Frankie Lopez, Unsplash
I was driving to work with the music on shuffle. The next song came on and from the drums alone, I knew what it was — First Date by Blink-182. As a drummer and pop-punk aficionado, the snare drum and crash cymbal on all four beats followed by blistering sixteenth notes across the toms were easily recognizable as the playing of Travis Barker. But something sounded off.
The tempo felt a little slower and the tone of the drums sounded different. It was a song and band I never heard before. Turned out to be a great tune. But I couldn’t shake the near identity of the approximately five second drum intro.
Numerous drummers have graced us with instantly recognizable drum parts. John Bonham’s intro groove on Rock and Roll, Jeff Porcaro’s “Rosanna Shuffle” on Rosanna, and Dave Grohl’s thunderous fill before the whole band kicks in on Smells Like Teen Spirit. Can you hear them? These are just some examples, and the list (and I) could go on, and on, and on … But let’s get back to the drum part at hand.
Did Barker play on the track? Or perhaps he had something to do with the production of the song? Neither is true. So, what if anything can Barker do about it?
Copyright
Copyright protects works of authorship that are fixed in a tangible medium. That could apply to a drummer’s performance on an entire track or the written notation of the same. But copyright generally does not extend to short phrases. So, it is unlikely that a two-measure drum part, despite its complexity, may be protected by copyright.
However, there may be some alternatives.
Trademark
Trademarks are used to indicate the source of goods or services. A term or a phrase are commonly used as trademarks. But there are several non-traditional trademarks, including sounds.
The notes G, E, and C played in succession on chimes indicates a certain national broadcast station. A lion’s roar tells you that you’re about to watch a movie from a certain studio. A particular musician from the 305 uses the signature “man yelling “EEEEEEEYOOOOOO” in falsetto with “E” drawn out followed by a “U” sound” to indicate live musical performances.
All of those marks are registered with the USPTO. If those short “musical” phrases can function as trademarks, why can’t Barker’s intro on First Date?
While this may be a possibility, it could be somewhat of an uphill battle. Sounds that are commonly used in connection with certain goods or services may not function as trademarks. This is because consumers would not associate the sound with a particular source. So, a drum part for musical performances would have to be fairly distinctive to function as a trademark. However, that same drum part may not be commonly used in connection with other offerings, e.g., personal appearances by a celebrity, clothing, or perhaps drumsticks. Depending on how Barker’s drum part is used, it could serve to indicate the source of certain goods or services, even musical performances. That could prevent third parties from using the same or similar drum part, in certain circumstances.
Those familiar with Barker’s playing may associate certain beats, fills, and grooves with him. But can a drummer’s playing be so closely associated with them that it becomes part of their persona?
Rights of Publicity
Rights of publicity generally protect a person’s identity in commercial settings and vary by state. Perhaps because of the glitz and glamor of Hollywood, California appears to have a somewhat broad right of publicity. California Civil Code Section 3344 states:
“Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling … goods or services, without such person’s consent … shall be liable for any damages sustained by the person” (emphasis added).
It’s pretty clear that Barker’s name, voice, and signature, were not used in the song at issue. However, what does a “likeness” mean within the statute? The Ninth Circuit has noted that under the statute, likeness refers to a visual image and not an imitation of sound. Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir. 1988).
Because Barker’s visual image was not used in the song, a right of publicity claim based on Civil Code Section 3344 may fail. However, subsection (g) of Section 3344 states that the remedies provided are cumulative and shall be in addition to any others provided at law. Therefore, if a “likeness” has a broader scope at common law the drum part may give rise to a colorable claim.
Some courts have found that common law rights in a “likeness” are not confined to a visual image. The Midler court held that imitation of a professional singer’s voice may be sufficient to state a claim of violation of one’s rights of publicity. In Motschenbacher v. R.J. Reynolds Tobacco Co., the court held that use of an image featuring the plaintiff’s car without the plaintiff being identifiable was sufficient for plaintiff’s right of publicity claim to reach a jury. 498 F.2d 821 (9th Cir. 1974). Further, unauthorized use of Johnny Carson’s “Here’s Johnny” catchphrase to sell portable toilets was actionable based on common law rights. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983).
The names, voices, and likenesses of the plaintiffs in those cases were not used. Here, only Barker’s drum part was used. But is the part in First Date so associated with Barker that it’s encompassed within his rights of publicity?
The answer may vary depending on who you ask. For drummers and certain millennials, the answer is likely a resounding yes. However, non-musicians and other generations may not make such an association.
Conclusion
It’s unclear what Barker may think about all of this and what, if anything, he would do about it. Because imitation is the sincerest form of flattery, Barker could interpret use of an identical drum part in another song as an homage. Interestingly, his bandmate, Mark Hoppus, appreciated that a band included his name in the title of a song, Featuring Mark Hoppus, although he had nothing to do with the track.
Limited intellectual property protection may be available for drum parts. And in some instances, it may be appropriate to attempt to protect a drum part to prevent others from associating that part with another drummer, band, or commercial offering. But that doesn’t mean that us drummers should stop creating, writing, and performing interesting grooves. Just keep in mind that the cool drum part you just heard could violate another’s rights if used improperly.