Imitation is the sincerest form of ... infringement? Guitar tabs, fair use, and the Internet.

• Author: Kempema, Jocelyn

TABLE OF CONTENTS INTRODUCTION I. GUITAR TABS: THE SOURCE OF THE PROBLEM II. THE CURRENT COPYRIGHT CONFLICT: THE MUSIC INDUSTRY VERSUS GUITAR TAB WEBSITES III. COPYRIGHT LAW: A BACKGROUND A. The History and Purpose of Copyright Law B. Copyrights for Musical Works IV. HOW GUITAR TABS INTERSECT WITH COPYRIGHT LAW.. A. Do Guitar Tabs Deserve Independent Copyright Protection? B. Guitar Tabs as Derivative Works V. OVERVIEW OF THE FAIR USE DOCTRINE A. History of the Fair Use Doctrine B. Statutory Fair Use VI. IF GUITAR TABS WENT TO COURT VII. GUITAR TABS AS FAIR USE A. Guitar Tabs as Fair Use: The Purpose and Character of the Use 1. Guitar Tab Websites Are a Commercial Use With a Nonprofit Purpose 2. Guitar Tabs Are a Fair Use as Set Out in the Preamble to Section 107 3. Guitar Tabs Can Be, but Are Not Usually, Transformative B. Guitar Tabs as Fair Use: The Nature of the Copyrighted Work 1. Guitar Tabs Are Based on Previously Published Works 2. Guitar Tabs Are Based on Creative, Not Functional, Works C. Guitar Tabs as Fair Use: The Amount and Substantiality of the Copyrighted Work Used 1. Guitar Tabs Copy a Substantial Portion or the "Heart" of the Copyrighted Work 2. Guitar Tabs Are Reasonable Copying in Relation to Their Purpose D. Guitar Tabs as Fair Use: The Effect of the Use on the Market for the Copyrighted Work 1. Guitar Tabs Do Not Supersede Sheet Music Nor Do They Provide a Substitute for It 2. Harm to Potential Markets and the Licensing of Guitar Tabs 3. The Reasonable Copyright Holder Would Consent to the Making and Posting of Guitar Tabs . VIII. THE IMPORTANCE OF CONSIDERING GUITAR TABS A FAIR USE CONCLUSION INTRODUCTION

In a small community on the Internet, a battle is taking place. The music industry is on the offensive, laying siege to websites that post guitar tablature (or "tabs"). On the defensive are the small website owners who run these sites and the guitarists who use them. The conflict is over whether guitar tabs infringe on songwriters' copyrights. Although the implications of this copyright battle are currently restricted to a small Internet community, in a world attempting to balance the use of new technologies with protecting valid copyrights, (1) a decision on whether posting guitar tabs constitutes copyright infringement could impact the path of copyright law and the doctrine of fair use on the Internet in the future.

The legality of online guitar tab sites is relevant to many of today's law students and has already inspired several works of legal scholarship. (2) This Note argues that posting guitar tabs on the Internet is not copyright infringement and that similar behavior should be permissible under the fair use doctrine. Beginning by describing guitar tabs and the current conflict with copyright law on the Internet, this Note will explain copyright law and the fair use doctrine as applied to musical works, particularly guitar tabs. The Note then evaluates guitar tabs under the four statutory factors of the fair use test and concludes that guitar tabs constitute a fair use of the underlying songs. (3) This finding could have far-reaching ramifications for all Internet users. Specifically, a finding of fair use for guitar tabs could protect not only future guitar tab users and creators but also any originator of a work based on copyrighted material who posts his creation online.

1. GUITAR TABS: THE SOURCE OF THE PROBLEM

   Guitar tabs are illustrations of how to play a song on the guitar. (4) The word "tabs" in "guitar tabs" is short for tablature. (5) Tabs are created when a person listens to a song and derives by ear the chords or finger placements that sound most like those played in the song. (6) Those finger placements are then written down in a notation format unique to guitar tabs. This process, which can result in a variety of tabs written by different listeners for the same song, (7) is distinct from transcribing music because tabs involve evaluating the song and recreating the song as it sounds best on the guitar. (8) Because of the complexity of many songs and the skill of the professional musicians who play them, many guitar tabs offer easier ways to play songs or how to play songs in different keys, so that novice guitar enthusiasts can learn them. (9) Other tabs strive to recreate the original as accurately as possible.

   Guitar tabs are distinct from sheet music. (10) Sheet music shows notes on a musical scale, whereas tabs are designed for people who are unable to read sheet music. (11) Tabs simply show guitar players where to place their fingers on the strings to get the correct sound. (12) Unlike sheet music, which uses musical notes to convey the length or measure a note should be played, tabs do not convey rhythm. A person must have heard the song before in order to play the tabs correctly. (13) To illustrate the difference between sheet music and guitar tabs, below is the first line of Twinkle, Twinkle, Little Star in sheet music and guitar tab form: (14)

   [ILLUSTRATION OMITTED]

   Obviously, sheet music and tabs look nothing alike. If a musician is familiar with the rhythm and strumming of a song, however, both sheet music and tabs have the same result: they allow musicians to play the song.

   This close relationship with the underlying song brings tabs into the realm of copyright law. Because guitar tabs teach musicians an interpretation of another artist's musical composition, tabs may infringe upon the original songwriter's copyright. This is the premise of the current conflict on the Internet.

2. THE CURRENT COPYRIGHT CONFLICT: THE MUSIC INDUSTRY VERSUS GUITAR TAB WEBSITES

   Since the Internet's inception, a host of websites have been created that provide forums for users to post and compare guitar tabs to a variety of songs. (15) Many of these sites, in addition to posting guitar tabs, also provide guitar lessons and discussion forums for users to share their experiences and techniques for playing guitar. (16) Over the last several years, millions of visitors have used these sites to learn to play guitar. (17)

   In July 2006, the music publishing industry, through its representatives, the National Music Publishers' Association and the Music Publishers' Association of America, sent letters to several prominent guitar tab websites demanding that the owners of the websites take down their guitar tabs. (18) The letters indicated that the music industry would send formal notices to the websites' service providers, requesting that they shut down the websites if the guitar tab website providers refused to remove the tabs. (19) Claiming that guitar tabs constitute copyright infringement, (20) the music industry argued that guitar tabs are derivative works of the original composition and are therefore covered under the original song's copyright. (21) As a result of these letters, many of the guitar tab websites shut down or removed their tabs. (22) New websites, however, appear every day to fill the void. (23)

   The conflict over guitar tab websites poses the question of whether posting guitar tabs is copyright infringement or fair use. Analyzing the situation using the four statutory factors of the fair use test demonstrates that there are strong arguments for considering guitar tabs a fair use. Before undertaking this analysis, though, it is important to understand the purpose of both copyright law and the fair use doctrine as they relate to guitar tabs.

3. COPYRIGHT LAW: A BACKGROUND

   1. The History and Purpose of Copyright Law

      Copyright law derives from the Constitution. Article I, Section 8 states that "Congress shall have the power to ... promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (24) Congress acted on this power for the first time in 1790 by passing a United States copyright statute. (25) Almost two hundred years later, Congress codified the many amendments and improvements to that law by passing the Copyright Act of 1976, which defines the current copyright law of the United States. (26)

      The purpose of copyright law is to encourage scientific and artistic efforts by protecting the outcome of those efforts--the scientific or artistic works themselves. (27) To effect this purpose, copyright law protects "original works of authorship fixed in any tangible medium of expression" from which it "can be perceived, reproduced, or otherwise communicated." (28) Although copyright law protects the works of artists and scientists, courts have always balanced this protection against the public's need for information and the public welfare. (29) In other words, "the progress of Science and useful Arts" is a foremost priority in copyright law, regardless of whether that progress is made by artists, scientists, or the public.

      Copyright law covers everything that Americans consider art, as well as some things that Americans might not, including books, essays, paintings, sculptures, plays, movies, speeches, lectures, articles, and software. (30) Musical compositions and songs are among the artistic creations covered by copyright law. Within the confines of copyright law, however, there is precedent that applies solely to musical works.

   2. Copyrights for Musical Works

      Musical compositions, including lyrics, are among the works of authorship protected under the copyright statute. (31) Until thirty years ago, when the 1976 Act was passed, for a songwriter to obtain a copyright for his song, he needed to "fix" his composition in written sheet music or other manuscript form. (32) Although musicians continued recording music throughout the twentieth century, those recordings never created a copyright in the recorded song. (33) This changed in 1976, when Congress broadened the definition of "fixing" and made recorded songs copyrightable, regardless of whether the songwriter was willing or able to produce the work in written form. (34) According to the Copyright...