Re: riff stealing in music industry

As I recall, the three notes of the NBC chimes were not randomly selected. They are the notes G E C, for General Electric Company, NBC's original and present owner.

David Pierce
mileston[_at_]access.digex.net

On Fri, 10 Feb 1995, Bob Schwartz wrote:
>
> 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
Received on Sun Feb 12 1995 - 17:46:28 GMT