Download This PaperA Musical Work is a Set of Instructions
70 Pages Posted: 13 Feb 2015 Last revised: 21 Mar 2017
Date Written: February 11, 2015
Abstract
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.
Suggested Citation: Suggested Citation
Olufunmilayo Arewa (Contact Author)
Antonin Scalia Law School at George Mason University ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
61 References
- Jason Toynbee, Copyright, the Work and Phonographic Orality in Music
- In other words, notation promoted originality."); see also Arewa, supra note 184, at 1843 (discussing the conception that "oral expressions of music . . . derive from an underlying written musical expression , volume 77 Posted: 2006
- The Decline of Improvisation in Western Art Music: An Interpretation of Change, 23 INT'L REVAESTHETICS & SOC. MUSIC , volume 61 Posted: 1992
- , p. 27 - 28
