Musical Copyright vs. Creative Freedom

Have you ever wondered how copyright laws affect the music you love? Do you think copyright laws stifle musical creativity? The conflict between musical copyright and creative freedom revolves around the tension between protecting the rights of creators and allowing for the free expression and innovation of artists. On the one hand, copyright laws are intended to protect the intellectual property of creators, including musicians and songwriters. These laws grant exclusive rights to creators over their work, including the right to reproduce, distribute, perform, and adapt their music. Copyright protection provides incentives for creators to invest time, effort, and resources into producing new works by ensuring that they can profit from their creations and control how they are used. On the other hand, strict enforcement of copyright laws  can sometimes stifle creative freedom. Finding a balance between copyright protection and allowing for artistic expression and innovation is an ongoing challenge in the music industry.

Musical compositions were added to the list of protectable works in 1831.[1] A musical composition consists of the underlying musical material: the notes, rhythms, chord progressions, melodies, harmonies, basslines, instrumental lines, and lyrics that comprise the substantive musical content of the song.[2] The author of a musical composition is generally the composer and the lyricist. However, sound recordings were first given federal copyright protection in 1972.[3] A copyright in a sound recording protects recorded musical, spoken, or other sounds that do not accompany an audiovisual work.[4] The author of a sound recording is the performer or the record producer who processes the sounds and fixes them in the final recording, or both. Sound recordings and musical compositions are considered two separate works for copyright purposes, and even though a sound recording is a derivative work of the underlying musical composition, a copyright in a sound recording is not the same as, or a substitute for, copyright in the underlying musical composition.

This designated legal ownership includes exclusive rights to reproduce the copyrighted work, to prepare derivative works based upon the copyrighted work, to distribute copies of the copyrighted work to the public, to perform the work publicly, to perform the copyrighted work publicly by means of a digital audio transmission, and to display the work publicly.[5] Royalties are generated when these exclusive rights are licensed over to other parties, so these rights are important for allowing music professionals to make money and for protecting their original work from theft.

Copyright infringement is where someone violates the exclusive rights of the copyright owner.[6] Copyright infringement does not have to be intentional and will be established by proving that the copyrighted work has been copied and that the copy is “substantially similar” to the original work.[7]

Recently, copyright litigation has increased, and it is concerning that the outcomes are very subjective. Often, the decision-makers do not have the extensive musical training and knowledge needed to make an educated decision. In 2015, a jury found that the composers of “Blurred Lines” had illegally copied Marvin Gaye’s song “Got to Give it Up,” and they were forced to pay the Gaye family $5.3 million, and share half of the song’s future publishing royalties.[8] The jury stated that although the song was not directly copied, there was enough of a similar feel to warrant copyright infringement.[9] Being able to copyright the feel of a song clearly stifles creative freedom because it is common for music within a genre to have a similar feel.

The importance of creative freedom in the music industry cannot be overstated. Freedom of artistic creativity is a fundamental right protected in international and regional human rights instruments and in national constitutions.[10]

Music is a powerful tool for cultural expression and exchange. Creative freedom not only allows artists to draw from their own cultural backgrounds but also to explore and integrate diverse musical traditions from around the world. This fusion of influences enriches the global music scene, fostering greater understanding and appreciation among different peoples. The cross-pollination of musical styles and ideas, facilitated by an open environment for creativity, contributes to a vibrant and diverse musical landscape as well as the evolution of music.

In the U.S., a presumption that every sample must be cleared has priced out most artists, who cannot afford to pay the average of $10,000 for a single sample.[11] Copyright critics insist that it locks up the ability to sequelize or otherwise adapt other people’s work for so many years and that borrowing and collaboration are essential components of all creation.[12] Yale Law School Professor Yochai Benkler states that “No one writes from nothing… we all take the world as it is and use it, remix it.”[13] While copyright holders have been able to have significant financial gains through this system, copyright law expects that no one will respond to this music by using or otherwise incorporating it into new works. This especially punishes those who subconsciously “copy” portions of work.[14] In ABKO Music v. Harrisongs, the court affirmed that subconscious copying could constitute copyright infringement.[15]

Additionally, we should recognize the importance of inspiration or influence from other artists and its effect on music borrowing. Music borrowing can be seen throughout history, particularly in the making of classical music and jazz, but copyright laws have wholly discounted this historical practice.[16]

Fears of potential copyright claims could also be stifling the creativity of the music industry, as well as slowing down music production and turnover since musicologists now have to consider potential exposure to copyright claims.[17] The fear of litigation is warranted because of the reasonable listener model. Music perception is highly subjective, meaning that the trier of fact may not be able to make the determination that something is substantially similar.  The substantially similar test is copyright law’s main way of determining infringement, but its subjective nature complicates disputes.

The need for copyright protection is evident in order to protect the value of the musician’s work. Copyright protection “leads to the prevention of their work being copied to the degree where they cannot sell it effectively or receive credit for it” and, in turn, incentivizes creators to work freely while also obtaining recognition for their creative contributions and safeguarding their livelihood.[18] Without adequate protection, artists may be disincentivized from investing time, resources, and creative energy into their work. On the other hand, overly restrictive copyright laws stifle creativity, deter collaboration, and limit access to resources. A balancing act is truly necessary here.

In conclusion, copyright protection was originally created to promote creativity, but we can see how there is tension between creative freedom and copyright laws. Litigation within the copyright field has increased significantly, and the subjectivity of determining similarities within music has made this area even more discouraging. The main issue is balancing the interests of copyright holders while still promoting creativity. Copyright holders deserve to be recognized for their work and compensated fairly, while simultaneously, creativity within music has historically included interactions such as borrowing and responding. What are your thoughts on the balance between protecting music creators’ rights and ensuring that music evolves through influences and new interpretations?

[1] 12 Melville B. Nimmer and David Nimmer, Nimmer on Copyright (Matthew Bender, Rev. Ed.).

[2] Armes v. Post, No. 2:20-cv-03212-ODW (PJWx), 2022 U.S. Dist. LEXIS 71155 (C.D. Cal. Apr. 18, 2022)(citing Newton v. Diamond, 204 F. Supp. 2d 1244, 1248-49 (C.D. Cal. 2002)).

[3] A Study on the Desirability of and Means for Bringing Sound Recordings Fixed Before February 15, 1972, Under Federal Jurisdiction, U.S. Copyright Office, https://www.copyright.gov/docs/sound/.

[4] 17 U.S.C.S. § 114 (LexisNexis).

[5] 17 U.S.C.S. § 106 (LexisNexis).

[6] 17 U.S.C.S. § 501 (LexisNexis).

[7] Id.

[8] Williams v. Bridgeport Music, No. LA CV13-06004 JAK (AGRx), 2021 U.S. Dist. LEXIS 239118 (C.D. Cal. Feb. 12, 2021); see also John Seabrook, The Case for and Against Ed Sheeran, The New Yorker: Annals of Music (June 5, 2023) https://www.newyorker.com/magazine/2023/06/05/ed-sheeran-copyright-infringement-lawsuit-marvin-gaye.

[9]Blurred Lines of Copyright,  Ethics Unwrapped https://ethicsunwrapped.utexas.edu/case-study/blurred-lines-copyright (last visited Mar. 25, 2025).

[10] Christophe Geiger, Freedom of Artistic Creativity and Copyright Law: A Compatible Combination?, 8 U.C. Irvine L. Rev. 413 (2018).

[11] Colette Chazarian & Kit Walsh, A De Minimis Amount of Creative Freedom: Courts Push Back to Protect Music Sampling, EFF (June 3, 2016) https://www.eff.org/deeplinks/2016/06/de-minimis-amount-creative-freedom-courts-push-back-protect-music-sampling.

[12] Carolyn Shurr Levin, Is Copyright Law Curbing Our Freedom in the Digital Age?, SPLC https://splc.org/2012/09/is-copyright-law-curbing-our-freedom-in-the-digital-age/

[13] Id.

[14] J. Michael Keyes, Musical Musings: The Case for Rethinking Music Copyright Protection, 10 Mich. Telecomm. & Tech. L. Rev. 407 (2004).

[15] ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983).

[16] Keyes, supra note 14.

[17] Tracey Lacey-Smith, The Balance Between Creative Freedom and Protecting Copyright,  WIPR (July 10, 2019) https://www.worldipreview.com/contributed-article/the-balance-between-creative-freedom-and-protecting-copyright.

[18] Copyright: Why Copyright Matters and Important Concepts Related to Copyright,  IADT- Dun Laoghaire Inst. of Art Design and Tech. https://iadt.libguides.com/copyright.