by Judith Greenberg Finell
This is an article on the use of expert witnesses first published in New York Law Journal in 1990, and again in Thomson & Thomson’s Client Times in 2001.
MOST LAWYERS recognize the need for an expert witness to testify at the trial of a music copyright case. To be of greatest value to the lawyer’s case, however, the music expert’s participation should not begin on the eve of trial nor as the discovery deadline nears. Rather, the same musical analysis that the expert would do to prepare to testify at trial can assist the lawyer at each stage of a music copyright case. Since the legal and musical issues are usually intertwined, close collaboration with an expert can help the lawyer build the most effective case or defense – starting even before the complaint is filed.
PRE-COMPLAINT Evaluation – A client’s belief that a musical work infringes the client’s copyright is not objective and may not be accurate. Many gifted, successful composers and songwriters, particularly in popular music, are not schooled in music theory or analysis. Therefore, they cannot always reliably evaluate the degree or significance of the similarities between the compositions involved. An expert’s opinion before an action is filed can save the lawyer or client from imposition of sanctions.
In deciding whether to file a lawsuit, an expert can determine how strong a musical case the plaintiff has, target any weak spots, and advise the lawyer on how best to present the musical issues. The expert’s opinion should be derived from a thorough analysis of the plaintiff’s and defendant’s music, a complete comparison of every element in the two pieces, and a quantitative description of the degree of similarity between them. This analysis will be the basis for all future action in the case.
ANALYSIS AND Comparison Process – When I am asked for an opinion as to the relationship between two or more pieces of music, I follow a certain methodology that I have developed:
- Listen to the recordings provided or else play the music on a keyboard by reading the score, if no recording is available.
- Transcribe the music if no comprehensive sheet music is available.
- Transpose all music to be compared into the same key.
Compare all key musical elements, the most essential one being melody:
- Melody – defined as a succession of musical tones combining pitch and rhythm. I compare melodies for similarities and differences in pitch, note sequence and rhythmic patterns. If a large percentage of the same pitches are the same rhythmically, and occur in the same sequence, then I consider the melodies to be substantially similar.
- Harmony – defined as the relationship between the chords and melody, as well as the ongoing sequence of chords within a piece of music. A “chord” results from the simultaneous playing of several pitches, while the succession of several chords constitutes a “chord progression.” Harmony supports the melody and is often determined by it. Pieces of music can have very different melodies, but the same chord progressions. If similar or identical chord progressions at issue are also found supporting other obviously unrelated melodies, then the importance of their similarity alone is diminished. In popular and commercial music, certain chord progressions recur often, and by themselves do not indicate identity of pieces of music. With strikingly similar melody, however, the same chord progression suggests possible plagiarism.
- Structure in music defines the overall organization of a musical piece. Most popular pieces are organized in a two-part structure of verse and chorus, often followed by a closing section called a “coda.” Thousands of pieces of popular music share the same structure. By itself, sharing a common structure does not establish copying. However, if a very unusual structure exists, this is cause for further examination. Within the larger structure of a piece of music, there is also a substructure defined by the organization of the musical phrases. In vocal music, these phrases are often determined by the lyrics. By itself, a similar substructure does not determine a similar-sounding piece of music, unless the substructure is unique.
- Accompaniment lines, both in melody and instrumentation, support the main melody line, which is usually carried by a vocalist or instrumental soloist. If the accompaniment lines are very similar in melody, then this is further evidence of copying. In addition to similar melodies, if the accompaniment is orchestrated for the same instruments, this is further support for the plaintiff’s position.
- Style of composition/genre is important to determine because it may be contributing to the overall impression of sameness or difference in two pieces of music. Sometimes, two pieces are different in melody and harmony, but they sound alike because of their style. Sometimes they are different, but both fit into the same genre. Conversely, sometimes music that has been copied is disguised by changing from the original style (rock to jazz, for example) or arrangement.
EXPERT OPINION and Report – After thoroughly analyzing the music, the expert should provide the lawyer with information and opinions on the following:
- What musical elements are similar and to what degree are they alike?
- How important are the similar elements in causing a perceived similarity between the pieces?
- What is the significance of the similar elements to the musical composition as a whole?
- Are the similarities obvious or subtle?
- What elements are dissimilar and are they more important to the underlying compositions than are the similar portions?
- What other musical factors could have an influence on the similarities between the pieces?
- Prior art, such as earlier pieces of music with passages that are similar or identical to the relevant portions of the music at issue.
- Musical composition traditions, such as basic popular song form in which a chorus and verse section alternate.
- Standardized musical formulas or procedures, such as the I-IV-V7-I chord progression that composers have used for centuries.
COMMENCEMENT of the Action – Assisting the Plaintiff.
The expert’s report covering the subjects listed above should be the basis for the allegations of the complaint. The report should provide the plaintiff’s lawyer with information on the most obvious and important musical similarities at issue, and should also warn against reliance upon musically insignificant similarities. The expert’s report should indicate the extent of original material in the compositions at issue and where appropriate should discuss relevant prior art.
In framing the complaint, an expert can assist the lawyer in expressing the musical relationships as clearly as possible, using musical terminology properly and effectively, and placing the issues in context. For example, the expert can quantify the amount of similar or identical material (e.g., “in measures 6-10, 50 out of 70 notes are the same”). In defining the significance to the plaintiff’s composition of the allegedly copied material, the expert can identify similar musical functions when appropriate (e.g., “Both songs use the identical melody to set the words of the title” or “Both songs have the identical hook”). Also, an expert can point out unusual compositional procedures that the two songs share (e.g., “Both pieces use a strikingly similar main melodic theme immediately followed by a retrograde [backward reading] of that theme”).
The expert’s report will also assist the plaintiff’s lawyer in deciding whether to move for a preliminary injunction, particularly in evaluating the likelihood of success on the merits.
ASSISTING THE defendant – A defendant who has just been served with process in a copyright infringement action may not be the most dispassionate or reliable evaluator of the merits of the claim. A music expert, based on a comprehensive analysis of the two pieces of music, followed by a detailed comparison of any similar elements, should be able to advise defendant’s counsel on all of the musical issues.
The expert’s role here is to define the substance of the claim and to identify any weaknesses in the defendant’s position, especially where similarity appears obvious and is easily demonstrated to a lay person. A music expert should be able to advise defendant’s counsel on all of the musical issues, based on a comprehensive analysis of the two pieces of music, followed by a detailed comparison of any similar elements.
- Are the similarities between the plaintiff’s and defendant’s pieces that the plaintiff has identified accurate? Are they musically significant?
- What is the most problematic area? Are there unique musical elements that are strikingly similar?
- Would the allegedly infringing work be recognizable without the similar elements, or could it stand on its own?
- How original were the similar elements in the plaintiff’s music?
- Did prior art or standard compositional procedures govern the musical elements that are similar?
- Are the similar elements common within a musical genre?
- Do the similar elements function the same way? For example, is one a bass instrumental line, and the other a soprano vocal line?
- What method of musical analysis will best demonstrate the dissimilarities?
- Are the similarities obvious or difficult to perceive by a lay person?
- What are the strongest musical arguments that could be made to cast doubt on possible copying?
- For example, are there musical passages from earlier times that are more similar to the plaintiff’s or defendant’s music than the parties’ compositions are to one another?
- Are there academic treatises or composition instructional manuals that establish a formula that both compositions are following?
- Are the compositions sharing musical ideas rather than expression and substantial content? Here, the expert can provide suggestions as to the best ways to communicate this to a lay person, using non-musical analogies and illustrations to make the arguments accessible and persuasive.
ADVOCACY CHALLENGES – Recurring Issues. There are several types of issues that occur frequently.
When two very similar pieces of music share related material that is simple or short, attorneys for the plaintiffs and defendants face certain challenges.
The plaintiff needs to show that his music is unique and distinctive regardless of its brevity or simplicity. Showing examples of other well-known music with short, recognizable themes would be helpful here. A good example of a highly distinctive, short, simple melody is the signature theme from Beethoven’s Fifth Symphony: G-G-G-Eb. There is no question that this melody is original and unique, yet it consists of three repeated pitches out of a total of four notes. From this theme an entire symphony was built. Most people would also recognize as distinctive NBC’s three-note musical “logo”: A-F#-D, which are simply the three notes of an inverted D-major chord.
In one case, the main contents of the plaintiff’s and defendant’s music were virtually identical, but built on a very simple melody of two alternating notes. In working with the plaintiff’s attorney, I was able to show examples of very simple, familiar melodies in which pitch, rhythm, harmony and structure combined to make easily identifiable music. Since the melody itself was so simple, it was important that all the secondary elements be included since they contributed to the overall perception of sameness.
In cases like these, the defendant tries to undermine the originality of the plaintiff’s music by bringing in prior art that relates closely to the music at hand or that has possibly influenced either or both of the compositions. The defendant may also attempt to dismiss the initial musical material as so simple that it was not original.
THERE ARE varying solutions to these problems. In one case, working for the defendants, we were able to discredit the plaintiff’s claim of originality by finding musical examples of the identical melody from the 12th century through present day.
Sometimes, similarity results from a shared common root, rather than from copying. In working with an attorney for the defendant, the main theme or “hook” of the defendant’s song shared four notes out of the total five-note melody. This melody repeated often throughout both pieces. The resemblance was supported by the fact that both occurred in the same functional portion of the music (the chorus section) and both melodies underscored the words of the songs’ titles. However, the defendant had never heard the plaintiff’s song, which had not been commercially released. I observed that both songs were modal, and seemed to be related to more primitive ethnic folk music, and traced them to an African tribal chant. We were also able to find modern links to this chant on commercially released albums.
MISTAKEN IDENTITY – I often receive a piece of music from an attorney whose composer client is positive that his music has been copied, but the composer is wrong.
The reasons for his misperception may include common lyrics or subject matter. In one case, a composer wanted to file a suit because he heard his identical lyrics and structure in a popular song. His attorneys hired me to confirm the relationship between the two songs so as not to file a frivolous claim. Upon analysis and comparison, I found that the underlying musical elements – melody, harmony and rhythmic patterns – were quite different. It was only the use of very similar lyrics and structure that made the two songs sound so alike, and without these lyrics, no musical relationship would have been apparent. The attorneys advised their client to drop the matter.
In other cases, when lyrics alone have been at issue, or after my musical comparison determined them to be so, I have referred the attorneys to a language or poetry expert.
Sometimes extra-musical factors mislead a listener into believing that music has been copied. If two recordings have had the same producer, a similar arrangement, similar electronic sounds, or are sung by a similar vocalist, then the recordings may sound alike. When asked for an opinion in these cases, I strip away the external factors and examine the underlying melody, harmony, rhythmic patterns, and musical structure. If these are basically different, but the style of sound or composition is related, the matter falls within the realm of similar ideas, not expression.
SUBSTANTIVE MOTIONS – The expert’s analysis will be a factor in the lawyer’s consideration of whether to move for a preliminary injunction (for the plaintiff) or for summary judgement (for either party).
The opponent’s expert should thoroughly analyze the musical aspects of the moving party’s papers. The expert should point out any errors of musical fact, faulty analysis, misuse of musical authorities, and the like in the movant’s papers, as well as assist in formulating counterarguments. Sometimes musical terminology is misused or incorrectly defined – but very authoritatively – by the movant’s papers in a way that can lead to false conclusions. For example, if the moving papers describe two pieces as having identical melodies when the two melodies sound quite different, something is wrong. Most likely, only a partial definition of melody has been applied. Perhaps the expert for the plaintiff has looked at melody as merely a succession of pitches without considering the rhythm or duration of each pitch. Since melodic character is determined by both pitch and rhythm, pointing out identity in one of these two elements and omitting mention of the other can give a false and distorted impression of similarity.
Sometimes the opposing documents indicate that the expert who helped prepare them is inappropriate for the matter at hand. This suspicion arises when the documents are overly general or stress unimportant musical similarities. Musical education today is highly specialized, and it is entirely possible to engage an expert who is a respected virtuoso performer with little or no training in musical analysis, theory, and history. Similarly, a musical theorist or composer may analyze two pieces in depth, but without considering prior art or practical copyright issues.
In one case, the plaintiff’s expert was a successful jazz performer. He described the musical relationships from a jazz perspective, and viewed the creative roles of composer and performer as intermingled, as they often are in improvisatory jazz. The music at hand was not jazz so this approach was inappropriate. It clouded the description of the origination of the various similar elements at issue, as did his lack of background in technical musical analysis. His testimony was discredited.
In addition to preparing material for the expert’s own affidavit, the expert for either side may be asked to review drafts of the brief and any other affidavits to be submitted. The expert would be looking for errors of musical fact, analysis, or terminology as well as assisting the lawyer in presenting the musical issues as clearly and persuasively as possible.
DISCOVERY – Starting with the expert’s analysis of the music that was done at the onset of the case, the expert can assist the lawyer throughout discovery.
DEPOSITIONS – An expert can assist in preparing to question opposing fact witnesses as well as the opposing expert. In taking the deposition of the opposing composer, the expert can suggest questions that explore the creative process and stylistic influences that may have had an impact on the musical compositions at hand. In preparing to examine the opposing expert, the examining lawyer’s expert can point out factual errors, analytical mistakes, faulty premises and opinions, supported fact or accepted theory in the other side’s pleadings, expert reports, interrogatory answers and other written materials. The expert can also obtain the opposing expert’s writings and analyze them, together with any available testimony and reports from prior cases, for inconsistent positions. The expert may also suggest recognized texts to use in examining the opposing expert.
Some deposition questions for the opposing composer could include:
- How does he define his style of composition?
- Is the piece at issue stylistically consistent with his own earlier compositions?
- In what way does he record his ideas: into a tape recorder, at the piano, or through a copyist?
- Does he read music, transposing instruments, and clefs?
- What is his music educational background? This will help determine his abilities to copy or be copied, originality and prior influences.
Some questions to ask the opposing expert could include:
- What is his preferred method of musical analysis (e.g., Schenkerian or traditional)?
- What methodology has he used to analyze and compare the particular music at hand? Why, if at all, does it differ for his normally preferred method of analysis?
- What is his prior experience with music of this genre?
- In what musical era has he specialized?
- If your expert says that the opposing expert has pointed out common material as being strikingly similar, you can confront this. For example, if an expert says that the pieces are similar partly because they are both in 4/4 meter, a question would be: “Is there another name for 4/4 meter?” This would elicit the answer that 4/4 is called “common time,” and noted as such, because it is the most common musical meter.
INTERROGATORIES – An expert can help the lawyer frame interrogatories and interrogatory answers on the technical musical issues in the case. For example, if the initial complaint is very general in pointing out that two pieces of music are similar, it would be helpful for the defendant to ask, “Exactly what are the elements of similarity between these two pieces, giving measure numbers, pitch names, musical examples and chord names?” If the defendant is relying upon prior art, the plaintiff should discover the exact titles and editions, the specific musical material being cited as prior art, the measure numbers or specific recorded passages on which the defendant relies, and the defendant’s position regarding the degree of similarity between the prior art and the music at hand (number of notes, etc.).
In addition, the answers to the customary expert interrogatories will usually be adapted from the expert’s report.
DOCUMENT DISCOVERY – An expert can suggest important documents to request from the opposing party, such as earlier pieces of music by the same composer, prior sketches and other versions of the opposing party’s musical composition in issue, and significant pieces of music or recordings that influenced the other composer’s style.
IN PREPARING to present the direct case at trial, the expert will work with the lawyer on the expert’s own testimony. Here, it is most important that the expert be able to explain the key musical issues and concepts in a way that the trier of fact will understand, using analogies and musical examples to illustrate important points.
The specific questions for the expert’s direct testimony should be carefully planned based on the facts and issues in each case. The following are a few typical, general examples of questions.
The lawyer for the plaintiff could ask the expert for his side:
- “To what degree are these two pieces similar?”
- “What percentage of Musical Piece B (defendant’s music) contains material also found in Musical Piece A (plaintiff’s music)?”
- “Is the material that Pieces A and B share common?”
- “How do you conclude that two pieces sound alike?”
THE LAWYER for the defendant could ask the expert for his side:
- “Can you explain, based on musical theory and practice, why Musical Pieces A and B sound somewhat alike?
- “Are other pieces that share this same genre similarly alike as are pieces A and B?”
- “Are there musical pieces written prior to Piece A that are more similar to Piece A than is Piece B?”
- “Is the element (chord progression, structure, harmony, or rhythmic patterns) that Musical Pieces A and B share unique?” “Please trace this element back to earlier eras in other music.”
- “Do two pieces that share identical chord progressions (or key, modalities, or accompaniment) always share the same melody?”
THE EXPERT should also assist the lawyer in selecting the musical examples to be played at the trial. The expert should advise on how each example should be presented for maximum impact, either in a recording or live performance. An electronic keyboard is useful to illustrate musical definitions and examples.
Similarly, the expert can also assist the lawyer in presenting the opening statement, closing argument, and other witnesses’ testimony in ways that will make it easy for laypeople to grasp the relevant musical concepts. Music listening is so transient an experience and music analysis too technical for the layperson to follow. Therefore, the expert must use teaching techniques that communicate to those who do not know the language of music. The following tools are often most helpful for non-musicians:
- Analogies from outside of music in more concrete disciplines like literature and visual art. For example, when you are explaining the significance and function of two similar sections of music, it is important that the jury be able to understand musical structure and thus accept your conclusions. While a juror may not understand the definition of musical structure, he or she can understand that a play consists of an introduction, several acts containing various scenes, followed by an epilogue.
- Graphic displays from both within and without the musical arena help the listener retain and accept descriptions more easily. Charts and graphs that display musical relationships hold the listener’s attention better than verbal descriptions alone and also make musical terminology more accessible. For example, while someone may not grasp the concept of a musical arrangement, he or she can easily understand the relationship between two paintings on display that are the same except for different colorations, medium, or texture.
IN ADDITION to analogies and visual aids, the expert can help the lawyer frame his opening statement and closing argument by preparing an outline of the key musical issues and relationships. The expert can also be sure that his own musical examples and illustrations support and coincide with the lawyer’s planned overview.
Before trial, the expert should also assist the lawyer in preparing to cross-examine the opposing fact witnesses and expert, in much the same ways discussed earlier in connection with depositions. In addition, the expert should carefully analyze the other side’s trial testimony, pointing out errors and how to confront them on cross-examination. The expert should:
- Point out any technical inconsistencies between earlier testimony and documents provided by the other witnesses on the same side.
- Point out contradictions between conclusions drawn by the musical expert witnesses on either side and the outcome implied by the facts.
- Point out any distinctions between the opposing composer’s testimony regarding the facts, and his method of composition, level of musical training, and his areas of inspiration and musical influence.
Especially important here is to identify anything in the opposing expert’s testimony that might mislead the jury if not corrected. Perhaps the opposing expert has over-simplified the musical relationships, misstated or misdiagnosed facts, or used analogies that, if extended, are wrong. An expert should be able to identify and provide clear ways of dealing with such situations on cross-examination.
IN ONE CASE, the plaintiff was a well-known songwriter/performer who claimed that a television commercial infringed the copyright on one of his songs. The plaintiff’s expert testified that two songs of the same genre with similar rhythmic patterns but different melodies were the same. He projected a chart to superimpose the rhythm of each, concluding that they were 80 percent identical. I showed the attorney for the defendant how two nursery rhymes with 100 percent identical rhythmic patterns were obviously different from each other because of their distinct melodies and harmonies. The opposing expert had drawn a false, but persuasive, conclusion. During cross-examination, the defendant’s attorney confronted the opposing expert with my example. The expert had to retract his statement, and finally, the entire foundation for his position in the case. The judge ruled in our favor.
THE EXPERT should work closely with the lawyer in each step of the case. Most important is to build a solid foundation of musical analysis, relevant comparisons, and a distinct viewpoint as to the relationship between the musical compositions at hand. Early on, the expert must identify any weaknesses in the client’s position, especially any areas of musical argument with which the expert does not agree. Identifying difficulties and contradictions early will make the expert less vulnerable later when testifying on key points.
Judith Greenberg Finell is a musicologist and president of Judith Finell MusicServices Inc., a consulting firm in Scarsdale, a suburb of New York City. Ms. Finell has served as an expert witness and consultant in various litigations involving copyright infringement. She may be reached by e-mail at email@example.com.
Copyright 1990 by Judith Greenberg Finell.