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 changed without rendering the piece
unrecognizable. The "Star-Spangled
Banner" has been taken out of its original context of triple meter and
transformed into duple meter as a march (Figure 21). The listener still recognizes the melody, although the durational
value of many notes has been altered.
The important factor is that the rhythmic and metrical accents retain
the same relationships.
Example 21: Bagley,
"National Emblem March."
Plaintiff's expert in Gaste
v. Kaiserman employed the same process to play "Pour Toi" as a waltz,
changing it from duple to triple meter.[82] He showed how meter alone might be
relatively inconsequential to perception.
But plaintiff's counsel in Gaste switched
arguments during the trial. He objected
to testimony on an example of prior art, because it had a different meter from
the accused work. The objection was
correctly overruled.[83] A relevant distinction exists between two
works of differing meter, but the distinction does not render comparison of
those two works meaningless.
The complexity of rhythm makes its
analysis as an isolated parameter potentially useful.[84] An analysis that presents rhythm only as a
succession of durational values, however, provides largely isolated phenomena
that deserve little weight. Although
some court decisions state that originality cannot exist in rhythm alone, that
proposition is probably false.[85] Nevertheless, one would probably search
popular idioms in vain for an example of protectable rhythm.
Variations of rhythm are neither a
mere guise to hide copying[86] nor a total
defense. A shared succession of pitches
without regard to rhythm should not, in most cases, prove copying. Examples abound in which the same succession
of pitches can be found in pieces that sound quite different.[87] The court should not overlook the power of
rhythm, thus demonstrated.[88]
The analysis of rhythm as an isolated factor may provide
highly relevant evidence. By the same
token, omission of rhythm should not render analysis of other parameters
irrelevant.
Harmony
Definitions
of harmony most often contrast harmony with melody. The definitions posit harmony as representing the vertical aspects
of music, its combination of simultaneous tones, whereas melody focuses on the
succession of tones.[89] Such definitions only hint at the
significance of harmony.[90]
A single combination of tones can be
described with some objective certainty as a particular kind of sonority. Chords can be labeled. In this regard, harmony resembles
pitch. Chords are merely combinations
of pitches that are separable from what surrounds them. But the basis of harmony does not depend on
vertical sonorities. Like most other
musical parameters, harmony moves from one sonority to another, and it moves
purposefully to an objective goal.[91] Progression, much more than content,
distinguishes one work's harmony from another.
Traditional western music since c.
1700 and virtually all currently popular forms revolve around the phenomenon of
tonality. The tonal system results from
a hierarchy of tones, a continuum that stretches from the most stable (tonic)
to the most dependent. All tones have a
tendency to progress logically through this hierarchy until they reach the
tonic. Although tonality strongly
influences melodic progression, it is more easily understood and better
isolated as a harmonic factor. In
virtually all academic settings, the study of music theory begins with the
study of tonal harmonic progressions.[92]
Comprehension of harmonic
progression requires another reference to psychological expectations. Virtually all listeners can perceive tonic
and sense the tendency of music to move toward tonic. In the same way that regular patterns set up a series of
expectations concerning rhythm, the movement to tonic provides its own set of
expectations. The listener compares
what he hears to what he expects. These
expectations are so strongly felt and so universally shared that analysis
confidently distinguishes progression from retrogression. Isolated chords do not connote these
expectations; consequently, the mere labeling of chords describes rather than
analyzes the music.[93] Analysis examines harmony as it conforms to
and deviates from shared, objective expectations.[94]
Tonic is often described as
"home." The listener knows
intuitively where home is and constantly plots his position in relation to
home. He expects to return home following
the logical path. Every chord that
deviates from the expected progression tends to alter the listener's
expectations of how he will return. The
unexpected change may be transitory, and the listener will be relieved to find
himself back on course. On other hand,
the change of direction may be so purposeful that the listener is convinced to
adopt a new home, what theorists refer to as modulation to a new tonic. If the harmonies wander aimlessly, the
listener will become disoriented.
The analyst should be wary of
positing that substantial similarities exist by virtue of most chords in a
particular progression being the same.[95] A few differences may profoundly alter the
listener's perception of what follows.[96] On the other hand, numerous differences may
be nothing more than short detours within the same overall progression. Theorists employ analytical systems that
either emphasize a chord's relation to tonic or its relation to its immediate
resolution. Both relationships provide
useful data, but the designations bear no resemblance. Harmonies may be multi-tiered, containing
relationships within relationships, and two legitimate analyses of the same
thing may look entirely different.
Ambiguity of harmony, like that
illustrated in Figure 22, appears quite frequently.[97] A new key is established by a sufficient
contradiction of the old one, something that convinces the listener to
relinquish one expectation for another.
Perception may be changed gradually by repetition of subtle differences
or suddenly by a marked departure from the vocabulary of the old key. A transitory contradiction of the original
key may create disagreement among analysts as to which relationships should
predominate.
Example
22: Beethoven's Symphony No. 1.
Confusion arose in Gaste concerning the
implications of key signature and whether modulation to a new key entailed a
change of signature.[98] Lawyers can understand the key signature
best as a presumption. If the writer
does a competent job, he will use the key signature of the tonal center that
predominates; but any key can be established regardless of signature if the
writer is willing to rebut the presumptions with accidentals. Transitory changes of key do not require
that the basic presumptions be changed.
Although the signature usually remains constant within a work (or within
a movement of a multi-movement work), composers commonly seek variety through a
change of tonal center. Some of these
key changes are extended and structurally significant. The decision to change the signature within
a work usually depends on an assessment of how the music may be most easily
read. Most important, key signatures
are notational devices that make reading music easier; they are not heard. Sound determines the tonal center.
Harmonic progression deserves some
special attention when analyzing alleged infringement. Court cases suggest that copyright law
cannot protect harmony alone.[99] Again, this proposition standing alone seems
wrong. One who re-harmonizes an
identifiable copyrighted melody without permission will probably be
liable. But the full implications of
harmony are sufficiently variable to allow original expression. Harmonic progression tends to be a secondary
factor in the popular forms of music most commonly litigated, but that does not
justify denying it protection in other settings where it may predominate. The example of Figure 23 seems to present a
protectable harmonic progression of a rather nondescript melody.[100]
Example
23: Dvorak's "New World" Symphony, 2nd movement.
Melody
Litigation
often treats melody as an isolated factor, and experts have received little
criticism for isolating melody from other parameters. Unexamined assumptions seem to produce this concentration on
melody. The court presumes this
parameter to be the predominant one,[101] although, as
Figure 23 suggests, the presumption may need to be reassessed in certain
cases. At any given point the music may
not state a single, predominant melody.
Melody might not predominate, and what predominates might not be melody.[102]
Definitions of melody put forward in
court are as inadequate as those of other parameters. Expert witness Spielman posits melody as the combination of
rhythm and pitch. This common
definition finds support in the literature,[103] but it fails to
include some of melody's most fundamental characteristics. This work has already shown that rhythm
presents far more complex factors than the definitions commonly assume. Melody includes rhythm, but the definition
must import rhythm in all its complexity.
To say that melody's other factor is pitch suggests that a random
assignment of pitches to a rhythmic figure will produce melody. Melody implies more. Just as the combination of pitches did not
define the important aspects of harmony, a succession of pitches will not define
melody. The pitches sounded by the
melody continue to function within the tonal system; they possess the same
tendency to move toward tonic. Melody
must be explained with reference to the harmonic motion that it implies.[104] Melody, like harmony, adheres to the rules
of tonal syntax.
One theorist defines melody as a
succession of tones organized into recognizable patterns.[105] The definition, although insufficient,
raises a critical question that the expert must answer: What makes the melody
recognizable? If melody were merely a
succession of pitch and durational values, it would be exceedingly difficult to
learn and remember. But the average
listener can retain a multitude of melodies in his memory for a lifetime. Indeed, were that not true, the law would
have no reason to provide a remedy for infringement.
Listeners remember melodies by making two principal
musical associations: the melody is heard in the context of meter and
tonality. The listener may hear pitch,
contour, interval, duration, and a host of other factors; but these aspects of
music are too isolated to form an accurate basis for remembering an entire
work. Remembering a melody is not
significantly different from remembering a sentence. The succession of words matters less than how those words
function within the sentence to give it meaning. As memory fades, one usually retains the meaning of the sentence
and forgets the specific words.
Music analysis strives to explain how the listener hears
music. So it would be far less valuable
to examine a melody's isolated pitches, intervals, and durations than to relate
melody to its rhythmic and tonal context.[106] Smaller, isolated features may provide good
indicia of copying and may be relevant.
The expert should not overlook this possibility and the court should
admit evidence on the minutiae. But
evidence of this type alone probably cannot prove copying, and one may
seriously question whether an accumulation of minutiae proves copying. A copier must take some larger aspect of
melody if the similarities are to be considered substantial. The copy should preserve the syntax, and the
listener should make the same associations when he hears the two melodies
before branding one substantially similar to the other.[107]
The fact that most listeners hear pitch relatively raises
the question: relative to what? Theory
students often begin by learning melodic intervals, one pitch relative to
another pitch. Testimony often appears
in which the expert points out similarities of melodic interval; for example,
both "Feelings" and "Pour Toi" begin with the downward
interval of a perfect fifth. Defendant
introduced testimony that Stan Kenton's "Artistry in Rhythm" also
began with the interval of a perfect fifth.
But whereas "Feelings" and "Pour Toi" both stated
the scale degrees 5 down to 1, Kenton's work stated 3 down to 6. The relationship between the two notes is
the same; the relationship to tonic is quite different.
The succession of intervallic relationships does not seem
to provide a sufficient basis for hearing music as an intelligible whole. Even short passages present numerous
intervals that must be tied together if melody is to be discerned. However, the relation of melodic pitch to
tonic provides a constant reference that accounts not only for motion but for
direction as well. It seems more
appropriate, therefore, to analyze melody in terms of tonality (harmonic
motion) than in isolated terms of pitch or interval.
An analyst can explain much about melody by breaking it
down according to its rhythmic and harmonic motion. Of the two, harmonic motion may provide a more significant basis
for comparison. This does not argue
that the analysis of either in isolation is improper. This kind of reduction, like all others, should always be
designed to facilitate the discovery of how music functions‑-in this
case, how rhythm functions within the melody or how the melody conveys
tonality.
Influence of Text and
Stylistic Idioms
The analysis
of a song normally cannot be divorced from the text. Many cases are tried in which the lyrics are not included in the
infringement claim. Experts may ignore
lyrics in those cases only to find themselves questioned on the subject during
cross-examination. If the music was
composed before a text was added and no alterations were made in the music to
accommodate the text, then a case might be made that text should be
ignored. But if the composer
incorporates the text as he writes, the music probably reflects textual
influences. Most composers find it
easier to bend the music to the text than vice versa.[108] Text suggests its own rhythm.[109] Text may also determine to a significant
degree the overall structure of the work,[110] the phrasing, the
harmony, and treatment of the smallest details.[111] Slight rhythmic differences may appear in
the music from one verse to the next.
Thus, analysis of the text's form is vital. The expert cannot present a complete analysis without explaining
these details unless the parties stipulate that textual influences are
immaterial.
Defense expert Irwin Coster
testified that the similarity in the first two notes of "Pour Toi"
and "Feelings" had been dictated by the text of each.[112] But on cross-examination, he had to admit
that he did not know whether the music or lyrics had been written first.[113] He had not examined the lyrics because no
infringement of lyrics was claimed,[114] but he had
opened the door to this line of questioning.
Coster was forced to make a further admission regarding his analysis of
the "Pour Toi" chorus. He had
analyzed the melodic sequence of the chorus as centering on the first note of
each grouping. His opponent claimed the
second note of each grouping was more important. Both positions were defensible; Coster's analysis followed good
musical logic. But the text of
"Pour Toi" ("Tes yeux . . . ta
bouche . . . ton corps . . .") placed emphasis
on the second note of each grouping.[115] It made Coster's musical analysis seem
wrong. To the extent text explains
something about the music that is relevant, it should be included in the
analysis.
Stylistic idioms may also dictate or
influence certain musical parameters.
Although idiomatic treatment may not be protectable expression in
itself, that fact does not render the idioms irrelevant to the analysis. Pleading style is highly conclusory; it
explains nothing.[116] If style forms a basis of what the expert
seeks to prove, then he should identify which elements define the style and
explain how they influence other parameters.
Stylistic formulae do not preclude originality; they merely stipulate a
certain set of commonplace devices and an emphasis on certain parameters. The composer must add original expression in
a parameter that remains relatively free of the stylistic dictates, and the
expert must separate the original from the commonplace. For this reason, an expert whose knowledge
is limited to a particular style may be able to provide only half the equation. He can explain only what is stylistic and
what is not; he cannot compare one work to another.
Conclusion
The
isolation of parameters provides a useful method of examining the function of
various aspects of music. Knowledge
gained from this kind of analysis enables the expert to make more relevant
comparisons. Objections to this kind of
reduction should be overruled; the knowledge obtained is relevant to
discovering the significant features of the work examined. However, reductions made purely for the
purpose of comparison to a second work should be disallowed. The distinction, though not apparent in some
cases, remains an important one. The
expert should be able to demonstrate the relevance of the reduction to the
individual work before using it to compare that work to another.
There is no virtue in
reduction as such; only in the kind of reduction that makes something
intelligible to you that wasn't otherwise.[117]
Whereas the validity of
segmentations can be tested by requiring all segments to be catalogued,
isolation of every parameter does not reveal trustworthiness. Parameters overlap. The sum is greater than its parts.[118] The validity of this kind of reduction must
be tested by how well it explains some internal function of the work analyzed.
Hierarchical Reduction
A
third type of reduction involves the simplification of music, a stripping away
of elaborations to reveal the more functional aspects lying beneath the
surface. This technique presents a more
complex problem. It requires, perhaps,
the greatest musical judgment and confounds the musical layman more than
segmentation and isolation of parameter.
Compounding the problem, it relies on criteria less likely to lend
themselves to visually apparent explanations, such as rests separating phrases,
or to roughly definable terminology, as in the isolation of parameters. Partly for these reasons, it does not appear
as a regular analytical device in courtroom testimony.
Yet "an analysis that does not
simplify the music is a complete waste of time."[119] Analysis must reveal function, and
hierarchical reductions enable the analyst to present functional aspects of
music unadorned. Proper segmentation
cannot be achieved without an understanding of function, and so the analyst
will perform certain hierarchical reductions in his own mind before attempting
to make temporal divisions. To do
otherwise would be unmusical and pointless.
Notation itself, the printed page on
which most music is preserved and sold, represents a gross reduction and
requires much re-assimilation on the part of the performer.[120] Notational simplifications are accepted in
the courtroom largely without question.
But a line exists that seems to bar the witness from going further. An unspoken rule suggests that all simplifications
done in order to reach the printed score introduced as an exhibit at trial are
to be ignored as though they had never happened. Yet no reductions beyond that of the score can be tolerated.
The terminology commonly used by
witnesses and counsel implicitly supports this fiction; their discussions often
revolve around "notes."
Notes, as explained above,[121] are mere symbols
of musical events, the result of serious generalizations, classifications, and
simplifications. The notated page may
represent choices made in the most casual fashion regarding the extent to which
the music will be reduced; these decisions may have been made by the composer,
publisher, arranger or other transcriber.
In general, the fewer features stipulated by the writing, the more
freedom the performer will enjoy in reconstructing the work. But in all cases, the music must be
reconstructed, because all of it cannot be captured in print.[122]
The writer usually has the performer
in mind. But a good performer reduces
the page further in his own mind in order to understand the music's function
and unity, and he adds much to his performance that did not appear on the
page. Even if the transcriber were to
be credited with making the most scrupulously precise decisions regarding the extent
of notation, those decisions would have been made for the benefit of the
performer, not the analyst. Like the
performer, but in a kind of mirror image, the analyst uses the notated page
merely as a starting point‑-a point with virtually no relevance to his
purposes. He adds innumerable factors
when he looks at the page and hears the music in his imagination, and he
reduces and classifies the music in order to reach the most complete
understanding of how it works. Analysis
is an aural process, not a visual one.
Because the analyst's reductions have a purpose different from the
transcriber's, there is no reason for the court to attach significance to the
latter. The analyst must reject what is
written merely for the performer's benefit and employ the reductions and
simplifications that make analytical sense.
If, as has been demonstrated, the
notated page represents a somewhat arbitrary stopping point on a long continuum
of reductions and simplifications, then it should not have the control that it does. The analyst should be free to simplify the
written music further. Of course, the
music's fixation in a tangible medium of expression determines what is
protected.[123] But this is not the inquiry here. Although the extent of fixation determines
the scope of protection, it does not reveal the nature of the thing
protected. Analysis involves explaining
and comparing the two pieces of music in a search for similarities and
differences. Whether those similarities
are found in protectable elements goes to the separate question of
misappropriation. Further, appeals to
the criterion of fixation would arise only if the analyst were adding musical
elements that previously had not been captured in tangible form. Reductions confront the court with the
opposite situation: there should be no objection to further reductions of the
fixed score, because the more abstract materials revealed through further
reductions have been fixed no less securely than the surface materials printed
on the original score.
In circuits following the
"total concept and feel" test, counsel might object that reductions
are irrelevant. But in the Ninth
Circuit, the total concept and feel standard applies only to the extrinsic test
for similarities of expression. Experts
may testify regarding the intrinsic test for similarities of idea, and, during
trial, the inquiries into similarity of expression and similarity of idea will
usually be before the court simultaneously.
Therefore, unless the inquiry before the court concerns the extrinsic
test alone, an objection to analytical reductions as being irrelevant should
fail. The only other possibility seems
to be for the objecting party to assert that the reductions are designed to
uncover similarities of expression rather than idea. But one of the many flaws in the Ninth Circuit
intrinsic-extrinsic bifurcation is the inability to define the distinction
between idea and expression. The two
are particularly interdependent in music.
The court would be wrong to sustain an objection to hierarchical
reductions on the grounds of relevance, because, as will be explained below,
this very type of reduction is the surest route to uncovering the abstract
"idea" in music.[124]
The Necessity of
Background Analysis
One
cannot hope to understand something by examining only its facade. Appearances are deceiving in music just as
in any other subject; therefore, a competent analysis must pierce the surface
of the music and explain its inner workings.
Heinrich Schenker introduced his analytical methodology by stating that
the art of music is much simpler than it appears, but its simplicity does not
lie on the surface. "Every
surface, seen for itself alone, is of necessity confusing and always
complex."[125] The analyst must find reasons for the
surface manifestations.
"Analyzing surface features is
pointless unless you do so in terms of the background structure."[126] This statement concedes more than it
should. In fact, examining surface
features alone cannot rise above mere description to the level of
analysis. The expert who refuses to
reduce the music to its fundamental structure in order to explain why the
surface appears as it does provides no help to the trier of fact. His purported analysis simply points out what
is obvious and applies a label to it.
Such an expert testifies merely as a seasoned observer of music, not as
an analyst.
Cook argues that analysis must find
a background structure in relation to which the musical surface can be viewed
as a kind of elaboration.[127]
[T]he musical surface
acquires it significance through the elaboration of underlying patterns‑-through
function, in other words. If one were to use such techniques for
analyzing musical function as the basis for comparisons between different
pieces of music‑-whether from one culture or several‑-then the
conclusions might have a degree of musical significance which can hardly be
attained merely by evaluations of surface features, however comprehensive and
painstaking.[128]
The most relevant objection to
surface descriptions of the music lies in the fact that they say little of
significance about the compositional process.
Surface similarities are always subject to the defense of coincidence,
and that defense often provides an adequate and credible explanation. The process can easily degenerate into the
rather useless exercise of counting notes and arguing over how many is too
many.[129] The expert should offer more than conclusory
characterizations of the similarities.
He should point out not only where the works are similar but how they
are similar, and he should be able to explain in understandable language why
those similarities are or are not substantial.
These goals can be accomplished only by moving beyond the surface to the
true substance of the music and by examining how form and function control the
compositional process. Surface analysis
alone too often produces facile and naive results.
Because the court has no history of admitting this kind
of reduction, witnesses understandably hesitate to be the first to introduce
it. This common shortcoming of
infringement suits tends to keep both plaintiff's and defendant's analyses
closely tied to surface features. As a
general proposition then, the party whose case is best argued by similarities
or differences at the surface enjoys a decided advantage; the party whose case
requires the least analysis benefits.
In effect, the party who can present the two works as written and say
that the pieces speak for themselves‑-they are similar where they are
similar‑-presents what appears to be unimpeachable truth.
Few counter-measures effectively offset the impression
that the witness has engaged in deliberate obfuscation by removing notes. He may cite the writings of prominent
theorists to bolster the necessity of these reductions. The judge may empathize more than the jury;
the judge has been educated in a field that requires analysis of abstract
principles. But the judge may also know
from experience that an expert can be found to testify on most any point, no
matter how tenuous its grounding in truth.
Consequently, the judge might improperly exclude this evidence, or, if
the judge admits it, the trier of fact might hold it suspect. The solution may have to await judicial
recognition of the true nature of music analysis and the regular issuance of
instructions to the jury on what analysis entails. The first judicial formulation will likely survive as common law
for a long time; if the court doesn't get it exactly right, what now is merely
difficult may become impossible.
The author suggests the following as a model jury
instruction and as a guideline for bench trials:
The law calls for dissection and analysis on the issue of copying. Dissection involves dividing music into its smaller component parts and reducing music to reveal its more functional aspects. This dissection may be accomplished by (1) temporal segmentation, such as focusing on a theme within the whole piece, a phrase within the theme, a motive within the phrase, etc.; (2) isolation of a parameter or group of parameters, such as the omission of harmony or rhythm, in order to focus on other parameters; (3) hierarchical reduction, such as the elimination of ornamental features and the gradual stripping away of small figurations to reveal overall function, purpose, and design; or (4) the likely combination of any or all of the above.
Hierarchies in Music
The discussion above regarding
harmonic progressions and melody demonstrates that music is not two-dimensional. Critical relationships are heard in numerous
parameters, in both transitory features and in music's larger aspects. The analyst must account for these different
layers of musical context, because associations and meanings at every layer
determine the response of all listeners, average and professional.
If one starts with the concept of embellishments in
music, hierarchical reduction (the elimination or illumination of a particular
layer) becomes easier to comprehend.
The Baxter case focused on
the eighth-note figure F E D E that was virtually identical
between the two works at issue. The
plaintiff characterized the figure as essential; the defense called it a
"turn"‑-an embellishment common in the baroque and classical
periods. There also appeared in the
relevant portion of plaintiff's "Joy" two grace notes, which appear
in Figure 24 in small type. Plaintiff
argued that these grace notes were inconsequential; defense expert Barlow
disagreed. As the name suggests, grace
notes ornament the music‑-they embellish and refine it.[130] Both plaintiff and defendant argued that one
type of embellishment mattered and that the other did not. The debate was entirely result-oriented.
The history of musical ornamentation
is far too complex to guide the discussion here. In the baroque period some ornaments were notated, some were
not. The composer expected the
performer to add certain ornaments, and performers sometimes added more than
was anticipated. Seemingly
contradicting the term, some ornaments were functional. For example, plucked instruments, such as
harpsichord and lute, cannot sustain tones like wind instruments, bowed
instruments, and voice. Ornamentation
provided a means of conveying sustained tones on these instruments.[131] Ornaments are correctly understood as
"diminutions"‑-something made smaller or, more particularly,
the breaking up of the notes of a melody into quick figures.[132] Diminution refers to the process by which
intervals formed by long notes are expressed by notes of shorter value.[133]
The English-language
equivalent of the term diminutions is divisions. From an English treatise dating from 1659,
we see that the tradition of systematic and explicit teaching of diminution
technique is indeed a long and honorable one.
The process with which Simpson's treatise is concerned is "breaking
the ground," which he describes as follows: "Breaking the ground (a
melodic bass figure) is the dividing its notes into more diminute Notes. As for instance, a Semibreve may be broken
into two Minims, foure Crotchets, eight Quavers, sixteen Semiquavers,
etc."[134]
Just as embellishments are diminutions of longer notes,
those longer notes are themselves diminutions of more basic structures. Music, therefore, reveals numerous hierarchies
as one moves from surface diminutions to more abstract background features:
The tradition of
embellishment manuals, stretching from Ganassi (Opera intitulate Fontegara, 1535) to Virgiliano (Il dolcimelo, c. 1600) and then on to the
17th-century vocal and instrumental tutors, was primarily concerned with
teaching graces and passaggi to
performers. This was done by means of
tables of ornaments, extended practical examples and formulated rules. In these manuals is established the fundamental
concept of "diminution." This
concept has two aspects to it: (1) the subdivision of a few long note values
into many shorter values; and (2) the application to an "essential"
melodic line of a layer of less essential linear material. In both aspects, a hierarchy is created, and
in both the possibility exists of the hierarchy becoming multi-layered as an
already embellished line is subjected to further embellishment. On the face of it this was the purely
transient affair of the virtuoso performer.
In reality much 16th-century music contained elements of embellishment
as it was written down; and the modern style of 17th-century seconda prattica subsumed ornamentation
within its notated exterior. The
compositional notion of invention (or adopting) a basic structure and then
elaborating it, which goes back at least to the 9th century and was developed
as contrapunctus diminutus by 14th-century
theorists, was crystallized in this instructional tradition and was absorbed
deep into European musical consciousness. . . . This tradition was to be of incalculable
importance to the theories of Heinrich Schenker at the beginning of the 20th
century.[135]
Schenker posited that music composition involves a series
of diminutions, a process of adding detail that mirrors the analytical process
of stripping it away.
Schenkerian analysis is
in fact a kind of metaphor according to which a composition is seen as the
large-scale embellishment of a simple underlying harmonic progression, or even as
a massively-expanded cadence; a metaphor according to which the same analytical
principles that apply to cadences in strict counterpoint can be applied, mutatis mutandis, to the
large-scale harmonic structures of complete pieces.[136]
Figure 25 shows the process of hierarchical reduction
that moves from foreground through middleground to background. Brahms wrote variations on this theme by
Handel, all admittedly derived from the theme.
The music analyst will want to know the many different ways Brahms took
material from the theme to construct the variations. In order to discover Brahms' compositional process, the analyst
cannot rely on surface features alone.
Looking for the same succession of notes in the melody yields little
useful information. Yet the listener
need not be a skilled analyst in order to hear all twenty-five of Brahms'
variations as a coherent work; the mind comprehends the similarities.
Example
25: Hierarchical reductions of Brahms' Variations on a Theme by Handel (Theme).
Example
26: Hierarchical reductions of Brahms' Variations on a Theme by Handel, Var.
III.
Variation III appears quite
dissimilar on the surface. Surface
differences between Handel's theme and Brahms' Variation III (Figure 26) are
striking, but the variation expresses a functional structure that is almost
identical. Schenkerian analysis reveals
those similarities that the layman may perceive and be unable to
articulate. It explains why some pieces
sound alike even though they appear quite different. By the same token, two works may contain numerous surface
similarities but yield a different functional structure. Schenkerian techniques will explain why such
works may yet sound significantly similar.
Although each hierarchical level
dispenses with non-essential notes and designates some notes as more important
than others, Schenkerian techniques offer fewer opportunities for tailoring an
analysis to suit the argument than the layman might suspect. Established principles have been thoroughly
documented. Most importantly, all
expressions ultimately derive from the organic unit of the tonic triad. This organic unit of tonality accounts for
what the court calls limited permutations of notes that are pleasing to the
ear.[137] The factors that make those permutations
pleasing have a basis in music, a background progression, that Schenker labels
its fundamental structure (Ursatz).[138] The analyst must adhere to sound musical
principles if his analysis is finally to yield this fundamental structure. Arbitrary choices lead to dead ends. Further, the same principles of harmony and
counterpoint that apply to the foreground in traditional analysis also apply to
every level of the reduction. Choices that
reflect poor analysis remain subject to cross-examination to the same extent as
those entailed in other methodologies.
Hierarchical reductions can be tested more easily than
segmentations. The same rules of
completion should be applied. The
analyst should account for at least three hierarchical layers and trace the
work to its fundamental structure.[139] This procedure will yield a most reliable
indicator of trustworthiness. If the
essential elements are removed and the unessential retained, the analysis will
become incoherent as it moves toward the background. Figure 27 shows the reductions culminating in the deep background
(Ursatz) on the top line.
Example
27: Schenker's analysis of "Ich bin's, ich sollte büssen by J.S. Bach.
Some music theorists have criticized
Schenkerian analysis as being irrelevant to non-tonal 20th-century music. The corollary to this flaw is that
Schenker's techniques are exceptionally well-suited to the analysis of tonal
music. A Schenkerian analysis provides
a clearer picture of the tonal implications of melody than other
methodologies. It shows how the small-
and large-scale relationships combine to form an overall impression of the
work.
Variations on Schenker's methodology
accomplish the same thing. Leonard
Meyer developed similar techniques for analyzing hierarchical structures in
music.[140] Benjamin Boretz expanded Schenkerian
analysis in order to apply its techniques to non-tonal music.[141] Much of the scholarship in music theory has
for the past twenty years explored the possibilities of Schenkerian and
neo-Schenkerian analysis. Schenker
currently holds the predominant position in this kind of music analysis, but
experts may want to employ similar techniques that they find more
understandable to the lay trier of fact.
Whether or not he uses Schenkerian techniques, the analyst must present
something that accomplishes the same thing.
Even Schenker's critics do not argue that he set out to do something
improper, only that this essential aspect of analysis can be accomplished
through better means.[142]
Earl Spielman included what he calls "macro analysis"
in his pre-trial report for the Overstreet case.[143] Spielman, acting as expert for the
plaintiff, reduced the melodies of numerous examples of prior art that had been
submitted by defendant. He introduced
the process as follows:
Macro Analysis of predominant pitches avoids undue
attention to insignificant details, passing tones, upbeats, etc., and allows
the observer to concentrate on just the primary tonal considerations. The underlying premise of Macro Analysis is
that similarities in the predominant pitches of two works is a more accurate
reflection of the overall similarity of the works, even if additional aspects
of pitch concurrence occur in more detail elsewhere.[144]
Spielman's reductions reflect the purpose and general
techniques of a Schenkerian analysis; his analysis reveals the middleground of
the prior art. Spielman has not
introduced this type of evidence in his courtroom testimony, because the
choices made in the reductions appear subjective. However, had Spielman represented one more level between the
foreground and his middleground and carried the process through to deep
background (something he necessarily thought but did not write), the basis of
his choices would be identified. He
could defend those choices according to musical logic and withstand
cross-examination.
A small effort was made in this direction in Baxter when Spielman introduced a
comparative chart showing how the examples of prior art revolved around a C
major triad.[145] This rather tentative approach not only
pointed out the relatively obvious similarities between "E.T." and
"Star Wars" but the relevant and less obvious similarities in the
"Dallas" theme.
Conclusion
The
importance of this analytical approach to the discovery of infringement lies in
the purposeful revelation of musical functions at all levels. Evidence relevant to copying will naturally
appear near the surface; the question of its substantiality requires reference
to the context in which the similarities appear‑-some short distance into
the background.[146] Formal segmentation provides too blunt an
instrument to accomplish the subtle refinements of analysis that are likely to
reveal the best evidence concerning copying.
Formal segmentation tends to explain similarities of device, and such
similarities by themselves cannot demonstrate copying.
Schenker's revelations are better
understood not as reductions but as elaborations.[147] For this reason, the various layers tend to
reveal the composition process itself.
No better evidence can be found to show what the composer did and how he
did it. Whether the composer actually
followed this process consciously does not matter. The technique reveals the music in both its structural and
psychological aspects and provides the lay trier of fact with an indispensable
guide to the context in which similarities appear.
[1] Nicholas Cook, A Guide to Musical Analysis (New York: George Braziller, 1987), 16.
[2] Heinrich Schenker, Free Composition, trans. and ed. Ernst Oster (New York: Longman, 1979), xxiii.
[3] Plaintiff's expert Winter developed his "six criteria" for comparison based on the similarities between the two works, whereas defense expert Spielman's five criteria were constants. Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir.), cert. denied, 484 U.S. 954 (1987), on remand, Case No. 88-6660 (C.D. Cal. 1988), aff'd, 907 F.2d 154 (9th Cir. 1990) [unpublished opinion], Record at 182 and 881-83.
[4] "A comparison is different from a contrast. If my instructions had been would you find as many contrasting elements between these themes, which is what you are about, I would have done that. I was asked to compare them, and then where the evaluation came in was to say okay, here are the things, here are the six elements, that are in common." Baxter, Record at 186 (Winter testifying).
[5] See, e.g., Baxter, Record at 881-83 (Spielman testifying). However, Winter used criteria dictated by the similarities between the two works. Record at 182.
[6] Defense expert Coster testified that he does exactly the same kind of analysis in all cases. He makes a chart of both songs and goes bar for bar, beat for beat. "That is the accepted way of analyzing all over the world." Gaste v. Kaiserman, Case No. 86 Civ. 5671 (S.D.N.Y. 1986), aff'd, 863 F.2d 1061 (2d Cir. 1988), Record at 680-81. Barlow testified that his method of analysis is "generally accepted." Ensign Music Corp. v. Avis, Inc., Case No. 80 Civ. 7346 (KTD) (S.D.N.Y. 1980), Record at 18. Parsons testified that, although he had never done a comparative analysis before, the process would not differ for popular and classical music. Selle v. Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984), Record at 198-99.
[7] Spielman pointed out that there are certain standard procedures but no standard methodology in music analysis. Tree Publishing Co., Inc. v. Overstreet, Case. No. 3:87-0032 (M.D. Tenn. 1987), Defendant's Deposition of Spielman, at 13.
[8] Form and style influence the course of analysis, suggesting the relative utility of certain methodologies. One analytical method is not enough. If your only tool is a hammer, every problem becomes a nail. Michael R. Rogers, Teaching Approaches in Music Theory (Carbondale: Southern Illinois University Press, 1984), 28 (citing Andrew Maslow).
[9] "The ear moves beyond surface similarities to hear more subtle distinctions. It is in this realm of subtle distinctions that composers work." Keyt, An Improved Framework for Music Plagiarism Litigation, 76 Calif. L. Rev. 421, 428 (1988).
[10] See, e.g., Arnstein v. Porter, 154 F.2d 464, 476 (2d Cir. 1946); Dorchester Music Corp. v. National Broadcasting Co., 171 F. Supp. 580, 586 (S.D. Cal. 1959).
[11] Selle v. Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984), Record at 77.
[12] Different parameters of music may function ambiguously or even at cross purposes. See discussion, infra 293.
[13] Games Magazine, January, 1984.
[14] See Grosvenor W. Cooper and Leonard B. Meyer, The Rhythmic Structure of Music (Chicago: University of Chicago Press, 1960), 6.
[15] Of course, bar lines may coincide with the proper divisions.
[16] Tree Publishing, Inc. v. Overstreet, No. 3:87-0032 (M.D. Tenn. 1987), Deposition of Spielman, at 197-99.
[17] Gaste v. Kaiserman, Case No. 86 Civ. 5671 (S.D.N.Y. 1986), aff'd, 863 F.2d 1061 (2d Cir. 1988), Record at 490 (Question by plaintiff's counsel Bart to plaintiff's expert Ricigliano).
[18] See Harold R. Laycock and Quentin R. Nordgren, First-Year Music Theory (New York: Appleton-Century-Crofts, 1962), 17; Ralph Turek, The Elements of Music: Concepts and Applications (New York: Knopf, 1988), 105.
[19] Motive is "a term used in a variety of senses in thematic and phrase-structure analysis. It usually denotes a short utterance that retains its identity as a musical idea as it often `appears in a characteristic and impressive manner at the beginning of a piece' (Schoenberg). It is usually thought of in melodic terms, and it is this conception that is sometimes rendered as `figure.' Another term often encountered in the context of the melodic motif is `cell,' which connotes a still smaller unit of melody, as in the opening theme of Beethoven's Piano Sonata in E Major, op. 109." Ian Bent, Analysis (New York: Norton, 1987), 122.
[20] Turek, supra note 18, at 105. See also New Harvard Dictionary of Music (1986), s.v. "Motive."
[21] Anheuser-Busch, Inc. v. Elsmere Music, Inc., 633 F. Supp. 487 (S.D.N.Y. 1986), seems to provide an example. The case involved the Budweiser jingles. In the original version, Steve Karmen's familiar music accompanied "For all you do, this Bud's for you." Although Budweiser had made that figure significant by repeatedly broadcasting it, the final descending figure (the melodic progression 6‑4‑2‑1) had not generated nor been derived from other material of the complaining work. Familiarity with the original Budweiser theme resulted from its use as a musical trademark, not as a motive. Karmen alleged similarities in a subsequent advertising campaign in which Tom Anthony's music accompanied the slogan "You make America work, and this Bud's for you." The alleged similarities were confined to the last four notes of the of accused work and relied on its similar placement as a tag ending. Record at 198-99. See Pre-Trial Analysis of Spielman, Appendix G, at . The defense depended in part on limiting the inquiry to the last four notes. The prominence of the musical trademark raised interesting questions regarding whether such a short figure might be protectable and whether the figure's prominence might in itself make any similarities substantial. Karmen's expert, Abba Bogin, suggested a cumulative effect: if 75% of everything is the same, then one begins to hear all as similar. Record at 199; Appendix G, at 1248. Earl Spielman, testifying for Anthony, analyzed both works in their entirety in order to show that Karmen's ending stated new material (a mere figure) while Anthony's was based on repeated material (motives which had generated a quite different work). Record at 668-71. The court determined that the works did not exhibit substantial similarities.
This result can be contrasted to that of Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976), aff'd, ABKCO Music, Inc. v Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983), in which George Harrison's "My Sweet Lord" was held to have infringed the Chiffons' "He's So Fine." Each song states two key motives that repeat with slight variations and embellishments. 420 F. Supp. at 178. Virtually no other material appears. The paucity of material hurt Harrison's case. Once similarities were established between the motives, they had to be considered substantial. See Pre-Trial Analysis of Greitzer, Appendix E, at 1213.
[22] Rudolph Reti, The Thematic Process in Music (New York: Macmillan, 1951).
[23] See Laycock and Nordgren, supra note 18, at 18.
[24] Turek, supra note 18, at 107.
[25] See Laycock and Nordgren, supra note 18, at 18.
[26] A typical musical rhyme involves parallel beginnings of phrases that progress to different cadences.
[27] A period consists of two related phrases, the second coming to a stronger close than the first.
[28] A sequence is the reiteration of a figure at a different pitch level.
[29] The chord in measure 4 is not B minor as the piano arrangement indicates, but a G major 7. Measure 3 of the theme should be understood as a secondary dominant (D7 or V7 in G) implying a transitory key change to G major. Further, G is the root of the chord in measure 4, a note not accounted for in the B minor designation.
[30] Sequence is such a strong device that its contrapuntal aspects tend to obscure everything except the fact of repetition and the motion outlined by the beginning point of each repetition.
[31] Record at 116-17. The judge instructed the jury: "The idea or thought involved in selecting the use of repetition or sequence to design a song is not protected by copyright. There can be no copyright on an idea." Record at 1078. The judge incorrectly determined that sequence must be idea rather than expression. This error points out the tendency to treat any aspect of music that can be defined as non-expressive. See also, Pre-trial report of Barlow, Selle v. Gibb, § 123 at 47: "Whatever the creative status of the Motif of "Coda," the underlined numbers (notes) in the Sequential Repetition are not the product of additional creative effort."
[32] 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). "`Original' in reference to a copyright work means that the particular work `owes its origin' to the `author.' No large measure of novelty is necessary. . . . No matter how poor artistically the `author's' addition, it is enough if it be his own." Alfred Bell & Co. v. Catalda Fine Arts, Inc., 74 F. Supp. 973, 102-03 (S.D.N.Y. 1947), aff'd, 191 F.2d 99 (2d Cir. 1951).
[33] Judge Learned Hand observed, "True, it is the themes which catch the popular fancy, but their invention is not where musical genius lies, as is apparent in the work of all the great masters." Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 277 (2d Cir. 1936).
[34] Fed. R. Evid. 403.
[35] This phenomenon is somewhat like the mechanic who, upon reassembling the machine, has parts left over.
[36] See, e.g., Baxter, Spielman Pre-Trial Report, Chart 1, (Appendix C, at 889).
[37] Examples include such common devices as syncopation (a contradiction between the underlying pulse and surface rhythm) and hemiola (groupings that contradict the established metrical grouping, such as groupings of two in triple meter).
[38] Subtlety of meter does not facilitate getting masses of people to march in step or dance to the beat.
[39] "If the Guidelines have accomplished anything thus far, they should have instilled a settled habit of regarding music first as a process of growth, then attempting to understand this growth by an analysis that fully reflects the character of musical flow. The fluidity of music must always be perceived as a stream (whether a spring, brook, or river) with tributaries of many sizes from many directions, never as a scattering of ponds and lakes, or worse still, as buckets and boxes into which a composer pours his thoughts." Jan LaRue, Guidelines for Style Analysis (New York: Norton, 1970), 115-16.
[40] Leonard B. Meyer, Emotion and Meaning in Music (Chicago: University of Chicago Press, 1956), 14. Meyer defined three stages of perception: the "hypothetical meaning" before a sound-pattern has been heard, the "evident meaning" when the sound-pattern becomes a concrete event, and "determinate meaning" that arises out of the total experience. Bent, supra note 19, at 59-60. Eugene Narmour developed this notion into an "implication-realization" model. See Eugene Narmour, Beyond Schenkerism (Chicago: University of Chicago Press, 1977), 136 ff. "Musical formations carry certain implications as to how they will continue. Those implications are manifold; they relate to the way things have gone in the work so far (`idiostructure'), but also to the stylistic context of the work (`style structure'). . . . Each parameter of a musical event carries its own separate implications. The implications in play at any one moment are bound to be to some extent mutually contradictory, hence no more than part-realization is possible. That which is unrealized remains potential. Realization yields `closure,' non-realization `non-closure.' Bent, supra note 19, at 69.
[41] Webster's New Collegiate Dictionary (1980), s.v. "Parameter."
[42] See New Harvard Dictionary of Music (1986), s.v. "Parameter."
[43] The law hears arguments on many complex subjects and is quite accustomed to seeking out accurate definitions. It is unclear why the district judge in Selle v. Gibb failed to consult an authoritative source before including erroneous definitions in his instructions. See infra note 65.
[44] Charles A. Culver, Musical Acoustics, 4th ed. (New York: McGraw-Hill, 1956), 83-85. Relative intensity of the overtones determines timbre; it makes a clarinet sound different from an oboe.
[45] A pitch class is, for example, the set of all Gs regardless of octave.
[46] Hindemith noted this vast terrain between pitch classes and the ear's attempts to generalize, giving the example of five different types of the interval of a third. Common notation recognizes only two: the major third (e.g., C ‑ E), and the minor third (e.g., C ‑ E‑flat). Hindemith's five types are: major (frequency ratio 4:5), minor (5:6), "too small" (6:7), "too large" (7:9), and one in between (9:11). All of these ratios lies within the first sixteen partials of the overtone series, and sixteen partials are required to define the basic content of the tonal system. The interval of a half step is the ratio 15:16. Fritz Winckel, Music, Sound, and Sensation: A Modern Exposition (Max Hesses Verlag, 1960; repr., New York: Dover, 1967), 124. "[T]he ear usually hears what it wants to hear, even if that does not correspond to the acoustically given interval." Id. at 128.
[47] Culver, supra note 44, at 88-89. Extreme refinements may occur intentionally, such as a piano tuner leaving small deviations among unison strings to give the sound character. Other refinements, such as the regular compression and expansion of certain melodic intervals by performers, may be the result of psychological forces. The ear hears these deviations in frequency but does not consider them significant enough to reclassify pitch. Winckel, supra note 46, at 127-29.
[48] In fact, western notation entails more subtle distinctions than the pitch class designations admit. One must account for sixteen partials (divisions of a vibrating string) of the overtone series in order to define the intervallic content of common notation. There are fifteen major keys (three more than pitch class names) and seventeen pitch names that do not resort to double sharps and double flats. Enharmonic equivalents (e.g., d-sharp equal to e-flat) exist only in even-tempered tuning. Distinctions in tuning systems that require the most refined discriminations of frequency were a common subject of the theoretical writings of ancient Greece.
[49] "Blue notes," for example.
[50] Phenomenologists hold a similar view of pitch. "[P]itch is `transparentized' in a musical context, which is to say that we experience music through the pitch, rather than the pitch itself. More simply, we hear the musical activity of the pitch: it is receding, projecting, emerging, interrupting or being interrupted; changing in tone quality or intensity, glaring, glowing, echoing, etc. The most mysterious thing about a pitch is that it simultaneously presents the experiences of duration and change: the `same' sound constantly renews itself and passes away, even while enduring. In this sense, the phenomenal aspect of pitch is some kind of activity, however minimal, and is therefore involved in the presentation of some kind of time and space, although it may be of a highly undifferentiated kind. We can think of pitch in music as analogous to cadmium red in painting; again, pitch is to music what Paul Scofield is to King Lear, and in general, what a performer is to a performance. Pitch is not even to be confused as the reason for, or cause of, the musical event: it is simply the medium." Thomas Clifton, Music as Heard: A Study in Applied Phenomenology (New Haven: Yale University Press, 1983), 20.
[51] Alfred M. Shafter, Musical Copyright, 2d ed. (Chicago: Callaghan, 1939), 195.
[52] According to Shafter, "[p]ractically every original idea the composer can think of has appeared somewhere before; it is a matter of probabilities, and every day the number of new possibilities grows less." Shafter, supra note 51, at 196. Keyt correctly notes the diametrically opposite view held by most musicians and philosophers: "a seemingly infinite array of possible choices involved in the compositional process." Keyt, supra note 9, at 431 n.50 (citing Cox, Are Musical Works Discovered? 43 J. Aesthetics & Art Criticism 367, 370 (1985).
[53] See, e.g., Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 277 (2d Cir. 1936) (The seven notes available do not admit of so many agreeable permutations that we need be amazed at the re-appearance of old themes); Schultz v. Holmes, 264 F.2d 942 (9th Cir. 1959) (The common utilization by different compositions of a few notes such as herein found to exist occurs frequently in the field of popular music, particularly because of the limited number of pleasing tonal combinations); Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988) (We are mindful of the limited number of notes and chords available to composers and the resulting fact that common themes frequently reappear in various compositions, especially in popular music); Darrell v. Joe Morris Music Co., 113 F.2d 80, 80 (2d Cir. 1940) (While there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing, and much fewer still suit the infantile demands of the popular ear). See also, May, So Long as Time Is Music: When Musical Compositions Are Substantially Similar, 60 S. Cal. L. Rev. 785, 790 (1987); Sherman, Musical Copyright Infringement: The Requirement of Substantial Similarity, 22 Copyright L. Symp. (ASCAP) 81, 124 (1977); Orth, The Use of Expert Witnesses in Musical Infringement Cases, 16 U. Pitt. L. Rev. 232, 234 (1955). In Herald Square Music Co. v. Living Music, Inc., 205 U.S.P.Q. 1241 (S.D.N.Y. 1978), the judge began the trial by asking if the defense wanted to submit a trial memo rebutting that of plaintiff's. Plaintiff's memo, he noted, "equates the plagiarism of musical works with those of written works although in the usual written work there are a thousand or tens of thousands of words, and in the usual musical work there are a couple of dozen notes. If that is an unfair comparison I would think you would want to demonstrate that to me." Record at 2.
[54] The three spatial dimensions do not limit the expressive range of sculpture. Primary colors do not inhibit the painter. Unlike language, music is free of the literal connotations. Music above all the arts can reveal the artist's idea "unobscured by adventitious literal meanings. That is presumably what Walter Pater meant by his much-debated dictum, `All art aspires to the condition of music.'" Susanne K. Langer, Philosophy in a New Key (Cambridge: Harvard University Press, 1942), 257; quoting Walter Pater, The Renaissance: Studies in Art and Poetry (1908; 1st ed. 1873), 140.
[55] "Music is unlike language in crucial respects. For one thing, music has many more parameters." Narmour, supra note 40, at 21. The linguist Roman Jakobson stressed the fact that the rules of music, as of poetry, do not concern etymology or vocabulary. Music analysis, he argued, should focus on phonology (the science of distinguishing between elements in a stream of vocal linguistic sound and the apprehension of the rules by which the sounds are linked together). Bent, supra note 19, at 59.
[56] "What is crucial is relational richness, and such richness (or complexity) is in no way incompatible with simplicity of musical vocabulary and grammar." Leonard B. Meyer, "Grammatical Simplicity and Relational Richness: The Trio of Mozart's G Minor Symphony," Critical Inquiry 2 (1975-1976): 694.
[57] The misperception may derive from Marks v. Leo Feist, Inc., 290 F. 959 (2d Cir. 1923). "Musical signs available for combinations are about 13 in number. They are tones produced by striking in succession the white and black keys as they are found on the keyboard of the piano. It is called the chromatic scale. In a popular song, the composer must write a composition arranging combinations of these tones limited by the range of the ordinary voice and by the skill of the ordinary player. To be successful, it must be a combination of tones that can be played as well as sung by almost anyone. Necessarily, within these limits, there will be found some similarity of tone succession." Id. at 960. This statement does not imply any limitation of music's expressive capacity.
[58] Listeners cannot even identify timbre in isolation. In one experiment a sustained tone played on various instruments was recorded. The "attack," the instruments' initiation of the tone, was edited out of the recording. Observers mistook a tuning fork for a flute, an oboe for a clarinet, a cello for a bassoon, a cornet for a violin, and a French horn for a flute. Winckel, supra note 46, at 34.
[59] Often explained as acute pitch memory, perfect pitch usually refers to the ability to identify the pitch of a given tone without reference to any other tone. It is the ability to remember frequency. One with relative pitch might be able to discern all of the relationships in music without relating them to any absolute value of frequency‑-like understanding an algebraic formula without knowing the value of "x."
[60] See Boretz, "Musical Cosmology," Perspectives in New Music 15 (1977): 128.
[61] See Marvin Thostenson, Fundamentals, Harmony, and Musicianship (Dubuque: Brown, 1963), 5. But the duration designated is merely some fraction (half, quarter, eighth, etc.) of an unknown constant.
[62] Baxter, Record at 836-37.
[63] Selle, Record at 106 (Plaintiff's counsel Engerman questioning Selle).
[64] The same error occurs in Dorchester Music Corp. v. National Broadcasting Co., 171 F. Supp. 580, 585 (S.D. Cal. 1959).
[65] Selle, Record at 1079-80 (jury instructions). The judge may have drawn from Northern Music Corp. v. King Record Distributing Co., 105 F. Supp. 393, 400 (S.D.N.Y. 1952): "Technically analyzed, a musical composition is made up of rhythm, harmony and melody. Originality, if it exists, must be found in one of these. Rhythm is simply the tempo in which the composition is written. It is the background for the melody. There is only a limited amount of tempos; these appear to have been long since exhausted; originality of rhythm is a rarity, if not an impossibility. Harmony is the blending of tones; this is achieved according to rules which have been known for many years. Being in the public domain for so long neither rhythm nor harmony can in itself be the subject of copyright."
[66] "Tempo is the speed of the beat." Turek, supra note 18, at 18.
[67] Pulse marks even divisions of time and the basic durational unit in a piece of music. Turek, supra note 18, at 18.
[68] Gaste, Record at 468 (Plaintiff's expert Ricigliano testifying).
[69] Ensign Music Corp. v. Avis, Inc., Case No. 80 Civ. 7346 (KTD) (S.D.N.Y. 1980), Record at 15-16.
[70] Rhythm is "[i]n its primary sense, the whole feeling of movement in music, with a strong implication of both regularity and differentiation." Harvard Dictionary of Music 729. An admittedly simplified definition: "Music occupies space in time. It consists of a series of impressions made up of combinations of sound and silence following one after the other. The relation of these successive impressions to each other and to the passage of time is a phase of rhythm." Thostenson, supra note 61, at 5.
[71] White defines rhythm as the organization of a group of musical sounds according to the time interval between them, according to accents, and according to their duration. John D. White, Understanding and Enjoying Music (New York: Dodd, Mead, 1968), 17.
[72] "Explanations of Rhythm commonly include only immediate durational aspects and the concept of meter. For purposes of style analysis both of these approaches must be considerably expanded and a further category added to account for rhythmic influences contributed by other elements." LaRue, supra note 39, at 90.
[73] See Turek, supra note 18, at 18.
[74] "Meter is the basic pattern of organization and accent used in each measure." Thostenson, supra note 61, at 6.
[75] See supra page 254.
[76] "Meter is the grouping of pulses into patterns of two or more beats by means of accent." Turek, supra note 18, at 19.
[77] Emphasis may be real or only perceived. See New Harvard Dictionary of Music (1986), s.v. "Accent."
[78] "The center of this [rhythmic] hierarchy is the individual pulse and the grouping of pulses into a consistent meter that we feel as a rhythmic basis underlying many styles, even when neither pulse nor meter is consistently expressed in any single line. The persistence of this core of continuous expectation can be neatly demonstrated by the phenomenon of syncopation, which continues to be felt as a rhythmic dissonance even when no part reaffirms the continuum against it. The continuum may also establish larger expectations, such as recurrent phrasing of 4 + 4 + 4 bars, and in the other direction, smaller assumptions such as consistently duple or triple fractures of the pulse into a subhierarchy of microcomponents." LaRue, supra note 39, at 90.
[79] The device was described by Riemann as an "annexed motif" (Anschlussmotiv): "a subsidiary phrase unit place immediately after the strong beat of the main phrase unit. It serves to generate a second strong beat where a weak beat would normally occur." Bent, supra note 19, at 92 and 109-10.
[80] Baxter, Record at 698-99.
[81] Record at 1102-03.
[82] Record at 499.
[83] Record at 694-95.
[84] "[I]t is tempting to identify Rhythm as the arch-ambiguity, the single most mysterious and problematical of musical elements. Aware as we are now, however, of the nearly total interconnectedness of the elements . . . we may at most conclude that the puzzling aspects of rhythm illustrate with particular sharpness a general, fundamental ambiguity that is characteristic of music." LaRue, supra note 39, at 88.
[85] "It has been said that originality in rhythm is an impossibility, and this view is probably correct." Sherman, supra note 53, at 126 (citing Northern Music Corp. v. King Record Distributing Co., 105 F. Supp. 393 (S.D.N.Y. 1952)).
[86] Cf. Shafter, supra note 51, at 199. "Time and accent, as elements of rhythm, have been used to disguise plagiarized melodies." The author suggests that this occurs very infrequently. Shafter continues: "Some of the classic works have been `jazzed up' so that their composers would never recognize them. The rate of performance ipso facto determines the general nature of the piece. Presumably, that majestic work of Chopin's, popularly known as the `Funeral March,' could be transformed into a `hot' dance melody with jungle rhythm, if the arranger were skillful and resourceful enough to accomplish that miracle." Id. at 199-200. See also, Orth, supra note 53. Keyt counters, "These self-styled music critics seem to envision a world full of composers endeavouring mightily to conceal acts of plagiarism, even going so far as to change all the notes." Keyt, supra note 9, at 424 n.17.
[87] See, e.g., Sherman, supra note 53, at 126-29. Examples in the cases presented in Chapter Four include "Dragnet" imbedded in "Feelings" (Gaste, Record at 656) and "Rudolph, the Red-Nose Reindeer" as equivalent to "Rock of Ages" (Baxter, Joint Appellee's Brief (No. 88-6660), at 33 n.37, 907 F.2d 154 (9th Cir. 1990)) (Appendix C, at 1061). One who enjoys this might also compare Beethoven's Sonata No. 4, op. 7 (3d movement) and the "Star-Spangled Banner," but the exercise seems rather irrelevant to the discovery of infringement.
[88] In many instances, a work's rhythm performed without pitch may be more recognizable than its pitch without rhythm.
[89] See, e.g., Harvard Dictionary of Music, 2d ed. (1969), s.v. "Harmony." "The vertical structure of a composition in contrast to the horizontal or melodic structure."
[90] Vertical structures may define chords, although not every vertical structure does, but chords do not define harmony.
[91] "For Schoenberg, structural function deals always with progressions, not with chords, and those progressions are considered in terms of their roots; function gives a sense of direction to a progression and determines its role with the scheme of regions which make up monotonality." Bent, supra note 19, at 116; citing Arnold Schoenberg, Structural Functions of Harmony, rev. ed. (London: 1969).
[92] Rameau provided both the first systematic description of tonality and the influence that focused analysis on harmony at the expense of melody. "To perceive that all the harmonies and their different properties originate in the triad and the chord of the seventh is not enough; beyond this it is necessary to note that all the properties of these two primary harmonies depend absolutely on the harmonic center and its progression. The intervals of which they are composed are intervals only in relation to this center, which makes use of the same intervals to form its progression, on which progression the order and progression of the two primary harmonies alone depend. These intervals are all comprised in the third, fifth, and seventh. . . . This reduction of the intervals has yet another exact relation to that of the harmonies: the inverted intervals form inverted harmonies, the extended intervals form harmonies `by supposition,' the altered intervals from harmonies `by borrowing,' the whole arising from our three primary intervals, from which the fundamental harmonies are formed, and related solely to our harmonic center." Rameau, Traité de l'harmonie (Paris, 1722) ed. Oliver Strunk in Source Readings in Music History (New York: Norton, 1950), 569.
[93] LaRue compares the harmonic continuum to that of language:
chords --> progressions --> tonality
words --> grammar --> syntax
LaRue, supra note 39, at 40.
[94] Noam Chomsky posited that all humans possess an inborn and universal grasp of the formal principles of musical syntax. Bent, supra note 19, at 71-73; citing Noam Chomsky, Aspects of the Theory of Syntax (Cambridge, Mass., 1965).
[95] Nizer's account of Baron v. Leo Feist, Inc., 78 F. Supp. 686 (S.D.N.Y. 1948), aff'd, 173 F.2d 288 (2d Cir. 1949), states that "L'Année Passée" had sixteen chords and that "Rum and Coca-Cola" (Appendix H, at 1278) had fourteen "identical" chords "in the same places and in the same consecutive order." Louis Nizer, My Life in Court (Garden City, N.Y.: Doubleday, 1961), 249. If like segments were being compared (implicit in Nizer's account), this result would seem to be impossible.
[96] Keyt recommends that courts examine "semantic similarity" in addition to literal similarity. "The trumpets are loud" has three literal similarities of words with "The ties are loud." However, the change of one word changes the meaning of another. Similarly, "The trumpets are loud" has a different significance when spoken at a band concert or in a library. Keyt, supra note 9, at 430 n.44.
[97] "[Wallace] Berry's treatment of tonality recognizes the ambivalence of harmonic events: a single harmony may perform different functions at different levels of structure. Tonality's capacity to project multiple levels gives to music its sense of depth of significance." Bent, supra note 19, at 71.
[98] See Record at 752-56.
[99] See Northern Music Corp. v. King Record Distributing Co., 105 F. Supp. 393 (S.D.N.Y. 1952).
[100] See also, Henry Purcell's "Fantasia Upon One Note."
[101] See Keyt, supra note 9, at 431-43 & n.46.
[102] The parties in Baxter argued over which voice should be considered the melody in measures 72 and 73 of "Joy." The argument concerned the significance of the thematic statement. Contrary to some of the testimony, loudness does not equate with significance. In MCA, Inc. v. Wilson, 425 F. Supp. 443 (S.D.N.Y. 1976), aff'd and modified, 677 F.2d 180 (2d Cir. 1981), defendant's expert admitted on cross-examination that it was hard to tell which voice should be considered the melody, so he chose the loudest. He made his transcription from a recording of a stage production, and the singers were dancing and moving in front of a stationary microphone. As different singers came close to the microphone, they may have caused the expert to change his impression of which voice was singing the melody.
[103] "Melody is succession of pitches in rhythm." Turek, supra note 18, at 100.
[104] Ernest Ansermet, postulating a "melodic path," classified intervals as "active extrovert," "active introvert," "passive extrovert," and "passive introvert." Bent, supra note 19, at 63; citing Ernest Ansermet, Les fondements de la musique dans la conscience humaine (Neuchâtel, 1961). Ansermet's melodic path can be traced to Rameau, whose theories solidified the concept of tonality. "At first sight it would seem that harmony arises from melody, inasmuch as the melodies which the single voices produce become harmony when they are combined; it has, however, been necessary to determine in advance a path for each of these voices in order that they may agree together. No matter, then, what order of melody we may observe in the individual parts, taken together they will scarcely form a tolerable harmony (not to say that it is impossible that they should do so) unless this order has been dictated to them by the rules of harmony." Rameau, supra note 92, at 570.
[105] Laycock and Nordgren, supra note 18, at 10.
[106] "Originality is better viewed as a function of the interaction and conjunction of [rhythm, harmony, and melody] than of any element alone; a change in one element necessarily affects our perception of all others." Keyt, supra note 9, at 432.
[107] "Intervals and motivic patterns are the words and phrases of Melody. While musicological comment on Melody often includes tables of intervals, this rather clinical approach reminds one of a list of words without any explanation of meanings. We do not gain much insight from the comment "The piece contains many augmented fourths and major sevenths," a mere enumeration of components without real illumination of function." LaRue, supra note 39, at 83.
[108] This fact further contradicts notions that musical expression is more limited than literary discourse.
[109] "The most obvious influence of text rhythm can be seen in the patterns of individual words, and careful composers have usually tried to match notes to the stress and length of syllables as naturally as possible. . . . Sometimes a text phrase will suggest a special rhythmic atmosphere for a section. . . . In a larger dimension, word rhythms produce consistent meters that often influence the musical meter of a whole piece." LaRue, supra note 39, at 150-51.
[110] LaRue, supra note 39, at 148-52.
[111] Recall Nizer's common error of the chromatic chord implying the pathos of the word "streetwalker." See supra note 95, and supra Chapter 4, note 18.
[112] Gaste, Record at 657.
[113] Record at 729.
[114] Record at 726-63.
[115] Record at 775-76.
[116] The defense in MCA, Inc. v. Wilson, 425 F. Supp. 443 (S.D.N.Y. 1976), aff'd and modified, 677 F.2d 180 (2d Cir. 1981)., was based on the theory that style dictated similarities. Defense counsel argued that the accused work reminded listeners of the complaining work not so much because of similar melodic content or harmonic structure but because of the arranger's style. Record at 339.
[117] Cook, supra note 1, at 24.
[118] "Music, like language, is an articulate form. Its parts not only fuse together to yield a greater entity, but in so doing they maintain some degree of separate existence, and the sensuous character of each element is affected by its function in the complex whole. This means that the greater entity we call a composition is not merely produced by mixture, like a new color made by mixing paints, but is articulated, i.e. its internal structure is given to our perception." Susanne K. Langer, Feeling and Form (New York: Scribner, 1953), 31.
[119] Cook, supra note 1, at 24.
[120] See id. at 225.
[121] See supra page 280.
[122] "As we find it today, our conventional notation is still a mixed symbolic-linear music-writing in which the symbolic element is the more highly organized and therefore dominates. It is practically entirely prescriptive in character. Emphasis is upon structures‑-principally of pitch and meter. It does not tell us much about the connection of the structures. It does not tell us as much about how music sounds as how to make it sound. Yet no one can make it sound as the writer of the notation intended unless in addition to a knowledge of the tradition of writing he has also a knowledge of the oral (or, better, aural) tradition associated with it‑-i.e., a tradition learned by the ear of the student, partly from his elders in general but especially from the precepts of his teachers. For to this aural tradition is customarily left most of the knowledge of `what happens between the notes'‑-i.e., between the links in the chain and the comparatively stable levels in the stream." Charles Seeger, "Prescriptive and Descriptive Music-Writing," The Musical Quarterly 44 (1958): 186.
[123] See 15 U.S.C. § 102.
[124] See Keyt, supra note 9, at 437 (equating hierarchical analysis with Learned Hand's abstractions test).
[125] Schenker, supra note 2, at xxiii.
[126] Cook, supra note 1, at 205 (explaining Schenker and Blacking).
[127] Id. at 208.
[128] Id. at 214.
[129] See, e.g., Northern Music Corp. v. King Record Distributing Co., 105 F. Supp. 393, 398 (S.D.N.Y. 1952). "Examination of the musical score of both songs reveals substantial melodic similarity. Exhibit 18 shows the first eight bars‑-or the "A" strain of both songs. Tonight He Sailed Again has 25 notes in these eight bars; I Love You, Yes I Do has 28 notes in the same bars. Comparison shows that 16 of these notes are common to both songs. This coincidence of notation is significant because it occurs at the same point in the melodies. Similarity in the melodies of both songs is impressed upon us when the first eight bars of both songs are played simultaneously. So played, without harmony, we, paying special attention, detected with untrained ear but three discords."
[130] The durational value of grace notes is not taken into account in common notation; their value must be subtracted from one of the surrounding notes.
[131] "More than any other instrument, the lute called for sustaining ornaments in all voices. While in the lute music of the renaissance the florid sections of the melody were carefully written out in the tablature, they were indicated in baroque tablatures by means of newly invented symbols. The use of ornamental symbols was again derived from the virginalists. Instrumental ornaments were as essential a factor in the chordally conceived lute music as vocal ornaments were in the monody. In spite of the full accounts of lute ornamentation in Mersenne and Mace, its variety and subtlety is hard to describe." Manfred F. Bukofzer, Music in the Baroque Era (New York: Norton, 1947), 166.
[132] See New Harvard Dictionary of Music (1986), s.v. "Diminution."
[133] Allen Forte and Steven E. Gilbert, Introduction to Schenkerian Analysis (New York: Norton, 1982), 1.
[134] Id. at 8; citing Christopher Simpson, The Division-Viol or, The Art of Playing Extempore upon a Ground, 2d ed. (London: 1665; published in facsimile by J. Curwen & Sons, London, 1955).
[135] Bent, supra note 19, at 9.
[136] Cook, supra note 1, at 36.
[137] Darrell v. Joe Morris Music Co., 113 F.2d 80, 80 (2d Cir. 1940) (While there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing, and much fewer still suit the infantile demands of the popular ear).
[138] "Schenker's unique view of a musical composition is that works that are tonal and exhibit mastery are `projections' in time of a single element: the tonic triad. The projection of this triad comprises two processes, its transformation into a two-part `fundamental structure' called the Ursatz, and the `composing-out' (Auskomponierung), i.e., the elaboration of the structure by one technique or more of prolongation. The Ursatz is made up of a linear descent to the root of the triad‑-the `fundamental line'
(Urlinie)‑-accompanied by an `arpeggiation' in the bass (Bassbrechung), from the tonic to the dominant and back to the tonic." Bent, supra note 19, at 81.
[139] "Schenker's levels are determined primarily by the Ursatz; they are displayed in his analyses on three basic layers, called `foreground,' `middleground,' and `background,' corresponding to lower, middle and higher levels. But these three strata are only general demarcations, and within any one of them many more hierarchical orderings are found, indicated by note size, type of stem, verbal abbreviations, parentheses, and so forth. How a piece evolves or is prolonged can be seen by employing the concept of the Ursatz on each of the three basic levels. Analytically, these are represented from foreground to background in voice-leading graphs. The analysis results in a hierarchical `tree.' Looking up the tree, one can see how the overall structure is `achieved'; looking down, one can see how it is `generated'; look across, we have a kind of `flow chart' of harmonic process." Narmour, supra note 40, at 5.
[140] Leonard B. Meyer, Explaining Music, (Berkeley: University of California Press, 1973), 109.
[141] See Cook, supra note 1, at 121. Bent points to Schenkerian analyses in Music Forum of medieval and Renaissance music by Salzer, Bergquist, and Schachter, of late Romantic music by Bergquist and Mitchell, of contemporary music by Travis, and of non-Western music by Loeb. Bent, supra note 19, at 68.
[142] See, e.g., Narmour, supra note 40, at 2.
[143] Tree Publishing Co., Inc. v. Overstreet, Case. No. 3:87-0032 (M.D. Tenn. 1987). The case alleged infringement of Nat Stuckey's "Sun Comin' Up" by the Randy Travis recording of "Diggin' Up Bones." The parties settled before trial.
[144] Overstreet, Musicological Exhibits (September 8, 1987), submitted by Spielman. The relevant passage appears in Appendix D, at 1169.
[145] Exhibit 492; see Baxter, Record at 954-58. Appendix C, at 895.
[146] "The thing created is best viewed as a structure of relationships. Because the sounds in a composition are dependent on one another for their meaning, musical meaning is solely a function of context. Thus, preservation of context must be a crucial element of copying. It is not enough to compare only strings of acoustical events. The comparison must include the structures that the sounds articulate." Keyt, supra note 9, at 437.
[147] The New Grove Dictionary of Music and Musicians (1980), s.v. "Analysis," by Ian Bent, 356.