May 5, 2015 – How “copyright-able” is a four-word phrase like “Who let the dogs out?” In the often-treacherous legal waters of the modern music industry, that question is not merely academic, a noted authority said recently in observance of World Intellectual Property Day at the University of Houston Law Center.
“The Musical Flavors of Houston” featured a keynote speech by Dr. E. Michael Harrington, music business department chair at SAE Institute in Nashville. UHLC Professor Michael A. Olivas also led a panel discussion focusing on how recent technological shifts have impacted the music industry, with a particular emphasis on the Latin music scene in Houston.
Harrington, a composer with a nearly encyclopedic memory of tunes from genres ranging from classical and country-and-western to hip-hop, led a classroom full of attorneys and professors on a survey of legal disputes over music, often punctuated by samples of the songs in question.
Throughout, Harrington called attention to the fact that it can be very difficult to determine whether any particular musical phrase is “original” as defined by copyright law.
In one example, he noted that a contemporary symphonic music composer once asked a well-known candy manufacturer for permission to sample one of its old radio ad jingles for a one-time, unrecorded performance at a small college. The company declined.
Much later, Harrington, who often serves as an expert witness in copyright litigation cases, found the jingle actually was based on a Hungarian folk tune later used in a composition by Bela Bartok, which would have cleared the way for use in the college performance.
Similarly, Harrington said, the chilling four-note sequence used by Bernard Hermann in the “Psycho” shower scene can be heard in another Bartok composition as well as Antonio Vivaldi’s “The Four Seasons.”
“We have clichés in music. We need them,” said Harrington.
But all too often, Harrington said, people will try to riff off of existing music for commercial purposes with the mistaken assumption that it qualifies as a parody under the “fair use” doctrine.
He pointed to an instance when a representative of the Houston Rockets proposed copying the 1980 Blondie hit “Call Me,” replacing the title refrain with “Yao Ming,” and even made a test recording. Deborah Harry, who wrote the song, declined her permission.
“But I’ve got a copy,” Harrington joked.
Later, UHLC Professor Michael A. Olivas, the William B. Bates Distinguished Chair of Law and host of “The Law of Rock and Roll," a public radio program on the Albuquerque, NM, National Public Radio station KANW, led a panel discussion focused on Houston’s Latin music scene.
The panelists, representing a broad swath of the music industry, included Armando Liechtenberger, Jr., composer and keyboardist with the pioneering Houston-based Tejano group La Mafia; Ezequiel “El Cheque” Gonzalez, program director of Liberman Broadcasting Inc. and a popular broadcaster on Houston radio stations La Raza 98.5 FM and KTJM 103.3 FM; Yocel Alonso, a UHLC adjunct professor and Houston entertainment lawyer; and Justen Barks, an entertainment lawyer with the Houston intellectual property firm Craft Chu.
Alonso noted that the Latin artists most widely known in the general U.S. market make up approximately 40 percent of the Latin music market, with the other 60 percent made up of what is known as “regional Mexican music.”
Olivas pointed out that Hispanics make up 40 percent of the population of Houston, with 80 percent of that made up of people originating from Mexico.
“That means this music is going to have popularity and force beyond the sheer demographics of it. About half the city does know this. It’s a mobile city with increasing musical sophistication and the opportunities are growing,” he said.
Liechtenberger described the process by which La Mafia, beginning in the 1980s, first made it big by touring extensively in Mexico despite a longstanding division between the Mexican and Mexican-American markets.
“We targeted Mexico,” he said. “We didn’t understand that divider.”
The panelists agreed that the rise of digitally produced music and new means of distribution are making profound shifts in the music industry, including new ways for younger artists to be “discovered” as well as how songs are produced so they can be enjoyed in digital formats while still having an impact in live performance.
Speaking Spanish and translated by Alonso, Gonzalez said it can be hard for members of regional acts, who often come from humble backgrounds, to keep up with the rapid pace of technology. And new forms of electronic distribution don’t produce financial results as quickly as during the old days of records and CDs, he said.
“On the one hand, it’s easier to get your music out on social media and for distribution, but by the same token, everyone’s doing the same thing. So basically you have a glut of product hitting the market at the same time. The problem is distinguishing yourself from other artists,” he said.
Liechtenberger said that La Mafia, a well-established act, “took a hit” financially during the early days of the digital revolution before it created its own label in 2003. But ultimately, he said, the new digital era should be good for artists.
“It’s very difficult for new artists who don’t have standard, classic songs like we have. You won’t see that staying power. On the other hand, somebody can become a star on YouTube, in ways that we couldn’t do. They have to be creative, but they will make money in a different way,“ he said.
The event was a collaboration between the Law Center’s Institute for Intellectual Property & Information Law (IPIL) and a group of local intellectual property law attorneys, led by Bill Ramey of the firm Ramey & Browning.
World IP Day is sponsored by the World Intellectual Property Organization (WIPO) each year on April 26. In the U.S., events take place during the week leading up to that day in various host cities around the country. The U.S. events are often in collaboration with the American Intellectual Property Law Association (AIPLA) and the United States Patent and Trademark Office (USPTO).