On Cowbells in Rock Anthems (and Property in IP): A Review of Justifying Intellectual Property

I am going to start this Article with two confessions. First, when I was fourteen, my favorite rock song was (Don’t Fear) The Reaper, by Blue Oyster Cult. Second, one of my favorite Saturday Night Live (SNL) sketches is from the 2000 season, “Behind the Music: Blue Oyster Cult.” The sketch is a tribute in memory of Gene Frenkle, the member of Blue Oyster Cult who played the cowbell on (Don’t Fear) The Reaper. The SNL sketch purports to explain how the cowbell made it onto the studio recording.

In the sketch, members of the regular SNL cast pretend to be Blue Oyster Cult, SNL regular Will Ferrell pretends to be Frenkle, and guest host Christopher Walken pretends to be Bruce Dickinson, a famous record producer. Over and over, Bruce Dickinson stops recordings of (Don’t Fear) The Reaper because he “could’ve used a little more cowbell.” He encourages Frenkle to “[r]eally explore the studio space” with the cowbell, tells the band “you’re gonna want that cowbell on the track,” and pleads “I gotta have more cowbell!” Even when the lead guitarist disagrees and picks a fight with Frenkle, Dickinson insists, “Guess what? I got a fever! And the only prescription . . . is more cowbell!” I make these confessions to explain my general reaction to intellectual property (IP) law and scholarship.

I am a property scholar, and when I look at intellectual property I see it shot through with property concepts and policies. When he heard (Don’t Fear) The Reaper, Bruce Dickinson had to have more cowbell; when I read IP scholarship, I gotta have more property (P)...