Re: riff stealing in music industry

Bob Schwartz writes opposed to trademarking "riffs":
>
> 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.

This response again does not understand the law of trademarks. Trademark law would not prohibit others from using the riff in an artistic sense. But if the riff or sound or music did serve to identify a particular provider of goods or services, then others could not use the riff or sound or music in such a way as to confuse consumers as to the source of competing goods and services. Does anyone doubt that the musical introduction to the Johnny Carson show is distinctive and identifies the comedic services of Johnny Carson and that any late night entertainment show that began its presentation with the same musical introduction would violate the trademark laws? That of course is not to say that an artist could not use that music or a riff therefrom in creating a new song.

Harvey Perlman
University of Nebraska College of Law
<hperlman[_at_]unlinfo.unl.edu> Received on Sat Feb 11 1995 - 15:30:19 GMT