Judith Finell Explains The Roles Musicologists Play When Music Prompts Copyright Infringement Issues: Part 1

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Although musicologists play an important role in resolving copyright infringement claims involving music, most have little idea what that role is. Judith Finell ends the mystery.

In my conversation with  Judith that begins below, she explains the training musicologists need to be effective in this forensic activity. Judith also outlines the issues musicologists face before the release of music and after it has triggered litigation.

In part 2 of my conversation with Judith that will appear in a later post, she discusses sampling, how musicologists aid in resolving copyright disputes and the techniques, including spectrogram analysis, they use to do so. She ends our conversation in part 3 by sharing some of her unique experiences in music litigation.

About Judith

Judith Greenberg Finell is one of this country’s foremost musicologists and music consultants. More than 20 years ago she founded Judith Finell Musicservices Inc., now based in Bronxville, New York. Judith testifies and consults on matters involving music copyright for attorneys; music publishers and recording companies; advertising, media, and entertainment companies; composers and music industry organizations. She frequently speaks at law schools, advertising agencies, law firms and conferences on intellectual property. She also serves as a trustee of the Copyright Society of the U.S.A. Her complete bio and contact information for those who wish to ask follow up questions are here.

Here is part 1 of my conversation with Judith

Q. What is the role of a musicologist in a copyright case?

A. A musicologist is a music expert educated in musical analysis, history, literature, and theory. Attorneys and potential parties, be they music publishers, record or media companies, advertising agencies, or individual composers/song writers, call us when there is an issue involving the possible infringement of music. We may be consulted at any time: before a case is commenced; after the defendant has been served with the complaint; or during litigation.

The key question we are often asked is whether the plaintiff’s and defendant’s musical works are substantially or strikingly similar to one another. To answer that question a musicologist will examine the degree to which the two musical works share similar material and whether the shared material is original with the plaintiff’s work.

Q. What kind of training is required to become a musicologist?

A. At a bare minimum, a musicologist must have a graduate degree in musicology, with intensive background in music theory, analysis, composition, arranging, orchestration, musicianship, and musical literature. But to become a “forensic” musicologist and serve as an expert in copyright litigation, the musicologist must also understand the legal issues raised by infringement claims.

University and conservatory music programs offer no formal courses or degrees in forensic musicology. Thus, the only way to become an expert forensic musicologist is through on the job training. You need to associate yourself with and learn from attorneys, especially litigators, and attend as many educational presentations on the legal aspects of copyright infringement as possible.

When musicologists or performing musicians who lack experience in applying musical principles to the copyright and legal arena take on the role of experts, their reports and testimony often do not assist in resolving the pressing legal issues or answering the important questions.

Q. Give us some examples of the kinds of issues a musicologist handles.

A. Our clients ask us to resolve four kinds of issues:

1. We are asked by a wide variety of companies, including recording companies, game developers, publishers, media, film, television, and advertising agencies, to examine music before it is commercially released to minimize the risk of litigation. Media companies also ask us to examine musical “logos” and sound effects used in their products. Our examination is especially important when the music at issue has been created from what is referred to in the business as a “temp track” (an existing piece of music that serves as a guide or model for the mood or atmosphere of the new music being created).

We advise on whether the similarities with the pre-existing musical work at issue are generic or specific to the earlier work. If specific, we often recommend precise changes in the music and/or the arrangement to reduce legal risk while maximizing the initial appeal and maintaining the desired emotional atmosphere of the music.

2. When litigation occurs or is being considered, we are asked by one of the parties to evaluate a case, provide an opinion on whether the musical works at issue are substantially or strikingly similar, and whether there may be prior art that might explain the similarities the works share.

When we examine and evaluate the music in these circumstances, we scrutinize every musical element involved. We look at melodic themes, lyrics, rhythm, pitch (melody), harmony, chord progressions, structure and musical architecture, dissonance and consonance, new technological sounds, sound effects, accompaniment and style. We also advise on the strengths and weaknesses of the case and the arguments opposing counsel are most likely to make with respect to the music.

3. We also provide music research on the history of particular musical works used in television, film, or entertainment media by film studios, music supervisors, technology companies and advertising agencies. There may be a question whether a musical work is in the public domain or whether a particular arrangement resembles the public domain version of a work.

4. There is sometimes a question whether a performance could trigger a recording rights issue or a sound-alike claim. Sound-alikes are recordings or performances designed to resemble the performance styles of specific musicians, such as a distinctive singing voice or instrumental performance technique.

Here is an example of a sound-alike case involving a very distinctive voice. The singer Bette Midler sued Ford Motor when it commissioned another singer to imitate Midler’s unique vocal style when creating a commercial based on her hit song Do You Want To Dance.

The Ninth Circuit reversed the dismissal of Midler’s claim against Ford holding “that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort.” The court’s opinion is here.

If you would like to add to the conversation by sharing your experiences with musicologists, you are welcome to do so below. Please also stay tuned for parts 2 and 3 of my conversation with Judith Finell.  Thanks Judith; this is really helpful and useful information.

Want to access more information about copyright litigation involving music; click on this resource provided by UCLA here.

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