•  
  •  
 

Abstract

Music, as both artistic expression and a commercial product, occupies a unique space at the intersection of copyright law and the First Amendment. While copyright law aims to promote creativity by protecting original works, its current application to music often undermines the very innovation it seeks to encourage. Courts have recognized that some musical elements are not copyrightable because they are so inherent to music that the idea merges with its expression. However, with advancements in technology such as music streaming services and AI-created music, courts increasingly face difficulties in distinguishing between protectable musical expression and the unprotectable building blocks of music—such as rhythm, harmony, and melody.

When faced with this dilemma, however, judges and juries have returned inconsistent results that only compound the uncertainty in this area, leading artists to cede their intellectual property rights prematurely. These ambiguities, combined with the subjectivity of the “substantial similarity” analysis and potential for subconscious copying claims, have opened the door to increased litigation against artists and created a chilling effect on musical expression, which the U.S. Supreme Court has expressly held to constitute speech. Thus, the existing framework for determining infringement in music copyright cases inadequately protects First Amendment interests and fails to provide clear guidance.

The solution requires striking a careful balance between competing interests to prevent music copyright law from treading into First Amendment territory. On the one hand, the solution must allow for the unique nature of music as speech and expression. On the other hand, it must still encourage innovation. This Comment proposes a new framework to assist courts in applying the standard of substantial similarity to music. Under this Comment’s proposal, the substantial similarity standard should require multiple shared musical elements, rather than a single shared component, unless willful copying is proven. This Comment also critiques other proposed solutions—such as applying constitutional scrutiny or increasing courtroom expertise—as too destabilizing or insufficient to address the current uncertainty in music copyright. By aligning copyright law with the realities of music theory and the demands of the First Amendment, this framework seeks to safeguard both creative expression and innovation in the modern musical landscape.

Download

Included in

Law Commons

Share

COinS