CHAPTER 6
METHODS OF COMPARISON:
THE SEARCH FOR SIMILARITIES
The value of musical
comparisons depends heavily on the choice of subject matter to be
compared. One can find meaningful similarities
and differences only by examining musically significant aspects of the two
works in question. Parties often
introduce irrelevant comparisons into evidence, and cases have been decided on
the basis of factors that have virtually nothing to do with copying. In other cases, the trier of fact may have
examined accurate and relevant comparisons that were nevertheless insufficient
to justify any finding. Poor analyses may
present an incomplete picture, relying on half-truths and lacking adequate musical
foundation.
The law views expert
testimony on music copyright infringement with skepticism. It derives this attitude from two related
beliefs: (1) that trained musicians hear music in a fundamentally different way
than laymen, and (2) that analysis takes into account factors no one perceives
aurally, usually music as printed rather than as heard. As a consequence, the law has sought to
substitute the listener's perception as a more reliable guide to the discovery
of infringement. Courts devised bifurcated
tests for infringement in part to remedy what they perceived as flaws in expert
testimony. But properly conceived,
analysis should not produce information at odds with perception, and the court
should not mistrust the learned approach to music.
The gulf between fine
arts and popular entertainment is most pronounced in music. The public seems to regard the two as
different in kind rather than in degree.
Whatever societal forces cause this misunderstanding, courts must not
further it. Because music is
non-representational, it employs a foreign terminology that reinforces the
notion that musicians hear something the lay public does not. No doubt, musicians develop their faculties
of observation to a heightened level, but a musician developing this ability
need not necessarily hear what others do not.
Rather, the process is one in which musicians learn to recognize what
they hear. Music theorists go a step
further to identify what they recognize.
Thus, the expert witness should not be viewed as explaining what only
the trained musician can hear but rather as aiding the lay jury in their own
process of recognition and identification.
Expert witnesses often
seem to compare notation rather than the sound.[1] Although music analysis uses notation as the
most practical means of representing the music, the analyst should always
distinguish notational and musical phenomena.
Music theorists face the dichotomy between notation and perception in
many contexts; they debate the relevance of analytical techniques in these
terms. Theorists save their strongest
criticism for analytical techniques that concentrate on elements perceived only
vaguely at the expense of more readily perceptible phenomena. The debate is fueled constantly by composers
who venture into new forms and vocabularies.
Many unifying principles can be found in atonal music and newer
experimental forms, but theorists may disagree on how or whether those
principles are perceived by the listener.
Theorists always retain the principal concern of discovering how the
listener perceives the music.
Within tonal idioms, a category that includes all popular
forms of music, the principles that determine perception are long-standing and
well documented. Analysts have at their
disposal a wealth of knowledge gained over centuries of scholarship. Two analysts may apply that knowledge to a
given work in ways that yield differing results, but they cannot legitimately
ignore proven theoretical maxims.
Nevertheless, competent analysts sometimes abandon these principles when
they set out to prove copying, apparently in the belief that copying manifests
itself in aspects other than sound.
Such analysts present their findings as something detached from ordinary
listening and thus foster continued skepticism.
Music theory treatises do not specify methodologies
appropriate to the analysis of infringement.
The expert witness who adheres to established theoretical principles
will find little in the literature to validate his approach over any other as
far as plagiarism is concerned. The art
of forensic analysis has not been defined.
Because music analysis demands that perception be the predominant
criteria, and because the law demands the same thing, methodologies common in
the field of music theory should, for the most part, suffice in infringement
litigation. Forensic analysis demands
not so much new methodologies as it does established procedures for applying
existing methodologies.
The tendency to wander from set practices probably
results from the difficulty involved in presenting music analysis to the lay
trier of fact. The expert faces a
dilemma. He must make a very complex
subject understandable to laymen in a short period of time. Much relevant data will necessarily be
omitted. However, the simplified
analysis presented on the witness stand must retain musical significance to be
helpful to the trier of fact. Some
experts have reached a relatively satisfactory balance between what is relevant
and what is comprehensible. Others have
surrendered relevance to facile comparisons.
This work has described some of the efforts made to
present music analysis in a way that makes sense to the trier of fact. But more than techniques of simplified
presentation, infringement litigation needs standards by which to judge those
simplifications. Some irreducible
minimum must be established. Once the
court recognizes standards, musical forensics will be ripe for a more detailed
discussion of how essential data can be presented most effectively.
Quantification of Similarities
Both quantity and quality play a
role in the assessment of similarities.
The inquiry into misappropriation tends to look at the quality of the
portion of plaintiff's work allegedly copied.
The Baxter judge instructed the jury in phase one of the trial that, if they
found copying, they must also find the portion copied to be "a significant
part of the entire `Joy' composition."[2]
The plaintiff in this case claims that a small but qualitatively
important portion of his song was taken.
The test for you to apply is whether a lay or nonexpert audience would
hear a virtually identical and important part of "Joy" when listening
to the music from "E.T." If
you find that an average audience would hear parts of the two works as being
virtually identical, those similarities are to be considered substantial only
if they relate to material which constitutes a qualitatively important portion
of the song "Joy." When I
refer to "qualitatively important" part of "Joy," I mean to
refer to a part of "Joy" that gives "Joy" its artistic
value.[3]
Courts have rejected a test based on the quantity of material in the
portion copied.[4]
Emphasis shifts to quantity, however, when addressing the
specific similarities of two works. The
special verdict questions of Baxter in phase two reflect the new focus:
Question 3: "Was a significant amount of substantially similar
original protected expression from `Joy' copied by the composer into the
musical score of `E.T.'?" Answer
yes or no.[5]
The court does not expressly instruct the jury to count similarities,
but the term "amount" suggests that some type of counting is the
preferred approach.
Certain elements of
quantification and qualification can be found in the inquiries into both
copying and misappropriation. But the
predominant method of assessing a portion of one work in relation to the whole
relies on qualification, and comparison between two works relies heavily on a
process of quantification. One judge
referred twice in his decision to the existence of both qualitative and
quantitative evidence but failed to explain the difference.[6] He seemed to rely on
quantification alone to determine:
Of the total of 32 bars in each song, 23 bars are identical or
similar. They are Bars 1, 2, 3, 4, 6,
7, 8, 9, 10, 11, 15, 16, 17, 18, 19, 21, 22, 26, 27, 28, 30, 31, and 32. In each of these bars one-half or more of
the beats in the bar are either identical or closely related to notes in
[plaintiff's song]. There are a total of
59 notes that are identical in both works (16 in the first 8 bars, 14 in the
second 8 bars, 21 in the bridge, and 8 in the last 8 bars).[7]
The judge complemented plaintiff's expert for providing a
"painstaking musical analysis,"[8] and perhaps the expert did just that.
But the information given in the opinion says nothing about the music.[9] The analysis leaves gaping holes, whether
one focuses on the measures listed as similar or the criteria, "one-half
or more," for labeling measures similar.
Experts have contributed to the impression that analysis
involves primarily a set of statistics.
An expert testified in Allen v.
Walt Disney Productions[10] that out of thirty-two
notes, twenty-five were identical.
Plaintiff's expert Arrand Parsons testified in Selle v. Gibb that of thirty-four
notes in one song and forty in the other, twenty-four were the same and in
similar symmetrical positions.[11] Harold Barlow and others
feature the number of similar notes prominently in their pre-trial reports.[12] Testifying in Baxter, Barlow detailed the similarities
of prior art according to the number of notes they had in common, a criterion
that formed the basis for his comparisons.[13] Barlow's pre-trial report in Selle
presents three-way comparisons of plaintiff's and defendant's work with
examples of prior art. For example,
plaintiff's "Let It End" and defendant's "How Deep Is Your
Love" have nineteen notes in common.
"Let It End" also has nineteen in common with an Air from
Handel's "Judas Maccabeus"; "How Deep" and "Judas Maccabeus"
share only fifteen.[14] Similarly, "Let It
End" has twenty notes in common with a passage from Donizetti's
"L'Eliser D'Amore," a greater quantity than when compared to
defendant's song.[15]
The court hearing
these statistics is left with the impression that listening and analysis have
little to do with each other and that they represent separate and distinct
approaches to music.[16] If the court were right in drawing this
conclusion, it would be justified in distrusting analysis and in excluding
analysis as irrelevant to the misappropriation issue. Proper analysis explains why music sounds as it does and should
not engender this judicial skepticism, but the burden rests with analysts to
present useful information.
Over-emphasis of quantification also leads to false
segmentation, discussed in the preceding chapter. If the analyst simply counts the similarities, then he can expect
the argument to focus on the ratio between similar features and total features. Opposing counsel will want to add or
subtract from the total features, the figure easier to manipulate, in order to
skew the ratio in his favor. The figure
cited above in Nom Music, fifty-nine similar notes,[17] immediately raises the
question: out of a total of how many?
In Baxter, witness and counsel argued whether three repeated Ds in the B theme
of "Joy" should be counted as one note or three.[18] Quantification also encourages
poor terminology and comparisons of ill-defined parameters. Arguments ensue over whether melody includes
rhythm and whether notes include duration.
The definitions usually introduce a comparison of static features, such
as note to note, which have little influence on the listener's perception of
music.
The theory that a high
ratio of similar features to total features proves copying relies on the false
proposition that music is merely the sum of its parts. Even where the similarities seem related,
the analyst must guard against such facile conclusions:
Our
experience of a work‑-its concrete-object character, its perceptual constancy,
its dimension in time and space, its self-induced frame of reference, its
configurational aspects, not to mention its appearance of having
"meaning"‑-argues strongly for the assumption of a unified
whole. None of these things, for
instance, can be accounted for by cementing the piecemeal elements of our
sensations together like some mosaic.
Since the parts of a whole appear different when observed separately
than when observed together, the Gestaltists conclude that the whole must
transcend the characteristics of the parts.[19]
Quantification by
itself provides little useful information, and, if presented alone, anything
less than literal duplication should be disallowed as more prejudicial than
probative. Music possesses so many
expressive elements that the analyst is unlikely to prove copying through any
quantification process alone. If
defendant's work results from literal copying, then the analyst should find
complete correspondence of all factors that he examines. The obverse, that if all factors examined
correspond the work must have been copied, cannot be proved.
The amount of musical
material found to correspond may yield data relevant to infringement if, and
only if, that information accompanies other data that have musical significance. Quantity provides neither the sole measure
nor the best measure of whether similarities are substantial.[20] To return to an earlier
analogy, little can be learned about a chess game in progress by counting the
pieces each side has remaining on the board.
Quantity must be viewed only as tending to confirm or refute what other,
more rigorous analytical data show.
Quantification is merely a makeweight of music analysis.
At its worst,
quantification manifests itself as note counting. Yet any lay person can count notes. If analysis provides no more than this, the expert can only
contribute conclusory characterizations of the numbers revealed. An analysis cannot begin with quantification,
because this kind of analysis will never get beyond quantification.
At its best,
quantification tends to confirm or contradict the substantiality of
similarities discovered by other means.
If reductions have been made according to the criteria suggested in the
preceding chapter, then certain qualitative assessments will already
appear. But the expert should not
proceed from reduction to quantification without taking some intervening
steps. Other comparisons that account
for musical function and context need to be made first. Just as one word can change a sentence sufficiently
to make it original, a variation of the smallest quantity in music may have a
profound effect on the whole.[21]
The Quality of Similarities
The music theorist would find
serving as an expert relatively easy if he were required simply to point out
similarities between two works. Most
theorists would be comfortable performing this kind of analysis
extemporaneously. But a greater burden
is placed on the expert. He must show
that similarities are substantial. He
may also be asked to distinguish coincidental similarities from those that
could only result from copying‑-to testify on the subject of striking
similarities.
In order to show similarities of a particular quality,
the analyst must resort to a procedure that entails more than ad hoc
comparisons. The analysis must look
beyond isolated similarities that can be explained as coincidence. The cumulation of isolated similarities may
raise suspicions, but the analyst should not package unrelated similarities in
order to convey substantiality to the trier of fact. Overall originality can exist in spite of numerous coincidental
similarities.
The analyst must
distinguish deep-rooted similarities from the merely transitory. This involves explaining the significance of
the similar feature within each work individually. The numerous expressive parameters of music must be examined; an
analysis that considers only pitch or notes is not sufficient.[22] Where the analyst finds similarities
existing in multiple parameters, he should determine that those parameters are
working in tandem to produce a similar effect‑-that they reflect organic
unity‑-before he introduces their combination as evidence of
plagiarism. Otherwise, the similarities
may be better classified as isolated phenomena.
Additional considerations help to shift the analysis from
quantity to quality. The factors that
determine stylistic formulae should be clearly identified and the search for
original expression refocused accordingly.
The comparisons made should accommodate the introduction and study of
examples of prior art. The expert
should use the same bases to compare prior art to plaintiff's work that he uses
to compare plaintiff's work to defendant's.
The analysis should separate the original from the mundane. In effect, the analyst should employ a
procedure likely to reveal the existence or non-existence of copying. That procedure should earn the trust of the
trier of fact by conforming to objective criteria and by accounting for all
relevant factors.
Necessary Data for Forensic Analysis
Chapter 5 presented three forms of segmentation:
reductions by temporal segmentation, isolation of parameters, and hierarchical
reductions. A complete analysis
includes a catalogue of relevant segmentations for the entire work and a
hierarchical analysis extending to deep background. All pieces of the puzzle should be identified as a prerequisite
to discussing a single piece's individual characteristics.
The analyst has the
option of isolating parameters or not.
The comparisons outlined in this chapter do not require that certain
combinations of parameters be tested.
However, the other two forms of reduction, segmentation and hierarchical
reduction, will often entail the elimination of some parameters. The segmentation of thematic statements
suggests a focus on melody, but thematic statements also regularly reflect
important aspects of harmony and rhythm.
By the same token, thematic statements in subsidiary voices should not
be overlooked.
Hierarchical reduction
often eliminates some aspects of harmony and rhythm as it moves from foreground
to background. This kind of
simplification reveals the rhythmic and harmonic functions, principally as they
are manifested in melody. Rhythm
probably will be lost somewhere in the middleground. Although the analyst can trace rhythm further, reducing it to deep
background does not provide much useful information because rhythm tends to function
as a foreground feature.[23] Composers do not project simple rhythmic
patterns over a prolonged period through a process of development; they tend to
project rhythm through repetition. For
this reason, the trustworthiness of rhythmic reductions cannot be tested as
easily as harmonic reductions. But
rhythmic function can be explained to the lay listener more easily than tonal
function, and it presents fewer dangers of disingenuous analysis.
The analyst may also eliminate certain harmonic features
from his hierarchical reductions.
Harmony, however, continues to function at the most abstract
levels. The court should recognize that
the elimination of chords does not eliminate harmony. Harmony's significance lies in the progression. A functional analysis that shows only one
melodic voice will continue to represent the harmonic implications of the
music. This is the functional aspect of
melody that the analysis reveals.
Example
28: “Let It End,” rhythmic
analysis
Example
29: “Let It End,” hierarchical
analysis
Before the analyst makes a comparison between two works,
he should have at his disposal all of the data generated by these
reductions. Taking Selle v. Gibb as an example, the plaintiff's song "Let It
End" might be reduced as the following examples indicate. Figure 18 in Chapter 5 shows the thematic
material and relevant temporal segmentations.
Because plaintiff's expert chose to analyze rhythm as a separate
parameter, Figure 28 conforms to that choice.
Finally, a hierarchical analysis reveals three levels‑-foreground,
middleground, and background, in Figure 29.
The Scope
of Analytical Comparisons
An analyst who uses only one method of comparison might
easily create a false impression for the trier of fact. Some comparisons will yield more information
than others, depending on the nature of the works analyzed. If the parties wanted only to learn about
the similarities between their works as an intellectual exercise, they might
agree that one particular comparative method should predominate and that others
might provide supplemental data. In
court, however, it does not happen this way.
Plaintiff presents similarities and defendant presents
dissimilarities. Each chooses the
comparisons that argue best for his position; each tends to present half of the
picture. This is how the American
judicial system works, and it would be pointless to argue here that the system
should be changed. Music theory will
not weigh heavily in jurisprudential debates, but it can make substantive
corrections within the current framework.
The system should work provided that the trier of fact sees the whole
picture. The system tends to fail when
both sides present less than half or when one side presents something that does
not belong in the picture. As the
situation now stands, the court does not know what the total picture looks
like. It can neither rule out
extraneous evidence nor criticize an incomplete presentation.
The guidelines for reduction set forth in Chapter Five
provide a lenient standard for admission of evidence coupled with a rigid
standard of completion. The court must
admit the raw materials of comparison into evidence. With the proper data at his disposal, the expert can make
relevant comparisons. Without the raw
materials, the expert may have to choose between two unattractive alternatives:
poor comparisons or no comparisons. The
court should exclude only evidence clearly outside the bounds of proper
segmentation. At this point, it would
be better to have too much than too little.
Guidelines for comparison provide additional checks on
both the sufficiency of the reductions as a whole and the relevance of specific
reductions. If the expert cannot make
use of certain data in the comparative methods outlined in this chapter, then
those data may well be irrelevant. If
he is unable to complete the comparisons outlined, then his reductions are
probably incomplete. The only
qualification seems to arise when the parties' confine the inquiry to a very
small portion of the works. In Baxter, for instance, the analysts would
have great difficulty completing the comparisons with only a two-measure
segment claimed to be similar.
Plaintiff rendered large portions of both works immaterial when he
narrowed his claim to fragmented literal copying. Those portions, however, cannot be removed wholesale from the
analysis. The Baxter jury still had to determine the significance of the
specified fragment within plaintiff's work as a whole.
Completion provides the court with its best indicator of
the trustworthiness of a given analysis.
Where copying involves only a small fragment, the parties might agree to
eliminate certain features of their analyses.
But where the parties cannot agree, the court should prefer complete
analyses even though they exceed the scope of the inquiry.
Steps in Forensic Analysis
Four methods of comparison should
produce a sufficiently complete picture of the relevant similarities between
two works: (1) subject matter comparison, (2) functional comparison, (3) formal
comparison, and (4) temporal comparison.
Each method will be presented individually with examples demonstrating
how each reveals different kinds of similarities. Examples will be taken from Gaste
v. Kaiserman throughout so that the revelations of one method can be
compared those of others.
All comparisons should employ materials defined in the
reduction process. The reductions will
yield all surface features and all temporal divisions. All background features, which explain
musical function and the reasons for surface manifestations, will appear in the
hierarchical reductions. No new
segments should be introduced for purely comparative purposes. Segments not clearly tied to a musical
function within the individual work must be, by definition, a contrivance.
Subject Matter
Comparison
In the process of identifying all of the relevant segments
of an individual work, the analyst defines the content of that work. The most useful method of categorizing that
content borrows the visual format of semiotic analysis.[24] Similar segments, those
derived by repetition, sequence, or imitation of some kind, are aligned
vertically and labeled as paradigms. By
reading the chart down by column, one can see every statement of the same
segment and examine its minor transformations if any exist. The chart also provides some indication of
how frequently each segment occurs, although the system permits the omission of
literal repeats. Reading from left to
right, the sequence of events remains intact, although sequence should not be a
primary concern at this point. The page
has simply been reconfigured to place similar events under similar events.[25] Figure 30 shows how semiotic
analysis would organize "God Save the Queen."[26]
Example 30: "God
Save the Queen" analyzed by Dunsby and Whittall.
The segmented thematic material of "Pour Toi"
and "Feelings" appears in Figure 31 and Figure 32 respectively. Each has been reconfigured according to
semiotic's organizational techniques.
Because at trial the analyses used the common key of E Minor, that key
will be retained here.
Example
31: "Pour Toi" analysis.
Example
32: "Feelings" analysis.
Certain similarities appear simply by comparing Figure 31
to Figure 32. Both songs seem to employ
their individual content in the same manner; the page as a whole looks very
much the same. In fact, the utilization
of these segments is so similar that the names applied to the segments
(Paradigm A, Paradigm B, etc.) correspond and require no redesignations. But "Pour Toi" yields six
principle divisions and "Feelings," only four. The difference derives from the fact that
"Pour Toi" uses the sixth segment to arrive at a full close‑-a
decisive ending on tonic.
The question raised in subject matter comparison is
whether one song can be mapped onto the other.
Using the criteria that generated the segments of each individual work,
will the segments of "Feelings" fall into the same vertical columns
generated by "Pour Toi"?
Paradigm A contains the descending fifth (B E) in both cases. "Feelings" never duplicates the
rhythm of "Pour Toi" in Paradigm A, but "Feelings" treats
the rhythm of that figure freely and in different ways. "Feelings" seems to avoid any
emphasis of regular meter; it never gives the two notes of the motive equal
stress. "Feelings" makes
constant use of rubato[27] and melodic
embellishments. This rhythmic variety
seems to portray the text more effectively than would the wooden and
consistently symmetrical rhythm of "Pour Toi." But the pervasive variations in
"Feelings" also suggest transitory rather than structural
concerns. The rigid rhythms of
"Pour Toi," if applied to Paradigm A of "Feelings," would
not distort the identity of "Feelings." Therefore, Paradigm A of "Feelings" seems to map onto
Paradigm A of "Pour Toi."
Example
33: "Pour Toi" v. "Feelings," Paradigm B.
Paradigm B of "Feelings," however, will not map
onto "Pour Toi" if the same criteria is applied (Figure 33). "Pour Toi" allows no deviation
from its original statements. Whereas
Paradigm A outlined the principal scale degrees over static harmony, Paradigm B
of "Pour Toi" emphasizes motion to the dominant. The pitch A at the top of the melodic
contour coincides with the strong third beat of the measure. In this context, that A is the very active
seventh of the dominant harmony, which requires resolution. "Feelings" differs in both
respects. Its Paradigm B continues to
outline the static tonic harmony, and the high point of the melody is the
stable G. "Feelings" never
emphasizes a high or low point of the contour by allowing it to occur on a
strong beat. Quite the opposite,
"Feelings" consistently de-emphasizes these melodic goals. The high and low points of the melody never
occur on the third beat of the measure in "Feelings" whereas
"Pour Toi" almost never allows the third beat to pass without
emphasis.[28] Consistent treatment by both songs
determines that the difference is important, not a transitory variation.
This same treatment can be found in Paradigm E, although
in a slightly attenuated form. The
melodic contour of "Pour Toi" changes direction at the third beat;
"Feelings" passes through the third beat with stepwise motion. Further, although "Pour Toi" does
not vary this statement the way "Feelings" does, a disembellishment
of Paradigm E in "Pour Toi" would yield stepwise motion in the
opposite direction as that of "Feelings." Again, the consistent treatment of the figures within each
individual work argues strongly that the differences are important. Paradigm E of "Feelings" will not
map onto that of "Pour Toi."
Paradigm D receives similar treatment to that of Paradigm
A: its rhythmic configuration resembles Paradigm A and its placement within
Phrase 2 (the chorus) corresponds to the placement of Paradigm A within Phrase
1. But the internal similarities of
each song's Paradigm D to its own Paradigm A will not reconcile the external
differences between the two songs.
"Feelings" states single pitch (treated sequentially) in its
repeat of Phrase 2. The original
statement of Phrase 2 of "Feelings" embellishes the more basic
statements of the repeat. "Pour Toi"
also treats its Paradigm D sequentially, but the intervallic content does not
match that of "Feelings."
"Pour Toi" relies consistently on the descending third. The upper note of this pair, not present in
"Feelings," cannot be construed as an embellishment. Paradigm D of "Feelings" will not
map onto that of "Pour Toi."
Paradigm C occurs with such infrequency in both songs
that internal consistency is hard to find.
"Feelings" varies this statement as it does every other. In "Pour Toi" Paradigm C recovers
from the register change of the varied statement of Paradigm A, the ascending
leap from B to E, which "Feelings" does not duplicate. Paradigm C of "Feelings" connects
material corresponding to that of "Pour Toi," but no other similarity
appears.
Paradigm F exists only in "Pour Toi." It brings "Pour Toi" to a final
close on tonic, and nothing in "Feelings" corresponds. Therefore, the subject matter comparison of
the two works taken as a whole demonstrates significant similarities between
the two songs in Paradigm A alone. One
might note some resemblance of Paradigms B and E; but, applying this looser
criteria, one would also have to note strong divergences in Paradigm A. This method of comparison provides only one
view. Other comparisons must be made
before the analyst draws conclusions.
Functional Comparisons
Eugene Narmour devised a "grand
tree" design of Schenker's theory, assigning various parameters and
functions of melody and harmony to their relative importance within the overall
scheme (Example 34)[29]. Voice-leading prolongations (or
elaborations) are represented on the left, harmonic prolongations on the right.
Example
34: Narmour's Hierarchical Tree.
Based on this chart, one can see that the subject matter comparisons above looked only at foreground features and tended to view those closest to the surface. The criteria used in comparing segments were discords (Paradigm B of "Pour Toi") versus concords (Paradigm B of "Feelings" and Paradigm A of both), rhythm (similar in Paradigms A and different in Paradigms B), specific register (Paradigm A of "Pour Toi"), and melodic diminutions (Paradigms B, D, and E).
The reductions made for each individual work should be
based to a large degree on function.
Comparison of function between two works requires the analyst to examine
the relation between these same foreground aspects and the relation between the
larger aspects that they elaborate.
Functional analysis should begin in the foreground with an examination
of harmony and rhythm.
Harmonic Analysis
Figure 35 shows the harmonic progression analyzed with
the traditional system of Roman numerals:
Figure
35: "Pour Toi" v. "Feelings"
Harmonic Progression.
Vertical lines represent bar lines.
Measure numbers at the top of the vertical lines correspond to the
scores introduced into evidence, both of which include a two-measure
introduction not analyzed here. Each
Roman numeral designates a chord; its root is reflected in the numerical value.[30] The key appears at the
beginning of the line followed by a colon.
In measure 3, for example, the first chord of both songs is tonic, the
triad built on the first scale degree, in the key of E Minor. Lower case denotes minor, uppercase
major. The key of G Major appears in
Phrase 2 and is at least implied at the end of Phrase 1. Where the key is ambiguous, the analysis
accounts for the chord in both keys.[31] For example in measure 9, I in
G Major is the same chord as III in E Minor.
"Pour Toi" repeats
literally; measures 11 to 18 present no new material. "Feelings," however, uses a different harmonic
progression to make the transition from one phrase to the other. The repeat is labeled and the progression
appears where it deviates from the first statement.
This kind of functional analysis is not easily comprehended by the
layman. Analysts recognize it as a
traditional and predominant tool of music theory. The symbols themselves do not show the relationships, and the
system has little visual or intuitive appeal.
The symbols in measure 20 suggest no relationship between the harmonies,
but a strong one exists. Measure 5
seems virtually the same, but the added seventh is quite strong and it appears
in a significantly different context.
The theorist needs to understand the relationships before he can read
the symbols intelligently.[32]
In spite of its counterintuitive nature, several factors
should be noted from this analysis.
Both songs begin on tonic (i), a truly unremarkable similarity. "Pour Toi" runs through the
primary chords[33] in the first two measures and continues to repeat this short harmonic
progression; it comes full circle, back to tonic, in measures 5 and 7. The harmonic progression of
"Feelings" is rather static.
The change of symbols results from the descending melodic bass line
superimposed on the tonic triad. That
descending bass provides the primary point of interest because, in fact, the
tonic triad (an E Minor triad consisting of the pitches E G B) is
sustained through measure 7. Measure 4
sounds the tonic plus the D‑sharp in the bass as it descends from E
(D# E G B). The pattern
continues: measure 5 is D E G B; measure 6,
C# E G B; measure 7, C E G B. The composer has prolonged the tonic harmony
and focused attention on the bass line.
As an analogy, "Pour Toi" alternates among three primary
colors and "Feelings" moves gradually through subtle shades of only
one.
The temporary
modulation to the key of G Major, the relative major, corresponds in measures 8
and 9. Both return to the dominant (V7) of E Minor in measure 10. In
essence, the harmonies arrive at the same place but through different means.
Phrase 2 has some
obvious similarities: measures 19, 21, and 23.
The intervening harmonies of "Feelings" might cancel those
similarities out, but, for the most part, they do not. The ii of measure 20 is closely related to
IV. The harmony of "Feelings"
in measure 22, V7 of ii, progresses logically to ii.
Thus, the underlying function of the progression in "Feelings"
is the same as "Pour Toi," but it is interspersed with harmonic
embellishments. From measure 24 to the
end of the phrase, however, "Feelings" employs a significantly
different harmonic vocabulary.
At trial, plaintiff's
expert testified that both songs used the same "evaded" resolution.[34] The comparison involves
measures 10 and 26 of "Pour Toi"; in "Feelings" it involves
only the repeat of Phrase 1 (measure 18) and the first statement of Phrase 2
(measure 26). An evaded resolution
usually implies only an interrupted resolution. The analyst should not simply note that the progression takes an
unusual turn; he should find out if the music returns to resolve what it
previously left unresolved. The
relevant symbol in "Feelings" is V7/ii
in the key of G Major, the chord that functions as the dominant seventh of
ii. The resolution can be found two
measures later (measure 20) where ii appears.
The chord in "Pour Toi" is not the same as that of
"Feelings." The symbol for
the relevant chord in "Pour Toi" is V7 in the key of E Minor,
the chord that is the dominant seventh in that key.
If equivalent terminology were used, the symbol in measure 10 of
"Pour Toi" would be V7/i. When this chord appears in measure 10, it is
followed in measure 11 (the repeat of Phrase 1) by i. It is not evaded at all.
When the chord appears in measure 18, it is followed by an abrupt change
to the key of G Major. The resolution
expected would be either to i in E Minor or, the same chord, vi in G
Major. It never appears. Instead, Phrase 2 re-establishes the V7 in E Minor at measure 25. The
process repeats, and V7 finally resolves when
Phrase 1 is repeated (measure 1).
This purported
similarity does not withstand scrutiny.
The chord of "Pour Toi" is a very basic chord; V to I defines
the tonal center. Leaving this primary
harmony unresolved throughout Phrase 2 is not remarkable. When "Feelings" ends the phrase on
V7/ii, however, it raises the specter of a more distant key‑-A
Minor. Although the key of A Minor
never appears, V7/ii resolves in measure 20 to the A‑Minor chord (ii in G
Major). This deviation from the
diatonic vocabulary is pronounced and the resolution only briefly
interrupted. Neither the specific
chords nor the function can be called similar to that of "Pour
Toi." The similarity lies only in
the label applied, "evaded cadence"‑-a very loose and
insufficient term.
An alternative
analysis of Phrase 1 of "Feelings" appears in Figure 36. By analyzing the key change as occurring
earlier in measure 6, the symbols show functional relationships closer to
tonic. This factor tends to confirm the
accuracy of the analysis. Although the
distinction functions at a more abstract level, "Feelings" projects
the key of G Major more clearly than the brief modulation beginning in measure
8 of "Pour Toi." Some
relationships become more clear when the modulation is fixed in measure 6, in
particular the harmonic motion from measures 6 and 8. The chord at measure 6 has a dominant function: it wants to
resolve to V in G Major. That
resolution occurs in measure 8 following its interruption in measure 7.[35]
Traditional harmonic analysis has revealed some
similarities and some differences. The
analyst should note the nature of each and avoid weighing them for the time
being. Some similarities are functional
and some transitory. The same can be
said about the dissimilarities.
Figure
36: "Pour Toi" v. "Feelings"
Alternate Harmonic Analysis.
Rhythmic Analysis
Rhythmic analysis
looks for patterns of strong and weak beats.
Patterns consist of a strong beat accompanied by one or two weak beats
in various sequences. The symbol "‑"
represents strong beats and "u," the weak beats.[36] Leonard Meyer named the patterns with
terminology of Greek prosody:
iamb ˘ ˉ
anapest ˘ ˘
ˉ
trochee ˉ ˘
dactyl ˉ ˘
˘
amphibrach ˘ ˘
ˉ
Example
37: "Pour Toi" v. "Feelings" Rythmic Reductions.
Rhythmic groups can be analyzed in a series of hierarchies using
techniques similar to Schenker's.[37] Patterns designated at the
surface yield larger patterns of greater abstraction.[38] Figure 37 shows a three-level
reduction of each phrase.
"Feelings" yields only two levels in Phrase 1; the abstraction
equivalent to the other reductions is reached with one less step. Surface rhythms appear on the top line of
each system, what will be called level 1.
The second and third lines, levels 2 and 3, represent successive levels
of abstraction. Groupings are indicated
immediately below each line of the system.
Both phrases of
"Pour Toi" repeat a single two-measure grouping without
variation. Further, Phrases 1 and 2 of
"Pour Toi" produce the same groupings at level two. There is a marked lack of rhythmic variety
in this work. Iambs and anapests at the
surface reduce to iambs and amphibrachs in level 2. Level 3 reveals consistent iamb patterns.
"Feelings"
employs trochee as the predominant surface grouping in both phrases. This grouping accents the first beat. Level 2, however, yields the opposite
pattern. Amphibrachs form the
underlying basis of Phrase 1, and iambs predominate in Phrase 2. Consistent repetition of two-measure
patterns that appeared in "Pour Toi" is evident also in
"Feelings."
Unwavering regularity
of the rhythmic groupings in "Feelings" appears at odds with the
highly varied rhythmic treatment discussed above under subject matter
comparisons.[39] The analyst must reconcile this apparent contradiction. The variety of rhythm in
"Feelings" takes on an improvisatory character. Extensive variety must be counterbalanced
somehow.[40] Counterbalance may be achieved in the same
parameter or in a different one. In
"Feelings," a juxtaposition of unity and disunity occurs within the
parameter of rhythm. The variations
serve as embellishments of a very regular pattern‑-embellishments that
might be viewed as a "super-foreground." When making the decision of whether to map Paradigm A of
"Feelings" onto that of "Pour Toi," free rhythmic treatment
in "Feelings" was deemed non-structural and insufficient to
differentiate the two.
Two key factors support the analysis arrived at
here. First, where embellishments
continuously vary a figure, the analyst must discover the basic underlying
statement that unifies the variations.
Embellishments are not autonomous and self-explanatory; they must be
explained with reference to what they embellish. In "Feelings," rhythmic variety must be understood with
reference to the highly regular rhythm that supports it. Second, the rhythmic embellishments do not
contradict the regular patterns. Almost
all varied statements would yield the same groupings as the basic
statement. Indeed, a variation that
contradicts the underlying basis of the statement should not be called an
embellishment. Because in
"Feelings" the underlying unity remains intact despite the rhythmic
variations, those variations are properly understood as embellishments.
Figure 38 superimposes level 1 of "Pour Toi"
over that of "Feelings" in order to compare the rhythmic patterns of
Phrase 1. The information of Figure 37
has not been varied. Levels 1 and 2
demonstrate that the two works employ different patterns. All groupings of "Pour Toi" begin
with a weak beat; all groupings of "Feelings" begin with a strong
beat. At level 3, similarities
appear. Although the pattern does not
correspond, both works reveal groupings at this level that begin with a weak
beat.
Example 38: "Pour
Toi" v. "Feelings" Rhythmic Comparison of Phrase 1.
Example
39: "Pour Toi" v. "Feelings" Rhythmic Comparison of Phrase
2.
The comparison of Phrase
2 in Figure 39 follows the same pattern.
The predominant grouping of "Feelings" at level 1 remains the
trochee, and "Pour Toi" continues to emphasize iambs. However, at level 2, the analysis of each
song corresponds exactly. The analysis
at level 3 must, of course, continue to match.
The rhythmic analysis demonstrates that significant
similarities exist as the analysis moves toward the background. However, at the surface, the two works
employ very different rhythmic groupings.
Further, the consistency with which each work repeats its own patterns
suggests that groupings at or near the surface perform a significant unifying
function.
Hierarchical
Analysis
The rhythmic analysis, and in particular the analysis of
rhythmic embellishments in "Feelings," provides a brief tutorial on
more complex Schenkerian analysis. The
analysis of rhythm in "Feelings" had to find the basic unifying
design in order to make sense of the rhythmic embellishments. Without that knowledge, the analyst could
not compare one statement with its varied repetition. Surface features within the same work may thus defy effective
comparison. The problem does not
disappear when comparing two works. The
surface or foreground must be understood with reference to the underlying
structures it elaborates.
Those concerned with
the legal implications of uncovering multiple layers of abstractions[41] should concentrate on
the musical significance of this process first. The legal issues will be addressed later. Perhaps more than any other technique, a
hierarchical analysis provides the theorist with a comprehensive picture of the
structural relationships that define a work of music. Essentially by classifying musical elements as functional or
ornamental, the analyst gradually uncovers the structural bedrock of the piece. The purpose is not to reveal the background
but to understand how the composer elaborated the background. Therefore, the primary value of this
analysis lies in the middleground, the material that connects the ornate
surface to the basic structure.
Although this analysis results in a mere skeleton of the
original work, no material is omitted from the analysis. Quite the contrary, the technique requires
the smallest elaborations to be classified.
Much material is compared and classified several times. If one wanted to trace a single
"note" through the analysis, he would discover the level at which it
functions and the structure that it elaborates. The surface remains a part of the analysis.
Figure 40 presents a
hierarchical analysis of "Pour Toi" at three levels. An analyst might choose to reveal more than
three, but in this case three is sufficient to illustrate the technique and to
draw conclusions regarding similarities.
The melody appears as written on the top line[42]; a functional bass line
immediately below is sufficient to represent the very basic harmonies of this
work. The top system, or top two lines,
thus represents the foreground.
Example
40: "Pour Toi" Hierarchical Analysis.
Schenkerian reductions appeal intuitively to those who
read music. The reductions retain
common notation to a large extent: pitch appears unaltered, but rhythmic
notation and articulation are adapted to the new purpose of indicating
functional importance. Non-functional
notes appear without stems; they are associated with more functional notes by
slurs.[43] Notes of greatest structural
significance have unfilled note heads.
Important relationships may be indicated by beams connecting notes.
Functional importance
begins to appear in the middleground.
The harmonic motion implied by the bass line shows the predominance of tonic
and dominant (E and B). The subdominant
(A) is analyzed as a neighboring tone of the dominant (the stemless note A in
the bass is slurred to the adjacent dominant B). The dominant-tonic relationship D to G appears in context. The dominant D is important because of its
relationship to the G; the G is important because it arpeggiates the tonic (E,
G, B)‑-a feature that predominates the background. The change of key (from E Minor to G Major)
elaborates the arpeggiation.[44] This analysis comports with the grand tree
design of Figure 34. Chords appear in
the foreground, dominant-tonic relationships in the middleground, and
arpeggiation in the background.
Rhythm, a foreground feature, is eliminated in the
middleground. All tones of the melody
appear in the middleground, but now they can be seen as elaborations of
tonic. The natural stepwise motion of
the melody, interrupted by the leaps to and from B, suggests a compound melody‑-two
melodic ideas working in tandem. The
listener connects the F# (measure 2) to E (measure 3), and that relationship
can be shown. The arpeggiation is more
pronounced in the background. The
repeated material is eliminated. The
inner voice outlines the tonic triad.
The more important motion, however, appears on top: the initial B moves
up to E, arpeggiating the tonic on its way to the goal note G.
The note G represents the Kopfton, or primary tone.
The primary tone descends stepwise to tonic, a descent that comprises
the Urlinie
or fundamental melody.[45] This melodic descent coupled
with the harmonic motion of dominant to tonic gives music its sense of
resolution. Although the chorus of
"Pour Toi" begins on this G and descends stepwise, the chorus ends on
dominant harmony. In fact, the entire
chorus merely elaborates the dominant harmony (B). Therefore, this melodic descent within the chorus is not the
final resolution, because it does not lead to tonic. The resolution of the primary tone comes at the very end of the
work.[46] Phrase 1 is repeated with a new ending that
returns to the primary tone and resolves it.
The fundamental melody is marked with the symbol "^" and
arabic numerals over the notes descending from 3 to 1. The dominant harmony is designated by the
unfilled note B in the bass occurring in conjunction with the fundamental
melody tone 2; a solid line connects them.
This resolution of this dominant brings the piece to a full close.
The sequence in the
chorus that produced so much discussion at trial can be seen for what it is‑-a
prolongation of the dominant harmony.
The sequence presents an analytical problem; it outlines parallel fifths
as shown in Figure 41.[47] Parallel fifths violate basic rules of
counterpoint by compromising the integrity and independence of individual
voices. Tonal music has always avoided
parallel fifths and octaves, and "Pour Toi" remains solidly within
the tonal idioms that should adhere to the rules of counterpoint. The composer probably did not make an error
in the common sense, but the writing must be considered somewhat inartful.
Example
41: "Pour Toi" Analysis of Parallelisms.
The composer might be granted a presumption that he would
avoid parallel fifths, and the presumption might argue that the G in the top
voice is subordinate to the more functional E.
Plaintiff's expert argued that the E was more important, although he did
not cite the parallel fifths as a reason.
Regardless of any presumption, the fifths remain‑-whether in a
predominant or subordinate voice. No
analysis can ignore it and no theory adequately justifies it.
Intervening material
within each sequential statement mitigates the parallel fifths somewhat. Figure 42 shows how that material results in
the fifths being approached with contrary motion.[48] Further, a permissible and
quite common succession of parallel tenths occurs between the bass and middle
voice revealed as part of a compound melody (beginning on E). If the middle voice were the only one
present, no faulty voice leading would appear.[49] The analysis presented here focuses on the
middle voice as defining the functional outlines of the sequence, but the
initial G in the top voice completes the arpeggiation to the Kopfton,
complements the melodic materials of Phrase 1, and appears too prominently to
be considered inconsequential.[50]
Sequences belong in
the category of strict counterpoint, although the details of the reiterated
figure are an aspect of melodic diminution.
In the middleground, therefore, the outline of the sequence, rather than
its minute features, is relevant. The
functional outline is defined with reference to the harmony implied in the
bass. The interval of a tenth defines
each sequential statement as shown in Figure 43. The points of reiteration are simply marked by the arabic numeral
"10" between the staves of the middleground.
The experts argued an
"either or" proposition concerning this sequence. Plaintiff contended that the G was
ornamental and that E was most important.[51] This may be true regarding the
sequence itself. The predominant
melodic motion follows the progression E D C B, a logical stepwise descent to
dominant. However, the G is not
ornamental. As defendant's expert
argued, the predominant melodic motion of Phrase 1, B to E, suggests a continuation
to G.[52] Indeed, G is the goal note of the entire
piece. The sequence does not resolve
this G; the final phrase (Paradigm F) resolves it. So although the G is less important to the sequence, it is most
important to the work as a whole. The fact
that these long-range relationships are so often overlooked in court contributes
enormously to the vacuousness of many the musical arguments. Schenkerian analysis cures the myopia of
analysts who would relate only adjacent events.
The hierarchical
analysis of "Feelings" (Figure 44) follows the same procedure. The more complex harmonic progression
requires more detail in the foreground.
The descending melodic line in the bass plays a strong functional role
in the chord progression. In the
middleground, however, the bass line appears as non-harmonic tones, because it
functions as a prolongation of the tonic.
The significant difference between the harmonic material in the
middlegrounds of both works can be seen in the movement to the dominant. "Pour Toi" reaches the dominant
(B) three times in the first phrase; "Feelings" arrives at dominant
almost as an afterthought.
"Feelings" moves purposefully to the key of G. The tension generated in the second measure
by the bass line continues unresolved until the 7th measure where the key of G
is established and where the melodic motion of the upper voice ends. The descending bass line can be followed to
its resolution on B by noting the register change when the bass line reaches
C. C becomes the seventh of the
dominant of G and resolves within the key of G.
Example
42: "Feelings" Hierarchical Analysis.
In the background,
however, the harmonic motion of both works appears very much the same. The arpeggiation of the tonic matches. The middleground demonstrates that the
composers elaborated the same basic structure through very different means.
The principal melody
of Phrase 1 also shows structural distinctions. The melody exhibits a similar compound structure, but
"Feelings" leaves nothing unresolved when it leaps to B. It never sets up the need for a resolution
by outlining dominant harmonies as "Pour Toi" does. Without the long-range harmonic progression,
"Feelings" would have virtually no movement at all, and this factor
further supports the importance of the descending bass line.
The chorus of
"Feelings" outlines the same sequence as "Pour Toi," but
the melodic diminutions within each sequential statement are different from
those of "Pour Toi." Further,
the parallel fifths are absent in "Feelings."[53] The chorus taken as a whole
prolongs the dominant harmony in the same manner as "Pour Toi." Middleground features of
"Feelings" show less elaboration of melody and greater diversity of
harmony. Thus, the harmonic richness of
"Feelings" distinguishes it from "Pour Toi" throughout the
work.
Most striking,
"Feelings" never finds its fundamental melody. Its primary tone appears to be the B that
begins the song, although one might make a case for its being the E at the
beginning of the chorus. The Schenkerian
system would recognize either as legitimate.
But unlike "Pour Toi," "Feelings" never ends; it
fades.[54] The final resolution is never
achieved. If the primary tone were E,
the fundamental melody would have to descend from 8 to 1. It descends in the chorus only from 8 to 5
and never descends beyond 5.[55] If the primary tone were B, the fundamental
melody would have to descend from 5 to 1, which it does not. The important issue is not whether the
primary tone is E or B, but that it is definitely not G and, thus, does not
correspond to "Pour Toi." A
final close could have been tacked on with a two-measure figure similar to that
of "Pour Toi," and a short figure such as that could provide a very
satisfactory ending. However, in that
case "Feelings" still would not match the background of "Pour
Toi," because the primary tone would not be set up in the chorus, well in
advance of the ending.
Example
43: "Pour Toi" v. "Feelings" Fundamental Structure.
The background of "Feelings" remains
incomplete. A further reduction of both
works demonstrates the difference.
Figure 45 presents the fundamental structure (Schenker's Ursatz)
of both works.[56] The resolution of the melodic 5 in
"Feelings" can only be implied.
The hierarchical analysis of these two works reveals
similarities most pronounced in the background. Similarities can also be found in the middleground, but they are
interspersed with notable differences.
Foreground comparisons have already been made with mixed results under
subject matter comparisons. The pattern
seems to follow that established by the hierarchies in the rhythmic analysis.
Formal Comparisons
A formal analysis will probably be completed at the time
the subject matter segmentations are made.
The two methods of analysis bear strong resemblance: both concentrate on
the distribution and relation of identified units.[57] In many ways, a discussion of
form would logically follow the subject matter comparisons and precede the
functional analysis. But formal
analysis makes large scale divisions that must be understood as greater
abstractions than the small segments discussed under subject matter
reductions. In some respects, formal
analysis continues the subject matter comparisons at a middleground level. It analyzes aspects of the works that would
be classified under "free composition" and "keys" in the
grand tree design of Figure 34. For
this reason, formal analysis seems more comprehensible if presented after the
discussion of hierarchies.
Subject matter
comparisons look at the smallest identifiable melodic fragments‑-primarily
figures and motives. The continuation
of that process involves examining ever larger segments: phrases, themes,
sections, movements, etc. Few popular
forms employ complex, large-scale designs.
Many aspects of formal analysis may be implicit in the subject matter
reductions, because themes may consist of one phrase or sections of one
theme. Such is essentially the case
with "Pour Toi" and "Feelings." But formal analysis also assimilates the segments and relates
them to an overall design. It accounts
for the sequence of events, the repetitions, imitations, and contrasts.[58]
Both songs employ a
two-measure introduction. The
introductions provide little information in this case, but the similarities
should be noted. Both derive from
material within the songs. "Pour
Toi" draws from the accompaniment of Paradigm F, "Feelings" from
the accompaniment of Paradigm C. The
introductions present nothing not accounted for elsewhere, because this
material leads to a statement of Phrase 1 when it appears in the body of the
works just as it does in the introduction.
Although in some cases introductions may be structurally important, the
introductions to these songs are not, and they are thus omitted from further
consideration in the formal analysis.
Phrase 1 has already
been designated in both works as the eight measures immediately following the
introduction. Paradigms A, B and C
appear in Phrase 1. The subject matter
comparison segmented Phrase 1 into motivic cells; but the primary divisions of
the phrase recognize larger units.
Paradigm B always leads directly into Paradigm A.[59] The relevant divisions of the
phrase for both songs were correctly identified by plaintiff's expert: the
first measure stands alone (Paradigm A), measures 2 and 3 form a unit (Paradigms
B and A) that repeats in measures 4 and 5, and measures 6 through 8 (Paradigm
C) bring the phrase to a cadence.[60]
In both songs, Phrase
1 is "open." The cadence
ending the phrase conveys a sense of incompleteness, implying that something
will follow. The phrase repeats, again
ending on an open cadence, although the ending is varied in the repeat of
"Feelings." Phrase 2 in both
songs has been labeled the chorus. It
states contrasting material and begins in a key other than tonic; therefore, it
can be labeled the "B" section.
Phrase 2 repeats, ending each time on an open cadence. Thus, the two songs follow the same pattern
to this point: Phrase 1 (Section A), repeat of Phrase 1, Phrase 2 (Section B),
repeat of Phrase 2. Because
"Feelings" varies the endings of both phrases on the repeat, the
comparison might appear as follows:
"Pour Toi" A A B B
"Feelings" A A' B B'
"Pour Toi," however, comes to a complete
close. After the chorus, it repeats
Phrase 1 but with a closed ending. Its
full form, therefore, is:
"Pour Toi" A A B B A'
"Feelings" simply returns to the A section and repeats the
entire process, finally fading out in the B section. "Pour Toi" thus has an overall ternary (three-part)
form while the overall form of "Feelings" is binary (two-part).[61]
The distinction
requires a qualification. All four of
the phrase endings of "Feelings" are open; "Feelings" never
comes to a final close. A traditional
binary form would return to the tonic key and reach a final close at the end of
the B section. "Feelings,"
therefore, seems constantly to wander in circles implying that something else
will follow. The listener expects an
ending, so the song might be heard simply to imply the explicit ending of
"Pour Toi" or something similar.
"Feelings" may, in fact, be an incomplete ternary form.[62]
One can also argue the
functional significance of the circular nature of "Feelings" in
reference to the text. Although the
text of "Feelings" was not included in the claim, a careful defense
expert would not ignore this potential evidence of independent creation.[63] The text reads in part:
Feelings,
Nothing more than
feelings,
Trying to forget my
Feelings of love. . . .
Feelings,
For all my life I'll
feel it,
I wish I'd never met
you, girl;
You'll never come again.
. . .
Feelings,
Feelings like I've never
lost you,
And feelings like I'll
never have you
Again in my heart.
A
final, definitive musical ending would seem to contradict what the text tries
to convey. The text fails to achieve
any resolution. The music's circular
wandering thus might be seen as an intentional and appropriate musical
expression of textual content.
The formal structure of the text is more important to
musical analysis. Here, each line of
text coincides with and confirms the phrase divisions outlined above. Paradigm A sets the first line,
"Feelings." Paradigms B and A
set the second: "Nothing more than . . ." (Paradigm
B), ". . . feelings" (Paradigm A). The reason for Paradigm B's dependence on
Paradigm is readily apparent in this second line and also in the third:
"Trying to for‑ . . ." (Paradigm B),
". . . get my" (Paradigm A). Paradigm C sets the final line of text. The same pattern continues throughout the song. An analysis of the text of "Pour
Toi" will reveal the same structure.
Consequently, formal similarities between the two works might result
solely from formal similarities in the texts, which the plaintiff did not
include in his claim.
Even though "Feelings" fails to reach a
conclusion, the overall form of the two works is remarkably similar. Within each phrase, the segments tend to
serve the same functions, and phrase breaks occur at corresponding points. Phrases and sections are the same length and
generally follow the same repetition scheme.
The large-scale harmonic motion of the phrases corresponds.
Formal analysis offers relatively little information when
the works at issue are so short. Where
the works are more complex, formal analysis may yield a better indication of
the significance of similarities.
However, it should be remembered that large-scale formal events tend to
function in the middleground. Further,
identifiable and autonomous materials may be plagiarized without regard to the
order in which they appear. On the
other hand, similar ordering of events alone cannot prove a claim of copying.
The information gained from the formal analysis of
"Pour Toi" and "Feelings" completes a pattern now
evident. The resemblances are stronger
than those revealed in other comparisons.
However, the formal comparison focuses exclusively on the middleground
where similarities have already appeared strong. As before, the strong similarities found in the middleground are
interspersed with some contrary indications‑-here the divergence between
binary and ternary forms. Most
important, an independent explanation of many formal similarities, textual
structure, can be asserted by the defendant.
Temporal Comparisons
The three types of comparisons examined so far tell the
analyst what he needs to know in order to draw conclusions on the similarity of
two works. Virtually all musical
parameters have been examined.
Relationships from the largest to the most minute have been exposed and
classified. Each work has been traced
to its fundamental structure with comparisons made at each hierarchical
level. Yet the method most often
employed in court, temporal comparison, has not been utilized. The analyst really does not need to use this
technique.
Temporal comparisons
look for similar events in similar places.
Most often, infringement experts look for the same note within the same
measure and hopefully on the same beat.
Generally, vertical lines representing simultaneity are drawn to connect
the similar notes. Experts have not
hesitated to draw diagonal lines where the temporal correspondence is slightly
skewed, representing, perhaps, proximity as opposed to simultaneity. Opposing attorneys have attacked this
practice particular where diagonal lines connect notes in different measures.[64] Understandably, experts have
failed to articulate any standards for this practice, because none exist.[65] The technique seems to have been invented
for the sole purpose of analyzing plagiarism, because it is not an accepted method
of music analysis.
Because no standards have been set for temporal
comparisons, experts on either side may misapply the technique with equal
impunity. The jury has no intuitive
defense against misinformation of this kind, because temporal comparisons do
not explain how music is heard. If
music analysts could offer nothing better, the court would do well to exclude
experts altogether. Nevertheless, the
technique has one saving attribute: it is easily comprehended by laymen. Courts, therefore, can expect to see this
kind of analysis continue and should be aware of the dangers it poses.
Notes and other static events make poor points of
comparison. For example, two works that
show similarities between every other note might be very similar or very different. The same problem appears when comparing
chords, pitches, and durations.
Temporal comparisons often lead to an improper focus on the quantity of
similarities. They ignore context and
function. Had the analysis of
"Pour Toi" and "Feelings" thus far been limited to temporal
comparisons, little would be known about the two works beyond superficial
coincidences. Transitory similarities
would be inflated and structural similarities missed entirely.
Because the functional
analysis of these two works is now complete, it is possible to make temporal
comparisons with some standards attached.
The result appears in Figure 46.
The ending of "Pour Toi" (Paradigm F) has been omitted,
because it has already been established that nothing in "Feelings"
corresponds to that material.
Example
44: "Pour Toi" v. "Feelings" Temporal Comparison.
The descending fifth
(Paradigm A) that characterizes both works appears in Phrase 1 three times in
the same position. Connecting lines
point out the similarity and temporal correspondence each time. Durational values of the notes do not match
nor does the rhythmic placement of the E, but subject matter analysis has
determined that the two-note figure in "Feelings" does not have a
strong rhythmic identity. The motive serves
the same function in both works, outlining the tonic harmony. It points to the compound melody of both
works, one melodic line beginning on B and a subsidiary line beginning on E. Thus, earlier functional and subject-matter
analyses justify drawing the connecting line between the Es on a slant.
Many arguments could
made concerning the material in the second measure of the phrase (Paradigm
B). An over-zealous plaintiff might
attempt to connect the similar pitches, F# and G. He could argue similar melodic contour, observing that both
figures rise and fall the same distance‑-a minor third. He could also contrast the short notes of
Paradigm B with the longer note values of Paradigm A. These similarities exist, but they do not matter. Paradigm B of "Feelings" does not
map onto that of "Pour Toi."[66] Although the two figures share some pitches,
they have different pitch contents. The
divergence of surface rhythms continues through two levels of abstractions,
proving that the rhythmic difference is not minor or transitory. The harmonic progression moves in opposite
directions: the figure in "Pour Toi" moves through the dominant and
returns to tonic; "Feelings" moves slowly and steadily away from
tonic. The hierarchical analysis
demonstrates that the differences are structural; they do not disappear until
the analysis reaches the background.
An analyst can find similarities here only at the most
superficial level. Although the
similarities have some visual appeal, they are not heard. They have no musical significance. Once the analyst considers the functional
aspects of the music, he can no longer justify pointing out this kind of
superficial similarity. Therefore, the
temporal comparison should note no similarities in the second or fourth measure
of Phrase 1.
The same process can be repeated for the 6th, 7th, and
8th measures of Phrase 1 (Paradigm C).
The arguments will be slightly different: the two works share the same
harmonic structure at this point, but other structural differences remain. Further, the two works show few surface
similarities. The only similar note is
the final B. Connecting the Bs
accomplishes nothing, because the event is isolated. The segmentation process determined that the relevant figure
spanned all three measures. The analyst
can argue that the similar Bs have significance only by further segmenting the
figure. He must disassemble it into
autonomous notes, which is not good analysis.
The only similarity that matters, the corresponding harmonic motion, is
presented effectively in the functional comparisons. In a temporal comparison of the harmonic progression alone,
connecting lines between these three measures might be appropriate. In this melodic comparison, they are not.
Phrase 2 presents a different problem. The underlying sequence is the same, but the
surface realization of that sequence differs markedly. In Figure 46, the beginning point of each
sequential statement has been connected.
Although the temporal correspondence is not exact, the functional analysis
legitimates the decision to connect these notes. Unlike Phrase 1, the final B is connected because it represents
the resolution of the sequence. But the
composers used different melodic diminutions within the sequence, so, at the
surface, few similarities appear. The
analyst has little opportunity to demonstrate the real similarities using the
technique of temporal comparison unless he first reduces the phrase to a more
abstract form.
The analyst might be tempted to connect similar pitches
in the 2d measure of the phrase, claiming that functional similarities justify
a more lenient standard at the surface.
But that process would mislead the trier of fact. It would bootstrap fictitious surface
similarities to real functional similarities.
Temporal comparisons can examine only one hierarchical level at a time,
a fact which constitutes one of the technique's major limitations. This surface comparison in Figure 46 must
remain at the surface. It cannot
explain why the similarity exists; the sequence does not appear at the
surface. More connecting lines will
only point to surface similarities that do not exist, forcing the analyst to
justify this analysis with extraneous data.
A temporal comparison could be made on the background
hierarchy revealed in Figures 40 and 42.
Drawing connecting lines between two background reductions might
effectively illustrate a point in some cases.
Here, the background similarity seems self-evident. Both works can be reduced to the background
shown in Figure 45.
Example 45: "Pour
Toi" v. "Feelings" Background Analysis.
A temporal comparison of the backgrounds does not yield a
greater number of similarities, it merely points out the importance of the few
that exist. Similarities do not occur
in the melodic and harmonic diminutions that each composer chose to elaborate
the background. They occur at the more
structurally important points. The
surface comparison cannot show this, because it cannot distinguish the
functional from the ornate.
Finally, the reader may perceive a different standard
being applied to the designation of similarities in the two phrases. Functional dissimilarities prevented the
drawing of connecting lines between events that seemed similar on the surface
of Phrase 1, but functional similarities did not permit the lines to be drawn
at the surface in Phrase 2. There is no
inconsistency. Surface similarities
must be supported by functional similarities.
Where the function differs, surface similarities are not heard. Coincidence adequately explains the apparent
correspondence. Where the music
functions similarly, some similarities may be heard, depending on how
extensively the surfaces correspond.
Similarities confined either to the surface or to underlying function do
not suggest plagiarism.
Temporal comparisons may prove useful in certain cases,
but they require constant justification through other means. No internal standards exist. Temporal comparisons of the type commonly
used in court are foreign to music theory.
For this reason, they should only follow the other three types of
comparison‑-subject matter, function, and form‑-which form the more
systematic approach and which theorists have developed and tested over many
years. Temporal comparisons must be
guided by the information gained from the more acceptable forms of analysis.
Conclusion
Music analysis presents many complex issues that the
layman will have difficulty grasping. This
chapter and the one preceding have attempted to explain how analysis works and
in particular how it accounts for the myriad relationships that constitute a
piece of music. In offering this
explanation, analysis itself has been segmented and its parts compared, but the
steps in analysis tend to be much more interrelated than this presentation
suggests.
The expert witness
should employ the analytical techniques explained above: (1) Subject matter
comparisons ensure that each segment is compared with all others. This type of comparison takes place at a
surface level but requires reference to the rhythmic and harmonic function of
each segment. (2) The analyst should
provide a formal analysis explaining how each segment combines to form the
entire work. Formal analysis tends to
take place in the middleground; it accounts for thematic relationships,
thematic development, and key relationships.
(3) The functional analyses are comprised of several parts. An analysis of the harmonic progression
alone focuses on surface manifestations of harmony, but it always looks at
tonal function and movement rather than static chords. The analysis isolating rhythm takes the same
approach, but it employs layers in order to follow rhythmic function into the
middleground. With harmony and rhythm
analyzed in isolation, the analyst should turn to a hierarchical analysis. This hierarchical analysis will demonstrate
how tonal functions are projected through melodic figures, following all
surface figurations to their most abstract beginnings.
With these systematic
analyses complete, the expert may turn to the technique of temporal comparisons
to explain where the more functional similarities are manifest. Temporal comparisons must be firmly rooted
in the discoveries of the three systematic comparisons.
Theorists judge
analytical techniques according to how well the technique explains musical
perception. The jury's ultimate test of
analysis‑-whether it convinces‑-will be tempered by extraneous
factors. A jury will necessarily judge
the analyst along with his techniques, and analysts of equal calibre may
possess different powers of persuasion.
But the jury, like theorists, will want to connect the analysis with
what they hear, and the court should encourage them to do so. Instead, courts have perpetuated the
dichotomy, perhaps introduced by the experts themselves, between analysis and
listening. When the court tells the
jury to listen as they normally would at one stage of trial, it implies that
the jury should not listen as it normally would when experts take the stand.[67]
The court will be most
concerned with the relevance of the data presented and its potential for unfair
prejudice. This work attempts to
demonstrate the relevance of various types of analysis and the indicia of
trustworthiness that the court should expect.
The court's best guide lies in a rule of completion. An incomplete or one-dimensional view of
music creates distortions easily manipulated by either side. If the court employs a rule of completion,
requiring the analyst to identify all segments, irrelevant or disingenuous
segments will become more difficult to assert.
If comparisons must be made at the surface, middleground, and
background, then musical significance will be revealed and surface features
will be placed in context.