A Broken Record: A Statutory Solution to Fixing Music Copyright Infringement’s Biggest Problem

In the intellectual property space, nothing quite grabs the eye of the public like music copyright infringement. The high reputational and monetary risks associated when an artist claims infringement— especially against that of a major artist—can have huge consequences, even when no infringement occurred. The two prevailing tests for copyright infringement recognize that the hearing court can determine there is not an appropriate level of substantial similarity between two copyrightable works, however this determination relies on specialized musical knowledge, something that the typical trial judge does not possess. This Note examines the inefficiencies in our current scheme of music copyright infringement litigation and suggests a statutory change requiring a board of musicologists to determine whether there are any extrinsic similarities prior to the filing of a complaint. Such a change would prevent frivolous litigation, create more certainty as to what could constitute an infringement, and further the goals of copyright law.