Now is That What I Call Music?: Post-modern Classical Music and Copyright Law

INTRODUCTION I. "MUSICAL WORKS" AND COPYRIGHT PROTECTION A. Current Copyright Protections B. History of Copyright Protections for Musical Works C. Current Methods of Interpretation of "Musical Works" and Copyrightability 1. The Compendium's definition of "music" is overly restrictive and contravenes with evolving notions of music 2. Judicial Treatment of the Copyrightability of Music D. The Evolution of Classical Music in the Post-20th Century Era 283 1. Comparing Modern Classical Music with Traditional Classical Music E. Solution CONCLUSION INTRODUCTION Imagine a tennis court during a Grand Slam championship. The court reverberates with the cacophony of the players hitting the ball, the squeak of tennis shoes, and the patter of running footsteps. Is it music? While many would argue that it is not, in fact, LCD Soundsystem's James Murphy collaborated with IBM to create music from those very sounds during the 2014 U.S. Open. (1) From its humble beginnings in the Paleolithic flutes of the prehistoric era, (2) through the opera halls of Europe, (3) to the avant-garde creations of the post-modern era, composers have attempted to express the purest of human emotions through musical expression. Music has the ability to cross cultural barriers and, in a way, is one of the true universal languages. While music is a universally accepted and appreciated art form, its protections under intellectual property law could hardly be considered "harmonious" and have bedeviled both composers and copyright lawyers alike. Stemming from the first law granting protection to artistic expression, intellectual property law has struggled to grant musical works the same types of protection as other classes of protectable subject matter. As a consequence, what protection musical works do enjoy at the moment is dulled by the fact that those very protections were created while underestimating the ability of composers to challenge traditional notions of music. By basing copyright protection for musical works in traditional notions of music and musical composition, the law leaves gaps where composers of more modern works run the risk of not receiving the protection granted to their more traditional counterparts because their works do not fit the overly-narrow definition of "musical work" used by the Copyright Office. This comment will discuss the issues with the evolution of classical music in the late-20th and early 21st centuries and traditional definitions of "musical works" as used in Section 102 of the Copyright Act. Section 102 of the Copyright Act of 1976 clearly states that "musical works" are among the class of creative works that are granted copyright protection. (4) However, Section 101 does not define a "musical work" (5) and as a result, the Copyright Office relies on the definition of "musical work" found in its internal manual to discern whether a musical work warrants copyright protection. An overly narrow definition of the term "musical work" that does not take into account changing styles of classically music could lead to a class of composers not being afforded their rightful copyright protection. First, I will present a brief overview of copyright protections extended to music. Then, I will examine the Copyright Office's reliance on the Compendium's definition of "musical work" and highlight the issues that the definition presents to the evolution of music. Next, I will examine the evolution of classical music after the 20th Century and its shift away from traditional connotations of musical composition and how this shift contravenes with the Compendium definition of music, including a comparison between traditional classical music and modern era classical music, which highlights these changes. Finally, I will outline a solution to the Compendium's overly narrow definition of "musical work" in order to encompass a wider spectrum of musical works that deserve copyright protection and suggest that the Copyright Office weigh the elements of music equally, as well as utilizing the Compendium definition of "musical work" as a guideline, so as not to overly rely on a elemental analysis of a musical work. …