I Hear America Suing: Music Copyright Infringement in the Era of Electronic Sound

Abstract

Twentieth-century developments in audio recording, copying, and broadcast technologies thoroughly altered not only how popular music is distributed and consumed, but also how it is created. By the 1960s sound recording technologies had become so refined, ubiquitous, and economically accessible that they, and no longer music notation, had become the primary means by which popular songs were created and documented. Audio technologies democratized authorship of popular music, but also led to the gradual lessening of original primary musical parameters (melody in particular) in many popular genres. Paradoxically, despite this general diminishment in original musical expression, the number of copyright infringement claims has grown inexorably, decade-by-decade, since the 1960s. The bases of these claims have also grown remarkably attenuated, often involving nothing more than a similar sound or a common word or two shared by two songs. This article traces developments in sound technology, popular music, and music copyright infringement litigation in the twentieth and twenty-first centuries. It argues that if courts today were more cognizant of the deep changes in the creation and musical content of popular songs since the Tin Pan Alley era of the early twentieth century, they might more confidently dispose of most music copyright infringement claims by dismissal or summary judgment.