Lauren Wilson
Copyright law requires courts deciding music infringement cases to locate two copyrights within a single song: one in the “musical work” and another in the “sound recording.” But songs do not naturally divide into such pieces. Instead, judges untrained in music must parse from a unified song the musical elements belonging to each copyright and to whom those copyrights belong. They have historically approached the task as a simple matter of identifying elements notated on a score as belonging to the musical work and placing “everything else” on the sound recording, but such a formalistic approach does not suit the modern popular music at the center of most infringement lawsuits. In fact, given that very few twenty-first-century musical works are copyrighted with a written deposit copy, any previously bright line between work and recording has faded. As cases where a written score defines the scope of a musical work’s protection age out of copyright suits, judges are left with the nuanced, artistic task of determining the elements that constitute a musical work without the help of any corresponding visual representation.
For several decades, musical creative practices have evolved in response to new music technologies and the incorporation of collaboration into every step of the music-making process. Compositional practices now put previously impossible sounds at the creative center of composers’ songs. In this Article, I argue that to align the legal concept of the musical work with the modern popular music it governs, courts must consider and accommodate modern music-compositional practices. Recognizing the centrality of timbre—the way music sounds—to musical works is an important first step for the law to meet modern music where it currently stands.