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Copyright fair use is a broad, statutory doctrine that permits fair use of any type of copyrighted work. But the fair use defense is virtually nonexistent in copyright infringement cases involving musical compositions, such as the famous “Blurred Lines” case. Defendants and courts neglect to consider it for reasons unknown. One might conjecture that this simply reflects a tacit understanding in the music industry that original music should be untouched. In fact, musical borrowing is a longstanding and accepted tradition, which makes copyright fair use particularly amenable to musical compositions. Disconcertingly, ignoring fair use of musical compositions in infringement cases almost certainly means that courts have been generating erroneous outcomes for many years.
This Article overviews the tradition of musical borrowing, briefly surveys copyright infringement cases involving musical compositions, and considers how the fair use doctrine would apply in such cases. The objective is to compel defendant composers to raise the fair use defense in appropriate cases and, ultimately, help courts correct this glaring oversight in U.S. copyright jurisprudence.
Shea Bettwy *
* LL.M., University of Galway; J.D., University of California, Berkeley School of Law; B.A., University of Notre Dame.