orty years ago, an 18-year-old beauty named Heloisa Pinheiro walked to the sea and moved the hearts of two men sitting at a bar. Antonio Carlos Jobim and Vinicius de Moraes watched and wrote "The Girl From Ipanema." They, and their estates, have earned millions from the song.
If you have tears to shed, prepare to shed them now. Heloisa, widely known as Helô, never earned a cent from the song. Her husband has been unemployed for the past five years. Their 22-year-old son suffered brain damage as an infant and requires special medical care. When Helô tried to open a clothing boutique named "The Girl From Ipanema," the heirs of composer Jobim and lyricist Vinicius sued to force her to change the name.
Finished shedding tears? Then set aside sentiment, and explore who is right. Disregard the fawning press treatment and the ceremony held in her honor by the Ipanema merchants association, including the red carpet rolled out for the beloved heroine to tread upon as she memorialized her celebrated stroll.
The heirs are right. Helô is wrong. Wrong not just as a matter of Brazilian or American law, but wrong as a matter of fundamental intellectual property principles.
What did Helô contribute to "The Girl From Ipanema"? Not the words. Not the music. Not her appearance, her name, her publicity rights or her privacy. Helô supplied the inspiration -- something perhaps more important than the conventional elements of intellectual property, but utterly unprotectable.
Inspiration is the fountainhead of all creative expression. Every object of intellectual property represents one creator's attempt to capture some particle of truth or beauty. The law protects the result of inspiration, but not the source of inspiration. If it were otherwise, the law would be foolishly encouraging efforts to monopolize truth and beauty themselves.
The work of inspiration is intensely personal. Helô inspired Jobim and Vinicius, but so did the sun and the beach and the beer they were drinking. How those elements combined with their genius (and later that of Norman Gimbel, who wrote the English lyrics) to produce "The Girl From Ipanema" is the mystery of creation. Helô may have inadvertently triggered the strange alchemy of that process, but she was never a part of it. Whatever may be its source, the work of inspiration takes place between the ears of the creators.
And the appreciation takes place within the listeners' minds. Millions who have never seen Helô, and to whom she will always be a stranger, can listen to the song, conjure up a beauty of their own dreams and give their hearts gladly.
Two hundred years ago, John Keats was inspired by another journey to the sea. Upon first reading George Chapman's translation of Homer, Keats, who had read Homer many times before, confessed: "Yet did I never breathe its pure serene/Till I heard Chapman speak out loud and bold."
Keats likened his discovery of Chapman to "stout Cortez" discovering the Pacific. The crew of Hernando Cortez must have felt the same neglect that the authors of "The Girl From Ipanema" experienced. They lamented that each day Helô "walks to the sea,/She looks straight ahead, not at me." Stout Cortez, ignoring his men, stared at the Pacific with eagle eyes, while "all his men/Look'd at each other with a wild surmise."
We honor Keats as the sole author of the sonnet, notwithstanding the fact that he drew inspiration from Homer and Chapman, and from Cortez (to whom, instead of Vasco Nunez de Balboa, he mistakenly attributed Europeans' discovery of the Pacific). For only Keats could craft from their feats a poetic masterpiece.
In denying rights to helô, intellectual property law does not demean her contribution to the world's stock of truth and beauty. Instead, it recognizes the law's own limitations. Intellectual property law protects dreamers; it does not protect the stuff dreams are made of. That stuff, properly, remains accessible to all.
Is that unfair to Homer or Chapman or Cortez or helô? Perhaps a little. But for helô, at least, there is consolation. Thanks to the work that the law does protect, heloisa Pinheiro will always be helô. She will always be 18 years old, tall and tan, young and lovely, swaying so gently. And when she passes our thoughts, we who only dream of such things will sadly go, "Ahhh."
Contributing writer Lawrence J. Siskind, of San Francisco's Harvey Siskind Jacobs, specializes in intellectual property law. He can be reached at siskind@harveysiskind.com.
