Imitation is the sincerest form of … infringement? Guitar tabs, fair use, and the Internet

William and Mary Law Review, May, 2008 by Jocelyn Kempema

TABLE OF CONTENTS

INTRODUCTION
I. GUITAR TABS: THE SOURCE OF THE PROBLEM
II. THE CURRENT COPYRIGHT CONFLICT: THE MUSIC
INDUSTRY VERSUS GUITAR TAB WEBSITES
III. COPYRIGHT LAW: A BACKGROUND
   A. The History and Purpose of Copyright Law
   B. Copyrights for Musical Works
IV. HOW GUITAR TABS INTERSECT WITH COPYRIGHT LAW..
  A. Do Guitar Tabs Deserve Independent
     Copyright Protection?
  B. Guitar Tabs as Derivative Works
V. OVERVIEW OF THE FAIR USE DOCTRINE
   A. History of the Fair Use Doctrine
   B. Statutory Fair Use
VI. IF GUITAR TABS WENT TO COURT
VII. GUITAR TABS AS FAIR USE
  A. Guitar Tabs as Fair Use: The Purpose and
     Character of the Use
     1. Guitar Tab Websites Are a Commercial Use
        With a Nonprofit Purpose
     2. Guitar Tabs Are a Fair Use as Set Out in the
        Preamble to Section 107
     3. Guitar Tabs Can Be, but Are Not Usually,
        Transformative
  B. Guitar Tabs as Fair Use: The Nature of the
     Copyrighted Work
     1. Guitar Tabs Are Based on Previously
        Published Works
     2. Guitar Tabs Are Based on Creative, Not
        Functional, Works
  C. Guitar Tabs as Fair Use: The Amount and
     Substantiality of the Copyrighted Work Used
     1. Guitar Tabs Copy a Substantial Portion or the
        "Heart" of the Copyrighted Work
     2. Guitar Tabs Are Reasonable Copying in
        Relation to Their Purpose
  D. Guitar Tabs as Fair Use: The Effect of the
     Use on the Market for the Copyrighted Work
     1. Guitar Tabs Do Not Supersede Sheet Music Nor
        Do They Provide a Substitute for It
     2. Harm to Potential Markets and the Licensing of
        Guitar Tabs
     3. The Reasonable Copyright Holder Would
        Consent to the Making and Posting of Guitar Tabs .
VIII. THE IMPORTANCE OF CONSIDERING GUITAR
    TABS A FAIR USE
CONCLUSION

INTRODUCTION

In a small community on the Internet, a battle is taking place. The music industry is on the offensive, laying siege to websites that post guitar tablature (or "tabs"). On the defensive are the small website owners who run these sites and the guitarists who use them. The conflict is over whether guitar tabs infringe on songwriters' copyrights. Although the implications of this copyright battle are currently restricted to a small Internet community, in a world attempting to balance the use of new technologies with protecting valid copyrights, (1) a decision on whether posting guitar tabs constitutes copyright infringement could impact the path of copyright law and the doctrine of fair use on the Internet in the future.

The legality of online guitar tab sites is relevant to many of today's law students and has already inspired several works of legal scholarship. (2) This Note argues that posting guitar tabs on the Internet is not copyright infringement and that similar behavior should be permissible under the fair use doctrine. Beginning by describing guitar tabs and the current conflict with copyright law on the Internet, this Note will explain copyright law and the fair use doctrine as applied to musical works, particularly guitar tabs. The Note then evaluates guitar tabs under the four statutory factors of the fair use test and concludes that guitar tabs constitute a fair use of the underlying songs. (3) This finding could have far-reaching ramifications for all Internet users. Specifically, a finding of fair use for guitar tabs could protect not only future guitar tab users and creators but also any originator of a work based on copyrighted material who posts his creation online.

I. GUITAR TABS: THE SOURCE OF THE PROBLEM

Guitar tabs are illustrations of how to play a song on the guitar. (4) The word "tabs" in "guitar tabs" is short for tablature. (5) Tabs are created when a person listens to a song and derives by ear the chords or finger placements that sound most like those played in the song. (6) Those finger placements are then written down in a notation format unique to guitar tabs. This process, which can result in a variety of tabs written by different listeners for the same song, (7) is distinct from transcribing music because tabs involve evaluating the song and recreating the song as it sounds best on the guitar. (8) Because of the complexity of many songs and the skill of the professional musicians who play them, many guitar tabs offer easier ways to play songs or how to play songs in different keys, so that novice guitar enthusiasts can learn them. (9) Other tabs strive to recreate the original as accurately as possible.

Guitar tabs are distinct from sheet music. (10) Sheet music shows notes on a musical scale, whereas tabs are designed for people who are unable to read sheet music. (11) Tabs simply show guitar players where to place their fingers on the strings to get the correct sound. (12) Unlike sheet music, which uses musical notes to convey the length or measure a note should be played, tabs do not convey rhythm. A person must have heard the song before in order to play the tabs correctly. (13) To illustrate the difference between sheet music and guitar tabs, below is the first line of Twinkle, Twinkle, Little Star in sheet music and guitar tab form: (14)