Race in the Courthouse: Less Protection as More Equal Protection for Musical Works

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During the past decade or so, stakeholders in the United States popular music sector have become rattled by the possibility of defending themselves against music copyright infringement allegations based on insignificant similarities, or even merely stylistic commonalities, between two musical works. This unease among popular songwriters developed over several decades as courts and jurors became increasingly sympathetic towards infringement allegations involving musical works that could not be considered “copies” of an earlier work under any normative understanding of that term. In 2018 the Ninth Circuit Court of Appeals upheld a jury verdict that “Blurred Lines,” a hit by Robin Thicke and Pharrell Williams, infringed Marvin Gaye’s “Got to Give it Up.” Musicians and copyright experts deemed the verdict an untenable and confusing precedent because while the sound of the recorded performances of the songs share some stylistic similarities, there was no meaningful similarity of original musical expression. On the other hand, those supporting the verdict proposed that it exposed a long-standing disparity between copyright protection afforded works of Black and White musicians – a disparity, they claim, attributable to the judiciary’s obsolete perspective that the protectable scope of a musical work is limited to original melodic, harmonic, and rhythmic expression represented in visual notation. This invocation of racial prejudice appears to be a gambit to assert control over generic musical elements that copyright was never intended to protect. I argue that the modes of creation and fixation used by musicians of any race are irrelevant to the scope of protectable expression in a musical work, and that the ambit of protectable musical expression can, and should, be defined by its visual representation. I suggest that rather than expanding the scope of protectable musical expression to encompass stylistic and sonic elements, contracting it, and even limiting protection for melody, would promote innovative musical expression, particularly in genres like jazz improvisations and spirituals arrangements, to which Black musicians have contributed so significantly.