Musical Musings: The Case for Rethinking Music Copyright Protection

This Article focuses on the topic of music copyright, but addresses this legal issue from a different vantage point than that of the industry insiders, insightful scholars, and policy makers that have weighed in on the debate. Instead of focusing on the issues regarding wholesale digital reproduction and dissemination of music protected by copyright, this Article focuses on music copyright infringement when the claim is that a given piece of music is substantially similar to another piece of music protected by copyright. Part I of this Article touches on the history of the music industry and copyright in this country, as well as the legal standard developed and used by the federal judiciary in assessing whether a given piece of music infringes upon another musical work. Examination of these histories will help illuminate the shortcomings of the music copyright legal doctrine in the succeeding sections. Part II of this Article discusses the unique attributes possessed by music and why these attributes call for treating music differently than other works of authorship under copyright law. Part III shifts from policy to pragmatics. Not only is the current test for copyright infringement ill-suited based on the unique characteristics of music, the test also has significant practical problems that need to be addressed and remedied. This test--the substantially similar test--is flawed because it assumes that there is only one reasonable way to perceive a piece of music. This flaw is perpetuated by two factual assumptions underlying the analysis: not-so-expert testimony and aurally challenged jurors. Part IV posits a new paradigm for dealing with music copyright when the claim is that a piece of music is substantially similar to a preexisting musical work protected by copyright. Instead of having a regime that restricts musical borrowing, we should have a system that encourages this practice, so long as the second composer pays the first composer pursuant to a compulsory license. Implementing this compulsory license requirement squares with the underlying realities of the music world. Moreover, the beneficial byproducts of such a system are manifest and include predictability, judicial economy, and pecuniary incentives flowing to music copyright holders and the music copyright borrowers