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Note - Out of Tune: Recomposing the Link Between Music and Copyright


Music, like all art, is a form of creative expression. It is often referred to as “a universal language” for its seemingly inherent ability to appeal to people across cultures and divisions in society. Within the musical practice, however, the finite constructs of the Western musical tradition set the standards of music theory and traditions of composition, which are the building blocks of this so-called universal language. Because music is so universally appreciated, the copyright system in the United States has been established under the notion that music is universally understood and, therefore, can be analyzed universally. Under the current copyright system, for example, originality is one factor required for a work to be copyrightable. According to the law, originality is binary; either a work is original or it is not. This approach is entirely incompatible with the realities of music. This Note asserts that the originality requirement for copyright protection sets an unattainable standard for musicians, demonstrated by music theory and both historical and contemporary examples. This Note further demonstrates that over-reliance on expert testimony has proven detrimental to a recent string of music copyright infringement cases involving Katy Perry, Marvin Gaye, Pharrell Williams, and other world-famous musicians. Therefore, this Note proposes that in order for copyright law to align more closely with the art it seeks to protect, the United States Copyright Office should establish a Copyright Trial and Appeal Board, wherein administrative law judges with expertise in specific art forms are tasked with determining copyrightable elements in works of authorship within their areas of expertise.