by Ronald S. Rosen. New York: Oxford University Press, 2008. 624pp. Paperback. $185.00/£102.50. ISBN: 9780195338362.
Reviewed by Irini Stamatoudi, LL.M, Ph.D, Athens, Greece. Email: stamatoudi [at] syrigos.gr.
Copyright in itself is not an easy topic. It becomes even more difficult when one has to deal with the specialized area of music. Music is another kind of language, and in order for one to understand it in the context of law one has to be bi-lingual: s/he needs to understand both music and law to a considerable degree. The title of this book corresponds literally to what the book offers. It offers insights into music and copyright and merges them in an extremely talented way which allows the reader to focus on and understand the particularities of such an exercise as well as understand the journey a lawyer has to set off in order to reach the expected outcome. It also assembles and ‘codifies’ all important judgments referring to copyright and music, or copyright as such but which are relevant to music.
MUSIC AND COPYRIGHT, by Ronald S. Rosen, is essentially a book for US litigators. It is a detailed and thorough roadmap to litigation involving music infringement cases, as well as to cases dealt outside courts which can be solved through negotiations or arbitration. Rosen sets out with the basics, which turn out not to be so basic given the fact that structural notions, such as the idea and expression dichotomy, are not so clear when it comes to music. This book may also be of interest – to a lesser extent though – to other groups of people, such as record companies, songwriters or advertising companies, and in any case to academic researchers.
It is divided in 12 chapters. It is difficult for one to find any area of interest on the subject which Rosen does not touch upon. He starts with an introduction (referring to it as a prelude) where he gives some insights into the idea/expression dichotomy (he will come back to it in much more detail in Chapter 1) and the history of copyright. Chapter 2 presents an overview of the subject, and in particular an overview of basic issues, which could be regarded as blocks in the further building of his argument. Rosen discusses issues such as the lawyer’s mission, the idea/expression dichotomy, the distinction between protected and unprotected elements, expert testimony, defenses, lack of jurisdiction and others. Chapter 2 focuses on every detail of remedies (from actual damages and profits, to attorney’s fees and costs). In the same chapter the issue of arbitration is also discussed. Chapter 3 brings again into focus the idea/expression dichotomy and the distinction between protected and unprotected elements from another standpoint. There Rosen explores music as a language and its particular components. He assesses and presents what these components are and how they can be classified within the legal notions and structures of copyright. Once this is done, the lawyer can gain knowledge of whether a work is original and therefore [*135] protected by copyright or not. If a work is not protected by copyright, then no infringement could have taken place. Rosen explores the melody, harmony and rhythm. He examines the building blocks of music, such as the phrase, the motiv, the tempo, the meter and so on. He also looks into the scenes à faire, the musical forms and other building blocks of musical ideas and expressions. This chapter is the most challenging one. It is a chapter which is equally relevant for all those involved in authoring, publishing or exploitation of music. It is even more useful for those litigating in this area, irrespective of jurisdiction. It is in this part of the book that the reader realizes that law alone cannot serve the needs of litigation in the area of music, and that law and music should interact.
Chapter 4 deals with the very start of a litigation process. Rosen looks into issues such as the initial meeting with the client, the demand letter to the defendant and the response, the role of the lawyer, ‘exploring’ of the client and his demands, the pleading, litigation plan and so on. He even provides sample documents to help lawyers and makes practical suggestions with regard to approaching both the client and the case. No matter how well trained a lawyer is, s/he cannot be a musicological expert. And the issue of an expert is rather important in this kind of litigation. This forms the subject of Chapters 5 and 6. Rosen discusses issues such as how one chooses an expert, what is expected by her/him, how s/he can help the process, how a lawyer should cooperate with her/him, and so on. Chapters 7 and 8 deal with one of the cornerstones of US copyright law: the fair use doctrine. The fair use doctrine is important not only because, if it is proven that it applies in a case, infringement cannot be established, but also because the requirements for its application are not set in stone and differ from case to case. This makes it even more difficult when it does apply to music. Rosen decodes all most relevant case law and helps the reader to find a way through it with step-by-step guidance. Chapter 8 deals with more specialized issues, such as parody, satire and quotation. Chapter 9 discusses the basic discovery tools used in American litigation, i.e. written interrogatories, requests for admissions, requests for production of documents and deposits upon oral examination. Chapter 10 explores the history and evolution of summary judgment in the area of music essentially though case law. Chapter 11 explains all the phases of a trial. Chapter 12 deals with the impact of new technology of music and copyright. In particular, Rosen discusses secondary liability, file sharing in conjunction with secondary and direct liability and the role of digital rights management. At the end he presents some thoughts with regard to the evolution of technology and its impact on music and copyright.
This book contains it all – case law, practical suggestions, sample documents, specialized litigation tips, thorough research, reflected experience and thoughts on new technologies. I think it would only be fair for one to allege that apart from the fact that this book presents a thorough, exhaustive and very well researched work, it could also be referred to as a bible for US litigators in music and copyright.
© Copyright 2009 by the author, Irini Stamatoudi.