Modern composers of jazz, avant-garde, hip-hop and world music increasingly rely upon unconventional sounds and advances in recording technology to create new and innovative musical works. As one might expect, courts now face the difficult challenge of applying traditional copyright analysis to these contemporary works to determine whether they embody protectable expression. This article highlights some of the issues specific to innovative musical works and the split among the U.S. Circuit Courts in how to measure the substantiality of these works. Copyright practitioners and composers alike should be aware of these challenges in evaluating the extent of copyright protection for contemporary musical expression.
Alan Korn, Issues Facing Legal Practitioners in Measuring Substantiality of Contemporary Musical Expression, 6 J. Marshall Rev. Intell. Prop. L. 489 (2007)