The good news is that copyright isn’t nearly as comprehensive as we assume most of the time. It’s supposed to balance the interests of the artists with the public. And tabbing likely has good supporting public policy arguments.

Thanks for writing about the issue. It’s been interesting to think about.

in the end it could come down to (keep in mind i have no background in IP law) what EXACTLY the court decides is the intellectual property being infringed upon / copied. if the courts say the tabbers are “copying” the musicians’ auditory creation, then the MPA & NMPA should be in its weakest position. see the cook / recipe example, above.

but if a court decides that the material being infringed upon is the published sheet music itself, then (as the MPA / NMPA attorneys claim in their scary letter) the impact of tablature sites would, as you say, certainly be found to be significant. no wonder the scary letter defines the copyrighted material in the narrowest possible sense:

printed sheet music and guitar tablature products for educational, concert, and recreational purposes.

musicians do not (generally) write songs on paper, at least at first. their traditional contribution to the world is the CD, MP3, or music video. therefore, i am at a loss as to how an uncompensated tabber at the online guitar archive can be infringing on anything by posting a written work of his own creation that, he asserts, assists a guitarist in making sounds resembling a small (albeit significant) portion of the famous artist’s auditory work.

i think this has got to be a unique (or practically unique) scenario: the alleged copyright violation is a work in a completely different form than the original material.

however, i realize that the copyright is a broad reservation that encompasses pretty much every possible avenue for exploiting one’s intellectual creation.

so, maybe the tabbers are dead in the water.

1. Purpose of the Use: Probably non-commercial, which favors tabbers. Is it transformative? Arguably so, which would also favor tabbers.

2. Nature of the Work: The works were already published, which usually leads to a less rigorous level of protection. The works were almost certainly creative works, however, which would lead to a higher standard of protection.

3. Amount or Substantiality of the Use: This is actually interesting. The tabs cover all the song, but only one instrument’s part. Additionally, the tabs may not even be accurate — many tabs are simply approximations of the original work. This would be a very interesting issue if such a case were to go to trial.

4. Effect on the Market: Here, the “market” isn’t the market for the recording of the song, but a similar product, such as sheet music or commercially-sold guitar tabs. I’m not sure how a court would hold on the issue (although I have a pretty good guess if it arose in the 9th Circuit), but I think there is a fairly good argument that the tabs have a negative effect on the market for commercially-sold guitar tabs.

It’s probably not a good idea for music labels to go after online tab sites, for the same reason that it’s a bad idea to sue music downloaders: it attacks their fan base and their consumers. But I can’t say that their case will be easily dismissed. The issue of fair use would probably survive summary judgment. However, guitar tabs might not even constitute a copyright infringement in the first place, preventing the tab sites from even having to argue fair use. It’s a close case, and I’d be very interested to see how it is resolved if such a case were ever to go to trial.