The bittersweet truth about intellectual property

The irony behind the most recognisable violin hook in 90s alt-rock, and what it can teach us all about the cost of an original idea.

If you were following local business news last week, you probably already know that Pick n Pay received quite an embarrassing slap on the wrist courtesy of Checkers and the High Court of Cape Town. But in case you missed it, I’ll give you a quick summary of what happened.

In 2021, Pick n Pay decided to introduce a new premium range of products for its core upper customer, with the primary objective of establishing a “foodie brand” across multiple categories. The issue that landed them in court is that the packaging of said range is strikingly similar to the packaging on Checkers’ premium Forage and Feast range, which was launched at the end of 2020.

At a quick glance, you may not even be able to tell which packaging belongs to which retailer. Both feature a navy, white and gold colour scheme, with similar fonts and other design elements.

Following a tussle in the courts, Deputy Judge President Patricia Goliath has ordered Pick n Pay to “destroy all printed materials, product packaging and the like bearing the infringing get-ups, which are under its control, or alternatively to deliver all such material to Shoprite Checkers for destruction.”

Of course, Pick n Pay is denying any wrongdoing on their side, insisting that as a brand, they have always made extensive use of the colour navy. They will seek leave to appeal the judgement. I guess we’ll have to wait and see how that works out for them.

Originality: an expensive commodity

So why all the fuss?

In the competitive landscape of business, originality is not just a rare gem; it’s an advantage. Companies invest considerable resources in cultivating and safeguarding their unique ideas, as originality often serves as a crucial differentiator in the marketplace. Copyright, the legal mechanism designed to protect the expression of creative concepts, plays a pivotal role in this endeavour.

Now, Checkers can’t claim to have the copyright on navy blue packaging, but what they can do (and have successfully done) is to claim that Pick n Pay’s too-similar design is misleading to customers, who could potentially confuse the two brands.

Ultimately, the investment in preserving original ideas reflects a commitment to maintaining a competitive edge and ensuring that innovation remains a strategic advantage. This is why Checkers was willing to fight tooth and nail to make sure that their ideas remain only theirs.

Cue the violins

Perhaps one of my favourite examples of the intricacies of intellectual property comes from the world of music.

Even if you’ve never heard of a band called The Verve, odds are you’ve probably heard their breakout hit, “Bitter Sweet Symphony”, at least once in your life.

Refresh your memory and indulge in a little classic 90s alt-rock:

You probably don’t even have to make it more than two bars into this song to recognise it, thanks to that hyper-memorable violin melody that plays on repeat. And it’s exactly that violin melody that got The Verve into a lot of trouble in 1997.

That’s because the string section that opens “Bitter Sweet Symphony” was based off of a sample taken out of a Rolling Stones song called “The Last Time” – or to be more precise, the orchestral version of “The Last Time” that was recorded by the Andrew Oldham Orchestra in 1965.

You can hear the Oldham Orchestra version here:

What’s a sample, you ask? In music, sampling is like borrowing a snippet (or sample) from one recording to use in another. These samples can be bits of rhythm, melody, speech, sound effects, or even longer chunks of music.

But, here’s the catch – using samples without permission could land you in considerable copyright trouble. And getting the green light for sampling, known as clearance, can be a really complicated affair. If you are asked to pay to use the sample in question, it could also be quite expensive, especially if you’re eyeing samples from big-name sources.

What makes it all the more tricky is that there’s no law that specifically prohibits sampling, and different courts have different takes on whether sampling without permission is OK or whether it constitutes copyright fraud. Most issues are decided on a case-by-case basis.

In the case of The Verve, things did not end well. While lead songwriter Richard Ashcroft had negotiated use of the sample from copyright holder Decca Records, he neglected to obtain permission from the Rolling Stones’ former manager, Allen Klein, who owned the copyrights to all of the Stones’ pre-1970 songs, including “The Last Time”.

When “Bitter Sweet Symphony” was gearing up for its single debut, Klein, who was then at the helm of ABKCO Records, threw a curveball by denying clearance for the sample. He claimed that The Verve had exceeded the portion that they had agreed with Decca Records. A legal skirmish ensued, leading The Verve to surrender all royalties to Klein. As further salt in the wound, songwriting credits on “Bitter Sweet Symphony” were changed to Jagger–Richards (the lead members of the Rolling Stones).

Verve songwriter Richard Ashcroft walked away with his hit song under someone else’s name and a modest $1,000 in his pocket. The band’s bassist, Simon Jones, later went on to reveal that the band were initially promised half the royalties. However, when the single started flying off the shelves, they were given an impossible choice: hand over 100% of the royalties, or remove the song from circulation permanently.

“Bitter Sweet Symphony”’ reached No 2 in the UK and No 12 in the US in its year of release, and was even nominated for a Grammy. To this day, it remains one of the most recognisable songs of the 1990s, eclipsing every other track ever released by The Verve. In 2019, Billboard estimated that the single had generated almost $5 million in publishing revenue since its release. None of that revenue went to Ashcroft or any of the other members of The Verve.

If that isn’t the very definition of bittersweet success, then I don’t know what is.

Fortunately, this story does have a somewhat happy ending

Following the death of Allen Klein in 2009, Ashcroft approached Joyce Smith, who took over the management of the Stones, with an appeal to have his songwriting credits restored. He was successful – in 2019, ABKCO, Jagger and Richards agreed to return the “Bitter Sweet Symphony” royalties and songwriting credits to Ashcroft. There’s no back payment of the 22 years worth of royalties that the Stones pocketed on Ashcroft’s behalf, but he will receive all royalties going forward.

As businesses fight in the realm of innovation, the recent battle between Checkers and Pick n Pay serves as a cautionary tale. It underscores the notion that an original idea is not only a source of competitive advantage but a precious asset worth protecting. In a world inundated with choices and visual stimuli, the distinctiveness of a brand (or a piece of music) can be the deciding factor in capturing consumer attention and loyalty.

The lesson reverberates beyond the courtroom: originality is well worth fighting for. In the end, the battleground may differ, but the essence remains the same. The pursuit of originality is a journey that demands resilience, legal acumen, and an unwavering commitment to protecting the integrity of ideas in a world where imitation lurks just around the aisle or the musical note.

About the author:

Dominique Olivier is a fine arts graduate who recently learnt what HEPS means. Although she’s really enjoying learning about the markets, she still doesn’t regret studying art instead.

She brings her love of storytelling and trivia to Ghost Mail, with The Finance Ghost adding a sprinkling of investment knowledge to her work.

Dominique is a freelance writer at Wordy Girl Writes and can be reached on LinkedIn here.