More Than Meets the Ear: What to Expect from a Musicologist

To answer this type of question, copyright infringement cases often require the assistance of a musicologist. But what can you expect when hiring one? There are essentially three areas where a musicologist can be a resource: musical comparisons, prior art searches and expert testimony as to similarity.

Though each musicologist has their own methods, we all must address the same general issues. For musical comparison, these include analysis of melody, harmony, rhythm, song structure, spatial organization, lyrics and more. The process involves transcribing both the work of the party claiming infringement, and the infringing work. As the works may be in different musical keys, they are transposed into a common key signature, usually the key of “C”, to simplify the comparison as well as the explanation of the musicologist’s findings.

The method of comparison entails listening to the works, examining the transcriptions, studying the tempo, harmonies, arrangements, duration, number of measures, structure and key signatures. Similarities between the works (even things that may initially seem minor) can ultimately be relevant. For that reason, besides dissecting melodies, harmonies, harmonic progressions, structure, arrangements, number of bars in various sections, key signatures and the like, musicologists also consider pickup notes, melismas, genre and even whether the song fades at the end, among other things. The differences between two works are also considered.

The musicologist’s analysis can illuminate substantial similarities and striking similarities between works. Additionally, it can assist in establishing that two pieces which share a variety of common factors that individually don’t warrant copyright protection, sometimes do in the aggregate. This process involves deconstructing each musical element to its building blocks and examining whether they are combined in a unique way or order, creating something substantially distinctive.

Prior art searches encompass the immediate references of the musicologist complemented by specialized third-party databases. The methodology of such databases has progressed significantly as technology has advanced. When I began my career, I was mentored by the late, great, forensic musicologist, Irwin Coster, of Coster Music Research. I met Irwin when I believed one of my compositions was infringed by a superstar artist. I had discussed my potential case with a few law firms, and though I was passionate about it, they needed to determine whether legally the case was meritorious. One of the major entertainment firms, whose interest was piqued, instructed me to have a musicologist do an analysis upon which they’d decide whether to take my case. They referred me to Irwin. Being a lifelong musician, I was very curious about Irwin’s work, and asked to observe his process. He was gracious enough to permit me to do so, which not only gave me great insight into the world of musicology, but began a long working relationship.

Among the considerations in musicology are the intrinsic and extrinsic tests for similarity. If an ordinary listener can hear the similarity between two works, it’s intrinsic. If the similarity is apparent after a musicologist cuts them up, explains them, and creates a road map illustrating them, it’s extrinsic. I wanted to play the recordings of my song and the potentially infringing superstar’s song for Irwin to see if he heard what I considered obvious. To my disappointment, he refused, insisting that his initial impression be made by reviewing the musical transcriptions of both pieces.

I had the transcription of my song, and a rough sketch of the superstar version of it, which I transcribed myself. On a visit to a music store to purchase blank music manuscript paper to use for taking down the superstar’s work, I’d seen a printed book of the sheet music for the superstar’s album, and made Irwin aware of it. He told me to use that version, as it was an already accepted version by the musician. He then compared the two works, and, only after that, satisfied my desire of having him listen to the recordings of the songs. Once the comparison was done, he began the prior art search.

Irwin had created his own database using a program he’d written that, if memory serves, ran on MS-DOS. Similar to transposing both works into the same key for ease of comparison, Irwin used a solfege-type system, where he would isolate melodic phrases and enter them into his program by converting the melodic pitches into numbered scale steps. For instance, if a melody went from the tonic note, “C”, up to “E-flat”, then “F”, then “G”, it would be represented as 1, -3, 4 5, where 1 = “C”, -3 (an interval of a minor third) = “E-flat”, 4 = “F”, 5 = “G”. He had been entering melodic phrases from all types of music into his database for decades.

Once the comparison identified the relevant phrases, we would enter them into his system, which would crosscheck them against his huge database, and deliver matches. It was beautiful in its simplicity in that intentionally entering rudimentary parameters cast a wide net for matches (initially ignoring rhythm of the phrase). Not all results were relevant when other factors were taken into consideration, but it provided a good sense of the commonality of the phrase (or lack thereof), before focusing on a meaningful subset useful to a particular case report. This process helped in determining the originality of the melody in question. It was labor-intensive, but the method was a building block of the more efficient ways of creating and searching libraries today.

A typical musicologist report consists of a recap of conclusions, assumptions of fact, a list of individual similarities of the works, potentially highlighting aggregate similarities, opinions on whether these similar aspects are substantial or striking, conclusions, visual exhibits, audio exhibits and a glossary. It also includes the qualifications of the musicologist, highlighting past experience, whether you’ve ever been retained as an expert witness on musicology and any relevant publications. With significant similarity, a conclusion may be drawn that, with no prior common source, the similarity is not a coincidence—and is instead an indication of copying. The initial burden of proof lies with the party claiming infringement. In a situation where infringement may exist, a musicologist’s report is an important part of the evidence which satisfies that burden sufficiently to shift it to the opposing party. Musicologists also may offer rebuttal opinions which address issues raised by an opposing musicologist. In addition to creating a report, musicologists need to be effective in communicating with a judge and jury. They must be able to testify reasonably, comfortably and clearly in making something as technical as music theory understandable to an audience with no knowledge of the subject.

I used to think that I wore two hats—one a musician, the other a musicologist. Sometimes the musician feels conflict with the musicologist because the musicologist follows strict procedures, while the musician is influenced by their instinct and gut. But the conflict is reconciled when you apply the rules and your experience. Irwin told me my case was the closest similarity he’d ever encountered in his long career. As a young musician, I thought it was obvious and that I knew it from the start. But as a musicologist, now I understand that only by application of rigorous methods can a musician’s instinct transform into an expert’s opinion with the gravitas required in a court of law.