Volume 66, Issue 5, 1187-1256
Twentieth-century developments in audio recording, copying, and broadcast technologies thoroughly altered not only how popular music is distributed and consumed, but also how it is created. By the 1960s, sound recording technologies had become so refined, ubiquitous, and economically accessible that they—and no longer music notation—had become the primary means by which popular songs were created and documented. Audio technologies democratized authorship of popular music, but also led to the gradual lessening of original primary musical parameters (melody in particular) in many popular genres. Paradoxically, despite this general diminishment in original musical expression, the number of music infringement claims has grown inexorably, decade by decade, since the 1960s. The bases of these claims have also grown remarkably attenuated, often involving nothing more than a similar sound or a common word or two shared by two songs.
The proliferation of music infringement claims since the 1950s can be attributed to the lingering influence of Arnstein v. Porter, a case that established the framework for adjudicating copyright infringement cases still used today. Arnstein has fostered ongoing judicial diffidence on the essential question of substantial similarity of copyrightable expression between the works in dispute, as well as widespread reluctance by courts to dismiss claims, or grant defendants summary judgment. This reluctance has led to the development of highly inconsistent case law precedent. In turn, this has provoked skittishness in the music industry that has resulted in establishing precautionary measures, creating higher barriers to entry. It has also led to the music industry’s resorting to financial settlement, even for highly speculative infringement claims which, ultimately, engenders more of such claims.
This Article traces developments in sound technology, popular music, and music copyright infringement litigation in the twentieth and twenty-first centuries. It argues that if courts were more cognizant of the deep changes in the creation and musical content of popular songs since the Tin Pan Alley era of the early twentieth century, they might more confidently dispose of most music copyright infringement claims today through dismissal or summary judgment.