“Music and Copyright” by Ronald S. Rosen
Paperback: 624 pages
Publisher: OUP USA (6 Nov 2008)
ISBN-13: 978-0195338362

£107.50 $185.00

This book carefully addresses the Idea/Expression dichotomy in music and the limits of protection for musical compositions – something which is lacking in the main practitioners works. Mr Rosen was the attorney for the composer John Williams who was sued for allegedly copying a phrase which he used in the score for the movie “E.T. The Extraterresterial”. After four years of litigation the dispute over a commonplace musical phrase ended successfully for Mr Williams and Mr Rosen. The book, a practical guide, outlines the importance of expert testimony in cases involving music – and provides insights into some of the novel arguments which might today be presented in cases involving mash-ups. Its’ section on parody rights needs to be read by all copyright lawyers who dare to trespass on freedom of expression.

Mr Rosen’s practical expertise shines through this work and he clearly has a love of both law and music. It uses musical notation to illustrate bars of music – showing how the “Trinity” of Melody, Harmony and Rhythm apply and how people like the late forensic musicologist Earl Spielman tailored the analysis of music to fit within controlling copyright principles. Concepts such as the “music phrase”, the “motif”, counterpoint, tempo and meter are illustrated by reference to composers like Bach, Mozart and composing rock groups like “Chicago”.

For a UK lawyer it was pleasing to find good examples which could be cited in any equivalent UK situation on the scope of fair use set out by a lawyer who clearly has a sympathetic understanding of the way in which all artists use a common language and call upon the works of others. A careful reading of the text and illustrations should provide a lawyer with all the material he needs to mount a defence based on fair use in most new works.  

One surprise in the book was the excellent section in Chapter 12 on Music, Copyright and the Impact of New Technology from someone who is clearly not a technologist. Here, in a relatively short chapter, he canters through the recent cases on file sharing and mash-ups. Although Rosen expresses the conventional conservative copyright lawyer’s view in citing the cases, he rightly sets out the fact that economically the copyright owners are failing in the marketplace.

The main difficulty with this book is its use of musical notation. Understanding a music copyright case without being able to hear the actual music does not work well.  I would like to see Rosen make a video lecture of parts of his book – possibly as a TED talk – since only then could the non-musical reader gain an understanding of the complexities of bringing and defending musical copyright claims. Put the video on a YouTube, link it to a website selling the book and Rosen will have created a resource for all lawyers and creative people worldwide.