In Court

Nerd Lines: the role of the musicologist in copyright infringement cases

Authored by SimonA

20 Jul 2017 • 0 Comments (Add Comment)

Any kind of “ology” involves an element of deep understanding to the point of "nerdiness", and musicology is no exception. It is no surprise that the court room requires the contribution of independent expert witnesses, to inform judge and jury objectively in making decisions in areas where their own understanding is not thorough. Here we look at the role of the forensic musicologist in detail - a hitherto mysterious figure with, it would seem, the keys to a secret world of understanding. Do they really hear things ordinary humans do not?

Music is a great art form. It can be appreciated aurally without requiring any understanding of its structure. To enjoy The Beatles’ song Yesterday we don’t need to know that the harmony of the opening line moves from the F major tonic key to its relative minor key of D via a seventh chord of E minor and a seventh chord of A major. Yet this information would be important to a court deciding whether another piece of music had infringed the copyright of Yesterday. Thus, a court case where two pieces of music are being examined will require the assistance of musicologists to shed light and inform.

The two earliest UK cases, from the 1920s and 30s, both record the opinions of “musicologists” or “musicians” in offering supporting evidence. Mr Justice Astbury in 1923 recorded the astute and oft-quoted observation that > “infringement of copyright in music is not a question of note-for-note comparison, but of whether the substance of the original copyright work is taken or not. It falls to be determined by the ear as well as by the eye”. William Coulson, in a 2014 article on “the maelstrom of music copyright litigation” in the USA over the last century, cites cases from the early 20th century where judges alone would “crudely compare note by note” the two melodies to ascertain whether infringement had taken place. He records the 1946 case between Ira Arnstein and Cole Porter, where the testimony of expert witnesses was called upon – the courts acknowledging by that time that the required depth of knowledge of music theory was beyond them.

A musicologist will not necessarily have a qualification in musicology (although such postgraduate courses do exist) but will usually have studied music to higher education level. Considerable musical experience will also be required, perhaps as a composer, lecturer, conductor or performer. A legal qualification is not so relevant, as only the musical opinions of the expert are sought, but an understanding of copyright law and legal process will certainly help with the context of the musical opinon being given.

If you blindfold a chef and give them a plate of food, using their mouth and nose they will not only be able to tell you the ingredients that went into it, but their proportions, how it was prepared and cooked, for how long, and even how recently. They can separately, if required, appraise the quality of the dish. A musicologist performs a similar magic trick using their ears. Play any piece of music and they can tell you the key it is written in, its chord structure, the instruments playing it, and they can write all of this out in a score, either with the aid of a piano, or simply "by ear". Thus two pieces of music that are considered to be similar can be transcribed in score and compared in a more mathematical way than just by listening. As with the plate of food you could also consider musical quality, but infringement cases are concerned with construction alone.

Although musicologists provide expert testimony to courts, they are more often called upon by publishers and composers to give a professional opinion on the similarity of two pieces of music. This may be on behalf of a publisher who feels their work may have been infringed, or a cautious publisher who wants to check a musical work before committing to releasing it commercially. I spoke with renowned UK musicologist Peter Oxendale at the music industry event BUMA Music in Motion in Amsterdam in May 2015, and he mentioned that he gives opinions on several hundred musical works each year. Almost every case that is deemed to infringe is settled confidentially out of court, and this statistic is borne out by the fact that only four cases have reached court in the UK in the past 25 years. Dutch musicologist and lawyer Margriet Koedooer also confirmed that in her country “almost all cases end up in a deal”. As a result of the confidentiality clauses in the settlements, however, there is very little information available to the public to help guide wider understanding of contemporary cases.

A musicologist will typically take the two pieces of music and transcribe them both into musical notation, similar to the music examples available here. If the two are in different keys (as they usually are), one will be transposed into the same key as the other to facilitate comparison. The main focus is on the melody and lyrics, as these are the elements to which originality, and therefore copyright, can most easily be shown to exist. Other lesser factors taken into account are any other significant melodies, such as a harmony vocal or a prominent bass line, the chord sequence (or harmony) of the works, the structure, tempo, instrumentation and overall ‘feel’, or mood. Both works will be evaluated as to how much ‘commonplace’ or uncopyrightable material they contain. An opinion will then be given as to whether one work is deemed to infringe the other, with supporting evidence.

If the report concludes that an infringement has been made, then the publisher in question will present a signed copy of the report to the owner of the work that is alleged to be at fault and a negotiation will commence. If the alleged infringer disagrees, they will commission their own independent musicologist’s report, and usually the findings will concur with the first. When they differ, and both parties are convinced of the strength of their position, a court case may be the only way to resolve the dispute. Usually this takes the form of an application for an injunction if the alleged infringement is causing immediate harm, but an application for a trial can be made to determine the legitimacy or otherwise of the contentious work.

At trial the musicologists’ reports are read and exchanged, and each side’s musicologist then has the chance to respond to any comments in the other report. Although a musicologist’s report is written impartially, it is still possible to highlight particular similarities or differences, depending on which side is being represented. Musicologists’ reports have played a key role in infringement trials of the past century, as can be seen from the commentaries to the cases explored here. They are particularly important in more marginal cases, where it may not be immediately obvious to the ear whether an infringement has been made. The opinions of musicologists take many pages of the case notes of some trials.

Many countries employ similar systems of expert evaluation. Dr Wolfram Sauter is the publicly appointed expert of the Chamber of Industry and Commerce for the assessment of musical issues for Munich and Upper Bavaria in Germany. His particular area of expertise is the music of television commercials, and he is regularly tasked with comparing music composed specifically for commercials with existing music that it may infringe. Dr Sauter’s reports run typically to five or six pages and include a music transcription of the contentious section of each work.

What of the future? Several technological solutions have been advanced to the problems of identifying similarity between musical works using computers. The limitations of graphical comparisons have been questioned by musician and lawyer Charles Cronin, such as their ability to illustrate clearly any coincidences of harmony, rhythm or text metre. When melody and pitch are used in isolation, the effect can be of a greater similarity than is actually apparent to the ear. The fact that there is no formal definition of graphical interpretation of music also admits to discrepancy between different realisations of melody, and therefore of the readings of the experts. The music examples elsewhere on Lost in Music represent my own interpretation of the melody, chords and lyrics taken from listening to sound recordings of the works in each case. Owing to the nature of performance it is not always possible to represent exactly what is heard, and in some cases the quality of early sound recordings obscures the melody and notes to a degree.

In 2007 Yvette Liebesman proposed a solution called Mega-Element Analysis, whereby the descriptions of the two songs can be compared by computer against each other, and against a database of similar songs. There are considerable cost implications however in investing in the human skill required to build and maintain a practical database. Other proposals for measuring musical similarity with computers have been advanced, yet with no hitherto convincing application with copyright law. One of the more plausible suggestions has come from Müllensiefen and Pendzich, who in 2009 proposed a system of identifying those elements of a melody that are original and copyrightable from the commonplace, and using MIDI representations of melodies to compare these with each other and a database of some 14,000 other melodies from popular music of the past 70 years. The proposal was tested against 20 separate US copyright infringement cases where melodic similarity was key and agreed with 18 of the outcomes, showing encouraging results, though its application is currently limited to melody and cannot handle harmonic, lyric or counterpoint analysis.

It would appear that any technological assistance in quantifying levels of coincidence and establishing infringement in musical works may yet be far off. For the time being, the musicologist’s job is safe. The wise words of the experts will still be preferred.

Simon Anderson @SimonA

Further reading:

How to become a forensic musicologist - The Guardian, January 2015

Wikipedia Musicology

American Musicology Society - "what is musicology"?

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