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Brooklyn Law Review

Abstract

In 2014, rock legends Led Zeppelin were sued by a relatively obscure band, named Spirit, for copyright infringement over the use of their iconic 1971 song “Stairway to Heaven.” Just a year before, musicians Robin Thicke and Pharrell Williams found themselves in the same position over their hit song “Blurred Lines.” Both cases, tried in the Ninth Circuit through the same signature “extrinsic/intrinsic” infringement analysis, had different outcomes—Led Zeppelin was victorious, while Thicke and Williams lost. These differing outcomes help to accentuate the problem with applying the typical copyright infringement tests—ones used for any type of artistic medium—to music. Music is unique, and a varying set of circumstances hinders musicians. Western music, as a whole, is limited by a twelve-note octave, putting a hard cap on chord structures, progressions, and possible arrangements. Furthermore, and given these restrictions, musicians typically draw from those that came before them as influence. This is unlike authors; while they may be influenced and inspired by previous authors, they know no limits to what story they could tell. This note argues that courts ought to use a higher standard—the “Unique Quality” test—to determine whether infringement occurred in a music-based case. The test would work to protect artists’ musical expression while shielding them from futile suits involving elements of musical pieces that are clearly just ideas that should be protected under copyright law. The notion that ideas cannot be protected, but that only the expression of them can, serves as a foundation in copyright law, and this note works to allow for a better understanding of what constitutes a musical “idea” versus an artist’s “expression,” which typically consists of common musical elements paired with a unique melody or addition that makes a song uniquely its own.

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