Re: riff stealing in music industry

On Tue, 14 Feb 1995, harvey perlman wrote:
>
> 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>

We seem to be generating more heat than light here, for which I acknowledge some of the blame. But I fail to see how one doesn't understand trademark law by saying essentially the same thing as it says above -- that no trademark claim should apply to the artistic use of a riff, no matter how closely or repeatedly it is associated with a particular artist. That is the point I was addressing.

I did not question the right to protect one's association with a theme when the clear purpose is to identify the source of a particular product or presentation. Yet serious questions should arise before one should assume that this is a right that can be usefully asserted under trademark law: (1) can one be certain that the use is not in any degree artistic, either as a derivative work, or a parody? (2) what about compulsory license rights, under copyright, to use the musicial work (e.g., the Tonight Show theme) -- the right does not extend to a part of the work, or use as a competing theme?

So, while in theory, trademark may be a mode for protecting the identification of source, where a series of musical notes is involved, I would still argue that examples of an enforceable TRADEMARK right in the case of a musical riff would seem an empty set. There are, of course, other theories based on copyright infringement or rights of personal publicity.

I had readily acknowledged that sampling raises different, copyright, questions as to appropriation of a means of expression. My challenge is: can you find a case in which trademark was successfully asserted against use of a musical riff? This issue has nothing to do with new technology; such a right would apply to music halls and certainly the issue could have been raised from the earliest radio and TV broadcasts. Is there such a case? If not, can you even construct a plausible set of facts that has anything to do with artists or artistic performance, which was the subject under discussion?

(Before I get worked up again, I would like to apologize to my previous correspondent for the ad hominem assertion that certain positions should be beyond even this broadminded group. It added nothing and he rightly called me on it.)

Bob Schwartz
<shebam[_at_]access.digex.net> Received on Tue Feb 14 1995 - 15:34:45 GMT