Copyright Infringement of Music Cases: Determining Whether What Sounds Alike is Alike

Vanderbilt Journal of Entertainment and Technology Law, Vol. 15, 2013

DePaul University College of Law Legal Studies Research Paper No. 2012-07

69 Pages Posted: 3 May 2012 Last revised: 28 Oct 2013

Margit Livingston

DePaul University College of Law

Joseph Urbinato

Roosevelt University, Chicago College of Performing Arts

Date Written: March 5, 2012

Abstract

The standard for copyright infringement is the same across different forms of expression. But musical expression poses special challenges for courts deciding infringement disputes because of its unique attributes. Tonality in Western music offers finite compositional choices that will be pleasing or satisfying to the ear. The vast storehouse of existing public domain music means that many of those choices have been exhausted. Although independent creation negates plagiarism, the inevitable similarity among musical pieces within the same genre leaves courts in a quandary as to whether defendant composers infringed earlier copyrighted works or simply found their own way to a similar melody, harmony, rhythm, and/or formal structure. This Article explores the knotty legal issues embedded in copyright infringement cases involving musical expression and suggests a methodology for cutting through the knots. By delving into the historical development of Western music and tonality, it attempts to connect music history and theory with copyright jurisprudenceā€˜s ultimate goal of balancing private protection of expressive works with public access to them.

Suggested Citation

Livingston, Margit and Urbinato, Joseph, Copyright Infringement of Music Cases: Determining Whether What Sounds Alike is Alike (March 5, 2012). Vanderbilt Journal of Entertainment and Technology Law, Vol. 15, 2013; DePaul University College of Law Legal Studies Research Paper No. 2012-07. Available at SSRN: https://ssrn.com/abstract=2050560

Margit Livingston (Contact Author)

DePaul University College of Law ( email )

25 East Jackson Boulevard
Chicago, IL 60604-2287
United States
3123628701 (Phone)
3123625448 (Fax)

Joseph Urbinato

Roosevelt University, Chicago College of Performing Arts ( email )

Chicago, IL 60605
United States

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