Music and Copyright 1st Edition by Ronald Rosen 9780195338362 0195338367

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ISBN 10: 0195338367
ISBN 13: 978-0195338362
Author:  Ronald Rosen

The highly topical area of copyright law, as applied to music, is widely misunderstood by lawyers, business people, and – perhaps most seriously – the federal judiciary. More than ever, there is a need to understand music infringement issues within the context of copyright litigation. In Music and Copyright, Ron Rosen provides readers with a practical and strategic roadmap to the music-infringement litigation process, beginning with the client’s claim or defense and continuing through the selection and use of trial experts, discovery, motion practice, and trial.

Renowned for his expertise and career-long commitment to entertainment, intellectual property, and commercial litigation, Ron Rosen has condensed his experience into an essential guide for anyone involved in music-infringement litigation. Packed with elucidating examples from the author’s own practice, Music and Copyright navigates the often thorny terrain between notions of the legal and the musical providing practical advice, case studies, forms, and commentary along the way.

Music and Copyright 1st Table of contents:

CHAPTER 1. THE COPYRIGHT LAW: AN OVERVIEW
I. The Lawyer’s Mission
II. Basic Principles: An Introduction
III. The Idea/Expression Dichotomy
A. Arnstein v. Porter and Its Legacy
B. The Reinterpretation of Arnstein v. Porter

1. Sid and Marty Krofft Television Productions Inc. v. McDonalds Corp.
2. Fine Tuning Krofft: Litchfield, Berkic, Aliotti and Olson
3. Shaw v. Lindheim and Feist v. Rural Telephone
4. An Interim Stopgap: Latman’s Probative Similarity
5. Expert Testimony And The Future Of The Two-Prong Test
   IV. Filtration
   A. The Use of Filtration To Separate Unprotectable Elements From Protected Expression: Two Early Formulations
   B. Filtration: Contemporary Formulations
   V. Expert Testimony Under the Two Prong Test: Suggested Alternatives
   A. Combine the Two Tests
6. To Eliminate the Inherent Confusion Regarding Use of Expert Testimony
7. The Necessity For Musicology Experts: Recognition of the Complexity of Musical Language and the Public’s Unfamiliarity With That Language
   B. Recognition Of Current Practice: Components and Responsibilities of Burden of Proof
   C. The Copyright Registration Certificate and The Rebuttable Presumption
   D. Music’s Need For a Translator and Educator: Two Scenarios
8. Scenario Number One
9. Scenario Number Two
10. Comment
    VI. Legal and Equitable Defenses
    A. Statute of Limitations
11. Accrual
12. Tolling
    B. Laches and Estoppel
13. The Two Defenses Compared
14. Laches
15. Estoppel
    C. Other Defenses
16. Abandonment
17. Innocent intent
18. Res judicata and Collateral Estoppel
19. Unclean Hands and Misuse of Copyright
    VII. Lack of Jurisdiction: Extraterritorial Acts
    VIII. The Lawyer’s Mission Redux

CHAPTER 2. THE BASIC ELEMENTS OF MUSICAL LANGUAGE AND IDEAS: THE COPYRIGHT PERSPECTIVE
I. Music As Language
II. Copyright And The Components of Musical Language and Ideas
A. The Trinity: Melody, Harmony and Rhythm

1. Melody
2. Harmony
3. Rhythm
   B. Supplementing The Trinity
   C. The Building Blocks of Music
4. The Phrase
5. Motive (Motif)
6. Counterpoint
7. Tempo and Expression Marks
8. Meter
9. Two Basic Forms: Binary and Ternary Form
   III. Musical Ideas and Expression: A Sampling
   A. Bach v. Mozart and Chicago, Their Contemporary Colleagues: Using and Exploiting the Triad
   B. Equal Temperament and Scenes a Faire: The Harmonic Imperative
10. Equal Temperament
11. Scenes a Faire
    C. Musical Scenes a Faire: Two Examples
12. Progressions
13. Cadences: Two Examples
    D. Comment: Harmony and Scenes a Faire
    IV. Form/Structure and “Forms”
    A. The Issue: A Question of Terminology and Context
    B. §102(b) of the Copyright Act: “Procedures, Processes, Systems”
    C. Musical Form/Structure and “Procedures, Processes, Systems”
    D. Conclusion: Original Musical Works and The Vast Storehouse of Musical Ideas and Building Blocks

CHAPTER 3. INFRINGEMENT AND THE COMMENCEMENT OF LITIGATION
I. Pragmatism and Ethics: Initial Considerations
II. Pre-Meeting Tasks for the Parties
A. The Plaintiff
B. The Lawyer for the Plaintiff’s Lawyer
C. The Defendant and His Lawyer
III. The Initial Office Conference
A. Clarifying the Plaintiff’s Perspective
B. Clarifying the Defendant’s Perspective
IV. The Demand Letter and the Response
A. The Demand Letter September 24, 2007
B. The Response
V. Pleading: The Complaint and Answer
A. Theory and Practice
B. Preparation of the Complaint

1. Appendix of Forms, Federal Rules of Civil Procedure
2. Proposed Appendix of Forms, Federal Rules of Civil Procedure
3. Complaint for Copyright Infringement (Basic Allegations In Compliance With Rule 8, FRCP)
4. Complaint for Infringement Of Copyright And Unfair Competition (More Detailed Allegations)
   C. Preparation of the Answer
   VI. The Litigation Plan
   A. The Need for a Litigation Plan
   B. The Litigation Plan: A Suggested Format
   VII. Final Thoughts

CHAPTER 4. THE IMPORTANCE OF THE EXPERT: THE MUSICOLOGICAL EXPERT
I. Infringement of Musical Works: The Importance of Expert Opinion and Guidance
A. The Dilemma Of Explanation
B. Functions And Tasks Of The Musical Expert

1. The Daubert/Kumho Tine/Joiner Trilogy and the “Gatekeeper” Function
2. Initial Considerations Before Retaining An Expert
   II. Music Infringement, The Courts and The Search For Answers
   A. Arnstein v. Porter and Progeny
   B. The Survival and Modification of the Two-Step Analysis
3. The Intrinsic Test and the Expanded Role of Expert Opinion
4. Swirsky v. Carey: Another Misstep?
5. Do Not Gamble

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