Saturday, November 03, 2007

Monkey business on a sunny afternoon

A musicologist has a fascinating critique of OHIM’s refusal of a registration to the Tarzan “yell” on the ground that it could not be graphically represented according to CTM requirements:

First, there are plenty of pieces of music that are as hard to notate or more; can it possibly be that the EU is so ethnocentric that they believe that only things that can be easily notated with one, culturally-specific system can be [trademarked]???

Second, I really think this “not notatable” think is hugely trumped up (and I’m suspicious of the musicological expert witness they got). I think, having taught notation and transcription a few years ago, that certain aspects of most music can be notated with the Western system, and often the rejection of that system of notation plays on exoticist tropes (so note the huge number of ways that people have come up with to transcribe various Sub-Saharan African musics). ...

Third, the reporter, working with a composition prof., described the call as basically variable. While I think that seems intuitively true, every version they played was remarkably similar, not only in contour, but in tonal content–and was essentially the same as I remember us mimicking it as kids. ...

In the interest of putting my money where my mouth is, I’ve made an attempt at notating it:….

The other argument that apparently the court made, was that this call wasn’t “composed in the traditional way.” (That is, in the Beethovinian model–the way they hypothesized, which amounts to one guy saying, “sing something like this” and another guy doing that, seems pretty “traditional” to me, whatever that might mean). This seems like it would hold more legal water; this is, for the record, one of my pet problems with American copyright law, and is the sort of thing that makes it hard to copyright improvised work, such as jazz solos. ...

The post commented on this PRI story (wma), which begins with the all-too-common confusion between copyright and trademark, also reflected in the musicologist’s post. The OHIM Board of Appeal decision affirming the refusal of the registration is here. I note that the “composed in the traditional way” argument doesn’t seem to be in the OHIM opinion; the argument over composition method is about copyright, not trademark.

I am terrible with music, but I find the arguments quite interesting, and also it’s a bit ironic if a registration for the “Tarzan yell” is refused because of ethnocentric concepts of music notation.

So, if the yell is protectable, does the Listerine commercial infringe? What about the classic Baltimora song? (Because a song can't be a trademark for itself, and because of concerns for artistic freedom, the song should be in the clear; but it might not be licenseable for use in an ad without the Tarzan estate's consent.)

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