CHAPTER 9

PROPOSALS FOR MORE EFFECTIVE USE OF MUSIC EXPERTS

This work has addressed numerous issues regarding the use of music experts, the proper approach to analysis, and the ways in which law and music interact. This work has resolved some of these issues and offered some tests to guide the analyst and the court. The more general conclusions presented in this final chapter concern the expert's role in the litigation of music copyright cases.

Summary of Issues

Past and current approaches to infringement analysis reveal the need for a more thoughtful approach. The overview of current techniques presented here reflects a review of numerous representative cases litigated in the last twenty years. Although some cases were not reviewed and other experts may have taken an approach not explained in this work, the exemplary cases of Chapter 4 combined with examples taken from other cases seem to represent the most prevalent methods of infringement analysis. The author reviewed the analytical techniques of most of the expert witnesses who have appeared repeatedly in copyright litigation and of numerous experts who testified only once.

This work has also explained the legal environment in which music experts operate. Litigation is a very dynamic process, many aspects of which elude description. This work, however, offers a potential expert only a general idea of what to expect in court. The attorney hiring the expert witness must provide the expert with more specific guidance.

In addition, this work cannot ignore the substantive legal questions that control the entire process. Copyright law presents the court with very difficult concepts. The nature of art, private ownership of expressed thoughts, and public freedom of expression affect the scope of an author's property rights. The intellectual processes of authors, the store of public knowledge, and definitions of originality cloud the question of copying. In addition to problems of defining the law, factual determinations made at trial invariably rely on much circumstantial evidence.

When music is the subject of litigation, the court encounters the most intangible and abstract copyrighted subject matter. Highly technical and complex explanations of music compound the difficulty. In effect, the court tries to understand abstract qualities of music through the technical explanations of experts in order to apply nebulous legal standards. That the results have been inconsistent and less than satisfactory should surprise no one.

The court will continue to struggle with these issues, because no simple solutions are available. An expert cannot reduce music to a tangible, inert thing in order to simplify the division of ownership among various interests. Nor does a universal paradigm of music exist that could create a standard for legal and aesthetic comparisons.

This work suggests several steps to focus a court's inquiry more effectively, although the suggestions may not simplify the issues involved. The basic premise behind these suggestions is rather simple: music can be understood only aurally. Consequently, analysis must enlighten the listening process. The legal significance of similarities must flow from their musical significance, and in order to have musical significance, similarities must be aurally perceptible to an informed and astute listener. Courts have properly resorted to a lay listener test, but they have unwisely encouraged the trier of fact to separate its intellectual powers from its aural powers. Courts have emphasized the attribute of being a layman at the expense of a more important attribute, that of being a listener.

An expert witness must provide information that is helpful to the trier of fact. That information must be the sort that enlightens listening, because listening is the means by which the trier of fact should reach its conclusions. Only in rare cases will a musical score constitute physical evidence of copying. In those cases the expert could point out errors or peculiarities in notation. In the majority of cases, however, an expert's analysis is relevant only to the extent that it explains how the music sounds. The expert's only legitimate role involves helping the trier of fact to think as it listens.

The expert's role is not diminished; listening affects most aspects of a court's inquiry. In fact, listening goes beyond assessing similarities to the ultimate issue of misappropriation. Thus, the expert's knowledge is relevant to the issues of substantial similarity, striking similarity, protectability, and misappropriation‑-whether copying of protected materials exceeds the bounds of fair use. Where the trier of fact must understand what it hears, the analyst's expertise will help.

Music theorists struggle constantly to keep analysis focused on the listening process. They recognize that the relevance of music analysis depends on this link to sound. Nothing about infringement litigation changes this proper focus of analysis. The compositional process begins with an aural concept. A composer writes what he hears, and if he copies, he copies what he hears.[1] Similarities apparent only in the graphic representations of two works do not explain the music.

Recommendations Concerning the Analytical Process

The term "forensic analysis" has been used in this work to describe the analytical process recommended for the assessment of infringement claims. Forensic analysis is not a new term, but in music it has no specific connotations. Justice Story characterized copyright infringement as a study in forensics[2] and at least one music expert, Earl Spielman, has adopted the term. In copyright litigation, a forensic analysis would seek out the sources or impetus of a musical work. It would identify derivations. More importantly, it would examine all aspects of music relevant to law and could define the criteria for an analysis of possible infringement.

This "new" term does not define a new or autonomous discipline or justify a departure from proven theoretical techniques. Forensics should specify the purposes of analysis and the types of conclusions to be drawn, but the methodology must be firmly rooted in accepted analytical practices. Music analysis aimed at purposes other than litigation seeks the same information: how music is heard; what materials form the basis of the composer's ideas; how the music is constructed; and what styles, idioms, and other influences place the music in historical perspective and help to explain the composer's original contribution. A forensic analysis would accumulate all of this information through the same methods and then use the information to answer the specific question of whether one work was copied from another. Forensic analysis can also employ that information to determine the scope of the composer's property rights and to address the issue of fair use.

A forensic analyst must have the requisite knowledge and background to produce a complete analysis. Chapters 5 and 6 identify the criteria: temporal segmentations, isolation of parameters, and hierarchical reductions of each work followed by subject-matter comparison, formal comparison, functional comparison, and temporal comparison. Isolation of parameters and temporal comparison are identified as optional aspects of analysis, but the others should be required. Each type of reduction should be complete in itself in order to avoid making comparisons with shifting criteria.

Music analysis is not a simple process and should be undertaken only by one who can complete all of these steps. The court must first assess the expert's qualifications. The judge's best tool for assessment is a complete written analysis submitted prior to trial. The requirement of a complete analysis will put each party's theory of the case in sharper focus and help to avoid irrelevant and prejudicial testimony. Currently, judges have no adequate basis to guide their evidentiary rulings. Pre-trial forensic analyses can provide the foundation for the introduction of analytical evidence and define the boundaries for the scope of cross-examination.[3]

The complexity of analysis need not unduly complicate the task of the trier of fact. In fact, testimony should proceed more efficiently if it is based on the pre-trial reports. The expert should be able to explain the music in a meaningful way without introducing every aspect of his written analysis.

Experts in infringement cases regularly simplify complex musical phenomena for the benefit of the trier of fact. As an introduction to the nature of music and the process of analysis, these simplifications do little harm. But simplification can result in simplified analysis, and the court might base its jury instructions, evidentiary rulings, and findings of fact and law on this simplified analysis. Complex disciplines cannot be made simple just to avoid taxing the jury's intellect.

Radical simplifications of music might be warranted if the trier of fact were being asked to learn and retain something about music theory, but the goal of the expert is to inform listening, not to explain theory and analysis. Expert witnesses should use care in offering elementary definitions and characterizations because such testimony may have implications beyond the momentary edification of the jury. With nothing to counteract or supplement them, these definitions might form the basis for an erroneous decision.

The expert must always focus on informing the listener. The trier of fact will not gain much aural understanding through elementary and facile explanations concerning the nature of music. Visual representations offer useful aids to understanding music, and graphic notation may require explanation. But the trier of fact needs only to hear the similarities, not identify them on the page. The expert has too little time to impart much understanding of music theory and is more likely to impress the trier of fact by focusing on sound. Once the listener hears and understands the similarity or distinction between two musical passages, he will not forget it.

Recommendations Concerning Substantive Law

The conclusion to a work as broad as this one cannot argue very effectively for legal reforms. Instead, this conclusion summarizes arguments made elsewhere in this work and makes recommendations for further study.

Establish Criteria for Forensic Analysis

Courts have been highly dependent on music experts and, perhaps as a result of this dependence, somewhat suspicious of them. Some of those suspicions have been well-founded. Music is pliable; an expert can construct many arguments regarding similarities and differences. Arguments based on a quantification of similarities often predominate in spite of the courts' occasional criticism of this approach. Not much attention has been paid to the quality of similarities necessary to infer copying. Indeed, music and law have had insufficient contact for either to inform the other of what is most important. First-time expert witnesses often seem to misconstrue the purpose and significance of their testimony. From the other perspective, it seems that the court has relied on the lay listener test to check what it perceives as the analytical excesses of experts.

Having experts committed to a particular, though multifaceted, analysis will benefit the legal process. Varying interpretations of music may coexist within one analysis; indeed, confronting ambiguities is an important part of analysis. But a reading of representative trial transcripts reveals a marked tendency among experts and attorneys to apply shifting criteria. The conflicting information that results is never collated or reconciled. Attorneys may contradict their own expert's analysis when cross-examining the opponent's expert. The inquiry as a whole tends to be scattered; it does not sufficiently test the experts' conclusions.

Experts too would benefit from recognized standards of analysis. Former experts have often confessed that they had little guidance for their first appearance in court. Further, an analyst can cite no objective authority on infringement that verifies the validity of his analytical techniques over any other. The field of music theory has not documented its techniques as they relate to infringement. The criteria for forensic analysis offered here provide an objective standard for analysis that can guide the court in assessing the relevance of expert testimony on infringement. If recognized by the court, these criteria can greatly increase the effectiveness of first-time music experts.

Consider Court-Appointed Experts

Perhaps the most obvious question raised by this examination of expert testimony is whether the process would be better served by one court-appointed, objective expert. Rule 706 provides:

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. . . .[4]

The official comment to this rule provides a useful perspective on expert witnesses:

The practice of shopping for experts, the venality of some experts, and the reluctance of many reputable experts to involve themselves in litigation, have been matters of deep concern. Though the contention is made that court appointed experts acquire an aura of infallibility to which they are not entitled, the trend is increasingly to provide for their use. While experience indicates that actual appointment is a relatively infrequent occurrence, the assumption may be made that the availability of the procedure in itself decreases the need for resorting to it. The ever-present possibility that the judge may appoint an expert in a given case must inevitably exert a sobering effect on the expert witness of a party and upon the person utilizing his services.[5]

Resort to this rule would not necessarily solve the problem of competing experts, because the parties retain the right to call their own experts in spite of the court's appointment.[6] Further, even if the parties agree in principle that one objective expert would better serve the process, they will likely disagree on who that expert should be. Choosing an expert may expend as much in energy and resources as presenting competing analyses.

The court needs its own expert less when the parties' competing experts fulfill the proposed criteria for forensic analysis. Differences between the analysts' conclusions will be put in sharper focus, and they will be presented in a form that facilitates effective cross-examination. The trier of fact is less likely to be confused by irrelevant matters. More importantly, if the lay listener test is combined with analysis rather than bifurcated, the trier of fact will be better able to compare the competing experts more effectively. Jurors may rely too heavily on the personal attributes of experts, particularly when the experts' testimony is difficult to comprehend. Instead, jurors should evaluate music experts by how well the experts explain what the jury hears. If the court ties analysis to listening, the jurors will be better able to weigh the substantive testimony. Just as analysis informs listening, listening informs analysis.

Court-appointed experts may be advisable where the criteria for forensic analysis are not met by the parties' experts. The court could be assured of receiving a competent analysis from its own expert and could use that analysis as a guide to the relevance of testimony presented by the parties' experts. As the official comment to Rule 706 suggests, the mere possibility of the court's taking this action might decrease the need for resorting to it. The court might also consider referring some of the more complex issues to a special master.[7]

Establish Criteria for the Significance of Similarities

The three-part test for substantial similarities offered in Chapter 7 applies the data generated by forensic analysis to the key questions. Whether or not the specific criteria of forensic analysis explained in Chapters 5 and 6 are required, the substantiality of similarities should be determined with reference to this three-part test. The test follows established musical principles. It addresses the aural significance of music rather than statistical quantifications of static features.

This work proposes quite stringent tests for a finding of striking similarity. The difficulty of refuting coincidence in music is greater than in other arts because of the strong influence of tonal function. The issue of striking similarity should be approached very cautiously, because the doctrine tends to transform copyright infringement into a question merely of similarities. The doctrine denies copyright law's definition of originality as not requiring novelty. Although there may be a point at which independent creation is no longer credible, the standard should be raised essentially to one of virtual identity.

Reformulate the Lay Listener Test

The lay listener test provides a useful tool to the court. But if the court intended the test to check the excesses of expert testimony, as suggested above, then the court is applying the test at the wrong point. Listening should guide analysis, not rebut it.

The bifurcation that separates analysis from listening tends to defeat the effectiveness of both. Music theorists judge analysis by how well it explains what the ear perceives. Thus, the lay listener test is not really foreign to music theory. Analysis serves no purpose if not tied to listening. An analyst might point out relationships that challenge the listener's perceptive capabilities, and he might even point out relationships that operate on a subconscious level, but musical relationships must be aurally perceptible.

When the court applies the lay listener test separately, it encounters an additional problem. In essence, the court instructs the jury to listen passively and to ignore the analytical explanations of experts. Yet visceral reactions provide an unreliable gauge of copying. The bifurcation suggests that the jury is incapable of informed listening; it suggests that the jury can listen and learn but that it cannot do them simultaneously. The court impairs the efficacy of analysis by branding it inapplicable to listening. Analysis is made an empty intellectual exercise, inscrutable to many, and listening becomes inattentive and indiscriminate. Listening and thinking must occur simultaneously if musical similarities are to be assessed accurately.

The recent reformulation of the lay listener test into an intended audience test presents a related problem. It continues to require the separation of analysis and listening. In addition, the jury cannot apply its own standards of listening. Under the intended audience test, listening does not test the relevance of analysis, because the trier of fact cannot use its own aural judgment. Thus, the intended audience test creates additional barriers to analysis and listening both. It widens the gap between the two and thus further impedes intelligent inquiry. For that reason, courts should consider restricting the intended audience test to the question of damages. At the very least, courts should scrupulously exclude that test from the question of copying.

Re-examine the Idea-Expression Dichotomy

This work does not attempt to define the distinction between idea and expression. That task is probably impossible. The nature of music defies the distinction perhaps more adamantly than any other art. Credible arguments have been advanced that music is pure expression and contains nothing equivalent to idea.

Whether that argument is correct from an aesthetic perspective, it cannot be correct from a constitutional perspective. The utilitarian purpose of copyright law would not be served by granting protection to all musical expression if everything in music is expression. The debate must be formulated in terms of policy, and some aspects of what many aestheticians consider to be musical expression must be denied protection.

This work suggests an aesthetically based division between protectable foreground expression and unprotectable middleground or functional context. Middleground and foregrounds aspects of music may be equally expressive, but they are not equally protectable. Musical function must remain unprotectable, so where it operates in the foreground, function itself should not be protected. This proposed division of protectable and unprotectable aspects of music does not make the determination easy or automatic, but it does address the question in terms that apply to music.

Recommendations for Further Study in Music Theory

Future works should provide courts with a source of accurate musical definitions. The definitions that have been handed down in case law are in many instances simply erroneous. Music dictionaries can be consulted, but the definitions in those sources often are not sufficiently precise to serve as legal definitions. Musicians tend to formulate rather loose definitions that presume an understanding of the terms' larger implications. Analysis explains these larger implications and greatly depreciates the value of definitions to trained musicians; thus, musicians have little incentive to grapple with the wording in a way that would benefit the law.

The problems of terminology have plagued analysis for centuries. Many major advances in music analysis have resulted from the development of graphic representations that free the analyst from the confines of terminology. But music theory will probably benefit from efforts to explain musical phenomena to the court. The task provides an opportunity to reevaluate the tenets of analysis from a new and intellectually rigorous perspective.

This effort to inform litigation should end with an examination of the terminology. This work has sought to demonstrate that the entire spectrum of music analysis can inform the law and make law more responsive to music and musicians. The field of music theory tends to concentrate on its own needs, often seeming to hoard its knowledge within the profession. Although analysis will remain primarily a musician's tool, it has applications in other disciplines. Non-musicians need to understand a certain amount of analysis in order to appreciate music and approach it intelligently. Courts have operated for years without much understanding of music, but this is not entirely the fault of law. Music scholars have made no significant contribution to the courts' knowledge.

Legal writings about music reflect many of the misconceptions held by society at large. The unique power and appeal of music have made its popular forms particularly strong cultural forces. The legal profession hears many arguments from the popular side, the music industry, but hears little from scholars and analysts. Music scholars need to counteract popular influences and assert their knowledge more confidently in a wider social arena. Efforts such as those suggested here which are aimed at the legal process promise to remedy much confusion and redound to the benefit of musicians.