“… This Comment proceeds in four parts. Part I discusses and analyzes copyright infringement law in the Ninth Circuit as it stands today, with particular focus on the Pharell Williams/Robin Thicke and Marvin Gaye controversy over the songs Blurred Lines and Got To Give It Up and the Katy Perry and Marcus Gray controversy over the songs Dark Horse and Joyful Noise. Part II briefly discusses the tradition of musical borrowing in Western Art Music of the seventeenth through nineteenth centuries. Part III applies recent Ninth Circuit precedent, as discussed in Part I, to a hypothetical copyright infringement suit between Mozart and Beethoven, concerning the opening sections of two famous classical works: Mozart’s Symphony No 38 in D Major, K 504 (‘Prague’) and Beethoven’s Symphony No 2 in D Major, Op 36. This imaginary copyright infringement lawsuit will demonstrate how today’s standards of music copyright infringement law are inhibiting musical creativity by disallowing accidental musical borrowing. Part IV concludes that musical copyright infringement laws today should be curtailed, allowing musical ideas that have been accidentally borrowed from older music to survive copyright infringement accusations.
Mozart v Beethoven: Consequences of Ninth Circuit Copyright Law on Classical Creativity, 104 Marquette Law Review 247 (2020).
First posted 2021-03-21 14:00:36
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