Peter Nicolas, Harmonizing Music Theory and Music Law, 108 Iowa L. Rev. 1247 (2023), https://digitalcommons.law.uw.edu/faculty-articles/932
music law, copyright, copyright law, music, music theory, harmony, melody, rhythm, musical silence, Beethoven, Fifth Symphony, popular music, music copyright litigation, music copyright disputes
Those litigating and adjudicating music copyright disputes find themselves at the intersection of two complex fields: U.S. copyright law and music theory. While the attorneys and judges typically have at least some experience with the former, neither they nor the jurors typically have formal training in or experience with the latter. As a result, legal opinions purporting to incorporate musical concepts sometimes fail to do so accurately, resulting in decisions that are inconsistent with copyright law and policy.
This Article seeks to harmonize U.S. copyright law with relevant principles of music theory. It begins with an accessible primer on basic principles of music theory, with a focus on melody and rhythm. It then summarizes music copyright jurisprudence, and it identifies ways in which the latter seeks to incorporate principles of music theory.
This Article demonstrates that U.S. music copyright jurisprudence is plagued with a fundamental misunderstanding of melody and rhythm as those terms are understood within the field of music. Legal precedents generally equate melody with pitch sequence and rhythm with meter and time signature. Moreover, they give primacy in their analyses to melody—as they define it—to the exclusion of rhythm. Yet music theorists define melody as consisting of pitch and rhythm combined, and their research demonstrates that rhythmic design plays a greater role in creating distinct melodies than pitch standing alone. The result is a legal jurisprudence that is both over- and under inclusive in finding instances of copyright protection and infringement. Using both historical and contemporary musical examples, this Article concludes that courts should redefine and re-weight these two musical concepts in order to arrive at just results in music copyright disputes that are consistent with the balancing of policies that form the foundation of U.S. copyright law.