More than Just a Tune: Music Copyright and Forensic Musicology

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In this post, Dr Chen Zhu and Mr Guy Protheroe examine the relation between music copyright and forensic musicology.

Chen and Guy at the “Demystifying Forensic Musicology” Workshop (University of Birmingham, March 2023)
Chen and Guy at the “Demystifying Forensic Musicology” Workshop (University of Birmingham, March 2023)

Dr Zhu is an academic lawyer who has an abiding interest in music copyright issues. Mr.Protheroe is one of the most eminent expert musicologist working in this field for over 35 years in the UK and beyond. He has recently contributed an important chapter reflecting on the practice of forensic musicology to a new book titled Music Borrowing and Copyright Law—A Genre-by-Genre Analysis (Hart, 2023 edited by E. Bonadio and C.W. Zhu). Mr Protheroe is also a conductor, music director and arranger when he is not busy providing forensic evidence. We are grateful to him for generously sharing his expertise from the perspective of a musician

Music Matters: Questioning Music Copyright

What does music copyright protect? What constitutes music copyright infringement? Where can we draw a meaningful line (if any) between legitimate music borrowing and illicit ? These are not merely legal doctrinal questions that have bewildered copyright lawyers, but they are also perennially challenging ontological puzzles that have fascinated philosophers since time immemorial. In essence, the kind of queries that drive the legal development of music copyright can be seen as motivated by a set of metaphysical questions concerning music ontology: What is music and music creativity? Are music works discovered from pre-existing Platonic musical universals? Or are they created as individual works resulted from musicians’ creative mind? For example, is the fabled Tristan chord (comprising four musical notes F, B, D♯, and G♯)[1] a result of Wagner’s unique individual creation that can be protected by copyright? Alternatively, could this chord (however discordantly magnificent) be merely Wagner’s compositional discovery derived from a pre-existing Platonic universal music structure and thus not ownable by any individual?[2]

Consider another difficult case: Is John Cage’s silent “music” titled 4’33” a piece of created and ownable “work” or merely an assemblage of ambient noises randomly made on the fly when being performed? The long (unresolved) debate over the copyrightability of 4’33”[3] shows the persistence of the difficulty in understanding the ontological status of music “creations”.

What complicates these issues further is the prevalence of music borrowing (and reworking) practice in history. Music borrowing occurs in almost all music genres and it spans a long spectrum.[4] On the one end of the spectrum is mere inspirational imitation, which is clearly non-actionable. On the other end is direct substantial melodic copying that certainly leads to copyright infringement. However, most music borrowing cases sit somewhere in the middle of this spectrum where it is difficult to ascertain the degree of substantiality related to borrowed music materials in a copyright context.

It sometimes can be tempting to use music similarity as a proxy for establishing actionable unauthorised music appropriation. In fact, music similarity can be misused or manipulated by parties that make allegations against music borrowers. Legally speaking, it is important to differentiate two types of music similarity. The first is known as probative similarity for inferring copying,[5] while the second is substantial similarity that is actually used for establishing infringement. These two types of similarity need to be assessed sequentially. If one fails to prove probative similarity, then there is no need to go to the next step to assess substantial similarity. Absent of copying, music similarity is just a matter of coincidence, which can be used as a defence. [6] In other words, not all perceived music similarity is actionable. Only a subset of musically similar cases would be eventually found to be infringing. One thus cannot naively equal music similarity with copyright infringement. A lot more rigorous investigation needs to be carried out in order to find substantial similarity to prove copyright infringement.

It is not difficult to find that adjudicating music similarity (being probative or substantial) in the copyright context is a highly technical undertaking. As most judges are not musically trained, they would rely on evidence supplied by forensic experts who are well versed in the art (and science) of music. In both the UK and the US, there tend to be a small group of forensic musicologists who regularly offer their expertise to assist courts to make decisions in music copyright cases. These regular experts’ music analysis contributes to the nuts and bolts of music copyright adjudication. One of such experts in the UK is Mr. Guy Protheroe, who was recently invited to give a lecture at Birmingham Law School. During this lecture, he carefully demonstrated and explained some forensic techniques developed by him for assessing a wide range of music copyright issues in the past.[7] The following section is kindly contributed by Mr. Protheroe whose account of forensic musicology provides a fascinating glimpse into the complexity of music copyright law.

On Forensic Musicology (by Guy Protheroe)

As a forensic musicologist I have been commissioned to give opinions on very many aspects of music copyright, but the most regular issue concerns that of plagiarism, or misappropriation. As a classic example of this, I here summarise the essential issues concerning plagiarism in the very first case in which I appeared as an expert. In a 1987 case in the UK’s High Court, Vangelis was accused, in the Oscar-winning title music he wrote for the film Chariots of Fire, of copying from a song by a fellow Greek, Stavros Logarides. (As often, there were many issues in this litigation, but this issue was at the heart of this case.)

The nub of the trial was a comparison of the Chariots melody which Vangelis wrote in 1981 with that of a song Logarides had written in 1974 named City of Violets. There were issues of probative evidence, as to whether Vangelis had heard the song. That set aside, my report concerned the precise similarities and differences between the melodies and also the issue of “prior art”. The latter is a standard defence: had the accused previously written something substantially similar, or indeed had the material in common appeared in other musical works, either in copyright or “traditional” sources, i.e. in the public domain?

The chords underneath the melody were essentially the same, a repeated I – IV chord change, one of the most common in music. So the evidence relied primarily on the melodies. It is normal in such cases to notate the melodies, even if they are heard in different keys, in the same key: most often in C major, because that is the simplest key signature to read, which is what I have done in the following musical example.

I notate the Logarides melody above, and the Vangelis below, in parallel. I include the bar numbers, the beats in each bar and the alphabetical pitch names of each note.

IMAGE 1Musical notation showing a comparison between "City of Violets" and "Chariots of Fire". It shows the similarities and dissimilarities in notes and rhythms. The pitch sequence F–G–A–G is clearly similar, but the rhythm is slightly different in the two songs.

The precise similarities and difference can be seen here, both in notes and rhythms. The crucial “unit” in common is that marked with a square bracket above in each: the pitch sequence F – G – A – G. As can be seen, the rhythm is slightly different, but in each this figure appears on beat 4 of the bar, ending on beat 1 of the next bar. It is certainly similar to the ear. I have also marked, with arrows, where the pitch G occurs similarly placed in each.

I presented, in my report, from my research of 215 examples of similar phrases in music (rather over-enthusiastic in my first case!). One of the most important was that I found in a song by Vangelis entitled Wake Up, from 1969, predating Logarides by 5 years, in which the opening vocal phrase in the song is as follows. This is first musical phrase in each verse.

Musical notation showing a melody from a song by Vangelis entitled "Wake Up" written in 1969. It predated Logarides's song by 5 year.

As can be seen, precisely the same F – G – A – G phrase occurs, completed by the falling notes G – E, as marked by the inverted bracket. This latter figure features strongly in the Chariots melody, as in the first example, which I have also marked with inverted brackets. And the underlying chords were the same.

There were other similar phrases in Vangelis’s previous music also, and the musical arguments were won by this evidence. Naturally there were many other matters regarding legal issues, contracts and circumstantial evidence, so the whole trial took two weeks. Because of Vangelis’s Oscar and the huge success of the film, the media were all around, and it was heavily reported. And it also conveniently provided me with a launchpad into the world of forensic musicology!

Apart from the music misappropriation issue, another issue which has rather perplexed me over the years is the status of “improvisation” in music and its status with regard to copyright. In this context, I am referring to improvisation by artists within the “original” recording of a musical work, not improvisation in subsequent performances, which is a related but separate issue. I have several times been involved in cases in court where these issues are crucial, including Spandau Ballet’s True [8], The Bluebells’ Young At Heart [9], and Procol Harum’s “Whiter Shade Of Pale [10]. The judgment in the first case went against the saxophone claimant, on the strength of his improvisation not demonstrating sufficient originality or substantiality musically. There has been subsequent disagreement on the grounds of “who composed the notes he played?” – and certainly he did, even if it is a rather unmemorable solo. But the law does not like making judgments on aesthetic grounds.

Further to this it appears on balance that, in popular music in general, if a member of a music group contributes something extra to what the “composer” has designed and instructed (in terms of actual notes), he/she can potentially claim joint authorship of the work.

Until the invention of recording, copyright could only be claimed in relation to music in written notation, the first form of “fixation”. And for long after, “recordings” were classed essentially as being of “performances” rather than establishing copyright in the works recorded therein. It seems to me, as a musician, that this whole area is still rather murky and not settled. For example, copyright in jazz is normally assigned to the originator of the overall musical work, which is often the platform on which all the (other) performers create their solo or group improvisations, which are so often the most striking and memorable features of the recordings. So, by the previous measure, these musicians should (on the original recording) also share joint authorship of the musical work. But this is very rarely the situation in jazz, where for copyright purposes they are generally regarded as just performers. And jazz musicians are rarely in the situation where they can demand, up front, copyright in what they are about to improvise.[11]

Coda: Listening into future

Forensic musicology, despite its growing significance for music copyright law, is still a relatively young but exciting discipline. Its further development depends on the joint efforts of many fields of experts (including lawyers, musicologists and computer scientists) who need to work together to cope with emerging challenges in the age of (post-Turing) artificial intelligence. For example, one big elephant in the room is the kind of AI technology (empowered large language models) capable of generating creative contents. Generative AI is a mixed blessing for music copyright law, where there seems to be a need to recalibrate some foundational concepts such as originality, independent creation, substantiality. Just as the (apocryphal) Chinese curse says: May you live in interesting times!

[1] John Rothgeb, “The Tristan Chord: Identity and Origin” (1995) 1 Music theory online https://mtosmt.org/issues/mto.95.1.1/mto.95.1.1.rothgeb.html.

[2] Peter Kivy, “Platonism in Music: A Kind of Defense” (1983) 19 Grazer philosophische studien 109; For a detailed discussion of this issue in the context of music copyright, see Chen Wei Zhu, “Litigating Musical Universals and Particulars: Copyright Law’s Ontological Struggle with Music Borrowing” in E Bonadio and CW Zhu (eds), Music Borrowing and Copyright Law (Hart 2023).

[3] See, for example, Cheng Lim Saw, “Protecting the Sound of Silence in 4’33: A Timely Revisit of Basic Principles in Copyright Law” (2005) 27 European intellectual property review 467; David Seymour, “This Is the Piece That Everyone Here Has Come to Experience: The Challenges to Copyright of John Cage’s 4’33’’” (2013) 33 Legal studies 532.

[4] For the definitive history and typology see J. Peter Burkholder, “The Uses of Existing Music: Musical Borrowing as a Field” (1994) 50 Notes 851; Peter Burkholder, “A Brief History and Typology of Musical Borrowing and Reworking” in E Bonadio and CW Zhu (eds), Music Borrowing and Copyright Law (Hart 2023).

[5] Alan Latman, “Probative Similarity As Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement” (1990) 90 Columbia law review 1187.

[6] Sometimes it may be unnecessary to prove probative similarity, because a defendant explicitly acknowledges that he or she copies or accesses a claimant’s work.

[7] Chen Wei Zhu, “Demystifying Forensic Musicology (FM) Workshop” (21 March 2023) https://cwzhu.gitlab.io/posts/2023-03-21-demystifying-forensic-musicology-fm-workshop.html

[8] Hadley v Kemp (1999) All ER (D) 450

[9] Hodgens v Beckingham [2003] EWCA Civ 143

[10] Fisher v Brooker & Ors [2009] UKHL 41

[11] There are some very interesting papers exploring this whole area. See, for example, Giuseppe Mazziotti, ‘Music Improvisation and Copyright’ in Enrico Bonadio and Nicola Lucchi (eds), Non-Conventional Copyright Do New and Atypical Works Deserve Protection? (Edward Elgar 2018); Rebecca Noble, “The Invisible Artists of Copyright Jurisprudence: Joint Authorship in Jazz Improvisation under Canadian Law” (November 26, 2021) https://www.cba.org/Sections/Intellectual-Property/Resources/Resources/2021/The-Invisible-Artists-of-Copyright-Jurisprudence accessed 30 May 2023.

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