Copyright

This case found the late George Harrison liable for copyright infringement; given
Harrison's popularity as one of the Beatles, it is probably the most commonly known
music plagiarism dispute. The court's tone is almost apologetic in determining that
Harrison's use of the melodic kernels of plaintiff's universally popular number, in the
same order and repetitive sequence and set to "identical harmonies," compelled it to
conclude that Harrison unconsciously misappropriated the musical essence of "He's So
Fine."

The court made much of the fact that both songs have a distinctive "grace note" in the
same melodic motive. Harrison's use of this idiosyncratic musical device, along the lines
of the court's reasoning, implicated him; it was akin to copying a mistake. The opinion's
footnote four contains the motive with the grace note and elsewhere acknowledges that
the recording and sheet music Harrison ultimately released of the song (after an earlier
recording by Billy Preston) do not incorporate the supposedly telltale grace note. A minor
point, but what the court refers to as a "grace note" is an appoggiatura in "He's So Fine"
(and doesn't affect the rhythmic value of any other note in the measure in which it
occurs). The harmonies are not "identical;" both songs contain a good bit of II - V
alternation (one of the commonest progressions in tonal harmony) but Harrison's chords
are triads rather than the seventh chords of "He's So Fine" and Harrison's second motive
plays over alternating I and VI chords whereas that of "He's So Fine" remains on I.

The opinion's factual findings are essentially accurate, but did the court ask the right
questions to arrive at its finding of unconscious copying? The musically illiterate Harrison
didn't create the score of "My Sweet Lord," a standard melodic analysis of which led the
court to its decision. Harrison hired an educated musician to work a couple of banal
melodic ideas set to two chords into a marketable visual representation of the song's real
locus of economic value: Harrison's quasi-improvisational recorded performance that was
entirely responsible for the popularity of this number. The opinion (footnote nine) alludes
to Harrison's belief that his song is that which he sings at a particular moment and not
something that can be captured on a sheet of paper. The court gave this insight short
shrift in its analysis and ultimate determination of misappropriation.

Had the court acknowledged that since the advent of rock music (and an attendant
decline in musical literacy and in the musical complexity in the conception of popular
works) the commercial value of a song like "My Sweet Lord" or "He's So Fine" depends
far more on a specific performance of it than on rudimentary musical elements reduced
to notation, it might have reached a less speculative conclusion. Consider the sound
recording for these two works on this web site. Unlike Tin Pan Alley numbers from earlier
in the century, in which the raw musical data in the audio files suggest fungible works
not entirely dependant upon particular performers (see this web site, for instance,
"Dardanella" and "Ka-lu-a" from Fred Fisher v. Dillingham, 1924) the MIDI files for "My
Sweet Lord" and "He's So Fine" are so static because the musical elements are limited
and repetitive and the works come alive only in the hands of a specific performer.

The late Harold Barlow, known among music librarians for publishing indexes of themes
of major instrumental and vocal works (which raise interesting scope-of-copyright issues
themselves) testified for George Harrison.
trademark

Twitter tried and failed yet again to trademark the term "tweet," thwarted by a third-
party developer that uses its site and beat it to the punch.

The U.S. Patent and Trademark Office rejected Twitter's trademark application on
Dec. 22 of last year, saying that "tweet" was too similar to the already-registered
phrase "Let Your Ad Meet Tweets," which belongs to the Des Moines-based
advertising service Twittad.

An application Twitter filed for "tweet" in 2009 was met with a preliminary denial in
August of that year, with the trademark office citing several applications for "tweet"-
related trademarks that had been filed before Twitter's.

In its latest rejection of Twitter's trademark application, the trademark office cited
rules against the "registration of an applied-for mark that so resembles a registered
mark that it is likely that a potential consumer would be confused or mistaken or
deceived as to the source of the goods and/or services."

The office found that "tweet" was "similar" to "Let Your Ad Meet Tweets" in "sound,
appearance and connotation." More specifically, "the marks both contain the term
TWEET, which is identical in sound, appearance and meaning."

The trademark office, needless to say, does not adhere to Twitter's 140-character
enforced pithiness.

Twitter is approaching its fifth anniversary: Co-founder Jack Dorsey published the
world's first tweet on March 21, 2006.

In the time since, it's become big business. Twittad is a service that matches Twitter
users with advertisers to sell space on their profiles based on the number of followers
they have.

Twittad founder James Eliason said his company had heard from Twitter, but that it
hadn't offered to acquire the trademark. Instead, according to Eliason, Twitter
expressed "concern" over the trademark and "wanted us to assign our trademark to
them."

Eliason said that the dates speak for themselves and calls the dispute "a timeline
issue."
"We firmly stand by our position of the legitimacy of the trademark due to the fact that
our mark was cleared by the Trademark office in 2008," he wrote in an email.

He said his company acquired the rights "well before the word 'Tweet' became widely
used in the Twitter ecosystem."

He did add that if Twitter believes "tweet" is important intellectual property for its
business to own, Twittad would be willing to consider a deal.

Twitter did not respond to requests for comment by press time.

Patents

PC support company Rescuecom has dropped a trademark lawsuit against

Google, giving it time to defend itself against a similar suit filed by Best Buy.

Rescuecom declared "victory" in a press release , although it wasn't clear if

anything had changed since Rescuecom was able to win an appeal of a 2006
decision dismissing its lawsuit over Google's keyword-based ad system.
Rescuecom objected to the fact that competitors could buy ads that would
appear when Google users searched for "Rescuecom," and was able to
convince a federal court last year to rehear the case after it was initially
dismissed.

But it will go no further. Rescuecom said it dropped the lawsuit after getting
what it wanted out of the process, but the fact that it is currently involved in a
dispute against Best Buy--where it is essentially arguing the opposite side of
its dispute against Google--might have played into its decision.

Best Buy sued Rescuecom last year for using the term "geek squad" in
keyword advertising, which Rescuecom has defended as an appropriate use
of another company's trademarks in "comparative advertising." Eric Goldman,
a professor at Santa Clara University who follows online trademark disputes
closely, was quoted earlier this year by Online Media Daily as calling
Rescuecom's position with Best Buy as "intrinsically inconsistent" with its
position regarding Google, where it argued that Google did not have the right
to sell its trademark to competitors.
Google released a statement on the dismissal. "As we've consistently
maintained, Google's trademark policy strikes the proper balance between
trademark owners' interests and consumer choice, and now even Rescuecom
concedes that it's legally entitled to use a competitor's trademark as a keyword
trigger. We're pleased to see Rescuecom finally affirm our position by
dismissing their claims."