Let Me Get My Glasses, I Can’t Hear You: Sheet Music, Copyright, and Led Zeppelin
Musical copyright infringement cases are experiencing an identity crisis. The crisis is that courts are beginning their analyses of the similarities between compositions by examining visual, rather than aural, evidence. Prior to the 1976 Copyright Act, copyright protection extended only to musical works reduced to sheet music. That sheet music, which is filed with the US Copyright Office (Copyright Office) as a “deposit copy,” represents the sum of the composition’s copyright protection. Even though Congress amended the Copyright Act to allow for sound recordings of a composition to function as a deposit copy post-1976, courts—particularly the Ninth Circuit—begin evaluating musical similarity by using their eyes, even though music is an art form created for the ears. This sheet music requirement was and continues to be particularly burdensome for artists who do not read or write sheet music, which amplifies deep-seated racial disparities in access to copyright protection. Contemporary litigation has crafted a work-around where sound recordings can be registered as a derivative “arrangement” of the composition, but this solution misses the point. Regardless of what sheet music purports to represent, any written arrangement fails to capture a composition’s full scope. Music, after all, is not a visual medium.
By contrast, this Note suggests that the Copyright Office allows for a singular supplementation of the original deposit copy, which would permit artists to replace the original sheet music deposit with a sound recording deposit. With the passage of the Music Modernization Act, Congress has exhibited a willingness to extend copyright protection. This Note urges Congress to go one step further and permit sound recordings to serve as evidence for all, rather than some, compositions to create a more equitable scope of protection for artists, regardless of their composition process.
Brandon P. Evans