A Musical Work is a Set of Instructions
70 Pages Posted: 13 Feb 2015 Last revised: 27 Jun 2018
Date Written: February 11, 2015
A musical work is a set of instructions that typically consists of music notation, which includes notes, and in some instances, musical lyrics. Music copyright infringement cases do not appropriately take account of the nature of music notation as a set of instructions. This leads to analysis in infringement cases that seriously misconstrues the history, uses, and functions of music notation. This misreading is a historical relic of the ways in which copyright has been applied to music. Copyright was first applied to words and was initially visual and textual in orientation. Since the earliest copyright laws, copyright subject matter has progressively expanded from granting rights to protect written expression to other artistic arenas. Copyright law has, however, consistently undervalued the art of performance while favoring the written expression of music, which has had a profound impact on varied musical forms. This emphasis on writings has disfavored some plaintiffs who have sought greater protection for their own performance practice, while at the same time disfavored some defendants whose creative, non-notated performance practice should allow a greater scope for their borrowing. This Article suggests that courts in interpreting infringement in music cases must look beyond the visual-textual and take better account of how music is actually perceived and practiced.
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