Dangerous Undertakings: Judicial Copyright Opinions as Music Criticism

Abstract: This article argues that judicial opinions in US federal music copyright cases can be productively read as a form of music criticism. Although copyright law has formally limited the role of aesthetic judgment since the Supreme Court’s 1903 decision in Bleistein v. Donaldson Lithographing Co., over a century of judicial writing demonstrates that judges routinely evaluate musical quality, originality, and genre in ways that exceed purely legal reasoning. By situating judicial opinions within their historical, cultural, and musical contexts, this essay reveals how judges’ word choices, metaphors, and dicta function as aesthetic critiques that shape interpretations of musical creativity, similarity, and value.

Drawing on twentieth- and twenty-first-century copyright cases involving early jazz, Tin Pan Alley songs, and hip-hop sampling, the article traces patterns of judicial ambivalence toward aesthetic neutrality and persistent elitism toward commercial popular music. These opinions frequently reveal implicit racial, cultural, and moral judgments that influence legal outcomes and the scope of copyright protection. Framing judicial opinions as an understudied archive of music criticism, the article calls for sustained cross-disciplinary dialogue between musicology, law, and forensic musicology to better understand—and mitigate—the “dangerous undertaking” of judicial aesthetic evaluation in music copyright litigation.

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