The interaction between music and law is unique to copyright litigation. Music is “commonly regarded as a rule-free zone,” whereas the law is structured and, in essence, the “origin for rules.” This Note explores the inherent weaknesses with the substantial similarity test for copyright infringement as it relates to popular music through the lens of the recent Ninth Circuit case, Skidmore v. Led Zeppelin.
Part I of this Note reviews the history and purpose of copyright protection as well as explains the current tests utilized by courts in copyright infringement cases. Additionally, it will also show the difficulties of applying these tests to music. Part II provides a brief explanation of the basics of Western music theory and composition, and it also explores the characteristics that have contributed to what makes pop music so appealing to mass audiences. Part III explains information regarding the facts and holding of the three-member Ninth Circuit panel decision of Skidmore v. Led Zeppelin. Finally, Part IV examines the holdings of the en banc opinion in Skidmore and explains why this decision ultimately changed music copyright law for the better by providing a set of guidelines that should allow courts to now make better-informed decisions regarding pop music plagiarism.
Kate Camarata, “Ooh it Makes Me Wonder”: Do the Courts Finally Understand the Problems with Copyright Infringement and Pop Music?, 44 SEATTLE U. L. REV. 861 (2021).
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