Seeing is Believing: The Ongoing Significance of Symbolic Representations of Musical Works in Copyright Infringement Disputes

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Since the mid-twentieth Century the development of audio recording and synthesized sound technologies has radically altered how popular songs are created, fixed, disseminated, and consumed. Courts adjudicating copyright infringement claims involving musical works whose content and creation depend on these technologies, still emphasize melody, harmony, rhythm, and words – all recordable in visible symbols – as the protectable core of these works. This emphasis has been criticized as obsolete, and inapt when applied to musical works created and documented by performers only in audible formats, in which sonic and stylistic attributes may contribute more than fundamental musical elements to the popular appeal of a song. The legitimacy of this criticism depends upon our understanding of both what constitutes a copyrightable musical work, and also notation’s efficacy to represent it. This article argues that the judiciary’s traditional view of protectable expression of musical works as limited to a combination of melody, harmony, rhythm, and words, continues to be valid today despite changes in how popular songs are typically created and fixed. Timbre, dynamics, and other stylistic sonic – and, increasingly, visual – attributes closely associated with performance may significantly affect the appeal and marketability of the audio/video recording of a popular song. Yet they may contribute little to the underlying copyrightable work of music. Consider that while a documented meaningful combination of melodic, harmonic, and rhythmic elements alone may constitute a musical work, a similar combination of information about instrumentation, dynamics, tempo, etc. – i.e., elements more closely associated with the performance of a musical work – does not. Melody, harmony, rhythm, and words can be precisely recorded in graphical symbols. This article argues that given that sight is our most developed sense, visual documentation should be the medium by which courts and juries evaluate allegations of substantial similarity between two musical works. If courts permit litigants to present audible renditions of musical works, these renditions should be limited to MIDI-produced sound based on transcriptions of the melodic, harmonic, and rhythmic content of the works in question by a neutral party appointed by the court. If the judiciary were to broaden copyright protection for musical works to incorporate sonic and stylistic elements closely associated with their performance, this expansion could generate paralyzing uncertainty among popular musicians about the scope of protection for extant works. It could also lead to monopolization of musical ideas, which would inhibit the very production of original musical expression that copyright is supposed to promote.