Guitar tablature Web sites have been the subject of recent cease-and-desist letters, forcing most to shut down. Litigation has been side-stepped with the arrival of new creative means to continue operation. The case that may have gone to court is discussed here, ranging from the appropriate legal claims of copyright infringement to the fairuse-defense arguments that would have been made. Policy solutions are considered to resolve the tension between the public’s desire to use such tablatures and the copyright owners of the original artists.
James T. Tsai
TABLE OF CONTENTS I. Introduction II. Are Guitar Tabs Subject to Claims of Copyright Infringement? A. Sound recordings (17 U.S.C. 102(a)(7)) 1. Was there a valid copyright? 2. Derivative work rights ( 106(2)) B. Musical works (17 USC 102(a)(2)) 1. Was there an impermissible form of copying here?(17 USC 106(1)) 2. Derivative work rights( 106(2)) III. Saving Tabs: The Fair Use Defense A. Purpose and character of the use 1. The actual purpose and character of the use of guitar tablatures. 2. Commercial nature of the use 3. Nonprofit educational purpose B. The nature of the copyrighted work (format) 1. Expressive works and informational works 2. Unpublished and published works C. Amount and substantiality used 1.
Tsai, James T., The Unlitigated Case: A Study of the Legality of Guitar Tablatures (February 24, 2009). Boston College Intellectual Property and Technology Forum, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1348799