CHAPTER 7

COPYING: THE SUBSTANTIALITY OF SIMILARITIES

Forensic analysis includes multiple reductions and comparisons designed to accomplish two purposes: (1) to ensure that the analyst has made all relevant reductions and is firmly committed to those reductions,[1] and (2) to ensure that the analyst makes exhaustive comparisons of surface to surface, surface to middleground and background, and function to function.[2] He needs to achieve a three-dimensional view of the works at issue in order to place similarities in perspective.

The crucial question remains unanswered when all the steps of forensic analysis are complete: Did the defendant copy the plaintiff's work? This is the ultimate question historically reserved as the sole province of the trier of fact but now open to the opinions of expert witnesses.[3] A music analyst may base his opinions on his expertise regarding similarities, derivations, compositional norms, stylistic influences, and the creative process itself. This expertise enables him to characterize similarities and judge their significance. But similarities alone do not constitute infringement; they provide only circumstantial evidence of copying.[4] Like the trier of fact, the analyst can only draw inferences from this circumstantial evidence. The question for the expert then is what analytical criteria to apply to the evidence in order to draw conclusions about the existence of copying.

Legal proof of infringement requires a showing of access and substantial similarities.[5] Access may be proved through direct testimony, in which case the expert plays no role, or through a showing of "striking similarities," which generally requires expert testimony.[6] Plaintiff must show "substantial similarities" in all cases. Court opinions have described "striking similarity," but the term lacks a coherent definition. "Substantial similarity" remains largely a subjective question to be examined on a case-by-case basis.

The expert's testimony on musical similarities, substantial or striking, has become an essential aspect of infringement litigation.[7] But the guidelines provided to the expert by the court on these questions are very general and vague. The generality of the legal guidelines, unfortunately, does not render them generally applicable.

Because the tests for striking and substantial similarities have not been defined at law, musical criteria may fill the void. The law understandably hesitates to draw up rigid standards to be applied to the highly abstract endeavor of artistic creation. Even musical criteria probably cannot produce absolute standards for assessing musical similarities, because musical relationships are too numerous and complex to be codified. But music does follow recognized principles that may suggest certain guidelines appropriate for general application. The musician must remember that the distinction between striking and substantial similarities is a legal one: substantial similarities plus access prove copying; striking similarities allow an inference of access.

This chapter explores whether musical similarities will submit to general guidelines, what the nature of those guidelines might be, and whether such guidelines will prove useful and enlightening. This chapter proposes tests, cognizable to the court as well as the expert, to assist the trier of fact in reaching intelligent conclusions.

Striking Similarity

The law provides unclear and potentially conflicting guidelines on striking similarity. The Seventh Circuit's opinion in Selle alone contains the following various formulations of the same guideline (distinguished by the emphasis added). The law allows an inference of access where "such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source."[8] But the criteria is more stringent when the similarities must be "so striking and of such nature as to preclude the possibility of coincidence, accident or independent creation."[9] Somewhat less rigidly, similarities must be "the sort that cannot satisfactorily be accounted for by a theory of coincidence, independent creation, prior common source, or any theory other than that of copying."[10] In addition, Selle notes: "The similarities must appear in a sufficiently unique or complex context as to make it unlikely that both pieces were copied from a prior common source,"[11] or "that the defendant was able to compose the accused work as a matter of independent creation."[12] Selle finally notes the very loose standard that requires only a "highly unique pattern" which "makes copying more likely."[13]

The Selle opinion never reconciles the difference between a standard that precludes the possibility of coincidence and one that merely finds copying a more likely explanation. Rather, the Selle court contributes without comment two additional formulations that fall somewhere between the extremes: "similarity which reasonably precludes the possibility of any explanation other than that of copying,"[14] and similarities "of a type which would eliminate any explanation of coincidence, independent creation or common source. . . ."[15]

Absolute preclusion of the possibility of coincidence, the most rigid standard quoted above, is an unrealistic goal. If that were truly the standard, then the law could eliminate the doctrine of striking similarity altogether. A plaintiff can never refute coincidence entirely; coincidence can only become an implausible explanation. On the other hand, if the trier of fact needs to find only that copying is more likely than coincidence, then the standard is merely one of preponderance. Such a weak standard would reduce the doctrine of striking similarity to no standard.

The Selle court also fails to explain the difference between coincidence and independent creation. Plaintiff sought to prove striking similarity in Baxter v. MCA, Inc.[16] The defense argued at trial that plaintiff's proof should include a showing that the defendant was not "competent" to compose the accused work.[17] For authority, the defense pointed to the statement in Selle quoted above, that similarities must make it unlikely that defendant was "able" to compose the work as a matter of independent creation.[18] The proper interpretation of this statement is far from clear.[19] In all cases, the defendant copied the plaintiff's work, copied some other work, or did not copy. If the defendant created the work independently, then similarities must be coincidental.[20]

The illogic and inconsistency surrounding the doctrine of striking similarity suggest that the court has resorted more to slogans than to reason. Certainly the expert can find little guidance in these various formulations. Plaintiff's expert can only follow the path laid out by the courts: refute the alternative explanations of coincidence, independent creation, and common prior source, and buttress this testimony with reference to the work's uniqueness and complexity. But the plaintiff's expert bears the burden here of proving a negative, and he must do so without a clear standard. An astute cross-examination seems almost certain to raise an appealable issue.

Assuming that the doctrine of striking similarity survives in spite of its flaws, the expert must deal with it. It must mean something less than the preclusion of the possibility of coincidence and something more than mere preponderance in favor of copying. The relevant question seems to be: At what point do the possibilities of coincidence and common source lose credibility?

Musical Guidelines for Striking Quantity

Some courts and legal commentators view striking similarity as something greater than substantial similarity, suggesting a difference of degree instead of kind.[21] Under this approach, proof of striking similarity would eliminate the need to make a separate showing of substantial similarity. The theory that striking similarity implies and subsumes substantial similarity suggests a quantitative approach: striking similarity results from many substantial similarities. The seemingly qualitative interpretation, that striking similarity results from very substantial similarity, does not work well. Determining which similarities are substantial is difficult enough without dividing substantiality into subcategories.

Refuting the Possibility of Coincidence

An extensive quantity of similarities might render coincidence unlikely. But because coincidence can never be refuted entirely, any quantitative test should be a stringent one. The dangers of quantifying similarities have been explained above. Quantity must at the very least be supported by functional similarities. If quantity makes the similarities striking, then those similarities must also qualify as substantial. Quantity of similarities, then, should tend to disprove coincidence only where there is virtual identity of substantially similar features occurring without interruption over a sustained period of time.

Further, the court should not find striking similarity where the accused work's internal structure suggests a credible explanation for the similarities. In other words, if the similarities occur in a passage that develops the accused work's internal and dissimilar thematic materials, then independent creation remains likely. A striking feature that adheres to the organic unity of the defendant's work does not, without more, suggest coping. The defendant cannot be presumed to have ignored his own thematic materials.

Disproving Prior Common Source

The extent or quantity of similarities tends to disprove only coincidence. Even the most extreme quantity of similarities can never disprove prior common source.[22] To prove striking similarity, the expert is asked essentially to testify that similarities between the accused and complaining works outstrip those between the accused work and all other works. But an assessment based on quantity cannot look beyond specific works actually compared. Because the expert cannot compare all works, he can testify only that the complaining work's unique qualities make a prior common source unlikely. Thus, on the issue of common source, the expert must look to quality rather than quantity.

The difficulty of disproving prior common source also raises questions concerning burden of proof. The Selle court established that the burden of showing striking similarities rests with the plaintiff:

At oral argument, plaintiff's attorney stated that the burden of proving common source should be on the defendant; however, the burden of proving "striking similarity," which, by definition, includes taking steps to minimize the possibility of common source, is on the plaintiff.[23]

Plaintiff in Selle attempted to prove striking similarity with reference solely to the two works at issue. He presented an argument based essential on quantity. But plaintiff's expert had not inspected any prior works, even those of the defendants, and the court justifiably found his testimony insufficient to disprove common source.

A search for musical precedents within the defendant's own compositions seems an obvious and essential step in analyzing possible derivations. But the Selle court indicated that the plaintiff must take steps to minimize the possibility of common source in compositions created by the defendants or by others.[24] How extensively must plaintiff's expert search the vast repertoire that includes works "by others?" An effort made in utmost good faith can only scratch the surface. Even an intelligent and accurately focused search accomplishes little more. Therefore, the basis for refuting common source cannot lie in a search of musical precedents, because a search can never cover even a representative sample of the literature.[25] An expert must use his general knowledge of music, rather than his knowledge of specific works, to refute common source.

As a practical matter, then, the burden of proving striking similarity does not rest entirely with the plaintiff. Plaintiff has no incentive to find real similarities; his tendency will be to seek out straw men. A search benefits the defendant alone: similarities found prove something; similarities not found are irrelevant. The court asks plaintiff's expert only to assert a credible basis for his belief that no common source exists. Defendant bears a much heavier burden: if some prior work is similar, the defendant must produce it. Defendant's expert must back his assertion that the similarities derive from the literature with examples.[26]

Musical Guidelines for Striking Quality

Selle states that something more than quantity must support a finding of striking similarities.[27] The Selle court criticized plaintiff for the absence of any testimony on the relative complexity or uniqueness of the similarities in the two works at issue.[28] Thus, the court introduces two qualitative measures that might support a showing of striking similarity.

Taken at face value, the statement applies complexity and uniqueness only to the works as a whole. The terms thus seem to raise the question of competence once again. Mozart's operas are unique and complex.[29] The Bee Gees, for example, who never learned to read music, would be unlikely to create independently a work of such innovation and complexity.

However, uniqueness and complexity deserve some scrutiny as applied to specific features within the work. Complexity in this context suggests a multitude of relationships, something not merely episodic or isolated from other features. Thus, complexity might be found in a feature's functional aspects. Forensic analysis will uncover these functions, some more complex than others. But this adds no weight, because any similarity worth noting will include similarities of function. Classifying some as striking and others as merely substantial either returns the inquiry to quantification or creates subcategories of substantiality. Complexity, therefore, provides minimal assistance to the analyst trying to draw inferences from similarities.

Disproving Prior Common Source

Uniqueness seems merely to state the requirement of no prior common source in different terms. The court's invocation of this measure does not inform the expert regarding appropriate evidence of uniqueness. Potentially, he might show uniqueness by conducting a comprehensive but nevertheless fruitless search of musical precedent; but this approach, requiring a comparison of specific work to specific work, has been shown to be too ambitious. Rather, the expert must resort to showing that the complaining work is unconventional‑-a more general indicia of originality than uniqueness and a term that seems preferable to "relative uniqueness." Even under this less rigid standard where the analyst compares a specific work to musical conventions, proof remains difficult. The expert still faces the question of which musical conventions provide relevant points of comparison. The expert might compare the potentially unconventional features to the external factors of notational rules, theoretical principles, or stylistic vocabulary. On the other hand, he might compare the potentially unconventional features to the internal principles of the individual work.

Here the analyst begins to encounter the notion of common errors. Some examples are easy: notational errors such as an incorrect key signature or the wrong number of beats in a measure. Yet these do not properly constitute musical errors because they are not sounded.

True musical error is not so easy to define. Shafter's treatise suggested that voice-leading errors indicate copying. Parallel octaves and fifths, Shafter asserted, are banned by the rules of harmony.[30] This is not so. Rules of harmony (more accurately, rules of counterpoint) no longer ban anything in contemporary music.[31] Only theory students learning contrapuntal practices suffer such dire constraints. Composers have managed to break every rule of the common practice period; the literature of the past hundred years abounds with such examples. Thus, theoretical rules might guide the discovery of unusual features, but they cannot form a test for real error.

Musical errors in the more metaphorical sense suggest things that are out of place. One reference point seems to that of stylistic vocabulary. Complex harmonic movement does not belong in country music nor yodelling in opera. But in either case, independent creation cannot be ruled out entirely. Something more is needed to prove copying; the oddity must somehow be compounded. Suspicions are warranted only regarding the second opera to employ yodelling. "Common error" exists only where the strikingly similar feature is foreign to both works.

The internal makeup of a work provides another reference point. Some element that resists all norms of theme, imitation, variation, and contrast might earn special scrutiny. But music combines elements of unity and disunity all the time; any work that lacks elements of disunity will sound trite. By what standard can contrast be measured, and when does an essential aspect of music, disunity, suggest error?

Louis Nizer provided what he considered an example of common error in music.[32] He described the word painting in plaintiff's "L'Année Passée," a chromatic chord denoting pathos where the text speaks of a girl turned "streetwalker."[33] The same chord was out of place in defendant's work where it accompanied "They make you feel so very glad."[34] Several factors are at work here. First, the chromatic chord was unconventional in the plaintiff's work; the calypso style makes little use of such chromaticism.[35] Second, the chord appears only once in plaintiff's song. It can thus be attributed to the specific purpose Nizer mentions; it is not readily explained (although it might be explainable) in purely musical terms. Third, defendant's work employed the chord at a corresponding point.[36] The chord bore all of the peculiarities within defendant's work that it possessed in plaintiff's.[37] However, in defendant's work the explanation of the text was gone.

The expert faces considerable difficulty in demonstrating this kind of error because the criteria vary. Although Nizer makes a partially credible showing in this regard, he did not have to show striking similarities. Nizer's common error, if it is such, went only to the question of substantial similarity.

The theorist Donald Tovey offered Tchaikovsky's Symphony No. 5 (Figure 48) as an example of stylistic peculiarity:

[G]reat harmonic distinction is given to this theme by its first note. Those who misremember it as B will learn a useful lesson in style when they come to notice that this note is C and not B.[38]

The C is striking in the musical sense. Convention suggests an opening B so strongly that many casual listeners probably remember it that way. An expert could not testify that the feature is unique without knowing every precedent. But because Tchaikovsky contradicted such a strong convention, an expert could assert that the literature will probably yield no prior common source.

Example 46: Tchaikovsky Symphony No. 5.

Refuting the Possibility of Coincidence

The duplication of an unconventional feature still will not prove striking similarity. Tchaikovsky created the unconventional theme of Figure 43 independently, and another composer might coincidentally do the same. Similarly, in Nizer's example above, the one chord seems an insufficient basis from which to infer access. There seems to be nothing attributable to quality alone that cannot be explained by coincidence.

Striking similarity thus evades any single test. The quantity or extent of similarities will not refute prior common source, and qualitative measures such as uniqueness do not refute coincidence. Some combination of the two seems essential. The guideline for a quantity tending to disprove coincidence was stated above: Quantity of similarities should tend to disprove coincidence only where there is virtual identity of substantially similar features occurring without interruption over a sustained period of time. The qualitative considerations mentioned above can be summarized: (1) the complaining work should employ an unconventional or stylistically foreign feature; (2) the defendant's work should duplicate that feature in a way that retains the same unconventional or stylistically foreign nature; and (3) the feature as it appears in defendant's work should not be readily explained by the internal characteristics of defendant's work.

These two sets of guidelines are imperfect. Music presents so many parameters and functional relationships that it is difficult to say what kind of feature might be striking in the qualitative sense. In addition, infringement cases infrequently assert striking similarity, providing little opportunity for the court to fine-tune the guidelines. Courts have too little experience to evaluate effectively this or any other set of guidelines.

Because copying requires access, the burden of showing striking similarity without a showing of access should be a heavy one. Some evidentiary standard close to that of "beyond a reasonable doubt" should be preferred over a mere "preponderance of the evidence" standard.

Finally, although the commentator Jeffrey Sherman presents a good case for considering striking similarity to be separate and apart from substantial similarity, this analysis suggests that he is only partly correct. Similarities may be musically striking without being substantially similar, but access should not inferred in such cases. The qualitative side of the guideline put forward here implies a substantive requirement. The quantity of similarities required to refute the reasonable possibility of coincidence requires an unbroken chain of otherwise substantial similarities. As a practical matter, this burden may be impossible to meet in any case short of literal duplication.

Substantial Similarity

If one were to examine two chess games in progress and discover that all of the pieces in one game were in the same position as the other, he might infer that this striking similarity could result only from the literal duplication of every move. Because of the low probability that this literal duplication would occur by coincidence, he could justifiably infer that one pair of players had copied the moves of the other. However, if the pieces were in the same position with one or two exceptions, the observer might conclude only that the two games were substantially, even remarkably, similar. The players must have followed both a similar strategy and similar tactics to arrive at this correspondence. It would be logical to inquire whether one pair of players knew what the other was doing. But if all pieces were in the same positions except for the black king, the observer could not draw these conclusions. The strategy and tactics of defending and capturing the black king would have been entirely different, and the similarities would suggest only a profound coincidence.

The question of substantial similarities in music should involve essentially this same procedure. Too often, however, the process focuses on finding similarities of any kind without regard to their significance or relatedness. If two composers have different purposes, wish to express different ideas, and happen to manifest some similarities in a different context, the probability that one copied the other is low. Analysts cannot merely focus on the position of pawns without asking why they were arranged in that manner. Similarities are significant only to the extent various elements support each other and reveal the same overall strategy.

The law treats substantial similarity on a case-by-case basis. Court opinions offer only the proviso that substantial similarity is to be determined by the reactions of a lay audience.[39] The expert can offer his opinion on how a lay person hears the works based on his expertise in musical perception. But reactions of lay listeners have not been studied sufficiently to provide objective data, and few music theorists study public reactions to music in a systematic way.

Before suggesting guidelines for determining the substantiality of similarities, it seems appropriate to examine the various contexts in which similarities appear. Some factors surrounding music composition point toward copying, intentional or subconscious, but not necessarily copying that is legally actionable. Other factors suggest merely coincidence, an over-developed proprietary interest in commonplace expressions, or, less charitably, the intentional assertion of inconsequential similarities for personal gain.

Motivations of the Plaintiff

Some attorneys divide plaintiff in infringement actions into two categories. The first category involves working, published writers who tend to file credible claims. The second category includes the numerous writers with little output and no publications. Typically, a plaintiff in this second category has sent his song unsolicited to a publisher or entered it in a songwriting contest. When something remotely similar shows up on the popular music charts, he presumes that it must be derived from his work.[40]

This latter scenario seems to play itself out often. Many such cases are settled well before trial. Defending one's work as an independent creation poses real difficulties, because most composers generate no dispositive evidence of their creative processes. Although the Bee Gees introduced a tape of their composition session that they claimed proved independent creation, that evidence did not warrant the serious consideration it received.[41] Tapes do not record thought processes and cannot, therefore, record the compositional process. The Bee Gees could have as easily recorded themselves composing "Happy Birthday."

Once a plaintiff demonstrates access, however, all similarities become suspect. Virtually all plaintiffs assert some real similarities, even though those similarities sometimes have no musical significance. Therefore, the defendant is at risk concerning any material he has seen or heard. For this reason, many composers and publishers, the Bee Gees included, establish a policy of never opening unsolicited materials.[42] The defendant is more likely to prevail through plaintiff's failure to show the concrete element of access than on the abstract and nebulous issue of substantial similarities.

A successful work of music is a highly valuable asset. This fact, coupled with the difficulty of defending independent creation, makes a musical work an attractive target for litigation.[43] The time, expense, and risk involved make defending an infringement suit an unattractive alternative. A well-known defendant may be subject to unfavorable media scrutiny and may find his career in jeopardy if in the end a jury brands him a plagiarist.

Naturally, a writer senses a strong proprietary interest in his creative work. That interest tends to be heightened when an unknown composer believes his labors are supporting the flaunted success of a famous personality. But too often litigation focuses on that success and the prejudices it engenders. The jury may be asked to champion the underdog or, conversely, to believe that dissimilar success proves the works dissimilar. Such approaches do little to advance a just resolution.

The Impetus to Copy

Some factors motivate a composer to write a work of music that is similar to another either intentionally or subconsciously. Composers employ many established practices and tend to build on what has been done before. Composers sometimes quote another work, although there are historical examples of wholesale borrowing with no hint of attribution. Composers almost inevitably conform to various stylistic forces, which, by definition, result in similarities and shrink the number of elements that might convey originality. Finally, composers almost always include a certain amount of non-original materials, because listeners demand a familiar frame of reference.

Historical Views of Borrowing

Modern conceptions of plagiarism are diametrically opposed to the historical traditions of western music, which posit that a new work should be based on one already in existence.[44] The earliest efforts in polyphony consisted of adding a new voice to an existing plainsong melody.[45] The existing melody was employed as a cantus firmus (fixed song) or cantus prius factus (song previously made).[46] By the 15th century, composers were writing Masses based on a cantus firmus taken either from plainsong melody or from some secular source. The Mass would bear the name of that secular source, for example Dufay's Mass Se la face ay pale (If my face is pale). Nearly every composer of the Renaissance wrote a Mass on the song L'Homme armé (The armed man).[47]

In his Missa L'Homme armé, Obrecht follows the lead of still another forerunner‑-Busnois. The general plan of the Mass is, indeed, so close to that of Busnois's that the work has been described as a "parody" of the earlier composition . . . and also "a tribute, on Obrecht's part, to the `authority' of his model. . . ." Despite all [similarities], however, Obrecht's Mass has its own striking individuality.[48]

The term "Missa parodia" is the only one, now employed for the various Renaissance Mass types, that was actually used in the 16th century. It was included by the German, Jakob Paix, in the title of his Mass based on Crequillon's Domine, da nobis, 1587.[49]

The practice of basing Masses on these secular tunes was widespread:

We have introduced an artificial and theatrical music into the church, a bawling and agitation of various voices, such as I believe had never been heard in the theatres of the Greeks and Romans. Horns, trumpets, pipes vie and sound along constantly with the voices. Amorous and lascivious melodies are heard such as elsewhere accompany only the dances of courtesans and clowns. The people run into the churches as if they were theatres, for the sake of the sensuous charm of the ear. . . .[50]

The church eventually took action, instituting sweeping reforms at the Council of Trent (1545-1563):

In the case of those Masses which are celebrated with singing and with organ, let nothing profane be intermingled, but only hymns and divine praises. . . . They shall also banish from church all music that contains, whether in the singing or in the organ playing, things that are lascivious or impure.[51]

The issue was not whether to borrow an existing work, only the appropriate choice of material.

Composers have interwoven popular tunes into more serious works throughout much of the history of western music. The term "quodlibet" (what you please) was applied to works of the 15th to 18th centuries in which disparate tunes were made to fit together. J.S. Bach's Goldberg Variations include a quodlibet that combines two contemporary popular songs, "Long Have I Been Away from Thee" and "Cabbage and Turnips."[52]

Composers borrow wholesale when they write variations on a theme of another composer. For example, Brahms' Variations on a Theme of Handel, a work used to illustrate some analytical principles in Chapter 5, begins with Handel's theme in its original form‑-an act of literal duplication. The twenty-five variations and fugue that follow are all derivatives of Handel's theme. The music world does not excuse the taking because Handel's theme had entered the public domain or because Brahms cited the theme's origin; Brahms complemented Handel and transplanted the theme into new harmonic and formal contexts.[53] Thus, Brahms made a significant original contribution to the repertoire. He took Handel's middleground and elaborated it into his own foreground. The original foreground sufficiently distinguishes Brahms' work from Handel's.

A composer who takes a short portion of another's work and employs it in a way that does not seem to pass it off as his own should not be considered a plagiarist. The music often sets off the borrowed material, as though putting it in quotes. For example, the Shostakovich Symphony No. 15 quotes Rossini's "William Tell Overture," and Bartok's Concerto for Orchestra (1944) quotes the Shostakovich Symphony No. 7 (1942). Both composers admitted the taking. It would seem that some aspect of the fair use provision would permit this kind of borrowing, some examples of which greatly enrich the repertoire, provide testimonials to the original composer, and disserve no one.[54]

Only as musical works lost utilitarian value and began to be perceived primarily as the personal expression of an individual did plagiarism earn serious condemnation. The term "plagiarism" seems to have entered the English language around 1600.[55] Discussions of plagiarism concerning music, however, do not occur in the literature until the 18th century. In 1774, Petit de Bachaumont noted unattributed borrowings from Christoph Gluck:

The music of Orphée et Euridice [of Gluck] was printed in Paris eight or ten years ago, but it has excited such little interest that at the end of that time the printer has not sold twelve copies. Nonetheless it seems that this mine of harmony is not unknown to everyone. We have been very much surprised to find in performance that Messrs. Philidor, Gossec, Floquet, etc., have borrowed from it at their convenience and that entire pieces from their works may be found there, which has embarrassed them slightly.[56]

Philidor's taking was not condemned, and Gluck himself reportedly brushed aside the event.[57]

More recently, discovery of plagiarism has seemed to obsess some, particularly in the field of music criticism. Sigmund Spaeth advanced himself as a "tune detective." Shafter's treatise is replete with references to cunning plagiarists who disguise their thefts with ingenious little twists:

Clever infringers attempt to deceive composers by alterations and changes in their musical ideas, these disguises taking form, as the English Act says, of "colourable imitations." Colorable is another word for "camouflaged"; and a musical idea so treated is just as much an infringement as one taken openly. The difficulty of proving the theft does not lessen the liability of the thief. . . .

Much has been made of the fact that Brahms took the melody of the Westminster Chimes as the theme for his famous horn motif in his First Symphony. . . .

Olin Downes says that what Brahms changed is not the notes, but their rhythm. In the case of a copyrighted composition this change might be the colorable variation mentioned; but in the instance of music in the common domain, the copy is permissible. What is important in this respect is the fact that one may copy a melody by changing the rhythm‑-and still be infringing.[58]

Shafter believed that the value of experts lay in their ability to ferret out the devious ways in which composers disguised their thefts.[59] This school of commentators seems to find composers at once too lazy to be original and yet masters of creative deception.[60] Schenker railed against this naive approach to music:

It can only be regarded as a ridiculous attempt at debasement and disparagement of the diminutions of the masters when a certain literature busies itself with finding "wandering melodies" in the foreground, maintaining that similarities exist where they do not, with drawing lines of historical connection in every direction, where none in fact exist, or with pointing out plagiarisms where none are to be found. The employment of comparable superficial methods in language and literature would call forth general laughter and head-shaking over the deplorable intellectual state of any such writers and teachers.[61]

Schenker's reference to wandering melodies in the foreground suggests that the plagiarism enthusiasts tend to uncover similarities located in surface diminutions alone. These would-be detectives usually fail to take into account the context in which these surface diminutions appear. A more recent commentator has taken aim at those who delight in discovering rampant plagiarism:

These self-styled music critics seem to envision a world full of composers endeavouring mightily to conceal acts of plagiarism, even going so far as to change all the notes.[62]

Dictates of Style

Musical similarities should be judged with reference to stylistic context. Some substantial similarities may be explained by the particular vocabulary and idioms of the style to which they belong. When a work is classified as belonging to a particular style, the relevant questions for the trier of fact are: What musical elements define that style, and what musical characteristics do those elements share.

Style is determined by certain aspects held in common by a body of works. Therefore, the elements that define a particular musical style cannot be protected by copyright. Although, in one sense, a composer may develop his own individual style, the elements that properly define that composer's style should not include protectable elements. As a general proposition, "style" and "protectability" should each be defined in a way that excludes the other.

Virtually all musical elements may be subject to stylistic treatment:

In a musical composition, "style" refers to the methods of treating all the elements‑-form, melody, rhythm, etc. In practice, the term may be applied to single works (e.g., the style of Tristan compared to that of Die Meistersinger); to composers (the style of Wagner compared to that of Beethoven); to types of composition (operatic style, symphonic style, motet style, church style); to media (instrumental style, vocal style, keyboard style); to methods of composition (contrapuntal style, homophonic style, monodic style); to nations (French style, German style); to periods (baroque style, romantic style); etc.[63]

Obviously, no style can embrace all aspects of music simultaneously. Room must be left for individual creation.[64]

Elements that comprise a particular style may occur in the background (such as tonal vocabulary), middleground (such as formal structure), foreground (such as common rhythmic figurations), or even super-foreground (such as embellishments and performance techniques). The typical treatment of those elements should yield a general theoretical statement concerning their characteristics. Extra-musical descriptions, often used in common parlance to distinguish styles, do not advance the analysis and offer nothing relevant to the issue of copying.

Music analysts work with all styles and describe them in purely musical terms. Style analysis forms an important aspect of musicology.[65] It looks at normative aspects of music as opposed to the characteristics of individual works.[66] Jan LaRue describes the scope of style analysis as one of:

. . . exceptional completeness to ensure our observation of every nook and cranny of a piece, studying each of its musical elements in turn at various magnifications to fit all dimensions. Next we must try to understand the functions and interrelationships of these elements, so that we can make meaningful interpretations, identifying the significant aspects of each piece in relation to its composer and the stylistic relationship of each composer to his milieu.[67]

LaRue's approach varies little from that set forth in Chapters 5 and 6 of this work. Style analysis has the object of discovering and evaluating similarities, the same as the more critical approach to analysis suggested for the discovery of plagiarism. The distinction lies in some of the comparisons. Whereas critical analysis compares one work to another, style analysis compares one work to many.

Nothing concerning the question of style argues for reduced reliance on expert witnesses trained in all aspects of music analysis. The assertion that style dictates certain similarities does not limit the inquiry; it merely adds a specific question of protectability. It creates a need to explain how a certain style limits compositional choices and where the potential for original expression is greatest. If some elements slavishly follow formula, then originality or infringement must lie elsewhere.

Style does not change musical principles. The public often misperceives the distinctions that determine style; the public divides music into "kinds" rather than "styles." No "kinds" of music exist that would require a different kind of expert; music theorists are not taught to analyze a particular kind of music. Many theorists focus on more serious and complex genres simply because those genres present the greatest challenges and rewards.

The court in Selle v. Gibb criticized plaintiff's expert for not being well-versed in popular music:

Defendants are perhaps to some degree correct in asserting that Parsons, although eminently qualified in the field of classical music theory, was not equally qualified to analyze popular music tunes.[68]

There is only one kind of music theory; the modifier "classical" has no meaning. Further, anyone qualified to analyze classical music needs no additional qualifications to analyze popular tunes. One might as well question the ability of an expert in calculus to add and subtract or the ability of a lawyer to read a simple sales receipt.[69] Parsons' lack of familiarity with popular music was relevant in only one regard: he was unable to compare meaningfully the similarities he found between the two works with similarities that would normally appear in popular songs. That inability did not derive from his training in classical music, or any lack of expertise, but merely from his failure to investigate the stylistic traits of the works he analyzed.[70]

Classical music is made up of the parameters, functions, and relationships examined in Chapter 5. Popular music employs those same elements in the same ways. However, popular music presents less material, less complex designs, and less innovation. Popular idioms tend to employ limited musical vocabularies in rather predictable ways. Popular music elaborates middleground aspects less extensively than more serious forms of music. In general, most popular forms present simplified versions of musical materials common in the 19th century. Although some popular styles have developed complex and sophisticated approaches to certain musical parameters, popular forms tend to be characterized by timidity and adherence to familiar formulae.

It has been argued that popular music, because it presents relatively simple musical materials, should be subjected to less extensive analysis.[71] This approach prejudges the music; it requires laymen to characterize the complexity of the works involved and dictate how far the analyst may go. The argument subscribes in many ways to the separation of music into "kinds." Infringement litigation concerns the issue of copying, not the value of particular forms of music.[72] Thus, the necessity of a complete forensic analysis should not hinge on style, form, or complexity.

Economic Demands

The music typically litigated has economic value that derives from its mass appeal. Music that attempts to challenge the public and change public tastes stands considerably less chance of "making the charts." The public likes what it is accustomed to hearing.[73] Similarities, imitations, and repetitions‑-both of internal and extraneous materials‑-form an important aspect of the art:

The most primitive impulse toward artistic creativity finds its expression in imitation, so the first response on the part of the recipient is the joy of recognition.[74]

In large-scale serious works, repetition of original, internal materials provides the listener with the joy of recognition. In smaller-scale popular works, composers have a greater need to imitate extraneous materials.

Many highly successful writers of popular music have learned to fit slightly new surface diminutions onto tried and true middleground formulae. A comparison of such works will yield many similarities, but the trier of fact must understand those similarities for what they are. The importance of designating similarities as belonging to foreground, middleground, or background cannot be over-emphasized.

Formula writing is not disingenuous or even significantly different from the practices of some composers of more serious music. Virtually all composers adhere to certain stylistic formulae. Like music's pervasive dichotomy of unity and disunity, music also contrasts the familiar with the new. Classical music uses familiar conventions but injects more originality. Its complexity necessitates more intense listening and a greater number of repetitions before understanding is achieved. Complexity, subtlety, variety, and unity of expression account for the longevity of classical music's appeal.

Popular music generally has a higher ratio of familiar to new. It needs to strike a familiar chord immediately. Unlike serious forms, popular music relies on first impressions. The listener must find instant gratification if commercial success is to be achieved. A popular song has perhaps three minutes to capture the listener's interest and comprehension. The composer achieves this immediate appeal by evoking a sense of familiarity, which can only come from imitation of external materials and formulae.

Composers respond to many historical practices, stylistic formulae, and economic demands. Although these forces in and of themselves do not provide a defendant with an ironclad defense, the trier of fact should recognize that not all similarities reflect a composer's desire to profit from the labors of others. Guidelines for the substantiality of similarities should separate similarities that music considers traditional and necessary from those that misappropriate protectable elements.

The Question of Coincidence

Other factors beyond the composer's control contribute to the perception of similarities. Shafter's treatise cites a paucity of possible combinations in music that creates inevitable similarities, and he even makes the preposterous statement that "it is generally agreed that the original fund of melodic ideas has been exhausted."[75] Sherman, a more astute commentator, falls into the same trap:

It must be remembered that there is not the same number of pleasing combination of notes as there is of words. "Popular songs, particularly, lie within a very small radius. In a confined space, similarity of tone construction is inevitable. Practically every original idea the composer can think of has appeared somewhere before; it is a matter of probabilities, and every day the number of new possibilities grows less."[76]

The statement contains two different propositions: that musical combinations have been exhausted, and that popular idioms have been exhausted. Further, one cannot tell whether Shafter believes the fund of ideas to be truly exhausted or merely dwindling at a startling rate.[77] The court has reiterated the notion that musical expression is severely limited, and defense counsel almost invariably resort to this argument to support the coincidence of similarities.[78]

Exhaustion of Musical Combinations