Music has been a crux of everyday life for decades. Almost ninety-one percent of the United States population listens to music, and spends more than twenty-four hours a week listening to their favorite songs—making music one of the top forms of entertainment for most Americans. Music has unique qualities that differentiate it from other works of authorship, which must be recognized by copyright law.
The current subjective measure used to determine unlawful appropriation of copyrightable work is not sufficient. A minority of courts have expanded the current “ordinary observer” standard to consider the “intended audience” of the specific work—claiming the “ordinary observer” lacks the necessary skill and expertise to properly test for subjective copying.
This Note argues that the Intended Audience Test should apply in all music copyright infringement cases as a better measure for unlawful appropriation. A change in the subjective test is necessary to foster a more accurate measure of malicious copying versus music production with use of musical influences; to align with today’s landscape of individualized and highly personal consumption of music; and to better promote the main purpose of copyright law, which is to foster the greatest amount and highest quality of creative works in the public domain.
Alison P. Wynn, COPYRIGHT LAW—UNIQUE CHARACTERISTICS OF MUSIC WARRANT ITS OWN SYSTEM: HOW ADOPTING THE INTENDED AUDIENCE TEST CAN SAVE MUSIC COPYRIGHT LITIGATION, 39 W. New Eng. L. Rev. 1 (2017), https://digitalcommons.law.wne.edu/lawreview/vol39/iss1/1