C sued D, Warner Bros, for breach of copyright; alleged that a song co-written by Madonna was an infringement of C’s musical copyright, a song called ‘Forever After’. In C’s claim of particulars, however, C defined the ‘musical work’ infringed as the vocal expression, syncopation and pitch contour around the vocal hook “does it really matter” – rather than the actual song ‘Forever After’ itself. Held:
· Performer’s interpretation of music or personal performance characteristicsdo not constitute a ‘musical work’
Ø thus things not capable of being ‘musical works’ include the performer’s:
- voice expression
- pitch contour
- syncopation the hook “does it really matter”
· Whether something is a ‘work’ matter for objective determination by the court.
· In this case, C could not simply select parts of her song most similar to Madonna’s and use them as basis for her copyright work.
Ø i.e. by removing the rest of song (which was obviously not copied), was danger of creating an illusion of copying in the parts that remained.
· In addition the three features identified by C were not sufficiently separable from rest of song to constitute musical work in their own right.