![]() The problem, rather, is that the bedrock doctrine itself is misguided. ![]() ![]() A closer inspection reveals that, if anything, they are in fact more faithful than their predecessors. The problem is not, as is commonly alleged, that these decisions are unfaithful to bedrock copyright doctrine. This Article agrees-but not for the reason that most people think. Many have called this increasing scope problematic. Recent judicial decisions are beginning to break down the old definitional wall around melody, looking elsewhere within the work to find protected expression. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where typically multiple features of eligible subject matter are eligible for protection. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. ![]() Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Joseph Fishman (Vanderbilt University - Law School) has posted Music as a Matter of Law (Harvard Law Review, Vol.
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