Implications of Unsettled Copyright Infringement Jurisprudence for American Music and Musicians
The GW Law Intellectual Property Law Program invites you to join a conference on March 20, focusing on actual and potential effects of the increasing number - and contentious dispositions - of copyright infringement claims involving musical works. Popular songwriters, and more broadly the American music and entertainment industries, are concerned that recent findings of infringement based primarily on stylistic or sonic similarities will inhibit musical innovation and cross-pollination of styles and genres inherent in American popular music. Those pursuing these claims, on the other hand, contend that such results will deter well-known musicians from unfairly capitalizing upon the innovative work of earlier or lesser-known songwriters without permission or compensation.
Infringement disputes raise fundamental questions:
- What expression should copyright protect?
- What constitutes an infringing “copy” of that expression?
In disputes involving musical works in particular, judges and juries have struggled to answer these questions. Musical works typically comprise many elements, which are difficult to tease apart in identifying original and protectable expression. Also, because musical works are almost invariably rendered and perceived by the public as sound, those adjudicating music infringement disputes find it nearly impossible to separate fundamental musical expression from the more stylistic audible expression of its performers.
This is the first conference to bring together copyright scholars and practitioners who have studied music infringement claims, and experts in music and sound theory, composition, cognition, history, and recording. The exchange of ideas between experts in copyright, and those in several disciplines relating to music, should lead to a better understanding and accord as to what musical expression copyright should protect, and to what extent. Documented in an academic law journal, these views will inform practitioners and the judiciary handling infringement claims, and ultimately foster more equitable and predictable outcomes of them in the service of promoting the longstanding innovative ethos of American musicians.
The conference should be particularly interesting to:
- Practicing attorneys, and other professionals affiliated with music and entertainment industry enterprises, and at law firms with entertainment and media practices
- Faculty members and students in law, music, and music technologies
9 am: Introductory Remarks
- Robert Brauneis, Professor of Law; Co-Director of the Intellectual Property Law Program; Co-Director of the Dean Dinwoodey Center for Intellectual Property Studies, GW Law
9:15 am: Panel 1: Unsettled Music Infringement Jurisprudence in the United States
Since 1831, when the US Copyright Statute first expressly extended copy protection to musical works, the scope of that protection has expanded inexorably. The current statute provides authors of musical works exclusive rights not only to copies of their compositions in various media, but to performances of them, arrangements, and other works derived from them. Has this expansion of the scope (and term) of protection for musical works furthered the objective of copyright as established by the Constitution to “promote the progress of science and the useful arts”?
The gravamens of the early, and relatively infrequent, music infringement cases in the United States in the mid-nineteenth century were typically allegations of unauthorized literal copying of a protected work, and a directly competing publication. Over time, however, infringement claims have been based on ever-more speculative and attenuated alleged musical similarities and have involved works in dissimilar genres and marketed to different audiences. The courts’ accommodation of these claims, many of which have succeeded, has fostered an exponential increase in the number of infringement disputes during the past century. Increasingly, this disconcerts songwriter/performers, and the industry that supports them, who fear that a hit song will almost inevitably result in an allegation of infringement. Will the significant increase in the number of music infringement claims in the United States inhibit musical innovation and cross-pollination of styles and genres inherent in, and essential to, the development of American popular music? Or are these claims an overdue check needed to deter well-known musicians from unfairly capitalizing upon the innovative work of earlier or lesser-known songwriters without permission or compensation? Does the fact that music copyright infringement claims are far more commonly lodged in the United States than in other nations hold positive or negative implications for the U.S. judicial system and music industry?
- Joseph Fishman, Associate Professor of Law, Vanderbilt University Law School
- Andrew Gass, Partner, Latham & Watkins (San Francisco)
- Sean O’Connor, Professor of Law; Executive Director, Center for the Protection of Intellectual Property, George Mason University Antonin Scalia Law School
- Jacqueline Charlesworth, Partner, Alter, Kendrick & Baron (Los Angeles)
- Chien-Chih Lu, Assistant Professor, Chengchi University
- Jennifer Jenkins, Professor, Duke University School of Law
Noon: Lunch and Presentation on Music Copyright Infringement Resource at GW Law
- Charles Cronin, Visiting Scholar, GW Law
- Danielle Manahan, Shuyu Wang, Julie Caffery, JD Candidates
1:15 pm: Panel 2: Protean Nature of Technology, Music, and Copyright Protection
Emerging technologies have always influenced not only how works of music are created, copied, performed, distributed, and heard, but also what works of music are created, copied, performed, distributed, and heard. Genres and styles of popular and serious music have continually evolved, reflecting the advent of new technologies and larger cultural developments. Coincident with this evolution, the scope and term of copyright protection for musical works has also developed – invariably expanding in tandem with the ever-increasing access to copies and performances of musical works. Should copyright protection for musical works evolve in response to changing music genres and styles? Or should copyright jurisprudence reflect an assumption, evolution of genres and styles notwithstanding, that the metes and bounds of protectable musical expression do not change over time?
- Robert Clarida, Member and Partner, Reitler Kailas & Rosenblatt (New York)
- Rob Kasunic, Associate Register of Copyrights, US Copyright Office
- David Suisman, Associate Professor, University of Delaware
2:30 pm: Panel 3: Assessing Infringement Claims
In the United States, both parties in copyright infringement litigation have the right to demand a jury trial. Plaintiffs usually make this demand, which means jurors – typically unschooled in basic music analysis, composition, and even terminology – decide whether there is substantial similarity between contested works, ultimately establishing whether a defendant misappropriated a plaintiff’s protectable musical expression. Juries are informed on this question by the invariably conflicting opinions of musical experts – typically musicologists and ethnomusicologists -- hired by both parties, who dissect the works in question and present visual and audible exhibits to convince jurors that the works have, or have not, substantially similar protected original musical expression. This raises questions: what is protectable musical expression; who should determine this; who should inform judges and jurors as to what is original musical expression; and by what means may, or should, these experts argue whether the work of a second comer is substantially similar to earlier protectable musical expression?
- Charles Cronin, Visiting Scholar, GW Law
- Aaron Keyt (via videoconference), Composer and Attorney, Seattle
- Daniel Müllensiefen (via videoconference), Professor, Goldsmiths College, University of London
- Patrick Savage, Project Associate Professor, Keio University
- Eleanor Selfridge-Field, Professor, Stanford University
3:30 pm: Break
3:45 pm: Moderated Discussion Among Speakers and Attendees
The conference is open to the public without charge. Please register here if you plan to attend. There will also be a livestream of the event, which will be available on this page.
We are grateful to Latham & Watkins LLP for its support of this conference.
Media interested in attending should contact Kara Tershel at [email protected].
GW Law, long recognized as one of the top law schools in the country, pursues a distinctive research and learning mission that engages the leading law and policy questions of our time and provides students with an education that will position them to help change the world. Accredited by the American Bar Association and a charter member of the Association of American Law Schools, GW Law was founded in 1865 and was the first law school in the District of Columbia.