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.

 

Example 16: "Joy" B Theme.

 

            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]

 

Example 17: "E.T." Theme.

 

            "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.

 

Example 18: "Let It End."


                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]

 

Example 19: "Joy" v. "E.T."

 

            More important, notes are not musical events; they are mere symbols of musical events.  The expert is called to analyze the music itself, how it is heard, not the manner in which it was transcribed to paper.  Unless notation in a particular case can be shown to have relevance beyond the music it represents, the court should not indulge a hypertechnical approach to similarity of notes.

 

Rhythm

            The subject of rhythm tends to produce some of the least accurate definitions of musical parameters:

            Q    Now, rhythm does not indicate the sound of the note, but how long or the duration that the note will be played for, is that correct?

 

            A    That's correct.[63]

Here, rhythm is inaccurately equated with duration.[64]  In the same case, the court defined rhythm differently in the jury instructions:

           

The music of a song consists of rhythm, harmony and melody.  Rhythm is simply the tempo in which the music is written.[65]

Tempo denotes pace,[66] the speed at which the regular pulse[67] proceeds.  Rhythm is not tempo, nor can it be defined in relation to tempo.

            Plaintiff's expert in Gaste came closer to a coherent definition of rhythm: "Rhythm is the organization of time values or duration."[68]  He added the element of organization.  Harold Barlow improved on this definition somewhat: "Rhythm has to do with the duration quality involved in music, being in a relationship of relatively short and long notes."[69]  Still, these definitions do not suffice.  Rhythm is a highly expressive element of music and, as such, it must be understood in terms of motion rather than as a static or absolute phenomenon.[70]

            Because common notation expresses a primary aspect of rhythm in terms of relative duration, one may be tempted to equate duration with rhythm.  But duration provides a rather ineffective measure of rhythm and ignores the more relevant relationships.  If one were to accept as given that each tone to be considered in a rhythmic pattern began at the point that the preceding tone ended, then knowing the duration of each might still provide insufficient information to reconstruct the rhythm of the passage.  Rhythm involves more than duration‑-more even than durational relationships between tones.  It involves organization and emphasis,[71] and its perception is dependent on certain psychological expectations.[72]

            The perception of rhythm entails two primary comparisons.  First, the listener hears a pattern of sounds in which some are accented and some not.  This involves a comparison of one sound with those surrounding it in which relative weight is assessed.  Accents stress or emphasize some sounds over others.  These stress points may result from a tone's longer duration (agogic accent), from greater intensity (dynamic accent), or from differing pitch (tonic accent).[73]  Duration, therefore, does not account for all accents.  Second, the listener compares the pattern of accented and non-accented sounds with the psychological expectations generated by meter.[74]

            As explained above, meter provides the context in which rhythm is heard.[75]  The mind tends to organize regular pulses into patterns, usually of three of four.[76]  Even where a mechanical device such as a metronome generates pulses with no variation, the mind will supply perceived accents in order to organize the pulses into a regular pattern.  Once established, the pattern tends to remain fixed in the mind in spite of transitory contradictions.  If this regular pattern is changed, the mind will require several repetitions before it accepts the new grouping.  Accented beats in meter are those marked for consciousness by the listener; they are psychological.  Rhythmic accents result primarily from physical forces.[77]  The unity and disunity of the two make rhythmic patterns interesting and determine how they are heard.[78]

            The two themes at issue in Baxter illustrate one simple way in which rhythm relates to meter.  The rhythmic motive of "E.T." repeats three times within the eight-measure phrase; the last two measures of the phrase bear strong resemblance to the rhythmic motive.  Rhythm remains in the same relation to meter, focusing interest on the melodic sequence.  The "Joy" B theme, however, presents a simple rhythmic variation.  The second two measures restate melodic material from the first two in a different relation to the meter (Figure 20).  The internal relationships of rhythm, the value of the notes, remains the same as does the pitch of those notes.  But the entire figure has been shifted to a different metrical position.[79]  Winter brought out this feature when he rebutted Williams' testimony that the 4/4 meter of "Joy" was unsuitable to Williams' purpose of conveying flying.  Williams considered 4/4 to have too much "bounce."[80]  Winter testified that the rhythm of "Joy" obscured the regular 4/4 pattern, because rhythm was stated in two different relationships to meter.[81]

            The relationship of rhythm and meter also explains why the meter of a work can be change