Music Analysis for Expert Testimony in Copyright Infringement Litigation
© 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.