CHAPTER 3

OVERVIEW OF MUSIC ANALYSIS

Each party to a copyright infringement action may present an expert witness's dissection and analysis of musical works in order to establish or disprove substantial similarities.[1] Such testimony has become a standard feature of copyright litigation. The lay trier of fact, the judge or jury, must analyze two works and evaluate their similarities, tasks layman cannot accomplish alone. To be admissible, the expert's testimony must be helpful to the trier of fact in reaching a just conclusion.[2] The experts' major premise, his principle, procedure, or explanatory theory, should be based in analysis. The expert's facts or data should be of a type commonly relied on by experts in the particular field.[3] To understand music analysis by experts, this chapter examines what the term "dissection and analysis" means in the field of musicology,[4] on what procedures it relies, and whether it offers an answer to the question of copying that is helpful to the lay trier of fact.

The Nature of Music Analysis

Common definitions of analysis, applied to any field of study, state that it is the "separation of a whole into its component parts; an examination of a complex, its elements, and their relations."[5] Analysis seeks "to ascertain the elements of" some particular thing.[6] Music analysis adheres to these definitions but can also be explained in more specific terms. It is the study of music composition, including, but not limited to, the elements of form, structure, thematic material, harmony, melody, phrasing, orchestration, style, and technique.[7] Analysis reduces and compares important aspects of music. It entails "the resolution of musical structure into relatively simpler constituent elements, and the investigation of the functions of those elements within that structure."[8] More concisely, analysis serves to simplify, to clarify, and to illuminate certain elements of music through the omission of others.[9] "Essentially there are two analytical acts: the act of omission and the act of relation."[10]

Acts of relation, or comparison, present no conceptual problem to the court, because the central question of infringement litigation involves the comparison of two works. But music analysis requires primarily internal comparisons, the most obvious ones being a comparison of one parameter to another or one event to an adjacent event. Even common musical terms, such as pitch, rhythm, and interval, can be defined only in relational terms. A work becomes a unified whole through the sum of its relations, a figure that overwhelms the sum of its parts. Because the relations are so complex, the analyst must omit some aspects of the music in order to comprehend the relationship between others. Isolated events obscure the musical context; without omission, only the most obvious features of the music could be compared.

Strict context-free rules . . . are limited because they can deal only with contiguous events, and, as is well known, many of the most important syntactic relationships in music (and language) are discontiguous (nonadjacent), like the delayed "resolution" of an "interrupted" half-cadence.[11]

An analysis of music that looks only at adjacent features could explain no more than an analysis of poetry that looks only at adjacent words. Meaning and syntax can be discovered only by looking beyond the immediate relationship to the relationships that are larger, more pervasive, more functional, and more distant. Reductions of various kinds, including omission of transitory surface features, reveal the less obvious relations. An analysis that reduces nothing explains nothing. If the analyst makes only one type of reduction, his analysis will be one-dimensional. Only through a combination of approaches, various reductions revealing different types of relationships, does one begin to understand the forces that give a particular work its identity.

Linguistic analysts draw an analogy to the game of chess, an analogy that works for music analysis as well.[12] Each chess piece follows its own rules, but those rules have significance only in relation to the total rules of the game. Pawns control only adjacent spaces, while more powerful pieces dominate the board. An astute player cannot look only at adjacent pieces or only at those immediately threatened. A pawn may block his opponent's queen, but the player must temporarily eliminate that pawn from his analysis and note the discontiguous relationship between his king and his opponent's queen.

Music analysts must examine all musical parameters in order to understand their functional interrelationships. The separation or isolation of these elements often enables analysts to see these functions more clearly. The music dictates the relative importance of each element. Analysis of one or only a limited number of parameters would be incomplete. An analyst knowledgeable of only a few parameters would distort the analysis by arbitrarily emphasizing the elements familiar to him. Such an analyst cannot mitigate his limited repertory by importing non-musical factors into his analysis. Analysis looks to music alone. The comparison of a musical feature to extra-musical phenomena may provide a useful illustration, but it does not analyze the music.

Analysis is distinct from other major approaches to music and other disciplines. Analysis does not merely describe music; it explains. Whereas description answers the questions what and where, analysis answers why and how.[13] The distinction is similar to that between giving a plot summary and explaining the novelist's methods of character development. Recounting surface facts offers little insight, and in that regard the music better speaks for itself. "Analysis is of little value if it is mere enumeration of statistics; such methods, frequently encountered in modern writings, overlook the synthetic elements and the functional significance of the musical detail."[14]

Analysis strives for objectivity; its data are definable musical units such as phrase, harmony, and articulation. Music criticism, on the other hand, has a different purpose that takes it beyond these objective measures. It draws on subjective data to place music within the context of the critic's inner experience.[15] Extra-musical associations have assumed a major role in the critic's descriptive techniques.

Historical musicology also looks to extra-musical data. Where relevant, this approach to music might include a study of the lives of composers, musical institutions, societal attitudes, or historical periods. Analysis tends to focus on the processes, the specific technical features, at work in individual compositions.[16]

Aesthetics has a more general purpose than that of analysis. Aesthetics has the philosophical goal of discovering the place of music within reality. The purpose of analysis is more specific: analysis discovers the place of a particular work within the art of music. Aesthetics complements analysis. The insight gained in the study of aesthetics poses relevant questions to the analyst. In the same way, analysis provides the evidence essential to the aesthetician's study.[17]

Music theory is more difficult to distinguish from analysis. The two disciplines lie in close proximity and often overlap. In America, music theory generally implies and subsumes analysis.[18] Analysis involves the practical application of particular techniques; theory provides maxims that deal generally with technical matters in ways not restricted to a few simple compositional instances. In other words, theory is general and analysis specific.[19]

Ian Bent posits that analysis has a more specific purpose than theory but that it serves a greater number of musical disciplines. He refers to theory as the pedagogical study of composition. Theory, as composition, is concerned with the eventual synthesis of structures and the generation of music. The more limited goal of analysis is explanation through dissection; it does not care about synthesis.[20] On the other hand, analysis is a learning tool not only for composers but also performers, listeners, and historians. Analysts may dissect music in order merely to be enlightened. Analysis may simply facilitate private discovery and enhanced listening. Its scope encompasses style and interpretation, so it looks beyond the composer's contribution.[21]

Leonard Meyer offers some insight on the nature of analysis through his distinction between style analysis and critical analysis. Style analysis is normative, and in this sense it more nearly resembles theory. It seeks to understand a piece of music as it relates to a larger context. Critical analysis, on the other hand, looks for idiosyncracies of an individual piece and its internal relationships.[22] Both approaches, however, represent important aspects of the expert's role in infringement litigation. He may, for example, use critical analysis to discover copying and style analysis to judge the substantiality of similarities and the influences of prior art.

The study of analysis plays an important role in musical instruction.[23] It forms an essential part of the serious study of music‑-the intellectual side as opposed to the creative, intuitive, or aesthetic.[24] Although analysts have been branded "zealots of explanation" who want to deny the arts their mystery,[25] in truth the intellectual or rational approach to music complements the intuitive or emotional approach. Knowledge does not dull the senses and diminish the aesthetic experience. Understanding heightens one's appreciation of music just as it heightens appreciation in other fields of study. Analysis provides the link between thinking and listening,[26] a link vitally important in infringement litigation.

History of Analysis

Early analysis relied primarily on classification. Theorists of ancient Greece sought to codify musical phenomena into an orderly and coherent system. Their designation of modes was a valuative act of classification. Some modes, they suggested, produced a beneficial effect on the listener, while others posed dangers.[27] These classifications enlightened aestheticians and served public policy. Later classifications of the early church sought similar ends.[28] Music served a utilitarian purpose‑-the enhancement of worship. Analysis furthered that goal by focusing on performance techniques.[29] Bent cites, for example, the Carolingian clergy's compilation of tonaries, which classified all of the antiphons by mode and psalm tone differences.[30] Classification remains an essential feature of analysis, evident in the techniques of Schenker, Schoenberg, Hindemith, and Piston.[31]

Form assumed greater importance to analysts of the Renaissance period. Although formal analysis can be traced back as far as the 13th-century Notre Dame school, it was first introduced into the study of theory in the 15th century.[32] Joachim Burmeister (1564-1629) pioneered in 1606 a descriptive terminology that facilitated the analysis and interpretation of a complete, individual composition through the analogy of rhetoric and music (Example 2).[33]

Burmeister also provided the first definition of analysis and set out a systematic approach:

Analysis of a composition is the resolution of that composition into a particular mode and a particular species of counterpoint [antiphonorum genus], and into its affections or periods. . . . Analysis consists of five parts: (1) Determination of mode; (2) of species of tonality; (3) of counterpoint; (4) Consideration of quality; (5) Resolution of the composition into affections or periods.[34]

Example 2: Orlando de Lassus, Motet "In me transierunt," meas. 16-19, analysis by J. Burmeister. Copied from Ian Bent, Analysis, 7.

Jean-Philippe Rameau (1683-1764) contributed a conception of the principles of tonality that revolutionized music theory.[35] He recognized the function of the overtone series within harmony. The conception of the "root" of a chord led to the ability to trace a series of roots as chord progression. Bent describes the influence of Rameau's theories on analysis:

First, it offered explanations for chordal structures, consonant and dissonant, thereby providing tools for chordal analysis. Second, it presented a highly centralized view of tonality, comprising a very few elements which could occur in a rich variety of ways. Together with the rules for the operation of "fundamental bass," this paved the way for a reductionist approach to musical structure. Finally, by giving acoustical primacy to the major triad it offered the prospect of scientific verifiability to analytical systems.[36]

Scientific verifiability arose from tonality's basis in the physical properties of the vibrating string.[37]

Not until the 18th century did our current conceptions of analysis gain prominence. The utilitarian goals of analysis as a tool to educate composers had continued through Fux, Rameau, and C. P. E. Bach. With the rise of aesthetics,[38] music assumed the larger, non-utilitarian goal of contemplation by the listener.[39] Analysis would accommodate this shift of purpose.

Although his work was still intended primarily as a teaching tool for composers, Heinrich Christoph Koch (1749-1817) examined extensions and compressions in music‑-its small and large aspects. Macro analysis was distinguished from micro analysis, and the interrelation of the two demonstrated. A hierarchical framework was established in which small segments combined to form larger ones.[40] Koch stressed all musical elements in mutual relationship. He reconciled and explained unity and diversity in music. In this respect, he followed the principle of the aesthetician Johann Georg Sulzer (1720-29), who wrote "wholeness and beauty consist of diversity bound together in unity."[41]

Koch also described a formal model.[42] He catalogued the common characteristics of certain types of pieces, essentially providing an overall generative plan for the work. He identified compositional norms and, by negative implication, compositional freedoms as well. Most important, Koch established the requisite terminology for formal analysis. He described melody as "speech in sound" (Tonrede) and drew on grammatical constructs to separate music into segment, phrase, period, subject, predicate, and so forth.[43]

Koch's work foreshadowed much later developments in analysis as well. Again citing Sulzer, Koch divided the compositional process into three parts. The formal model or idea (Anlage) provides the plan for the work. The composer then proceeds to the execution (Ausführung) of the idea. Finally, the composer adds the detail, the elaboration (Ausarbeitung).[44] This idea-execution-elaboration conception fits the technique of layer analysis developed by Heinrich Schenker and in common use today.[45]

Anton Reicha (1770-1836) soon performed much the same function as Koch, but within the French tradition: he established a terminology for formal analysis. Further, Reicha's wide use of musical examples suggests a shift in emphasis from composition to pure analysis.[46]

It is with music as with geometry: in the former it is necessary to prove everything by music examples, just as it is with the latter by geometric figures.[47]

Example 3: Mozart, String Quartet in D Minor, K. 421, 1st movement, meas. 1-4, analysis by J.-J. de Momigny. Copied from Ian Bent, Analysis, 21.

At about the same time, in 1803, Jérôme-Joseph de Momigny (1762-1842) presented analytical reductions on parallel staves,

a format that allowed an approach less dependent on descriptive terminology (Example 3). Mozart's string quarter appears as written on the top four staves. Melodic cadences are analyzed on the fifth staff. Small notes in the third measure presage the functional reductions or simplifications of more recent techniques. The sixth and seventh staves present a functional reduction of the harmonic progression. A text and piano accompaniment appears in the eighth and ninth staves.[48] The tenth staff shows the fundamental harmony and roots of the chords. With the introduction of Momigny's techniques of reduction, along with those of Koch and Reicha and the standardization of terminology, the essential ingredients of comparative analysis and the foundations for expert testimony on infringement were established.[49]

The 19th-century Romantic ideal emphasized the importance of the individual and of historical awareness. While 19th-century analysts maintained the terminology of musical rhetoric, some ventured beyond the boundaries of pure analysis to consider historical and biographical contexts.[50] The study of individual compositions was separated from the study of the art of composition, and the value of studying past works was recognized.[51] Form assumed still greater importance, either as routines to be followed, as descriptive but not rigid models, or as rules to be broken in the assertion of individuality.[52]

Nineteenth-century music analysis followed Hegelian philosophy and its emphasis on logical principles. Moritz Hauptmann (1792-1868) and Hugo Riemann (1849-1919) stressed musical organicism.[53] Organicism posits that all musical parameters of a work perform a unifying function and, at the extreme, that a small musical figure may generate an entire work. The organic unit forms a kind of musical DNA.[54] According to Riemann, the indivisible unit of the motive passes through phases of growth, peak, and decay. Overlapping and interacting units produce extended and compressed spans of energy against a background of regular, hierarchical patterns.[55] Joseph Kerman, however, calls organicism an ideology, largely growing out of German nationalism.[56]

Combined with the 19th-century philosophy of individualism, organicism led Johann Forkel (1749-1818) to analyze Bach's "genius" and creative processes.[57] Otto Jahn (1813-69) sought to "explain" Mozart,[58] while Gustav Nottebohm (1749-1818) revelled in the minutiae of Beethoven's motives.[59] Descriptive vocabulary also expanded in the late 19th century.

The development of evolutionary science also affected music analysis. Analysts began to look at various musical cultures and trace the development of musical techniques and systems. Riemann found musical origins in the biological sciences, explaining that all types of phrase structure were derived from patterns of inhaling and exhaling.[60] Sir George Grove (1820-1900) followed a more empirical approach, forsaking the naturalistic descriptions of Riemann and others. In addition, Grove developed a writing style that animated the work. In Grove's style, musical works "made statements," and Grove's narrative descriptions seemed to take the listener on a guided tour of the piece. These devices remain popular today, especially in music criticism.[61]

As society turned its interest to developments in psychology, analysis followed suit with manifestations of both Gestalt and Freudian methodologies. Gestalt analysis sought a more scientific approach; it considered principles of psychological organization and mental powers of perception.[62] Following Freud, Hans Keller labored to explain unconscious responses to music.[63] Heinrich Schenker (1867-1935) separated foreground, middleground, and background analyses, reflecting the Freudian fascination with the subconscious.[64] Gestalt theorists recognized that the mind constantly performs reductions.[65] Gestalt theory validated reductions by parameter and elimination of embellishments to reach more functional background material. Arnold Schering reduced 14th-century Italian madrigals in 1911-12 using a process of disembellishment or dekolorieren.[66] Schering's process enabled him to prove that various madrigals had been derived from the same folk tune[67] and provides an early example of what might be called musical forensics (Example 4).

Example 4: Schering, "Das kolorierte Orgel-madrigal des Trecento" (1911-12). Copied from Ian Bent, Analysis, 39.

Schering's disembellishments provided a model for later British motivic analysts such as Rudolph Reti and Ernest Walker. Reti sought out the single unifying motive of large-scale works. He found them through a process of interpolation. The motive itself could be analyzed to determine its predominant features. More complex variants of the motive could then be traced throughout the work. For example, Reti divided the opening motive of Beethoven's String Quartet, op. 135 into three overlapping parts (Example 5). He then demonstrated how Beethoven had manifested this motive and its various parts in more complex figurations (Example 6). Reti's principal interests were the way in which these small motives generated large-scale works and their psychological significance to the composer's creative processes.[68]

Example 5: Beethoven, String Quartet, op. 135, motivic content, analysis by R. Reti. Copied from Nicholas Cook, A Guide to Musical Analysis, 94.

Example 6: Beethoven, String Quartet, op. 135, 1st movement, meas. 1-17, analysis by R. Reti. Copied from Nicholas Cook, A Guide to Musical Analysis, 95.

Schenker developed the technique of disembellishment into what would become one of the predominant methodologies of modern analysis. He succeeded in combining elements of organicism and psychology. The overtone series, a very different kind of organic unit, extraneous to the work itself, supplied the underlying idea. Reductions provided the psychological key to the creative process, exposing the composer's development of the idea from background through middleground to foreground (Example 7).[69]

Example 7: Hassler, "Vater unser im Himmelreich" (arr. by J.S. Bach), analysis by H. Schenker. Copied from Jonathan Dunsby and Arnold Whittall, Music Analysis in Theory and Practice, 48.

Schenker criticized the emphasis of harmonic elements over melodic, generally manifested in the divorce of harmony from counterpoint.[70] Schenker's reductions were more than analytical; they were also intended to be valuative.[71] Although Schenker's methods may be inapplicable to non-tonal music, they have gained much renewed attention in recent years. By being largely irrelevant to much serious 20th-century music, his method concentrated on understanding past music and helped establish analysis as a separate discipline.[72] Schenker also to a large degree eliminated the need for verbal description.

The two principal reactions to the 19th-century hero cult both sought more empirical data. First, Guido Adler (1855-1941) fathered a style of analysis concentrating on style.[73] He classified two aspects similar to Meyer's distinction of style analysis and critical analysis. Adler's inductive method could be used to compare two different works; his deductive method compared a work with established criteria.[74] Knud Jeppesson followed a similar, stylistic approach, analyzing the treatment of dissonance in the works of Palestrina as a point from which to view the entire history of dissonance.[75]

The second reaction against the 19th-century Romantic ideal posited that analysis yields a scientific explanation of cause and effect. It implied that the compositional device determines the listener's response and that analysis of those devices discovers aesthetic value.[76] The wholesale rejection of value judgments while mimicking scientific inquiry is a more recent phenomenon. Allen Forte, for example, meticulously avoids any treatment of artistic value.[77] Still, his analysis searches primarily for organic unity, which, his method asserts, conveys a sense of coherence even when not consciously perceived.

Claiming that the true milieu of analysis is not science but ideology,[78] Kerman suggests that the scientific approach to organicism has degenerated into a validation system for post-tonal Viennese music.[79] Kerman fears that validation has replaced valuation and, in a strange twist, that music has begun to serve analysis. Schoenberg's organic unit, according to Kerman, is organicism.[80]

The history of analysis tracks expanding terminology followed by reduced reliance on that terminology. The rise of musical rhetoric enabled analysts to develop and codify their techniques. The subsequent decline of rhetoric reflects analysts' success in codification, allowing widespread understanding of the various methods and goals. Schenkerian analysts and many who concentrate on post-tonal music convey information graphically or mathematically. Keller has made further inroads into analysis, relying solely on sound. He reduced the score to what he determined to be its background unities and actually performed and even broadcast these reductions in Europe.[81] His technique requires drastic reductions of the music. But, because important aspects of the music are effectively explained aurally, Keller's techniques argue strongly that such reductions comprise an indispensable part of the analyst's art. In fact, non-verbal analysis could communicate nothing if musicologists did not universally accept and understand large-scale reductions.

Analysis that limits itself to foreground features has never been an accepted pedagogical technique. Such analysis fails to explain many of the most important aspects of music.[82] Some effort must be made to find underlying principles of organization and more subtle aspects of musical expression. Analysis requires one to tear away surface features, to sift through the mass of embellishments and locate the functional core.

Analysis has also lengthened its concentration span to accommodate large-scale works. From their first attempts to analyze individual works, analysts have continued to discover long-range relationships in music and new powers of unification. Composers of large-scale works both drew from and contributed to these new analytical capabilities. Alfred Lorenz (1868-1939) combined many earlier methods to sustain his analyses of Wagner's Ring and Tristan.[83] Working with the organic unit of tonality, he illuminated extensive prolongations and hierarchical structures (Example 8).[84]

Example 8: Wagner, Tristan and Isolde, analysis by A. Lorenz. Copied from Harold S. Powers, "Language Models and Musical Analysis," 27.

As a consequence of looking at longer works, and by capitalizing on advances in other fields, music analysis has discovered hierarchies of perception within the listener and worked its way into the listener's subconscious. The listener processes musical information on numerous levels simultaneously, and analysts have tried to explain those different levels of perception. Analysis has succeeded in keeping pace with relevant developments in other fields.[85] Psycholinguistics provide just one example. It posits that distinctive features of speech are perceived only subconsciously, yet those features control how we perceive what someone is saying. Similarly, musical analysis is based not so much on what we experience but on those unperceived elements that control our perception.[86]

Purposes of Analysis

Psycholinguistic and Freudian analysts sought "to explain what is obvious‑-the experience of musical unity or whatever‑-in terms of structures that are not obvious and can only be deduced from analytical study."[87] The mind perceives more than it can explain. In fact, musical backgrounds, the functional, unembellished essence of a work, may be more perceptible to the untrained ear than its more complex, foreground realization.[88] It explains the cliché: the listener may not understand what he hears, but he knows what he likes.[89] Analysis reveals the subtle and even subliminal forces at work.

Phenomenology, the science of experience, takes a more philosophical and aesthetic approach to discover how the mind interacts with artistic objects. This analytical method delves into many abstractions to examine ways in which music is perceived by the listener. Although a comparison of phenomenological analyses might yield little data relevant to plagiarism,[90] phenomenologists have contributed a useful perspective on the nature of music and the musical experience:

A phenomenological description concentrates not on facts, but upon essences, and attempts to uncover what there is about an object and its experience which is essential (or necessary) if the object or the experience is to be recognized at all.[91]

This perspective provides additional grist for all analysts properly concerned with maintaining their focus on how music is heard.[92]

John White suggests that the ultimate goal of analysis is to understand style.[93] William Thomson, however, calls style analysis trivial; he emphasizes more organic and enduring features, music's constructive and aesthetic operations.[94] Style analysis focuses on a comparison of a musical work to certain compositional norms. It follows Adler's deductive method described above. Organic analysis looks within the work for relationships; it compares internal elements in a search for unifying principles. Both look for the forces at work in the compositional process.

Rogers lists the characteristics of analysis as including explanations, connections, relationships, patterns, hierarchies, and comparisons.[95] Purposes of analysis include re-creation of an epoch, explanation, performance, composition, evaluation, aesthetic response, and attribution.[96]

Bent summarizes the nature and purposes of analysis more effectively:

Analysis is the means of answering directly the question "How does it work"? Its central activity is comparison. By comparison it determines the structural elements and discovers the functions of those elements. Comparison is common to all kinds of musical analysis‑-feature analysis, formal analysis, functional analysis, information-theory analysis, Schenkerian analysis, semiotic analysis, style analysis and so on: comparison of unit with unit, whether within a single work, or between two works, or between the work and an abstract "model" such as sonata form or arch form. The central analytical act is thus the test for identity. And out of this arises the measurement of amount of difference, or degree of similarity. These two operations serve together to illuminate the three fundamental form-building processes: recurrence, contrast and variation.[97]

Analysis serves all musicians in myriad ways. The performer must interpret music within the confines of the appropriate style. Background features and unifying elements must be understood if the performer hopes to project long-range coherence. Composers have long depended on analysis to learn specific techniques and the art of synthesis. In fact, as far back as Medieval times, analysis has proven a crucial tool for both composer and performer. As music was freed from its utilitarian goals, analysis expanded to help listener and critic discover underlying meaning. Aesthetics depends on the analyst's insights. The historian employs analysis not only to categorize the elements of style but to search for derivations and accurate attributions. Here perhaps, as with Schering's disembellishments, are the beginnings of musical forensics and the roots of certain aspects of expert testimony on infringement.

The Role of Music Analysis in Litigation

Of all the arts, music is perhaps the most widely enjoyed and the least understood.[98] Explaining music to the layman presents enormous difficulties. The history of analysis demonstrates that trained musicians experienced many of those same difficulties‑-primarily in developing an appropriate terminology. But with great effort, musicians overcame many of the problems of discussing music among themselves. The greatest difficulty faced by experts lies in finding a terminology comprehensible to laymen that retains musical significance.

Analysis fulfills both the expert's major and minor premises. The major premise depends on the validity of the field as a whole and the principles applied. Meyer asserts that analysis exists "to refine the aural imagination" and "to sensitize the cognitive ear."[99] Surely this provides helpful insight to the lay trier of fact. No musicologist seriously questions the success of analysis in this larger context. Analysis enjoys a long history and well-established criteria.

The expert's minor premise involves the application of the principles of his field to the specific facts of the case. "Analysis sets out to discern and demonstrate the functional coherence of individual works of art, their `organic unity.'"[100] Comparison is what analysts do. Comparison of one piece with another (Adler's inductive method and Meyer's critical analysis), to see how they resemble one another and how they differ, comprises an integral part of analysis. Such comparison explains the specific and isolated aspects of composition. Thus, it is well suited to the question of copying. Comparison of one piece with surrounding works based on set criteria (Adler's deductive method and Meyer's style analysis) allows an expert to judge the significance of similarities and the potential influences of prior art.

Although all serious musicians study and practice analysis, not all become sufficiently proficient to qualify as expert witnesses. The law calls for dissection and analysis by experts, those qualified by education, skill, or experience. It follows that a musician not trained or experienced in analysis should not be accepted as an expert on infringement. One with specialized knowledge of a particular style but without broad analytical training could provide relevant testimony on the features of that style only. He could testify that the style regularly employs certain compositional devices. But his stylistic myopia and inexperience in analysis prevent him from knowing the many possible influences on the composer and should preclude his offering expert testimony that goes directly to the issue of copying.

Here is how Blacking analyzes a repertoire of Venda girls' initiation songs (the Venda are a people living in the Transvaal). . . . Blacking's basic question is: just what is it that ties this group of songs into a repertoire, and that distinguishes them from other Venda music? It is no good asking the Venda; they cannot say why this should be, they just know that that's how it is. This is like the situation with language: people know what is right and what is not, but they can't explain what the linguistic rules that govern this are. Only a linguist can do that, and he does it by analyzing what people actually do‑-that is, the way they talk.[101]

Knowledge of one style alone produces an expert who may know the what and where, but not the why and how.[102]

The expert witness must possess the essential skills of analysis. Experts are not called to the stand to compose music, and many composers are not skilled analysts. Composition and analysis are usually separate processes. Nevertheless, attorneys sometime question the expert on his competence as a composer. Such questions do not address the study of composition, a pertinent inquiry, but try to point out an opposing expert's lack of accomplishment to a jury that may not understand the question's irrelevance. Although the expert's competence as a composer is not relevant to his competence as an analyst, an objection on these grounds would probably fail.[103] The 19th-century hero cult lives on to some extent in popular conceptions;[104] the question exploits those notions by planting in the jury's mind some doubt as to the expert's competence to judge the composers' products. The best analyst commands a lower position on the public totem pole than a mediocre composer. An astute judge may someday comprehend the question's dubious relevance and disallow the question as more prejudicial than probative.[105]

Similarly, other broad musical disciplines do not necessarily entail analysis, and the court should not presume competence by virtue of a witness's being a performer, critic, or aesthetician.[106] No doubt, such persons know their side of music intimately, but this is insufficient. They may offer valuable and relevant testimony as experts in their respective fields, but that expertise does not automatically include dissection and analysis. In the same way, Evel Kneival, perhaps more intimately familiar with vehicular accidents than anyone, was unable to qualify as an expert in accident reconstruction.[107] Infringement experts should be questioned on their specific qualifications as analysts.[108]

Although the law generally does not require an expert to be a specialist in a particular branch of his profession,[109] this factor should not defeat objections to an infringement expert who is not trained in analysis. That the court allows a general practitioner to testify on obesity or brain damage provides a poor analogy. The general practitioner possesses the requisite qualifications by virtue of studying the broad spectrum of medical science and being skilled in the art of diagnosis. The musical equivalent to a general practitioner is a musicologist.[110] One with a Ph.D. in musicology probably does not need to be primarily an analyst or a specialist in the style of the works at issue in order to be a valuable expert. Analysis, as a specialization within this broad definition of musicology, should have been an integral part of the musicologist's training. However, many performers and composers not trained as musicologists know little about analysis.

Although analysts use proven techniques, analysis does not yield answers with scientific certainty. Bierstedt's Paradox is apt: studies that are reliable (statistically rigorous) are usually trivial; the most valuable studies are those that are scientifically unreliable.[111] Music more nearly resembles philosophy than mathematics. Unlike the physical world, music evades being captured mathematically.[112] "Music is always an art‑‑in its composition, in its performance, even in its history. Under no circumstances is it a science."[113] The analyst must read an analysis as he would a score, using his musical imagination.[114]

Intuition plays a role; a good analyst needs an innate sense of how music works. Some efforts have been made to write computer programs capable of analyzing music. The results have been disappointing.[115] The analytical process entails more than pure logic. Psychological factors determine how the listener hears musical relationships, how those relationships are superimposed, and how the listener ranks their importance. An analysis could not be completed without some resort to intuition. Intuition in this context is not synonymous with random hunches or trial and error:

Intuition is knowledge not derived from conscious remembering or reasoning. It relies on a vast storehouse of accumulated data that becomes a part of you through experience.[116]

People do not become music analysts without becoming musicians first. The rules of theory and composition presume a thorough understanding of musical expression. The rules remain incapable of rigid application. But analysis adheres to real standards; theorists judge analysts by how well they explain the effects of music on the listener and by how well their analysis embodies the music.[117]

Courts have judged experts by the same standard and often found them wanting. Judge Learned Hand criticized expert testimony of dramatic works in Nichols:

The plaintiff has prepared an elaborate analysis of the two plays . . . but the adjectives employed are so general as to be quite useless. Take for example the attribute of "love" ascribed to both Jews. . . . "Anger" covers emotions aroused by quite different occasions in each case; so do "anxiety," "despondency" and "disgust." It is unnecessary to go through the catalogue for emotions are too much colored by their causes to be a test when used so broadly. This is not the proper approach to a solution; it must be more ingenuous, more like that of a spectator, who would rely upon the complex of his impressions of each character.[118]

Whether or not literary experts engage in the kind of analysis Hand criticized, music analysts do not. Were a musician to testify using the kind of vague terminology Hand catalogues, the result could only be description or music criticism. Music analysts employ methods that meet some of Hand's criteria: they examine the complex of the listeners' impressions and the occasions that arouse their emotions. Hand also suggested that an inquiry into artistic craftsmanship should give way to the beholder's impressions.[119] But this approach denies the distinction between novelty and originality.[120] The listener may easily fail to hear novelty even where the work is original. Impressions do not distinguish copying from coincidence; only analysis of the craft sheds light on the reasons for similarities.

Although music analysis lacks many of the attributes of science, it conveys reliable information effectively. Analysis entails more than personal preferences or ideology.

. . . [M]usic has, among the arts, the most, perhaps the only, systematic and precise vocabulary for the description and analysis of its objects.[121]

How much more fully one can fix a melodic line as compared to a line in a drawing, or a musical rhythm as compared to a poetic one, or even an ambiguity in harmony as compared to an ambiguity of metaphor.[122]

Music's analytical methods and conclusions are easily tested and communicated.[123] Analysis reveals and evaluates the non-literal and non-obvious similarities between two works of music. It is indispensable to the serious musician. In court, it is instructive and invaluable to the lay trier of fact. A competent expert can point out the salient features for comparison and impart to the trier of fact the terms needed to deliberate effectively and to produce coherent findings of fact.

The court's suspicions regarding the intellectual approach to music present nothing new to the music theorist:

In whatever progress music has made thus far, it appears that the more sensible the ear becomes of its marvelous effects, the less curious the mind is to fathom its true principles, so that one may say that, while experience has here acquired a certain authority, reason has lost its rights.

Such writings as have come down to us from the ancients make it very clear that reason alone enabled them to discover the greater part of music's properties; yet, though experience still obliges us to approve most of the rules which they passed on, we neglect today all the advantages we might derive from reason in favor of the experience of ordinary practice.[124]