"Blurred Lines" on the "Stairway to Heaven": How the Sound of Music can Clarify Substantial Similarity in Music Copyright Cases

Copyright law sits at the heart of the multibillion-dollar music industry. Recently, the Ninth Circuit has served as a common venue for resolving disputes between musical artists in alleged copyright infringement cases. However, the logic surrounding legal decisions is often contrary to the realities of the music industry, and results have been inconsistent even within the same circuit. The unpredictability of legal outcomes leaves the “best” standard for evaluating music copyright infringement unclear. This Note argues that, when considering copyright law’s historical underpinnings, a literal application of existing doctrine proves less-than-ideal in the context of music. The law’s emphasis on written documents fails to comport with the production and consumption of commercial music. The Ninth Circuit’s recent decision to bar musical recordings from entering the courtroom when the work is protected under the Copyright Act of 1909 is misguided, unfair, and staunchly at odds with both technological advances and musical practices. In considering proposed reforms to copyright infringement tests, this Note argues that courts should read the Copyright Act of 1909 more liberally in the context of music. Specifically, the introduction of recorded music should be allowed in copyright infringement trials, especially when the musical work was unpublished and commercially disseminated strictly aurally.