Determining the Composition

Abstract

This chapter explores the interpretation of a musical work in the context of changes to songwriters’ creative behaviors, driven by changes in composing technologies. It argues that in the 21st century, a musical work (MW) is fully embodied in a phonorecording, and that single, artificially isolated elements (such as melodic fragments) should be considered de minimis for the purposes of copyright infringement litigation. This view is evidenced by the self-reported creative activities of more than 200 songwriting teams, taken from the popular podcast Song Exploder. Three detailed case studies are provided from this collection, all based on songwriting teams using digital technologies; Dua Lipa, Mobb Deep, and Billie Eilish. The chapter argues that interpreting the MW more broadly (to include audio as well as melody/lyrics), combined with a more generous interpretation of the de minimis threshold, could empower creators, and avoid spurious music copyright infringement litigation in the future. The authors draw on their respective experiences as: i) a consultant forensic musicologist, with ethnographic research into collaborative songwriters’ creativity; and ii) as a music and technology professor and practiting lawyer, with songwriting, performance, and recording background.

Keywords: songwriting, copyright infringement litigation, music copyright, song analysis