The Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts,” resulting in our modern regime of patent, trademark, and copyright law. Over time, however, this artistic tradition of copying has collided with more modern concepts of intellectual property rights, especially copyright protections. The advent of the internet as well as state-of-the-art recording and mixing software has vastly increased opportunities to copy, remix, sample, parody, and otherwise alter the work of other artists, particularly musicians. More than twenty years after Campbell v. Acuff-Rose Music, transformative fair use has become the predominant test courts have used to evaluate cases of copyright infringement in the music industry.14 The test’s widespread use has, perhaps inevitably, led to a significant broadening in the scope of what copying may pass as a transformative fair use. This article will discuss the implementation and effect of the transformative fair use standard for questions of music copyright infringement and propose two solutions: Congress should (1) enact a new Fair Use Exception to the Copyright Act specifically for music and (2) expand the role of the expert musicologist in these difficult and extremely technical music copyright cases. Part I will address the origins of the transformative fair use doctrine and the first case in which the Supreme Court used the doctrine to find a new work was transformative of the original and therefore not a copyright infringement. Part II will discuss recent cases in which transformative fair use doctrine has been inconsistently applied and will demonstrate its resultant shortcomings. Finally, Part III will propose both expanding the role of the expert musicologist in these cases and enacting a new fair use exception to the Copyright Act specifically for music, which more fairly addresses the kinds of creative, distributive, and legal issues facing the music industry today.
Kristin Bateman, "Distinctive Sounds": A Critique of the Transformative Fair Use Test in Practice and the Need for a New Music Fair Use Exception, 41 SEATTLE U. L. REV. 1169 (2018).