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]
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]
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).
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]
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]
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]
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]
[2] "There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Fed. R. Evid. 702, Advisory Committee's Note.
[3] Fed. R. Evid. 703.
4 "Musicology" is the term applied to the scholarly study of music, which includes all aspects of analysis. New Harvard Dictionary of Music (1986), s.v. "Musicology." It should not imply here, as its common usage sometimes does, a focus on music history. Historical musicology may be distinguished from systematic musicology or music theory. Analysis belongs primarily to the systematic or theoretical side of musicology.
[8] Ian Bent, Analysis (New York: Norton, 1987), 1.
13 Michael R. Rogers, Teaching Approaches in Music Theory (Carbondale: Southern Illinois University Press, 1984), 74-75.
16 Jonathan Dunsby and Arnold Whittall, Music Analysis in Theory and Practice (New Haven: Yale University Press, 1988), 11.
[18] Dunsby and Whittall, supra note 16, at 6.
[25] Id. at 5; quoting Denis Donoghue. See also, Arnold Whittall, "Music Analysis as Human Science? Le sacre du Printmps in Theory and Practice," Music Analysis 1 (1982): 1.
[27] The Greek doctrine of ethos asserted that music directly affects the character of the listener. One class of music evoked calm and uplift while another created excitement and enthusiasm. Three aspects of music contributed to the effect: rhythm, genus, and mode. Donald Jay Grout, A History of Western Music (New York: Norton, 1960), 10-11. Aristotle claimed that music "directly imitates (that is represents) the passions or states of the soul‑-gentleness, anger, courage, temperance, and their opposites and other qualities; hence, when one listens to music that imitates a certain passion, he becomes imbued with the same passion, and if over a long time he habitually listens to the kind of music that rouses ignoble passions his whole character will be shaped to an ignoble form." at 9. "[W]ith Plato and Aristotle, the Mixolydian [mode] is piercing and suitable for lamentations, the Lydian intimate and lascivious, the Phrygian ecstatic, religious, strongly affecting the soul, and the Dorian manly and strong." Gustave Reese, Music in the Middle Ages (New York: Norton, 1940), 44.
28 Bent, supra note 20, at 343. Because medieval theorists believed they had reconstructed the modal system of the Greeks (in fact, their designations of modes did not match the Greek designations), they seem to have felt obligated to attribute ethos to their modes. Reese, supra note 27, at 159.
[30] Bent, supra note 8, at 6. "Tonaria (tonaries) existed which gave, often in neumes, the formulas assigned to each mode or occurring most frequently in it, and which listed the texts according to their place in the liturgy and the Tone to which they were sung. The Commemoratio brevis de Tonis et Psalmis modulandis, a 10th-century tonary, is of especial importance since it records a series of melodies exactly. . . .
"Although the tonaries failed truly to crystallize the various formulas, since they did not completely agree with one another melodically, they doubtless served as excellent mnemonic devices for cantors until the general acceptance of staff-notation removed their reason for existence. Even so, they lingered on in some regions into the 15th century." Reese, supra note 27, at 172-73.
33 Burmeister sought the same aspects of music that might now define the limits of protectability. "Through his development of a doctrine of musical-rhetorical figures, Burmeister sought to grasp abstractly the means for musical decoration and musical text emphasis, just as in rhetoric the figures are the artistic means for the orator to deviate from ordinary speech." The New Grove Dictionary of Music and Musicians (1980), s.v. "Burmeister, Joachim," by Martin Ruhnke.
[35] Bent, supra note 8, at 9; quoting Philip Gossett, preface to Jean-Philippe Rameau, Traité de l'harmonie réduite à ses principes naturels (1722) (New York: Dover, 1971), xxi.
[37] "The principle of harmony is present not only in the triad and in the chord of the seventh formed from it, but still more precisely in the lowest sound of these two harmonies, which is, so to speak, the harmonic center to which all other sounds must be related. This also in one of the reasons why we have found it necessary to base our system on the division of a single string, inasmuch as such a string, giving us our lowest sound, is the principle of all those that arise from its division, just as the unit with which it is compared is the principle of all the numbers." Rameau, Traite de l’hormonieTraité de l'harmonie (Paris, 1722) Oliver Strunk, ed., in Source Readings in Music History (New York: Norton, 1950), 569.
38Alexander Baumgarten (1714-62) founded aesthetics as a subdiscipline of philosophy. The New Grove Dictionary of Music and Musicians (1980), s.v. "Baumgarten, Alexander Gottlieb," by George J. Buelow.
[44] Id. at 15.
48 The text comes from Dido and Aeneas. "`Pictorial and poetic analysis' belongs to an 18th-century tradition of exploring the borderland between words and music‑-a tradition exemplified by Klopstock and Lessing, of which the most celebrated product was Heinrich Wilhelm von Gerstenberg's double adaptation of C. P. E. Bach's C minor Fantasy, first to the words of Hamlet's monologue `To Be or Not To Be' and then to those of Socrates' monologue as he takes hemlock." Bent, supra note 8, at 22.
49 "It is primarily for his writings that Momigny is of interest to scholars today; the theories he developed were very advanced for his time, and in a certain sense ingeniously anticipate modern music theory." The New Grove Dictionary of Music and Musicians (1980), s.v. "Momigny, Jérôme-Joseph de," by Jean Mongrédien.
51 Dunsby and Whittall, supra note 16, at 16. Dunsby ties analysis to the emergence of the idea of composition as the individual creation of a composer expressing personality. This notion of composition was first applied to works of Guido d'Arezzo (c. 1030). Id. at 14.
52 Carl Czerny (1791-1857) took the more rigid approach. A. B. Marx (1795-1866) did not accept paradigm forms, but believed instead that there were as many forms as works of art. See Bent, supra note 20, at 351.
[53] Bent, supra note 8, at 30. See Hauptmann, The Nature of Harmony and Metre, trans. and ed. W.E. Heathcote (London: Swan Sonnenschein & Co., 1888), xvii (expressly relying on Hegelian philosophy).
54 Organic unity was often asserted as a measure of music's value. "There are two qualitative dimensions that yield organistic standards of beauty‑-the degree of integration and the amount of the material integrated. . . . The maximum of integration is a condition where every detail of the object calls for every other. . . . Or negatively, it is a condition where no detail can be removed or altered without marring or even destroying the value of the whole. Such a whole is called an organic unity." Stephen Pepper, The Basis of Criticism in the Arts (Cambridge, Mass., 1946), 79, quoted in Ruth A. Solie, "The Living Work: Organicism and Musical Analysis," Nineteenth-Century Music 4 (1980-81): 148.
57 Johann Nikolaus Forkel, Johann Sebastian Bach: His Life, Art, and Work, trans. Charles Sanford Terry (London: Constable, 1920).
[59] Gustav Nottebohm, Ein Skizzenbuch von Beethoven aus dem Jahre 1803 (Leipzig, 1880). See Bent, supra note 8, at 34.
60 Cook, supra note 9, at 8. Solie notes further that biology itself was changed its emphasis from anatomy to physiology. "An increased interest in physiology led to a new focus on process rather than structure. The study of functional interrelationships of the many parts of a complex organism calls for a new paradigm of thought, fundamentally different from the old linear cause-and-effect model." Solie, supra note 54, at 150.
[62] Id. at 37.
71 "I here present a new concept, one inherent in the works of the great masters; indeed, it is the very secret and source of their being, the concept of organic coherence." Heinrich Schenker, Free Composition, trans. and ed. Ernst Oster (New York: Longman, 1979), xxi.
[72] Dunsby and Whittall, supra note 16, at 18.
[75] Knud Jeppesson, The Style of Palestrina and the Dissonance, 2d ed. (Copenhagen: E. Munksgaard, 1946). See Bent, supra note 8, at 44-45.
77 Forte chooses his examples from recognized masterpieces, however, and that begs the aesthetic question. Kerman, supra note 56, at 313-14.
79 "The ideology did not receive its full articulation until the music in which it was rooted came under serious attack. This occurred around 1900 when tonality, the seeming linchpin of the entire system, began to slip in Germany as well as elsewhere. Lines of defense were formed at what Virgil Thomson used to call `the Brahms line,' first in opposition to Richard Strauss and then to Arnold Schoenberg. The situation was exacerbated after 1920 when Schoenberg, in an astonishing new co-option, presented himself and his music as the true continuation of the Viennese tradition. It is against the background of this new crisis that we must see the work of the founding fathers of analysis." Id. at 316.
[81] Bent, supra note 8, at 61.
82 "Relational results must be distinguished from material means. When this is done, it is evident that what is essential in the evaluation of music are not the foreground (note-to-note) successions of pitches, durations, harmonies, and other musical parameters but the higher-order patterns created by these palpable means." Leonard B. Meyer, "Grammatical Simplicity and Relational Richness: The Trio of Mozart's G Minor Symphony," Critical Inquiry 2 (1975-76): 694.
83 Alfred Ottokar Lorenz, Das Geheimnis der Form bei Richard Wagner (Tutzing: H. Schneider, 1966). Bent, supra note 8, at 47.
85 "The desire for an explanatory theory for idiosyncratic events and for individual elements within the work of art has led theorists in recent decades to explore a variety of approaches more phenomenologically oriented and borrowing insights from disciplines as disparate as anthropology and engineering." Solie, supra note 54, at 156.
[88] The relative simplicity of popular music owes more to the omission of foreground features than background.
88 Psycholinguistics may offer insight into the cultural as well as the artistic aspects of popular music. "Linguistics examines social communication through natural language, seeking to uncover the rules by which a given language operates, the deeper rules by which language as a general phenomenon operates, and the processes by which individuals intuitively learn the complex rules of their own language." Bent, supra note 8, at 58.
91 Thomas Clifton, Music as Heard: A Study in Applied Phenomenology (New Haven: Yale University Press, 1983), 9.
[92] Phenomenology tends to confirm the need for a broader approach to comparative analysis of plagiarism and also illuminates some of the more abstract legal issues concerning protectability.
98 "There is perhaps no art so subject to every man's judgment as music. It would seem as though there were nothing easier than to judge it. Not only every musician, but also everyone who gives himself out as a musical amateur, wishes likewise to be regarded as a judge of what he hears." Johann Joachim Quantz, (1752) Oliver Strunk, ed., in Source Readings in Music History (New York: Norton, 1950), 577.
[102] See Rogers, supra note 13, at 11.
[103] Although certain guidelines exist for qualifying as an expert witness (Fed. R. Evid. 702), the jury must weigh the relative qualifications and credibility of the experts who testify. The court probably will not disqualify a witness for never having written a piece of music and will view the question as relevant to the expert's general musical background.
104 The public holds the singer-songwriter in particular esteem. It subscribes strongly to the personality theory of artistic creation and often believes that the composer can best render an authentic performance of a song regardless of his shortcomings as a singer. Consider also the closing argument by John Williams's attorney in , Baxter v. MCA, Inc., Case No. 88-6660 (C.D. Cal. 1988), aff'd, 907 F.2d 154 (9th Cir. 1990): "And speaking of experts, they are entitled to whatever respect you want to give them. I would suggest to you that there was, of all the experts who testified, one expert in this room who testified. That's Mr. Williams. . . . He does it; they talk about it. And maybe they analyzed and maybe it's worth something, but we have to give what the composer says a great deal of weight and credence." Record (closing arguments) at 37.
106 "Assuredly, by listening to many good performances and to the judgment which experienced, instructed, and honest musicians pass on them, we can attain a certain degree of knowledge. . . . But are all those who make music their business at the same time musical experts or musical scholars? Have not ever so many of these learned their art as a mere trade? . . . Before placing his trust in the judgment of a musician, the musical amateur must therefore accurately determine whether his musician is really in a position to judge correctly. With one who has thoroughly mastered his art, we are on safer ground than with one who has only followed his good instincts." Quantz, supra note 98, at 579.
108 "It is far greater and nobler to know what someone does than to accomplish oneself what someone else knows, for physical skill obeys like a handmaid while reason rules like a mistress. And unless the hand does what the mind sanctions, it is vain. How much more admirable, then, is the science of music in apprehending by reason than in accomplishing by work and deed!" Boethius, (c. 500) Oliver Strunk, ed., in Source Readings in Music History (New York: Norton, 1950), 85.
[109] See McCormick on Evidence § 14 (1984) (citing U.S. v. Viglia, 549 F.2d 335 (5th Cir. 1977), cert. denied, 434 U.S. 834 (1977) (physician with no experience in treating for obesity could give opinion on use of controlled substance allegedly used for obesity); Parker v. Gunther, 122 Vt. 68, 164 A.2d 152 (1960) (general practitioner could testify as to brain damage).
[110] Analysis is a specialization of musicology, not of music in general. Many musicians are not musicologists, just as many medical practitioners are not physicians. In the same way that the court would not accept a nurse as an expert on the diagnosis of brain damage, it should not accept a trombone player as an expert on analysis.
[111] Rogers, suprasupra note 13, at 5; citing Robert Bierstedt, ed., The Making of Society, rev. ed. (Random House, 1959), xviii-xix.
115 See id., at 183-88. Bent describes efforts potentially relevant to plagiarism. "Robert Cogan and Pozzi Escot took phonological analysis, as performed in the field of linguistics, as a model for investigating what they called `sonic design'‑-the way in which sound-spectra are shaped in musical space. Their contention is that compositions are just as much formations of basic sonic stuff as formations of tonal or rhythmic materials; and that composers and eras of music often bear sonic `fingerprints' which can be recognized if the right technology is available." Bent, supra note 8, at 71. Even assuming success in this endeavor, it seems doubtful that the resulting data would be sufficiently specific to contribute to the proof of authorship.
117 Cook, supra note 9, at 229. This criteria is not new. Rameau, for example, writes, "We may judge of music only through the intervention of hearing, and reason has authority in it only in so far as it agrees with the ear; at the same time, nothing can be more convincing to us than their union in our judgments. Our nature is satisfied by the ear, our mind by reason; let us then judge of nothing excepting through their cooperation." Rameau, supra note , at 567.
118 Nichols v. Universal Pictures Corp., 45 F.2d 119, 122-23 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931).
[120] See Mazer v. Stein, 347 U.S. 201 (1954) (Copyright protects originality, rather than novelty or invention, and confers only the sole right of multiplying copies, and in absence of copying, there can be no infringement of copyright).
121 Stanley Cavell, "Music Discomposed," Must We Mean What We Say? (New York, 1969), 186; quoted in Kerman, supra note 56, at 321.
[124] Rameau, supra note 37, at 564.