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Friday, 7 September 2012

Semantic house music turf wars

The evolutionary path which has led humans to respond to music is unclear.  And judging by some people's physical responses to a bit of rhythm [you mean 'Dad' dancing at weddings then - Merpel], it is questionable whether the race has advanced much from its pithecanthropoid days. Everyone also has their favourite musical genre and many become extremely protective over it. Particularly when it is threatened with dilution by new ideas and trends. 

The dance music industry is currently in the throes of tribalistic schism over who should be entitled to use the term 'house' to describe their music. To the uninitiated, every form of house music can be cacophonous but this particular Kat has been known to throw some shapes from time to time [though dancing on four limbs seldom looks elegant] and wondered if the IPKat might come to the rescue.

The auditory antagonism is brought about largely as a consequence of a recent increase in popularity of the house music genre in the United States (where ironically it tends to be called electronic dance music or EDM).  Artists such as the Swedish House Mafia (SHM) (a group of three DJs) as well as David Guetta and Deadmau5 [mmm tasty] have played a significant part in that upward trend helped along by collaborations with more mainstream popstars jumping on the bandwagon, such as Tinie Tempah, Will.I.am and Kelly Rowland. Even Paris Hilton is having a go.  

According to house music traditionalists, this rise of DJs from relative obscurity on the much smaller ‘underground’ house scene to commercial megastars has coincided with a change in their musical style - so much so that there is a question over whether what they now produce can even be called house music at all.  The charge is that, where once the DJs would carefully craft a unique ‘set’ of tracks and mix them live for their exclusive audience, now the sets are pre-recorded and churned out time after time to synchronised fireworks in huge concerts.  Is there anything then that the self-styled connoisseurs of house music can do to wrest back ‘their’ expression and return it to its pure form?  

As a descriptive and non-distinctive term, 'house' has no registered protection for musical goods or services.  However, the English common law tort of passing off recognises that a group of businesses may collectively share goodwill in such a term because if it were to be misappropriated then the goodwill would be diluted, resulting in an erosion of its attractive qualities. The businesses that rely on the expression to bring in custom will accordingly suffer loss as a direct consequence of the incorrect use.  The case law which developed this form of extended passing off follows a bibitory theme and features champagne, sherry, whisky, advocaat and vodka (see, for example, IPKat post here).  That might reflect the fact that alcoholic products have very clearly identifiable characteristics.  Where the qualities of a genuine product are neither precise nor distinctive, it is unlikely that consumers will be deceived and therefore there can be no civil wrong or claim in passing off.


"You can't even swing a cat in here".

Putting to one side the goodwill for a moment, passing off requires the claimant to suffer economic loss and is therefore available only to those who actually trade.  That means the bedroom DJs and mere fans can do little other than continue to eloquently [or not] express their vitriol online, probably by aligning with DJ Sneak, an experienced Chicago-house producer, who, judging by his tweets, clearly sees himself as the genre’s gatekeeper.  In making his case against what he sees as pollution by mainstream artists, DJ Sneak points out that house music should be created from a love for and homage to the music and Djing craft rather than a focus on making a catchy ditty which can be plugged repeatedly and shared virally on social media.

Unfortunately for DJ Sneak and his minions, there is little consensus on what exactly is ‘house music’. Born in Chicago in the mid-1980s from disco, the definition is extremely broad.  It generally features a drum beat of between 120 and 150 beats per minute, and has a synthesised and minimalistic electronic sound.  That encompasses an incredibly broad variety of sub-genres and the average consumer may be able to discern varying degrees of mellifluence across the spectrum but will struggle beyond high-level classification. Even for those familiar with the industry, accurate terminology beyond this top tier frequently proves elusive and is rarely agreed upon.  Indeed, at the micro level many artists will claim to have their own unique style personal to them, which defines their ‘brand’. 

All of this indicates that house, like some great matriarch of musical taxonomy, functions as the umbrella term for a large number of sub-genre offspring.  Everything in its family, including manufactured pop house and EDM, is still house.  The parent may not like the sullying of its good name but the bastard child has inherited the same genetic code nonetheless and is simply establishing its own identity.  And as a consequence, whilst the relevant public may not appreciate the slight differences between Chicago house, Detroit techno and EDM, it is likely that a substantial part will regard artists in all three genres as constituting 'house' music.

Like language, the nomenclature of musical genres will evolve naturally.  Purists will object but relish the feeling of superiority in doing so. New adopters will remain indifferent. And just in case you were wondering, the IPKat's favourite tracks are played between 20kHz and 75kHz; so it’s just a shame you will never hear them.

History of house music here.
Little mouse music here.

1 comment:

Anonymous said...

I wonder if HOUSE had been registered when it first started the position would be different considering it is prima facie distinctive. I suppose even if it wasn't initially so underground and some clever DJ had thrown in an application it would by now have been vulnerable for cancellation.
Saying that, with the proper post-registration maintenance from the start (i.e. keeping away the pop artists from diluting the brand) it may still be a legitimately distinctive mark.
The analysis on the use of extended passing-off is very thoughtful and goes to show how useful the common law is at filling in the shortcomings of registered rights.

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