Re: riff stealing in music industry

Bob Schwartz writes:
>
>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.

Actually, my point was somewhat overstated. Very few trademarks are used by their owners in every single instance. Many entities possess several trademarks that identify their "product." An artist who could work a short identifying riff into a multitude of different works and managed to keep his/her audience interested enough to keep buying the works would be an artist indeed. I also believe it was fairly common for classical artists to repeat "trademark" passages in several of their pieces.

>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!
Hmmm, I don't think that this has ever been nor will ever be a result under trademark law no matter what the medium. Let's examine the requirements. The passage would have to be distinctive. It would have to stand out. Thus it would not easily fit into every work. It would have to be non-functional. In the case of art that becomes a difficult task as some would argue that all "art" is non-functional. However, consider whether a passage would be non-functional in an artistic medium if it doesn't contribute to the aesthetics otherwise created by the remainder of the piece. If this definition is acceptable then a passage would have to be dissonant with the remainder of the work to be considered a "trademark" passage. This would also solve the exclusivity problem. If an artist used a passage as a functional part of the music it would no longer be used to identify the source and it would not be distinctive, there would be little likelihood of confusion and thus not infringe. Consider whether present law gives Nike the exclusive right to use the phrase "just do it" in any athletic advertisement even if it were part of a 500-word essay on the value of a competitor's product.

I don't know whether it's right or good for a musical passage to become a "trademark." It seems to me that, given the law we have, it is possible to argue that under the right circumstances it might happen.

Nic Herriges
nic[_at_]analogy.com Received on Mon Feb 13 1995 - 00:02:37 GMT