The Case for Common Property in Musical Objects

Copyright law's current framework for analyzing the similarity between musical works has invited a host of copyright infringement lawsuits that drag artists into court over small, commonplace segments of music. Plaintiff artists typically accuse defendant artists of copying, or even 'stealing,' from them. The language plaintiffs use to describe the alleged infringement treats these segments, which courts often refer to as 'musical building blocks,' as personal property that can be isolated within a song, and once identified, can be repeated, altered, or stolen. This Article contextualizes these common building blocks as 'musical objects,' whose authors are neither the artists alleging the infringement nor the defendants accused of 'stealing' music. Instead, musical objects have developed through accretion over the course of music history, with many individuals making small, gradual contributions. Musical objects are communally composed, and they should be common property belonging to the public domain. Most traditions of music have rich histories of borrowing and copying between composers and artists; as such, conceiving of musical objects as belonging to all would allow the law to reflect this. In this Article's primary case study, Gray v. Perry, the US Court of Appeals for the Ninth Circuit determined these objects lack the originality required for copyright protection, and this Article proposes a theory of musical composition and ownership to support that court's fact-intensive holding. This theoretical foundation may guide future courts in recognizing and analyzing cases involving musical objects to encourage outcomes that account for the cumulative process behind these objects' development.
TABLE OF CONTENTS I. INTRODUCTION 414 II. MUSIC COPYRIGHT OVERVIEW 421 A. Prior Art in Copyright Law 423 III. THEORIES OF THE MUSICAL OBJECT 425 A. Musical Objects in Early [...]