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Tuesday, May 01, 2012

It's the First of May

Glad to be back in the Blogosphere. Liz Phair's "Cinco de Mayo" has been in my mind nonstop today. You may ask yourself whether there is also a "First of May" song. It turns out there are at least two.

One, by the BeeGees, is a song about lost love and lost connections. The other, by geek rocker Jonathan Coulton, is about <ahem> making intimate connections in the great outdoors (and is  explicit about such connections in a way that is probably NSFW).

Could the BeeGees go after JoCo for the use of the same song title? (Answer after the break)

Probably not. Duplicate song titles happen all the time, and are almost never protectable under copyright law because they are too short / not sufficiently expressive. Every once in a while, we do see cases that recognize protectable trademark rights in song titles. See, for example, EMI Catalogue Partnership v. Hill, Holliday, Connors, Cosmopulos, Inc.

EMI asserted trademark rights in the title of the Benny Goodman hit "Sing, Sing, Sing (with a Swing)."  The Second Circuit reversed the district court's grant of summary judgment in favor of defendant who used the phrase "Swing, Swing, Swing," in a commercial for golf clubs, accompanied by a swing tune which may or may not have been similar to the plaintiff's song. 

The Second Circuit didn't resolve the defendant's fair use argument, and it's fairly solid, at least at first blush: why shouldn't an advertisement for golf clubs be able to use the phrase "swing, swing, swing"? That's what you do with a golf club. The court reversed because it felt the district court too quickly discounted the defendant's selection of a "Benny Goodman-type song like 'Swing Swing Swing.'" In fact, the advertisement in question was originally going to use the Goodman song, but the client didn't want (or couldn't affort) to pay the licensing fee. Thus, the court concluded "there are sufficient facts upon which a reasonable jury could conclude that defendants intended, in bad faith, to trade on EMI's good will in the title of the song by using the phrase 'Swing Swing Swing' in the final commercial."

The result here reminds me of the Bette Midler and Tom Waits right of publicity cases, where the respective artists turned down an invitation to sing their hit for a commercial jingle, and in both instances, the ad agency went out and hired a soundalike. As I see it, all three cases went against the defendant because of arguably bad faith attempts to either circumvent a licensing fee or circumvent the artists desire not to be associated with the client's product. You may disagree on whether EMI, Midler or Waits should have the right to say "yes but," or "no, never," but once a court is persuaded that such a right exists, the workaround seems troubling at best.

So it's the first of May, and a wonderful time to blog about the intersection of intellectual property and music, among other things. I hope you'll chime in as you have the time.

Posted by Jake Linford on May 1, 2012 at 02:09 PM in First Amendment, Intellectual Property, Music | Permalink

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Comments

I, and not a few others, think of this song on May Day: http://www.3quarksdaily.com/3quarksdaily/2012/05/a-version-of-the-internationale-for-this-may-day-by-the-invisibles.html

See too: http://en.wikipedia.org/wiki/The_Internationale

And the first of May is also a wonderful time to blog about work (or 'labor') and workers, economic democracy, and a better life for all of us: http://ratiojuris.blogspot.com/2012/05/sundry-reflections-proposals-in.html

Posted by: Patrick S. O'Donnell | May 1, 2012 5:05:24 PM

Thanks Patrick,

This is actually my first exposure to the Internationale, so I appreciate the links.

Posted by: Jake Linford | May 1, 2012 5:34:11 PM

These are good:

http://www.care2.com/causes/may-day-belongs-to-the-workers-and-their-songs-come-sing-along.html

Though for Paul Robeson, I have to admit this gives me chills

http://www.youtube.com/watch?v=LtU3vUOa2sw

...built by the people's mighty hand... May 1st (and really until May 9th, Victory Day) are still big holidays in Russia, and the crooks who run the place now are just enough to give a touch of nostalgia for the Robeson song.

Posted by: Matt | May 1, 2012 9:22:32 PM

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