Music, its Building Blocks, and Copyright: Is the Litigation of ‘Interpolations’ Eliminating Creativity?

Abstract Musical building blocks, ie, short melodic motifs, simple rhythms, or harmonic devices, must not be monopolized by copyright. A widely accepted principle in theory, its practical implementation faces several challenges. Aggressive litigation practices involving (or supposedly involving) so-called ‘interpolations’, ie, songs that take certain parts of a prior musical work and incorporate them into a new work, have created great uncertainty among musicians and have called into question the principle establishing the unprotectability of musical building blocks. The ways in which courts continue to address cases of supposed music plagiarism have contributed to this uncertainty since they tend to conflate different lines of reasoning employing arguments that are partially beside the point. A solution to adequately address cases involving supposed musical borrowing while upholding the unprotectability of musical building blocks must be reflective of the ways in which musicians engage in their creative processes. Musical elements that represent particularly obvious or natural artistic choices for musicians must remain at their disposal so that copyright does not unduly restrict artistic freedoms.