Sunday evening, November 15, 5:00–5:50
Substantial Similarity and the Role of Forensic Musicology in Music Copyright Litigation
Can You Copyright a Chord Progression?: Evaluating Harmonic Similarity in Federal Copyright Litigation
When comparing musical works in a federal copyright lawsuit, putative similarities between original elements of each work are often legally treated as more indicative of copying. In cases heard since the mid-nineteenth century, such emphasis on originality has led to case outcomes that hinge on melocentric comparisons. Although often necessary, bass line melodies and chord progressions instead serve a more contextual role, being legally treated as unoriginal, and thus unprotectable, musical building blocks. Yet in some cases, these elements have proven critical to defining the essence of a copyrightable work or the musical style of its creator(s). Balancing these seemingly opposite interests raises a perennial question in music copyright: can a chord progression be copyright protected?
Contemporary lawsuits have presented circumstances in which chord progressions might constitute copyrightable subject matter. After a gloss of federal copyright jurisprudence surrounding the contours of similarity analysis, this presentation surveys available court records from cases in which chord progressions became a significant point of forensic comparison as conducted by musical expert witnesses. For most of the twentieth century, judges presiding over such cases dispensed with harmonic discourse, instead determining legal outcomes based on melodic and formal grounds. Yet in two more recent cases, chord progressions have been considered legally original enough to be copyright protectable. In Tempo Music v. Famous Music Corp (1994), the Billy Strayhorn estate successfully staked claim to earlier copyright registrations for the Ellington Orchestra standard, “Satin Doll,” based on Strayhorn’s contribution of the song's distinctive chord progression. Although still on appeal, in Skidmore v. Led Zeppelin (2018), a chord progression could be considered original when analyzed in the context of its bass line. In both cases, forensic musicological analysis prepared by experts provided critical evidence to separating original melodic and chordal elements from unoriginal harmonic practices.
Through its interdisciplinary investigation, this presentation emphasizes the subjective nature of copyright infringement and the impact that originality of chord progressions can have on assessments of similarity and copyrightability. In so doing, it highlights the evolving nature of music copyright and the significance of forensic musicology on analysis of music as intellectual property.
Melody, “Beats,” and Minimalism: Protectability in Contemporary Popular Music
Even when there is little dispute over the similarity of the musical expression at issue in a copyright case, disagreements inevitably arise over its substantiality. Legal precedent has established that musicological analysis focus on the relative importance of the contested musical expression to the original composition, rather than the allegedly infringing work. For example, in Newton v Diamond (2003) a three-note sequence that appeared once in the original work was deemed de minimis even though it was “looped” throughout an entire Beastie Boys' song. In this later work, the resulting ostinato would not have been dismissed as insubstantial.
In infringement matters, when enlisted as experts to provide comparative analysis, musicologists are asked to opine on the quantitative and qualitative significance of the similar expression. But how does substantiality analysis play out in works that contain little in the way of foregrounded melodic content? Does the traditional melocentric approach in copyright that prioritizes melody, and, to a lesser extent, harmony, rhythm, and form, become less relevant? In hip hop and rap, for example, the lead vocal resists transcription of definite pitch sequences basic to melodic analysis. Harmony can be minimal or non-existent. As regards structure, the only differentiation of the chorus or “hook” from the verse may be the return of a lyric referencing the song's title.
This paper looks at several contemporary pop songs and the sparse texture of their underlying tracks or “beats” before turning to a recent highly publicized case, Gray v. Hudson (2019). Here a jury found that singer Katie Perry's song "Dark Horse" infringed on a Christian rapper's work “Joyful Noise” by using a similar ostinato based on six notes of an eight-note pattern containing only three different pitches. I examine several instances where vocalist/songwriters unsuccessfully attempted to assert infringement based on similarities in rap vocals. I conclude by discussing whether “Dark Horse” and other recent cases signal a lowering of the bar for protectability in music copyright. If there is a new threshold, is it a product of our litigious environment or could standards be changing as minimalist textures become more prevalent in hit songs?
When Analysis is Performance, What Ethical Guidelines Must Forensic Musicologists Consider?
Kofi Agawu (2004) responded to Joseph Kerman's (1980) critique of music analysis by stating that “analysis is most productively understood and practiced as a mode of performance and as a mode of composition” (273). In Agawu's hunt for the meaning of Adorno's "truth content," he comes to the conclusion that “the truth content is not necessarily a literal, empirical truth but rather a dynamic, motivating truth designed partly to anchor listening in specific sociocultural and historical moments even while…releasing the analyst from the dubious responsibility of having to establish the authenticity of the analysis.” In other words, analysts do not engage in empirical truth finding when analyzing music.
Recent court cases (Williams v. Gaye , Gray v. Perry ) have shown how competing testimony from forensic musicologists creates confusion for the jury tasked with ruling on copyright infringement. As Booth (2016) states: “Chief among the typical problems is that experts [forensic musicologists] will often aggregate their objective findings to arrive at a subjective conclusion that is outside the scope of their duties as an expert” (123–24). While certain aspects of a musical work are objective (such as the key and time signature), most debates about “substantial similarity” inside the courtroom ask forensic musicologists to engage in interpretation of subjective musical elements. But as Booth noted, this is outside the scope of the expert witness within the courtroom. Debates over these subjective musical elements and their impact on "substantial similarity" often leads the judge to declare a “battle of the experts” and let the competing testimony be heard in trial. Such “battles” often confuse the layman jury and offer little help in resolving the case.
In exposing the paradox between the act of analysis and the role of an expert witness, this paper suggests ethical guidelines for forensic musicologists to consider when testifying in a case. Through neutral language, emphasis on objective musical elements, and clear indication of subjective interpretation, forensic musicologists can navigate the ethical minefield of the paradox between music analysis and expert testimony.
Searching for Similarity: Confirmation Bias in Partisan Forensic Musicology
Throughout the twentieth and twenty-first century, regulations on expert testimony have sought to minimize the impact of disagreeing experts. Yet, as seen in recent cases like Williams v. Gaye (2018), Skidmore v. Led Zeppelin (2018), and Gray v. Perry (2019), disagreements between forensic musicologists still play a large role in contemporary music copyright decisions. This paper suggests that the disagreement between partisan experts is due, in part, to confirmation bias rather than ethical or financial allegiance. Confirmation bias is defined as “a cognitive tendency to search for and evaluate information in ways that are partial to an already formed hypothesis” (Lidén, Gräns, & Juslin 2018). It has been observed in fields such as cognitive psychology (Rajsic, Pratt, & Wilson 2015), economics (Charness & Dave 2017), legal studies (Lindén et al. 2018), and forensic science (Moser 2013). Investigating confirmation bias in music analysis can shed light on challenges in both forensic musicology and the broader field of music scholarship.
Because music analysis is a subjective act rather than an objective one, there is certainly risk for confirmation bias in forensic musicology. An expert hired by a plaintiff, or the party alleging copyright infringement, may start their analyses by searching for similarities between two works. For example, during her deposition in Williams v. Gaye (2018), expert witness Judith Finell explained her analytical methodology: “I listen to the two recordings and determine what if anything sounds related and similar between them, and if I identify certain elements then I usually have to provide a transcription of those particular elements or portions of the music. And then I compare those transcriptions” (Finell deposition 2014). On the other hand, an expert retained by the defendant, or the party denying infringement, may start their analysis by searching for differences. Given the multiple musical components present in even the “simplest” musical work, both starting points will lead to valid observations about the work, allowing for expert disagreement. This paper proposes that appointing a panel of third-party musicologists to conduct forensic analyses from a neutral starting point could minimize the effect of confirmation bias in such cases.
Sharp Contrasts on “Blurred Lines”: Williams v. Gaye and a Clash of Amici
Among recent music copyright cases, few have received as much public attention or provoked as much debate as Williams v. Gaye. The case, which centered on an infringement claim by Marvin Gaye's estate against Robin Thicke's controversial hit “Blurred Lines,” concluded in 2018 with the Gayes prevailing. Yet debate is sure to continue for a long time to come: the case ended in a split decision, and recent court filing by the Gaye family claiming that Williams perjured himself all but guarantees that the conversation around “Blurred Lines” is far from over.
Several amicus curiae briefs were filed in connection with the case. Among them, two offered opinions, on opposing sides, of expert “musicologists” concerning the expert testimony that was presented. Both were joined by some of our profession's most visible and distinguished music theorists, musicologists, and ethnomusicologists, and articulate sharply different positions with respect to the testimony provided by the Gayes’ musicological expert witnesses, Judith Finell and Ingrid Monson. The Thicke amici contended that this testimony was misleading on the one hand, and irrelevant on the other (Thicke Amici, 1-3). The Gaye amici argued that the testimony was “fully consistent with the accepted Musicological standards and methods” (Gaye Amici, 1) and attacked the Thicke amici's analysis as little more than “an interminable catalogue of nits, ornamentations and other insignificant variations” (25). Intriguingly, the amici seemed to fall along familiar disciplinary lines: in general (and with notable exceptions), the Thicke amici had a markedly higher representation of music theorists, the Gaye amici a markedly higher representation of musicologists or ethnomusicologists.
This paper revisits this dispute among experts without the adversarial frame in which it was initially cast, and inquires whether and to what extent ideas about similarity in music-and, more broadly, about the proper scope and application of copyright-reflect disciplinary orientation. Insofar as this is so, the umbrella term “musicologist,” which courts have tended to use without regard for disciplinary specialization, brings to these public proceedings a misleading connotation of objective neutrality.