Re: riff stealing in music industry

Bob Schwartz writes:
>
> 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?

I think I probably agree with much that is said above. However, there are some implicit assumptions that might be helpfully expressed. When you say the use is an "artistic use" you thereby imply that it is not a "trademark use". I don't think we have a self-defining term of art such as "artistic use". If you mean it seems unlikely that a riff contained as part of a longer son could function as a trademark, I would agree. But there isn't anything magic about "artistic use". I assume Johnny Carson thought his introduction was "artistic" or Bob Hope's "thanks for the memories" is artistic and yet they are both pretty distinctive of the entertainers and the services they provide. The issue is ultimately whether consumers recognize the portion of the song as identifying a particular entertainer. That of course is not the end of the analysis. Even if one accords trademark rights, the next question is whether the use by the second party is an infringement. And here, if the use is not such as to identify the entertainer but merely to perform the song of which the riff is a part, I think it unlikely it would be an infringement. Given the way trademark law is developing, see the John Deere case in the second circuit, I think we need to be careful about drawing generalizations from such terms as "artistic use" "parody", etc.

     Sorry Bob if you thought my last response was too heated.

Harvey Perlman
University of Nebraska College of Law
<hperlman[_at_]unlinfo.unl.edu> Received on Wed Feb 15 1995 - 16:03:27 GMT