
>
> >Tom Maliska writes that there is no legal reason that a riff can not
> >become a trademark for a recording artist. I believe that this
> >misconceives the nature of a "trademark."
> >
> >As defined in section 45 of the Lanham Act, a trademark "includes any
> >word, name, symbol, or device, or any combination thereof used by a
> >person ... to identify and distinguish his or her goods, including a
> >unique product, from those manufactured or sold by others and to
> >indicate the source of the goods, even if that source is unknown."
> >
> >A riff simply does not serve that function. It is like the sports
> >writer who refers to the "trademark swing" of Stan Musial. Unique,
> >yes. Identifiable by sports fans as his swing, yes. But a "trademark"
> >in the sense meant by trademark law, no!
>
>
> If a scent or a color can be a trademark, why not a riff? Actually,
> there's a good chance that music is already being used as a trademark
> (although I'm not sure that people consciously think about it as a
> *trademark*). For instance, if CBS started using the 3 notes NBC has
> been using for decades to identify its programming, all heck would
> likely break loose. The distinctive AT&T "tinkling" (don't know how
> else to describe it), the distinctive "plop, plop, fizz, fizz" (the
> actual sounds, not the words) of Alka-Seltzer, CBS's musical
> accompaniment to "This...is CBS" and many others are all, arguably
> devices used by persons to identify and distinguish his or her goods
> and, as such may be subject to trademark protection.
>
> If an artist started using a certain distinctive combination of notes at
> some point in all his/her songs (and it passed all the other tests) I
> would guess that this could be treated as a trademark.
>
> Whether riffs *should* be allowed to be trademarks is a different matter.
>
> Nic Herriges
> nic[_at_]analogy.com

The point is implied in your analysis -- any "artist" that used the same riff in every performance, no matter the context, is scarcely worthy of the name. While such a specimen is theoretically possible, can the rule be modeled around the exception?

Even if it could, it would be bad public policy. It is one thing for NBC to appropriate three notes of the scale for the clearly NONFUNCTIONAL purpose of identifying their network, where any distinctive arrangement of notes would do, and claim the right to do so continuously and exclusively for that purpose. It is quite something else to expropriate the intervals, major-sixth, then (down) major-third in succession for purposes of art, and claim NOBODY ELSE CAN USE THESE INTERVALS IN SUCCESSION FOR ARTISTIC PURPOSES! Indeed, they could never show they were entitled -- anyone remember the Gillette theme for the Friday Night Fights?? (To LOOK sharp, and to feel sharp too, there's a RAZOR, that is built for you ....) No doubt, there are older examples! Indeed, in the notes are simply a major triad in the first inversion. Western music would have a tough time getting along without it ....

No, this notion is unworthy of even this open minded body.

Bob Schwartz
<shebam[_at_]access.digex.net> Received on Fri Feb 10 1995 - 23:06:14 GMT