More Than Meets The Ear

TASA ID: 21826

“Hey, that sounds familiar…where have I heard that before?”

To answer this type of question, copyright infringement cases often require the assistance of a musicologist.  But what can you expect when hiring one?  There are essentially three areas where a musicologist can be a resource: musical comparisons, prior art searches and expert testimony as to similarity.

Though each musicologist has their own methods, we all must address the same general issues.  For musical comparison, these include analysis of melody, harmony, rhythm, song structure, spatial organization, lyrics and more.  The process involves transcribing both the work of the party claiming infringement, and the infringing work.  As the works may be in different musical keys, they are transposed into a common key signature, usually the key of “C”, to simplify the comparison as well as the explanation of the musicologist’s findings.

The method of comparison entails listening to the works, examining the transcriptions, studying the tempo, harmonies, arrangements, duration, number of measures, structure and key signatures.  Similarities between the works (even things that may initially seem minor) can ultimately be relevant.  For that reason, besides dissecting melodies, harmonies, harmonic progressions, structure, arrangements, number of bars in various sections, key signatures and the like, musicologists also consider pickup notes, melismas, genre and even whether the song fades at the end, among other things.  The differences between two works are also considered.

The musicologist’s analysis can illuminate substantial similarities and striking similarities between works.  Additionally, it can assist in establishing that two pieces which share a variety of common factors that individually don’t warrant copyright protection, sometimes do in the aggregate.  This process involves deconstructing each musical element to its building blocks and examining whether they are combined in a unique way or order, creating something substantially distinctive.

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