Music That Defies Fixation: How Graphic Scores Challenge the Foundation of American Copyright Law

What do you hear when you look at a painting?  How would you sing a spiral?  And after that spiral song is sung, who expressed their creativity—the performer, or the person who put the shape on paper?  In the United States, musical notation typically looks like European staff notation: five lines, a clef, notes, various Italian words.[1]  Staff notation is designed to convey exactly how a piece of music is supposed to sound.[2]  Graphic scores, on the other hand, do roughly the opposite.  A graphic score is an abstract form of experimental musical notation that presents ideas via non-standard visuals like shapes, written instructions, and symbols for the performer to interpret through improvisation.[3]  Though the instructions in a graphic score can be quite detailed, prescribing dynamics, tempo, intonation, even specific physical movements and extended techniques, the exact notes and rhythms a performer plays are often left ambiguous.[4]  This presents a quandary for an experimental composer who wants copyright protection for their music: does their composition even count as a musical work under American copyright law?

An example of a graphic score. Courtesy of Hunter Komuro.

Some countries’ copyright laws, like the United Kingdom’s, explicitly define printed music, which includes graphic scores.[5]  American copyright law, however, declines to define music whatsoever.[6]  At the time the Copyright Act was written, the meaning of a “musical work” was considered so commonly understood that it did not warrant an explicit definition.[7]  In absence of an official definition, courts often consider melody, harmony, and rhythm—in that order of importance—in copyright infringement cases regarding music.[8]  While these may seem to be fairly standard for musical compositions, experimental and avant-garde music is often devoid of any of these elements.[9]  To receive copyright protection, a musical work must meet three requirements: originality, creativity, and fixation.[10]  Originality means that the composer did not simply copy their musical ideas from another source.[11]  Creativity refers to the music’s “spark that goes beyond the banal or trivial,” which is where courts dissect a work’s melody, harmony, and rhythm.[12]  Fixation occurs the moment a musical work or any other form of creative expression is recorded “in any tangible medium.”[13]  While the only form of fixation of a musical work used to be sheet music, with the advent of sound recording technology, a composition technically no longer needs to be transcribed in sheet music to be fixed.[14]  However, some scholars argue that a sonically recorded musical work without sheet music is considered “unpublished.”[15]  Despite playing a vital role in the development of new music, graphic scores (and experimental music in general) do not cleanly satisfy any of these requirements. 

The requirement for originality centers around the “composer’s own contribution.”[16]  While this is generally considered straightforward in conventional Western music, there are debates even amongst musicians over whether the composers of graphic scores actually wrote music at all.[17]  When the composer’s instructions are so abstract that the performer must decide entirely for themselves what to play, some performers feel that the musical work is “incomplete,” and that the performer should be credited as a composer of the piece.[18]  However, this view is rooted in traditional Western notions of the composer-performer relationship, in which the performer is tasked with faithfully recreating exactly what the composer had in mind; for some experimental composers of graphic scores, the dissolution of that creative hierarchy is the entire point.[19]

Because graphic scores often do not delineate specific melodies, harmonies, or rhythms, the question of creativity as it pertains to the Copyright Act is, as with originality, often intentionally murky.[20]  Still, avant-garde compositions are still considered creative, inspiring, and significant despite, or even because of, their lack of melody, harmony, and rhythm.[21]  The most famous example is John Cage’s 4’33”, which is four minutes and thirty-three seconds of pure silence.[22]  The goal of the piece is to have the audience deeply and intently listen to that silence alongside all the sounds that occur within that time, turning everything the audience hears—at least for the duration of the performance—into music.[23]  While it may seem ridiculous to perform silence, let alone copyright it, numerous musicians have performed and taken inspiration from this 4’33”, with one instance leading to a copyright infringement lawsuit in England.[24]  Though the case was settled outside of court, leaving the question of the copyright’s validity technically unanswered, 4’33” is registered with the U.S. Copyright Office.[25]  If pure silence can be considered a sufficiently creative composition worthy of copyright, then surely so can other compositions devoid of melody, harmony, or rhythm.

Finally, graphic scores’ refusal to specify exact pitches and rhythms calls into question the notion of fixation.  While sound recordings may seem like a more straightforward means of fixing an experimental musical work, the sound recording only captures a single iteration of that composition that can and should exist in various forms.[26]  A consequence of recorded music is the standardization of sound, which diminishes the variation and innovation that can occur within a single composition.[27]  In a similar sense, the prioritization of staff notation over other forms of less exact musical instruction restricts creativity within a piece.[28]  A graphic score can convey musical ideas that cannot be properly notated with Western staff notation, especially certain extended techniques that do not produce conventional sounds.[29]  As such, some legal scholars propose redefining musical works as a “set of instructions” that do not rely solely on Western staff notation.[30]  To distinguish the core composition from the idiosyncrasies of a particular performance, courts can listen to multiple performances of the same piece and determine what elements remained constant.[31]  Such a process of listening to multiple variations while following along with the graphic score would give courts a better sense of what the composition actually is whilst preserving the flexibility of the music.  Moreover, this method of review would give validity to vital elements of music that are not simply melody, harmony, or rhythm: aspects like timbre, extended techniques, microtonality, and so forth.[32] 

Though graphic scores do not neatly meet any of the requirements for copyright protection, the means of copyright analysis can be reshaped to accommodate them.  Although graphic scores and experimental music in copyright claims are exceedingly rare, such changes in copyright law would benefit a plethora of music that do not fit into Western conventions.  Musical traditions like Japanese taiko, which are almost purely drum patterns, are typically taught with vocalized syllables that communicate how the drum is to be struck.[33]  Taiko is a living musical tradition in the United States that continues to grow with new, original compositions that deserve the same amount of protection as any other musical work.[34]  While taiko compositions could be notated with staff notation, non-Western musical traditions should not be forced to assimilate and fundamentally alter their pedagogies to receive legal protection.[35]  This issue is not niche.  The musical history of the United States, especially American popular music, is founded upon theft.[36]  By transcribing the music of non-White—most often African American— musicians into European staff notation and registering the copyright as their own compositions, White musicians profited wildly off the work and creativity of non-White artists, who saw their music explode while they remained uncredited and uncompensated.[37]  American copyright law is long overdue for a fundamental reimagining of what music is, what it can look and sound like, and what the law can do to protect it.

[1] Ian D. Bent, Musical Notation, BRITTANICA (Feb. 9, 2024), https://www.britannica.com/art/musical-notation.

[2] See Score, Britannica, https://www.britannica.com/art/score-music (last visited Mar. 19, 2024) (By reading notation, a “conductor can see at a glance what each performer should be playing and what the ensemble sound should be.”).

[3] Russell Wimbish, ‘Is This Your Composition, or Is This Some Sort of Collaboration?’: Examining a Professional Musician’s Attitude Toward Graphic Composition, 6 Music & Prac. 1, 2 (2020).

[4] Id.

[5] Intell. Prop. Off., Copyright Notice: printed music, No. 6/2016 (revised Sept. 2016), https://assets.publishing.service.gov.uk/media/5a801e5140f0b623026919f9/Copyright_Notice_Printed_Music.pdf.

[6] 17 U.S.C. §102(a).

[7] 1 Nimmer on Copyright § 2.05 (2023).

[8] Id.

[9] Wimbish, supra note 3 (“[Graphic] scores often have no suggestion of tonality or rhythm and make considerable technical and creative demands of the performer.”).

[10] Nimmer, supra note 7.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Olufunmilayo B. Arewa, A Musical Work Is a Set of Instructions, 52 Hous. L. Rev. 467, 534 (Dec. 12, 2014).

[16] Nimmer, supra note 7.

[17] See Wimbish, supra note 3.

[18] Id. at 5.

[19] Id. at 6.

[20] See Alan L. Durham, The Random Muse: Authorship and Indeterminacy, 44 Wm. & Mary L. Rev. 569, 602 (2022) (describing the role of chance in experimental musical compositions).

[21] See id. at 604.

[22] Id.

[23] Id.

[24] See Jeffrey Richardson, The Sounds of Silence: How Copyrights Affect Composition, 82 Mich. Bar J. 36 (2003).

[25] Id.

[26] See Arewa, supra note 15, at 524 (“[T]he ability of composers, performers, and audiences to listen repeatedly to performances has led composers and performers to decrease deviations and rhythmic and other eccentricities, as well as modify performances to achieve a desired sound.”).

[27] Id.

[28] Id. at 532.

[29] See Bent, supra note 1.

[30] Id. at 535.

[31] Michael Zaken, Fragmented Literal Similarity in the Ninth Circuit: Dealing with Fragmented Takings of Jazz and Experimental Music, 37 Colum. J.L. & Arts 283, 311 (2014).

[32] See id. at 291 (discussing standard staff notation’s inadequacy in conveying unconventional musical information).

[33] A Taiko Glossary, Harisen Daiko, https://harisendaiko.org/a-taiko-glossary.

[34] See Yoshitaka Terada, Shifting Identities of Taiko Music in North America, 22 Senri Ethnological Reps. 37 (2001).

[35] See Daiko, supra note 33.

[36] See Arewa, supra note 15, at 525.

[37] Id.