What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where multiple features of eligible subject matter typically are eligible for protection.
Yet things are now changing. Recent judicial decisions are beginning to break down the old definitional wall around melody, looking elsewhere within the work to find protected expression. Many have called this increasing scope problematic. This Article agrees — but not for the reason that most people think. The problem is not, as is commonly alleged, that these decisions are unfaithful to bedrock copyright doctrine. A closer inspection reveals that, if anything, they are in fact more faithful than their predecessors. The problem is instead that the bedrock doctrine itself is flawed. Copyright law, unlike patent law, has never shown any interest in trying to increase the predictability of its infringement test, leaving second comers to speculate as to what might or might not be allowed. But the history of music copyright offers a valuable look at a path not taken, an accidental experiment where predictability was unwittingly achieved by consistently emphasizing a single element out of a multi-element work. As a factual matter, the notion that melody is the primary locus of music’s value is a fiction. As a policy matter, however, that fiction has turned out to be useful. While its original, culturally myopic rationale should be discarded, music’s unidimensional test still offers underappreciated advantages over the “everything counts” analysis that the rest of the copyright system long ago chose.
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* Assistant Professor of Law, Vanderbilt Law School. For helpful comments and conversations, I thank Funmi Arewa, Stephanie Bair, Shyam Balganesh, Oren Bracha, Chris Buccafusco, Charles Cronin, Kristelia Garcia, Daniel Gervais, Paul Goldstein, Peter Menell, Joe Miller, Sean O’Connor, Emily Richmond, Chris Serkin, Christian Turner, Rebecca Tushnet, and Emily Zazulia, as well as participants in the BYU Intellectual Property Colloquium, the Sixteenth Annual Intellectual Property Scholars Conference, the Junior Scholars in Intellectual Property Workshop at Michigan State University College of Law, the Stanford/Harvard/Yale Junior Faculty Forum, the Vanderbilt Intellectual Property Scholars Roundtable, and the Vanderbilt Summer Brown Bag Colloquium Series. I’m also grateful to Andrea Alexander and the Vanderbilt Law Library for tracking down some rather exotic requests. Any wrong notes are my own.