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