F with a G on Top: Copyrighting George Harrison

I recently had a client ask me an intriguing question. He wanted to know if George Harrison’s iconic opening chord at the beginning of “A Hard Day’s Night” was protected by copyright.

Being inquisitive, I first had to learn what chord George is actually playing. Not surprisingly, there is some debate on this issue but George himself apparently identified the chord as an “F with a G on top”.” Whatever chord he is actually playing, the sound of George’s 12 string Rickenbacker changed the world.

I don’t believe that a single chord in and of itself is capable of copyright protection. The issue would be, did the chord by itself have sufficient originality and even if it did, would the use in another song be considered ‘de minimus’. Think, for example of the Beastie Boys sampling case, Newton v. Diamond. I also wonder if a possible use of the chord would be protected by the doctrine of fair use, since you can’t play the chord without thinking of the Beatles and “A Hard Day’s Night”.

But here’s another interesting question. Could the sound itself be capable of trademark protection? Attorney Robert Scott Lawrence in his blog “Who Is Your Lawyer?” points out that over 157 “sensory trademarks” have been registered by the United State Patent and Trademark Office, including the MGM lion’s roar, AOL’s “You’ve Got Mail,” and Homer Simpson’s “D’oh”. A quick scan of the USPTO’s webs site does not indicate any registration for George‘s “F with a G on top” but I am not entirely sure that such a registration might not be possible.

I am not sure I answered my client’s question but it was a fun distraction.