For forensic musicologists, there are two primary areas of focus.
Most of the time, forensic musicology is preventative. Composers, songwriters, creative and advertising agencies, and film and tv studios all hire musicologists to analyze original music before release to ensure against the possibility of infringing on existing works. It’s a sort of screening process.
Other times, forensic musicologists are involved in actual or potential infringement litigation, making or defending against the case for copying and substantial similarity between two works.
In either case, forensic musicologists apply their expertise in music (current, historical, music theory), music production, and copyright law to help identify, explain, show, and teach the musical facts that are relevant in matters of music copyright.
Here, forensic musicologist Brian McBrearty, who runs Musicologize Music Services , explains.
What inspired you to become a forensic musicologist?
The first inspiration was necessity. Many years ago, I found myself embroiled in a copyright infringement case and needed a musicologist. Laywers rely on a musicologist to clarify the relevant musical facts, illustrate the main points, write up the reports that would concisely and effectively communicate all of that to the presumably non-musical judge. So I acted as my own forensic musicologist. I was my first client.
I also remember watching an episode of The Good Wife about a lawyer defending an accused songwriter in an infringement case. It depicted music experts testifying in a courtroom setting simply opposing each other, as though bought, biased, and hapless. Worse, in the end, the judge doesn’t find their testimony helpful in illuminating any objective truths, and the implication is there there weren’t any. It’s just a difference of opinion. But in real life, that would be a complete failure. Nothing is more paramount for a musicologist expert than the job of giving the finders of fact, judges. juries, mediators, or arbiters, a degree of relevant musical understanding that enables them to make a well-informed decision, whatever that decision may be. I’ve always enjoyed explaining music to people, even beginning or non-musicians, and I could certainly clarify significant and insignificant similarities for a judge or a jury regardless of their musical sophistication. It sounded like great fun to me. It is.
How do you approach the task of analyzing a piece of music for similarity or originality? What are some of the tools and techniques you use?
It varies of course, but there are certain processes I go through almost every time. I listen to the two works, sometimes over and over — they’re usually two — and I find the sections that are most relevant to the question of similarity. Eventually, I focus on those and start looking at their details, working in software that lets me transpose and transcribe both works among other things.
The first part, transposing, is about getting both songs into the same key. It’s like finding the common denominator when you’re comparing fractions. A melody like “Do, a deer a female deer,” is the same melody regardless of what note you begin on. If I ask you to sing it, you’ll probably pick a random pitch for “do” and you’ll take it from there. It’s like that math metaphor again; all the notes are proportionate to the first one you chose. And because we’re talking about “Do, A Deer” and “Do Re Mi’s,” whatever first note you pulled out of the air is “Do,” and that’s the key you selected to sing it in. Musicologists put the two songs into the same key, like finding the common denominator, to make the comparisons clear.
The other part, transcribing. is about identifying the notes from the recording and writing them down, generating a bit of sheet music for those important sections. It might involve other ways too of getting the “data” of the music into the computer so that you can better analyze it. I’m a pianist, so I will often “play the parts” into the computer from a piano keyboard, for example. The analysis I was looking at today barely involved notes at all, so sometimes you need different approaches, but most of the time transposition and transcription is the first step in the analysis.
Next nearly always comes similarity analysis and prior art research and consideration. This is about identifying the similarities and considering their significance with regard to whether they are likely to be the result of copying or coincidence, and this is somewhat a function of prior art, works that came before. Prior art is one lens through which we consider the originality or commonality of a musical element. If it, or something very much like it, has appeared in songs throughout music history, then it’s not very protectable by the writer of song A. It’s not original to them. Additionally, it’s less likely copied FROM song A by the writer of song B, who might’ve heard it anywhere, everywhere, or nowhere in particular. It might be a very common element.
Melody and lyrics tend to be more “valuable” in terms of similarity than other aspects, followed by supporting harmony, and while melody and harmony involve rhythm, rhythm itself is less protectable. That said an element such as “flow” in hip-hop music for example while not tonal can often warrant consideration. There are lots of musical elements that music copyright mostly doesn’t protect. Scales, chords, simple rhythms, brief melodies, short lyrical phrases, and song titles are all considered basic building blocks of music creation, owned by everyone; public domain stuff. Ideas are not protected, so you and I can both write lyrics about how much we love our car or our horse, even if we touch upon similar ideas. And even where we might touch upon identical ones, there’s a concept called Scenes A Faire, that acknowledges that once you’re writing a song about how much you love your car, you’re bound to touch upon the roar of the engine and the softness of the leather seats, and so similarities like that will be unremarkable.
www.brianmcbrearty.com
www.musicologize.com