CHAPTER 5
METHODS OF REDUCTION:
THE SEARCH FOR MUSICAL SIGNIFICANCE
Music analysis entails reduction and
comparison.[1] Neither act is entirely independent of the
other. Nevertheless, proper ordering of
these steps of analysis must be established.
Legal proof of infringement demands some standards, and the real danger
remains that similarities may influence analysis more than analysis reveals
similarities. Analysis should discover
similarities and contrasts and assess their significance. To do this, the analyst must approach the
music objectively and not simply construct arguments to support an established
hypothesis.
This chapter concentrates on
analytical methodologies for defining, through reduction, the material to be
compared for similarities. A subsequent
chapter will focus on methods of comparison.
The initial step of reducing the music to its essential thematic
components, the process of segmentation, profoundly affects on subsequent
comparisons. Segmentation involves the
discovery of musical units such as sections, phrases, and chords. Bad decisions in segmentation lead to
erroneous conclusions. Problems lie in
articulating appropriate criteria for segmentation and other types of
reduction. Many factors, some seemingly
based primarily on intuition and experience, influence the choices that must be
made.
Because similarities define much of
the structure of music and influence its proper segmentation, one may question
the apparent tautology of this exercise.
Segmentation defines the criteria for comparison while similarities
define the criteria of segmentation.
Analysts can offer as a disclaimer Schenker's observation quoted
earlier: "Music is always an art. . . . Under no circumstances is it a
science."[2] However, the expert testimony of Baxter suggests a principled, if
not scientific, explanation,[3] and it will be
illustrated in other cases as well: Segmentation must be driven by similarities
within the individual work and not by similarities between two works. The latter is truly tautological. The former uncovers the elements that
coalesce to turn sound into a coherent and identifiable piece of music. Only by determining the boundaries of these
significant elements within each work can the court avoid basing its legal
decision on haphazard comparisons and coincidental similarities.
The Expert's Methodology
The expert can expect two questions
on his methodology: (1) "Do you always use the same criteria when you
compare two works?" and (2) "Would your analysis be the same had you
been employed by the opposing party?"
The second question may be posed as "Did you analyze
dissimilarities in addition to similarities?"
In Baxter, one of the
experts answered the second question by pointing out the difference between a
comparison and a contrast. He had been
asked to do a comparison.[4] With this answer, the expert cast doubt on
the legitimacy of his conclusions and transferred responsibility for many
critical aspects of analysis to his lay employer. Such testimony does not help the trier of fact. It is rather like having a physician testify
that he was hired to diagnose a particular disease. Music theory does not distinguish comparative analysis and
contrasting analysis. Analysis accounts
for both factors. The distinction
belongs only to the less demanding process of description.
Experts usually testify that they
examine the same factors whenever they compare two works.[5] Standard methodology seems essential if the
court is to trust the expert's initial objectivity.[6] But standard procedures must yield at some
point to the peculiarities of the individual work.[7] Significant features differ according to the
nature of the music. Consequently, some
comparisons become more meaningful than others. The final analysis of a fugue does not resemble that of a
chorale. The question is this: At what
point does the music itself begin to dictate the analytical methodology?[8]
The trained theorist has access to various methods of
analysis that may prove useful. The
legal process seems to be best served by allowing the expert to employ any
legitimate tools of analysis that may be helpful to the trier of fact. No particular school of analysis
automatically qualifies as superior.
The analyst should choose methods that illuminate the composition process,
that disclose the building blocks of the pieces in question and that enable him
to compare something more consequential than coincidence. Certain guidelines may help all concerned to
assess the trustworthiness of particular techniques and to ascertain whether a
given analysis presents a complete or sufficient account of the music.
Similarities are often easy to find. The expert witness is supposed to
demonstrate, however, similarities that provide indicia of copying. Although the law has left the term "substantial
similarity" undefined, the purpose behind the inquiry is clear. Whether substantial refers to quantity or
quality, similarities per se do not prove
infringement. A plagiarist takes more
than a succession of sounds, more than a certain quantum of notes. In order to infringe, he must take sounds
that appear in the same context, that have similar functions, and that follow
some of the same musical principles.
Music follows certain principles
that distinguish it from noise. Those
principles are not usually apparent on the surface of the music.[9] Through the process of reduction one
discovers the components of the music and the functions those components serve
in various larger contexts. This
process of breaking down music follows relatively objective criteria. When making these reductions the analyst
should adhere to standard procedures, and the court should judge the expert
accordingly. But the nature of the
individual work, thus discovered through standard techniques of reduction, may
suggest some specific comparisons as more illuminating than others. Guidelines for comparison, somewhat less
stringent than those for reduction, will be suggested later.
Objections to Reduction
Knowledge
of any subject matter entails knowledge of its component parts. Courts have recognized the necessity of
reduction, mandating repeatedly that expert testimony on infringement shall
include "dissection and analysis."[10] The message has not always registered. Counsel will naturally resist divisions of
the music that do not favor his case and suggest new divisions that do. Defense counsel Osterberg asked the witness
Selle:
Q And in the
part that follows the introduction, what we'll call Motif A, there are two
measures with similarity?
ENGERMAN: I am going to object, your Honor, unless we are
talking about the whole eight bars, which we allege are copied from "Let
It End."
THE COURT: Mr.
Engerman, this is cross examination.
Let Mr. Osterberg proceed with his cross examination. The objection is overruled. Can you answer the question?[11]
One wonders if the objection would have been
sustained on direct.
Resistance to reduction comes in other forms. The expert witness who examines musical
parameters in isolation, who segments according to musical event rather than at
the bar line, or who seeks out the motivating function beneath the surface of
the music invites attack on cross-examination.
Typically, the attorney will seek an admission from the witness that he
left something out or that the notes contained in a particular measure
contradict the witness's testimony. It
is undeniable. The witness's reduction,
omission, simplification, or segmentation is not what the attorney's client
wrote. To the jury, unschooled in the
techniques of musical analysis, the witness appears to have rewritten the music
to make it fit his theory of the case.
Yet "dissection" would be a very hollow concept if it meant
nothing more than divisions made according to the visual criteria of bar lines.
Relevance of Reductions
Music lends itself to division along
any of the three lines: (1) temporal segmentation, (2) isolation of parameters,
and (3) hierarchical reduction.
Temporal or formal segmentation refers to the division of music into
motives, phrases, themes‑-all manifestations of a complete musical
statement. Temporal segmentations
suggest a certain quantity of music; they define thematic units. Isolation of musical parameters might
include analyzing melody without harmony or rhythm without pitch. These reductions separate music's
constituent elements, those that function simultaneously. They demonstrate various principles of
organization and movement‑-ways in which music attains unity and disunity
at the same time. Finally, one might
use hierarchical reductions to move from surface to background, gradually
simplifying the music to reveal its underlying principles and design, its
larger aspects, its relationship to the phenomenon of tonality. The average listener, though perhaps unable
to explain it, hears music on all of these levels.
Temporal Segmentation
The
introduction in the 17th century of rhetorical analogies to music analysis
offered particularly useful insight into the nature of music. It described in terms that could be immediately
comprehended the pervasive divisions of music into distinct statements. All art has form; music is not merely a
succession of notes. Whether one
believes music imitates rhetoric or biological functions, or follows some
purely musical principle, music is properly understood as containing natural
divisions. The mind tends to seek out
patterns, repetitions, and resting points within the overall structure as it
listens. One of the first acts involved
in an analysis of music is the discovery of these natural divisions. Divisions may be determined by many
different musical criteria: phrasing, rhythm, harmonic progression, melodic
contour, to name a few. Congruence of
musical events may point unmistakably to divisions on which all would
agree. But at times, some
characteristics of the music obscure divisions suggested by others, and even
analysts employing their best musical judgment might disagree on where the
division can be made most meaningfully.[12] In all cases, the analyst must base his
decisions on musical phenomena to discover what exists, and not impose
arbitrary divisions or divisions suggested by non-musical criteria.
The art of analysis uses these
divisions as reference points. Analysis
segments the music into smaller, manageable musical events. Segmentation aims not to eliminate material
from the analysis but to determine how each smaller event serves the
whole. Each event has a certain motion
and direction that functions within a larger event. At every point, the analyst must determine how smaller segments
form the building blocks of a larger segment.
Because music uses some of the
terminology of rhetoric, the comparison of segmentation to punctuation is
apt. Phrases form sentences, sentences
form paragraphs, paragraphs form chapters.
How the divisions are made affects the meaning of the whole.
Dear John,
I want a man who knows what love is all about. You are generous, kind, thoughtful. People who are not like you admit to being
useless and inferior, John. You have
ruined me for other men. I yearn for
you. I have no feelings whatsoever when
we're apart. I can be forever
happy. Will you let me be yours?
Gloria
New divisions yield
dramatically different results.
Dear John,
I want a man who knows what love is.
All about you are generous, kind, thoughtful people, who are not like
you. Admit to being useless and
inferior, John. You have ruined
me. For other men, I yearn. For you, I have no feelings whatsoever. When we're apart, I can be forever
happy. Will you let me be?
Yours,
Gloria[13]
The analysts who looks for a
corresponding succession of words in these two letters will find them at every
point. If he looks for nothing else, he
will discover no distinction between the two.
Similarly, if punctuation were ignored and the two examples segmented
according to lines of text, they would be seen as exact duplicates. However, if one compares the examples
sentence by sentence, similarities are significantly decreased and might not be
considered substantial. The second
sentence of each, for example, retains relatively few common elements. Thus, the method of segmentation may either
emphasize or obscure differences.
Divisions should be made intelligently, considering the rules of grammar
and the underlying expression, not at arbitrary or expressively irrelevant
points.
False Segmentation
To one who does not read, the most
appealing point for dividing text would be at the end of each line; but that
segmentation is a function of type size, not literary expression. In the same way, music presents a highly
attractive point at which to make divisions: the bar line. Although theorists know that music is not
presented in neat, regular-sized little boxes, to the layman, bar lines present
an irresistible visual reference. There
must be some significant reason, the layman thinks, why a block of music is
enclosed by these dividing lines.
The analogy of bar lines to lines of text works at least
to this extent: both are evenly placed divisions that do not determine the
function and expression of what they divide.
Bar lines are mere notational devices that mark the passage of
time. Without them, the music would sound
the same. They provide a useful frame
of reference to the performer. But just
as children are taught to read without pausing at the end of each line of text,
the performer learns not to express the bar line in any way. Bar lines are like yard lines on the playing
field: the ball carrier may find the markings helpful, but he does not run in
five-yard segments.
The two lines of music in Figure 14,
played as written and isolated from any larger context, sound the same. If played within a larger context in which
the meter is perceived, they may convey a different impression because they
relate differently to the meter.
However, the placement of the figure in a different relation to meter
will not justify a new segmentation.
Example 14: Brahms'
Variations on a Theme by Handel, Var. VI.
Bar lines reflect meter, which is
something different from rhythm. The
analyst does not ignore bar lines entirely, because the function of meter must
be considered in his analysis. But
every aspect to be considered in an analysis does not present an opportunity
for segmentation. Meter tends to
emphasize the first beat of the measure.
Consequently, measure and musical segments do not always coincide‑-otherwise,
all segments would begin with an accent, which they do not.[14] Bar lines are, perhaps without exception, an
improper basis for segmentation.[15] Music is neither conceived nor heard in
one-measure segments. Thus, there can
be no rationale for analyzing it according to that criterion.
Meter, which bar lines delineate,
forms the context in which rhythm is heard.
The significance of the two musical statements in Figure 14 lies in
their literal sameness and their contextual variation. If the context were allowed to determine
segmentation, then the sameness would go unnoticed. Segmented at the bar line, these figures would become simply two
unrelated musical events, and the piece from which they are taken, a simple
canon at the octave (Figure 15), could not be analyzed meaningfully.
Example
15: Brahms' Variations on a Theme by Handel, Var. VI.
Parties to litigation often argue
over the proper segmentation as a prelude to counting similar features. Division by measure more commonly diminishes
the apparent quantity of similarities.
Earl Spielman, being deposed by the defense, was asked:
Q In the fourth
measure of [defendant's song] "Diggin' Up Bones," Overstreet versus
Stuckey, isn't there a note that is not in the fourth measure of [plaintiff's
song] "Sun Comin' Up"?
A The very
last beat of measure four is the upbeat to the second phrase.
Q There's a
different note, isn't there?
A We're
talking about the first phrase?
Q I'm
talking about the first four bars of the melody of the verse.
And the last bar, the fourth bar of that
phrase, isn't there a different note?
A Yes.
. . .
The last note in measure four of "Sun
Comin' Up," the last two notes of measure four in "Sun Comin'
Up," are the upbeats to the fifth measure to the second phrase. And they're not heard as part of the fourth
measure. They're heard as part of the
next phrase. They're upbeats in the
same way as it is in the first two notes coming before the first measure
lead-in to the first measure.
If you're talking about measures as ruled
lines, your ear does not hear that.
This is only a means of notating it, putting it down on paper. If you're talking about what exists in
music, you talk about phrases. And the
first phrase ends the third beat of measure four.
Q The
only thing I asked you is: Are there different notes in the fourth measure of
these two songs?[16]
This type of false segmentation may
also be used to inflate the significance of similarities that may be unrelated
and legally inconsequential:
Q How many
bars of "Feelings" contain references to musical ideas contained in
"Pour Toi"?
A Well,
I think every bar does.[17]
References to musical
ideas do not connote copying.
References to "Pour Toi" contained in "Feelings" may
not correspond in a way that suggests infringement. Yet the testimony conveys the impression that the composer of
"Feelings" copied "Pour Toi" measure for measure.
Other types of segmentation may be equally wrongheaded or
disingenuous, but segmentation by measure presents a pervasive flaw in
infringement litigation. It provides a
good example of how analysis might be skewed to produce the desired
result. The danger is not unique to
music; the court commonly accepts into evidence materials that can be
interpreted in a variety of ways. The
fault lies not in music analysis but in meaningless divisions that masquerade
as music analysis. The
mis-characterization often arises in the questions asked by counsel.
Appropriate Divisions in
Formal Analysis
Opportunities
for appropriate segmentation present themselves at all levels of analysis, from
the smallest figure to entire movements within works of heroic
proportions. The analyst must resist
any tendency to draw lines according to their effect on similarities. An internal principle must justify whatever
segmentation is made. Divisions must be
expressively significant with regard to the individual work, and they must be
based on established analytical principles.
The smaller divisions present the greatest opportunity for abuse. In general, the court should require that
divisions be made according either to musical phrase or to musical figure.
A figure is a small structural unit,
usually three to eight notes in a distinctive rhythmic pattern.[18] "Motive" applies to a figure
which, through repetition and variation, generates some significant portion of
the work.[19] Motives serve a unifying function;[20] they tend to be
thematic and structural.
"Figure" commonly refers to a more subordinate unit of
music. Infringement suits rarely
involve a musical figure alone.[21] Where the complaint alleges similarities in
a small amount of unrepeated material, it will be difficult to show that the
similarities are substantial. A motive,
however, may be highly significant. The
theorist Rudolph Reti posited motives as the primary unifying element of
music. He explained the compositional
process behind entire works as the development of small thematic cells.[22]
Phrase lengths are defined by their
conclusions‑-the cadence.[23] A cadence serves to separate ideas;[24] it usually
consists of the last two or three tones of a phrase that direct it toward a
resting place.[25] Cadences serve a highly functional purpose,
punctuating the end of a musical statement.
Various endings are described as complete, incomplete, or even
deceptive. Because phrase endings tend
to be more functional, music, unlike poetry, "rhymes" at the
beginning of phrases.[26]
The cadence ending the phrase may be found with reference
to actual or implied harmonic progressions.
The phrase may develop a particular figure or motive and often contains
some type of repetition.
Baxter provides a
useful example. The relevant phrase of
the "Joy" B theme (Figure 16) begins with a motive spanning the first
two measures followed by a varied repetition of that motive. Where the melody comes to rest on the tonic
note (C) in measure 4, the phrase ends with an authentic cadence. The literal repeat of this material in the
succeeding four measures should be considered a second phrase. Had the second cadence of measure 8 attained
a greater sense of repose than that of measure 4, even if attained through a
factor other than melody, then measures 5 through 8 might be seen as a
continuation of the phrase or as the second half of a musical period.[27]
"E.T." also begins with a
motive stated in the first two measures (Figure 17). Measures 3 through 4 restate the motive with varied sequential
treatment.[28] The sequence is real rather than tonal (F‑sharp
retains the original intervals rather than the diatonic relationship), but the
first and last notes of the sequential statement have been altered. The cadence in measure 4 suggests less
repose than measure 2; the melody is on scale degree 7, the leading tone, and
the supporting harmony suggests a change of key.[29] If this point had been reached without the
stronger close at measure 2, the four-measure statement so far might be
considered a phrase ending on a half cadence.
The resulting analysis would yield a period of two four-measure
phrases. But the sequence trumps any
division into four-measure units.[30] Therefore, measure 4 does not end the
phrase. The sequential device continues
through measure 6, although the melodic content is further varied. At measure 8, the harmony has returned to
the original tonic (C). The 7th scale
degree in the melody presents some ambiguity; Williams, as he testified, did
not want to reach a definitive sense of repose while trying to depict the
feeling of flying. But the tonic in C
clearly provides a greater sense of completion than the harmony of measure
4. Further, because the next event of
the piece is a repeat of the material of these eight measures shown in the
example, the phrase must be considered at an end.
When the experts compared the first two measures of each work,
they compared motive with motive. But
plaintiff's experts, who suggested similarity of phrase structure, went on to
make two incorrect assertions. The
phrases of the two works do not develop using the same device, as they argued,
and the phrases are not of equal length.
A natural division occurs at the end of eight measures in each work, and
this may have justified comparing eight-measure segments; but in the case of
"Joy," eight measures marked the end of a two-phrase thematic
statement while eight measures marked the end a single phrase in
"E.T."
Sequential treatment of a figure creates differences
among experts over how to characterize its originality. The defense in Selle argued that originality could be found only in the first two measures
of plaintiff's song. The sequence that
followed was labeled pure mechanics.[31] The confusion seems to rest on a failure to
distinguish "original" from "new." The requirement of novelty belongs to patent
law; copyright requires only originality in the sense that the material must be
the composer's own.[32] The debate over the originality of
sequential treatment thus has no relevance.
Each sequential repetition lacks novelty; but if the composer bases the
sequence on an original figure, the work will retain its originality (in the
legal sense) throughout the sequence.
Sequence provides the composer with
a useful and uniquely powerful developmental tool. Elements of a composition must be related in a way that unifies
the work. A work that constantly
presents new material will not be understood.
Consequently, composers in all musical genres employ many common devices
to develop a limited amount of material.[33]
Expert witnesses rarely compare segments larger than
phrases. Once the expert accurately
segments motives and phrases, analysts are likely to have fewer differences
regarding larger divisions. Differences
in the larger divisions more often center on terminology and the significance
of the segment as it relates to paradigmatic formal structures. Although the divisions themselves are
important to internal structure, relationships to paradigmatic forms involve
external criteria that have no bearing on substantial similarities between two
works.
Indicia of
Trustworthiness
Music
analysis requires segmentation according to legitimate musical criteria. From the legal perspective, false
segmentation by the expert should be inadmissible as more prejudicial than
probative.[34] However, the court lacks the knowledge
necessary to weigh the validity of the segmentation. If a qualified expert bases his analysis on false segmentation,
his opponent will probably have to rely on cross-examination to expose the
flaw.
Faulty analysis, however, eventually
reveals itself. By presenting rather
simplified propositions alone, counsel and expert are both able to alter the
criteria in a manner that appears to be merely a question of judgment. The error can be exposed by following it to
its logical conclusion, but this consumes time and taxes the jury's ability to
follow a complex argument in an unfamiliar field.
The solution to the dilemma lies in
the conduct of discovery. Any expert
who has had time to prepare for trial and produce a written report should
provide an analysis that is sufficiently complete to be tested for
accuracy. This entails examining the
complete subject matter of each work at issue and explaining the function that
each identified segment performs. False
segmentation will not yield a coherent analysis on this scale.[35] Opposing counsel will have at his disposal
the means necessary to question the witness on his choices of segmentation
without having to construct a lengthy argument that the jury cannot
follow. At the same time, the expert
will have presented an analysis with some indicia of trustworthiness. With analyses from both sides identifying
what they consider to be relevant dissection, the judge will have a basis for
sustaining objections to questions that elicit unfairly prejudicial
testimony. The judge can limit
questions to those based on segmentations that the attorney's own expert is
prepared to defend.
Figure 18
provides an example of how relevant segments might be identified in a pre-trial
report. The pre-trial reports of most
experts omit this information. Spielman
regularly provides this same type of material in his reports but does so in
chart form.[36] The format suggested in Figure 18 may
present the relevant segmentation in a format more easily understood by the
layman.
Isolation of Parameters
In
addition to looking at music in shorter segments, the analyst may choose to
examine certain musical parameters in isolation. It should be clear that taking the music apart by parameter
represents one method of reduction; it can be justified by the same reasoning
that supports any other reduction. The
fact that music as a whole or some aspect of music in particular may be defined
as including a certain combination of parameters should not preclude omission
of any parameter in the course of analysis.
Most infringement cases have indulged heavily in this approach to
analysis; the parameters that make up melody receive enormous attention at the
expense of other parameters. A party
cannot reasonably present melody alone and simultaneously object as a matter of
principle to the elimination of parameters.
Counsel may legitimately argue the relative importance of various
parameters, but such arguments go only to weight, not admissibility. The only criterion to be applied to the
isolation of parameters is good musical judgment. The rules of segmentation continue to apply to parameters in
isolation, although the divisions appropriate to one parameter may contradict
those of another.[37]
Each parameter plays a part in the
overall structure of music. Some
styles, however, emphasize or sublimate certain parameters. For instance, certain jazz forms place a
high value on rhythmic variety, often challenging the listener's capacity to
relate the rhythms to their underlying metrical pattern. On the other hand, rock music and marches
tend to sacrifice rhythmic interest and even variety of tempo in order to
thrust regular metrical patterns into the foreground.[38] The analyst must consider how these
parameters function internally, in relation to every other parameter and to the
work as a whole.
Some musical parameters are
susceptible to objective measurements, but all parameters produce psychological
effects that outweigh their scientific aspects. Music theory differs from the study of acoustics in this
significant regard: the science of acoustics studies how musical sounds are
generated; music theory studies how those sounds are perceived.
Music is a highly abstract art, and
the parameters that operate within it share that attribute. Only the static phenomena yield precise,
objective definitions. But music moves
in time, and static phenomena cannot begin to explain music's more significant
aspects. Musical motion needs to be
understood, whether one is discussing rhythmic motion, harmonic motion, or
melodic motion. Motion, more than any
other factor, produces the psychological effect. Motion triggers memory and associations; it enables the listener
to identify a particular work. Static
similarities cannot convince a lay listener that two pieces of music sound
alike.[39]
Motion involves more than the mere
succession of sounds. Motion requires
direction. The listener perceives the
direction of musical motion largely through a series of comparisons: consonance
versus dissonance, stress versus repose, unity versus disunity. In addition to these comparisons, the
listener has certain expectations.
Musical motion that confirms or contradicts the listener's expectations
may account for many of music's psychological effects. The emotional response to music results from
the frustration of expectations.[40]
Music theory uses many terms of art derived from rhetoric
and other disciplines. Participants in
copyright litigation tend to use musical terms loosely, a factor which
contributes considerable confusion.
Experts often employ musical terms that connote, but do not entail, the
psychological factors that determine perception. Musicians share a terminology in which the abstract and
psychological features of music are assumed to be understood. The lay trier of fact may easily misconstrue
or discount those connotations.
Parameter Defined
"Parameter" may be
generally defined as "any set of physical properties whose values
determine the characteristics or behavior of something."[41] The term, borrowed from mathematics,
acquires some vagueness in music.
Theorists apply the term to any musical variable, such as pitch, rhythm,
volume, timbre.[42] Objective measures can quantify some of
those variables; frequency, intensity, and timbre, none of which entail musical
motion, can be explained in acoustical terms.
But some parameters depend on or relate to others. Rhythm and harmony require reference to some
constant. Melody represents a
particularly complex combination of factors that cannot be adequately described
by its components.
Defining those parameters that arise most frequently in
litigation might alleviate some of the confusion that surrounds these aspects
of music. Definitions provided in theoretical
texts, although often inadequate in a legal setting, are preferable to ad hoc determinations by counsel
and judge during the jury instruction conference.[43]
Pitch
Pitch
relates to the frequency of vibrations made by a sonorous body. Frequency is one of the three measurable
qualities of a musical tone, the other two being loudness and timbre. Unlike frequency, which can be expressed in
vibrations per second, pitch refers to the subjective classification of
tones. A musical tone consists of
several frequencies: its fundamental tone and a group of overtones of higher
frequency. Usually, but not always, the
listener hears the fundamental tone as predominant and classifies the pitch
accordingly.[44]
Although one can express frequency
in absolute terms, pitch requires relation and classification. Pitch refers to frequency in relation to
other frequencies. Music currently employs
the constant A = 440 vibrations per second.
The average ear can discern frequencies between roughly 20 and 20,000
vibrations per second. The range of the
piano extends from low A at 27.5 vibrations per second, to a C vibrating 4,186
times per second. Western music
classifies these frequencies within the range of the piano into a mere
eighty-eight pitches. Each octave,
defined by the doubling of frequency, is divided into twelve pitch classes[45]; traditional
western music provides only twelve labels for all frequencies between A = 440
and A = 880. The A‑sharp one
semitone higher that A = 440 has a frequency of about 466 vibrations per
second.[46]
In spite of these gross
generalizations of frequency, however, different tuning systems require
distinctions of 1/50 of a semitone, and scientists have documented the ability
to hear as little as 1/120 of a semitone.[47] One may accurately speak of twelve different
pitches within the octave, but the ear hears distinctions far more subtle than
the terminology suggests.[48] Some such distinctions are regularly
performed and perceived even in popular forms, and some have even become
idiomatic.[49]
Thus, pitch can be seen as a highly
generalized measure of a static musical phenomenon that describes only a very
limited aspect of music.[50] Yet limitations of pitch have been advanced
as inhibiting the entire expressive content of music.
To draw an obvious
comparison, language has several hundred thousand words composed of any of the
twenty-six letters comprising the alphabet; music has only thirteen [sic] tones. . . . The limit of musical
expression . . . lies in the thirteen tones, their octaves, and
their variations.[51]
It is hard to
imagine a more naïve and inaccurate characterization of music.[52] Unfortunately, although the statement did
not originate with Shafter, Shafter's treatise was accorded some respect, and
this statement gained credibility. It
appeals to defendants seeking to prove that similarities are coincidental. The statement has been adopted in numerous
commentaries and court opinions and comprises part of the folklore of
infringement litigation.[53]
Anyone who has listened to a reasonable amount of music
should recognize the fallacy of Shafter's equation: musical expression is
enormously subtle and varied.[54] Music does not yield the coarse, blunt
statements that are suggested by Shafter's reference to a vocabulary limited to
twelve tones. Other factors expand the
vocabulary of music geometrically, which suggests that pitch is not the central
defining element.[55] If pitch so inadequately defines the
phenomena of music, then the analysis of pitch alone can reveal very little
regarding substantial similarities.[56] By the same token, analysis of pitch alone
will yield many similarities attributable only to its unduly narrow approach.[57]
Yet many analyses given as evidence in copyright
litigation focus on the number of pitches that the two works have in
common. Several factors in this type of
analysis mislead the trier of fact.
First, a number of pitches in common seems to imply a mere sharing of an
unordered set of pitches. The analyst
usually refers to a succession of pitches common to both works, something that
begins to take motion into account.
This qualification, where it exists, is not always apparent. Second, the analyst normally points out
similarity of pitch only when it appears in a similar temporal context, but,
without more, this does little to refute the possibility of coincidence. Because pitch is a static measure, the
significance of similarities of pitch must depend on other factors. Unfortunately, some experts limit their
analysis to similarities of pitch, an approach that is wholly inadequate. In such cases, the limits of terminology
combine with an undue fixation on the parameter of pitch to produce testimony
regarding apparent but musically
meaningless similarities.
Most listeners cannot identify pitch
as an isolated phenomenon.[58] Students of music learn to identify pitch
relationships. Those with "perfect
pitch" usually learn that "relative pitch" is a more efficient
method of analyzing what one hears.[59] Music is determined by its relations, not
its static absolutes. For this reason,
music sounds essentially the same when transposed to a different key. The absolute value of pitch is changed, but
the relational values are maintained.
Music analysis properly examines those relationships and leaves most
absolutes to the study of acoustics.[60]
Finally, a distinction should be
made between "pitch" and "note." In some instances, the similarities are couched in terms of
notes, which would seem to be a refinement of the term "pitch" but is
not. True, a note generally designates
both pitch and relative duration, thus adding a defining element beyond that of
pitch alone.[61] But the term "note" adds
confusion, because in idiomatic usage the durational qualification often is not
intended. The term is used so commonly
as a synonym for pitch that the other factors it designates may be
forgotten. Taking into account the full
implications of "note," Figure 19 demonstrates that the two works in Baxter share only four notes. Yet even the defense conceded that six
"notes" were the same.[62]
More important, notes are not musical events; they are
mere symbols of musical events. The
expert is called to analyze the music itself, how it is heard, not the manner
in which it was transcribed to paper.
Unless notation in a particular case can be shown to have relevance
beyond the music it represents, the court should not indulge a hypertechnical approach
to similarity of notes.
Rhythm
The subject of rhythm tends to
produce some of the least accurate definitions of musical parameters:
Q Now, rhythm
does not indicate the sound of the note, but how long or the duration that the
note will be played for, is that correct?
A That's
correct.[63]
Here, rhythm is
inaccurately equated with duration.[64] In the same case, the court defined rhythm
differently in the jury instructions:
The music of a
song consists of rhythm, harmony and melody.
Rhythm is simply the tempo in which the music is written.[65]
Tempo denotes
pace,[66] the speed at
which the regular pulse[67] proceeds. Rhythm is not tempo, nor can it be defined
in relation to tempo.
Plaintiff's expert in Gaste came closer to a
coherent definition of rhythm: "Rhythm is the organization of time values
or duration."[68] He added the element of organization. Harold Barlow improved on this definition
somewhat: "Rhythm has to do with the duration quality involved in music,
being in a relationship of relatively short and long notes."[69] Still, these definitions do not
suffice. Rhythm is a highly expressive
element of music and, as such, it must be understood in terms of motion rather
than as a static or absolute phenomenon.[70]
Because common notation expresses a
primary aspect of rhythm in terms of relative duration, one may be tempted to
equate duration with rhythm. But
duration provides a rather ineffective measure of rhythm and ignores the more
relevant relationships. If one were to
accept as given that each tone to be considered in a rhythmic pattern began at
the point that the preceding tone ended, then knowing the duration of each
might still provide insufficient information to reconstruct the rhythm of the
passage. Rhythm involves more than
duration‑-more even than durational relationships between tones. It involves organization and emphasis,[71] and its
perception is dependent on certain psychological expectations.[72]
The perception of rhythm entails two
primary comparisons. First, the
listener hears a pattern of sounds in which some are accented and some
not. This involves a comparison of one
sound with those surrounding it in which relative weight is assessed. Accents stress or emphasize some sounds over
others. These stress points may result
from a tone's longer duration (agogic accent), from greater intensity (dynamic
accent), or from differing pitch (tonic accent).[73] Duration, therefore, does not account for
all accents. Second, the listener
compares the pattern of accented and non-accented sounds with the psychological
expectations generated by meter.[74]
As explained above, meter provides
the context in which rhythm is heard.[75] The mind tends to organize regular pulses
into patterns, usually of three of four.[76] Even where a mechanical device such as a
metronome generates pulses with no variation, the mind will supply perceived
accents in order to organize the pulses into a regular pattern. Once established, the pattern tends to
remain fixed in the mind in spite of transitory contradictions. If this regular pattern is changed, the mind
will require several repetitions before it accepts the new grouping. Accented beats in meter are those marked for
consciousness by the listener; they are psychological. Rhythmic accents result primarily from physical
forces.[77] The unity and disunity of the two make
rhythmic patterns interesting and determine how they are heard.[78]
The two themes at issue in Baxter illustrate one simple way in which rhythm relates to meter. The rhythmic motive of "E.T."
repeats three times within the eight-measure phrase; the last two measures of
the phrase bear strong resemblance to the rhythmic motive. Rhythm remains in the same relation to
meter, focusing interest on the melodic sequence. The "Joy" B theme, however, presents a simple rhythmic
variation. The second two measures
restate melodic material from the first two in a different relation to the
meter (Figure 20). The internal
relationships of rhythm, the value of the notes, remains the same as does the
pitch of those notes. But the entire
figure has been shifted to a different metrical position.[79] Winter brought out this feature when he
rebutted Williams' testimony that the 4/4 meter of "Joy" was
unsuitable to Williams' purpose of conveying flying. Williams considered 4/4 to have too much "bounce."[80] Winter testified that the rhythm of
"Joy" obscured the regular 4/4 pattern, because rhythm was stated in
two different relationships to meter.[81]
The relationship of rhythm and meter also explains why the meter of a work can be change