Now is that what I call music? Post-modern classical music and copyright law.

• Author: Yu, Jamie M.

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. In expanding the definition of "musical work" and weighing the elements of music equally, composers whose works may not have been copyrightable will enjoy the full protections and exclusive rights that are associated with copyright.

1. "MUSICAL WORKS" AND COPYRIGHT PROTECTION

Musical works have had a somewhat colorful history under the copyright law. While musical works are currently protected under the copyright law (6), this protection came about after several revisions of the Copyright Act. (7) The Act's failure to define the term "musical work" has led to the Copyright Office adopting its own internal definition of the term. However, this definition is limiting and, with the evolution of music and composition techniques, could potentially raise issues of barring otherwise copyrightable musical works from receiving the protection that they deserve.

1. Current Copyright Protections

   This section will discuss the current protections that musical works enjoy under the Copyright Act of 1976. For a work to be protected under copyright laws, the work must satisfy three elements: (1) it must be original, (2) it must be fixed in a tangible medium of expression, and (3) it must be a protected subject matter under Section 102 of the Copyright Act of 1976. (8) Although originality is not defined in the Copyright Act, the Supreme Court in Feist Publications v. Rural Telephone Service concluded that a work is original if it possesses independent expression of an author that expresses a modicum of creativity. (9) The creativity requirement under copyright validity stems from a requirement that comes from the textual references in the Copyright Clause of the U.S. Constitution. (10) A work is tangible for purposes of the 1976 Act if it is "fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or through the aid of a machine or device." (11)

   Congress purposely drafted the language of the fixation requirement of Section 102(a) in a broad manner so as to encompass technologies that were not in existence at the time of the 1976 Act and to avoid largely unjustifiable distinctions between the form of fixation of a work, meaning the way in which the work was fixed. (12) In the context of musical works, a composer could likely fulfill this by using sheet music, recording it, or storing it on a computer. (13) Under Section 101 of the Copyright Act, a work is fixed "when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration." (14) Under Section 102 of the Copyright Act, "musical works" are clearly listed as one of the classes of creative works that are granted protection under copyright law. (15) While an understanding of the elements of copyrightability in relation to musical works is critical to recognizing the dissonance between modern classical music and the notion of "musical works" in copyright law, examining the history of copyright protections for musical works demonstrates that current protections for musical works under copyright law fail to harmonize with the innovative and avant-garde nature of modern classical music.

2. History of Copyright Protections for Musical Works

   While musical works currently enjoy protection under the 1976 Act, the history leading up to this arguably insufficient protection reflects the tension between musical works and copyright law. This section will discuss a history of copyright protection for musical works, beginning with the birth of copyright law in the United States and through the latest variation of the Copyright Act. The history of copyright law in the United States shows that from the beginning, Congress did not take into account the changing landscape of music when drafting copyright laws and in fact, music has been treated almost as secondary class of works as opposed to other types of protected subject matter. As a result of this treatment, musical works are protected in a way that potentially stymies artistic creativity in musical composition.

   It was not until the Copyright Act of 1831, (16) which expanded the Copyright Act of 1790 to include musical works, that U.S. copyright law recognized that musical works warranted protection. However, the scope of protection for musical works was limited because copyright protection extended only to the reproduction rights for printed music. (17) Under the Copyright Act of 1909, the first major revision to the Copyright Act of 1790, Section 5(e) states that "musical compositions" are among the class of work that can be granted copyright registration. (18) The 1909 Act expanded the world of exclusive rights for copyright holders of musical works to performance rights, arrangement rights, or setting the music or the melody to "any form of record in which the thought of an author may be recorded and from which it may be read or reproduced." (19) Furthermore, the 1909 Act created the first compulsory mechanical license to allow people to create mechanical reproductions (phonographs) of musical works without the consent of the author of the work, provided that they adhered to the confines of the license. (20)

   While musical works have been contemplated as a protectable subject matter under copyright law, a troubling aspect of U.S. copyright law is that the term "musical works" has never been explicitly defined. In fact, in the House report detailing the debate surrounding the adoption of the 1976 Act, Congress merely glossed over the category of musical works, arguing that "musical works," along with dramatic works, pantomimes and choreographic works, have a fairly...