The concept of “prior art” is regularly used by forensic musicologists in music copyright litigation as a proxy measure of originality. Originality is the foundational principle for copyright law, and establishing originality is therefore central to copyright cases. Although the concept is drawn from patent law, in the context of copyright cases, prior art refers to selected bodies of pre-existing music featuring passages analogous to the ones under question. Prior art is used to contextualize the alleged infringement within genre and style conventions and serve as a proxy for measuring originality. Litigants have drawn on prior art as evidence of originality (or lack thereof) since the nineteenth century, with plaintiffs generally using it to establish the originality of the (alleged) copied work and defendants generally using it to establish that both pieces are using generic passages. After the 2016 case Skidmore v. Led Zeppelin relied heavily on prior art evidence in finding Led Zeppelin not liable for infringing on fellow rock band Spirit’s Taurus (1967) in Stairway to Heaven (1971), the concept has gained renewed legal importance. The prevalence of prior art as a critical element in music copyright litigation demands cross-disciplinary discourse to address the analytical problems of musical copyright.

Works: W. D. Henrickson: Call Me Back Again (314-15); Joseph E. Howard: I Think I Hear a Woodpecker Knocking at My Family Tree (315-16); Michael Bolton: Love is a Wonderful Thing (318-19); Led Zeppelin: Stairway to Heaven (319-23); Kary Perry: Dark Horse (324-25); Rolf Lovland and Brendan Graham: You Raise Me Up (325-27).

Sources: Fannie Beane: My Own Sweet Darling, Colleen Dhas Machree (314-15); Silvo Hein and Marie Cahill: The Arab Love Song (315-16); Isley Brothers: Love is a Wonderful Thing (318-19); Spirit: Taurus (319-23); Flame: Joyful Noise (324-25); Vilhjálmur Vilhjálmsson: Söknuður (325-27).

Index Classifications: 1800s, 1900s, 2000s, Popular

Contributed by: Matthew Van Vleet