A Point of View

(This statement is intended to provide potential clients with an overview of how I
approach my work as a forensic musicologist. Hopefully, it will help some readers to
decide whether I can be helpful, considering the nature of their cases. While many such
readers will already be familiar with the legal considerations presented here,
I have included them in the interest of the lay reader who may
find the information helpful and/or interesting.)

Webster’s New World Dictionary says music is “the art of combining tones to form expressive compositions,” or “any rhythmic sequence of pleasing sounds.” The World Book Dictionary says it is “the art of putting sounds together in beautiful or pleasing arrangements” and involves “melody, harmony, rhythm, etc.”

While all of these definitions appear practical, they are not without problems. Some percussive music has no “tones” (in the sense of having sustained pitch). Some music—Ligetti’s Atmospheres, for example, which consists entirely of contrasting sustained timbres at various degrees of loudness —has neither melody nor rhythm. Then, there is the question of whether combined sounds must be “pleasing” in order to qualify as music?

In my opinion, the most practical definition of music is simply “organized sound.” We would all likely agree that “music” without sound—“music of the spheres,” for example—is metaphorical. To determine that sounds are organized requires a human intelligence to make that judgment. It seems to me that one need not find a particular configuration of sounds “pleasing” or “beautiful” in order to recognize its organization. Of course, if a hearer is unable to grasp the sense of a particular sound configuration, those perceptions probably do not constitute music—at least, not for that hearer.

I believe it important to realize that music notation is not music, but rather a symbolic abstraction of selected aspects of it. Although the Library of Congress accepts written transcriptions as deposit copies for copyright registration, in determining music infringement one should ultimately (when possible) consider the organization of the sounds themselves as the actual artistic expression. Today, nearly all well-known music is recorded. Forensic analysis is no longer limited to notational deposit copies, which are often poorly transcribed and/or do not reflect actual recorded performances.

More importantly, standard music notation—in both commercial and classical fields—is not designed to contain all of the expressive details of music. When a performer “bends” a pitch—a “blue” note, for example—the actual pitch cannot be accurately recorded on the staff. Transcribers often disagree on the proper scale step on which to write it. Therefore, it is important to realize that music notation does not always reflect actual sounds, and should not be considered the final evidence in making musical comparisons, particularly when the music in question is available on recording.

Since melody is easily the most recognizable feature of most music today, most claims of music infringement center on melodic similarities. When two melodies are claimed to be similar, a standard defense is to demonstrate that the melodic material has been commonly used before, and therefore cannot by "owned" by the claimant. Examples of earlier use are referred to as “prior art.”

In my opinion, examples of melodic prior art should consist of melodic similarityboth in pitch sequence and in rhythm. Too often, forensic musicologists identify excerpts that consist of similar pitch sequences but are not rhythmically similar. A classic demonstration of the reason for this requirement is the comparison of “Rock Of Ages” and “Rudolph, the Red-nosed Reindeer.” Both melodies have exactly the same melodic scale steps in their opening phrases, but are very different in rhythm. One melody clearly would not likely be mistaken for the other.

A musical composition, then, consists of layers of combined elements. Similarity of separate elements normally does not constitute substantial similarity in musical compositions, in my opinion. Two literary works would not be deemed similar simply because both contain similar words, but only when those similar words are combined in a similar configuration.

As I understand copyright law, “substantial similarity” alone usually does not constitute infringement. It must be further established that the composer of the later work had access to (had heard) the earlier one. An exception, as I understand it, is when an unusual element—such as an obvious flaw—is contained in both works. This “striking similarity” does not require that access be established. (Note: After more than twenty years of experience in this field, I have yet to see a musical example of striking similarity.)

Some forensic musicologists will work only for defendants. This, of course, helps them avoid having said different things when working on different sides of the table. In my practice, I have worked more or less equally for both plaintiffs and defendants. I do not find this problematic since I purposefully look at every case with the same basic view of the nature of music composition. I evaluate each potential new case as objectively as I can, believing that the client deserves an honest evaluation.

Ultimately, that information should be of value, I would think, regardless of the intent of the potential client. If my opinion supports the interests of a defendant, so be. If it does not, the client may consider a reasonable settlement. If my opinion supports a potential claim, so be it. If it does not, the client might reconsider the strength of his or her case. My opinion is certainly not the final word in any case; however, it does reflect more than two decades of experience in the field.

Gerald Eskelin, Forensic Musicologist

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