Music Analysis for Expert Testimony in Copyright Infringement Litigation
Ph.D. Dissertation
Copyright M. F. Reynolds 1991
ABSTRACT
This work attempts to reconcile many aspects of music theory with
copyright law and to guide musicians and lawyers in developing evidence of plagiarism.
Music theorists testify as experts in infringement litigation to assess whether
similarities warrant a legal inference of copying. Many cases reveal the
presentation of haphazard and theoretically baseless analyses.
Introductory materials provide essential background for both lawyers
and musicians. Chapter 1 reviews the history and philosophy of copyright law.
Chapter 2 provides an overview of substantive law, trial procedure, and the burden
and standards of proof required. Music analysis--its history, nature, and
purpose--is examined in Chapter 3.
Three cases exemplify the predominant approaches to expert testimony: Selle
v. Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983); Gaste v. Kaiserman, Case No. 8
Civ. 5671 (S.D.N.Y. 1988); and Baxter v. MCA, Inc., Case No. 83-7081 (C.D. Cal.
1988). Chapter 4 presents the expert testimony and legal strategies of these cases
in detail. Trial exhibits and excerpts from the transcripts appear in appendices
along with the experts' written analyses submitted in the discovery process.
Important legal issues receive treatment: the expert testimony in Selle
resulted in a judgment notwithstanding the verdict; Baxter established precedent
for denial of summary judgment.
The very nature of analysis and musical perception argues for a
serious re-evaluation of the methods employed by many expert witnesses. Chapters 5
and 6 recommend steps for the analysis of infringement that include formal, functional,
semiotic, and Schenkerian analyses. Musical parameters are discussed and defined.
These chapters outline criteria for "forensic analysis" based on the
completion of specified reductions and comparisons. These techniques are applied to
the works litigated in the exemplary cases.
Forensic analysis points to guidelines for finding
"substantial" and "striking" similarities, guidelines that account for
musical context, function, and hierarchical layers. Chapter 8 compares the "lay
listener" and "intended audience" tests and argues that the
intrinsic-extrinsic bifurcation misconstrues music and defeats intelligent inquiry.
Finally, suggestions are made for reformulating the idea-expression dichotomy in
musically meaningful terms.
Selected Bibliography
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