Owning Music: From Publisher's Privilege to Composer's Copyright


More than four years after Napster demonstrated the power of the Internet as a means of distributing music, we still are in the midst of a cultural and legal debate about what the respective rights of music copyright owners, follow-on creators, disseminators, and purchasers should be. A common assumption underlying much of the debate is that whatever settlement emerges, it will apply equally to all forms of expression. This Article questions that assumption by investigating the early history of copyright in music.

For the first time in legal scholarship, the Article reveals and examines the distinct early history of copyright in music and relates this history to contemporary conflicts. The historical investigation covers the pre copyright era in England and Europe (1500 1700), the eighteenth century in England when the first copyright law was enacted (1710) and then applied to music (1777), and American history from the beginning of the printing trade in the latter seventeenth century, through the adoption of copyright as a constitutional good (1787) and as the subject to federal statutory protection (1790), ending in 1831, when the Copyright Act was amended to included "musical compositions" as the appropriate subject matter for copyright protection.

Although music publishers and recording companies are today among the most aggressive advocates for strong copyright in music, when the first copyright law was enacted in England, music publishers actively resisted its application to music. The first struggle over music copyright in England, and to a much lesser extent in the United States, has lessons to teach policymakers seeking to resolve the current conflict. Copyright in musical texts, whether sheet music or recorded music, always has allocated liberties between composers, publishers, and end users. Digital technology has brought latent conflicts in this allocation to the fore. The Article concludes with recommendations about how copyright history should, and should not, be used in litigation.


Entertainment, Arts, and Sports Law | Intellectual Property Law | Law and Society | Legal History | Science and Technology Law

Date of this Version

August 2004