[trIPping] Copyrights, trademarks: how can you protect a chord progression?
[Introducing trIPing, where we discuss the craziest ideas and possibilities in Intellectual Property. No final thoughts, no legal advice, just tripping]
Chord progressions can be one of the most important songwriting choices. It’s no wonder some chord progressions have fame of their own (such as the ’50s progression) and thus are used and reused several times in popular music.
Given how determinant a chord progression can be to the success of a song, a songwriter may wonder if there is any way to get exclusivity rights over a chord progression. However, chord progressions face significant limitations when it comes to intellectual property (IP) protection.
Can you copyright a chord progression?
Simply put: chord progressions are hardly eligible for copyright protection, if at all.
It can be hard to protect a melody block (as in a sequence of notes), let alone a chord progression!
Some go as far as defending *all* melodies should be free to use, but that’s another discussion.
For now, just focus on how hard it would be to defend copyrights over a chord progression when even longer or more complex agglutination of musical sounds can be very hard to be copyrighted.
Since chord progressions are considered fundamental building blocks in music, they may lack the necessary level of originality to qualify for copyright protection. It would be hard to assign sufficient originality to chord progressions since they are mere combinations of a limited number of preexisting chords.
What if it’s a really weird or unique chord progression?
Sorry, it’s still hard to copyright it, since it would still be a combination of preexisting chords.
But isn’t any work of art just a combination of preexisting stuff?
Well, yeah. Even neologism is a combination of radicals or letters.
But to be eligible for copyright protection, a work must meet certain standards of originality, consisting of an independent creation that is intrinsically and extrinsically different from previously created and exteriorized ones.
Chord progressions and plagiarism
I doubt that one can argue they were the first to ever combine 2, 3, or 4 chords, or that such argument can be used to exclude others from combining those same chords to write songs. Imagine if a painter would try to stop other painters to paint with 2 or more colors. Does that make any sense?
Therefore, a repetition of a song’s chord progression is not plagiarism per se — although it can be among the elements that support a plagiarism claim.
Can you trademark a chord progression?
Since there is no protection of chord progression under copyright laws, one must wonder if there is another type of intellectual property able to protect a chord progression.
In some countries, including the United States and Colombia, some sounds are eligible for trademark registration in the form of sound marks. If a chord progression is associated with a specific product or service and is used as a sound mark, could it be eligible for trademark registration in these countries?
The answer is somewhat complex.
To qualify for trademark protection, a mark must meet the criterion of distinctiveness. It cannot be a common, generic mark. There is a high chance that a chord progression can be considered unregistrable as a sound mark due to its lack of distinctiveness.
Should the musician add other sounds or musical elements to the chord progression, it can form a distinctive mark that is eligible for registration.
But mind you that the musician will own the exclusive rights over this combination of sounds, and not over the chord progression basis of it.
trIPing aims to be a fun and relaxed space to discuss IP theories and possibilities. Our thoughts are based on the laws in force at the time it was written, but please do not use this post as legal advice. Seek a lawyer.
This blog post does not create an attorney-client relationship, nor replaces professional legal services or business consultancy services.
3Três Consultoria e Criação (Consulting & Creative) specializes in the intersection of creative, Intellectual Property Law, and communication services.
Contact us at: contato@3trescc.com
