Abstract–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 fair-use-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.

 

“An attack on this website is really an attack on every one of you who have told someone (in person, or via the written word, telephone, or e-mail) how you play a song on guitar. And who, especially among small websites, has the deep pockets to fight the NMPA/MPA?” [1]

 

I. Introduction

 

Rob Balch may consider himself to be a facilitator of online music education, but others consider him to be a copyright infringer. [2] Balch ran Guitar Tab Universe, an online repository of guitar tablature, an annotation system that reduces to simple text how to play songs. The text represents the fingerings a guitarist may use to play a song. Figure 1 below is an example of such a tablature, or “tabs” as they are also known as.

 

The text is easily written and displayed using typewritten characters and can be posted online, downloaded and printed with ease. These tabs most often only have one part of the song–for instance, the guitar solo, the bass part, or the chorus. The user commonly looks for the tabs of a song that he already has heard or has a recording of; and using the tabs as a guide, he is able to reconstruct the playing of the song in an approximate form.

 

Balch started the site in 1999 while he was in college and learning how to play guitar. Eventually the site averaged 360,000 unique visitors per month. The advertising revenue he generated was enough to cover the costs of running the site. [4] In early 2006, the Music Publishers’ Association and the National Music Publishers’ Association sent cease-and-desist letters to several large sites, including OLGA.net and MxTabs as well as Guitar Tab Universe. Many acquiesced and closed down. [5] Site owners cited problems with finding legal resources to fight the court action as well as difficulties their internet service providers faced themselves from threatened action. [6] Meanwhile, in March of 2007, MusicNotes, an online music publisher, and the Harry Fox Agency, which represents 31,000 music publishers, reached an agreement to create a new online repository that had the blessing of the music industry. [7] The new site is the reincarnation of a formerly popular tab site, MxTabs, [8] which is owned by MusicNotes. [9] Using advertising revenue generated by the site, money is split between MusicNotes and the Harry Fox Agency as well as the copyright holders of the songs on the Web site. [10] Thus, litigation was, at least temporarily, avoided. However, the threat still looms. The age-old tension between rewarding artists while recognizing fair uses of their works by musicians and tabbers [11] continues to simmer beneath the surface.

 

This Note considers the case that may have been litigated. What would have happened if sites such as Balch’s or MxTabs decided not to give in? Would there have been viable claims of copyright infringement? Would the guitar tablature Web sites have been able to fend off the suits? This hypothetical lawsuit would address the novel question of copyright interests and guitar tablatures. In some ways tabs have analogs to existing and established creative works, but in other ways they represent a new idea in the burgeoning digital age. The next section looks at the first step in any copyright litigation, asking whether there is a viable claim of copyright infringement followed up with a section on the defense to such a claim, known as the fair use doctrine. Concluding that there is sufficient gray area that suggests that either or both interests may prevail, suggestions to resolve the conflict are proposed….

 

James T. Tsai [1]