A Musicologist Discusses Disguised Infringement

by Judith Greenberg Finell

New York Law Journal, May 29, 1992.

This is the final installment of a three-part article. Part I appeared on May 15 and Part II on May 22.

BECAUSE OF the current frenzy of music copyright litigation, purposeful infringers have become very sophisticated in devising compositional methods to disguise copying. For example, composers of commercial music often receive assignments to emulate a particular popular song, but to avoid risking a lawsuit.

There are various techniques used to fulfill such an assignment. Usually, a composer attempts to capture the spirit of a song, but not all of its content. Some composers are more successful at this than others, of course.

Principally, the disguising plagiarist’s goal is to accomplish a finding by his own or an opponent’s expert that the two musical compositions are basically different. One method of achieving this is to maintain the unique features of the original composition, but to reposition them so that a traditional comparison will not find them.

This is the exact reversal of the normal compositional process. Rarely does a composer set out to create a piece that is meant to be the opposite of another. Normally, one does not compose a musical piece from the standpoint of how it will hold up in a comparative analysis. Yet this is just what is being done today, especially in advertising.

TO UNDERSTAND this process, it is necessary to know something about the traditional method of comparing two musical pieces. Ordinarily, a musicologist compares two pieces by transposing them into the same key and then lining up the main melodic lines, harmonies, accompaniment lines, and structure to identify simultaneous notes, chords, rhythms, etc. This comparison process results in an opinion as to the degree of similarity between these two musical pieces.

This conventional method may not work when a piece of music has been deliberately disguised so as to avoid a plagiarism claim. One method of disguise is repositioning or reversing related musical elements so they have the same musical effect as in the original piece, but do not line up identically on paper. For example, an original song may have a main melodic theme consisting of the scale positions 5-5-4-3-2 in a tango rhythm. A purposefully disguised imitation may have its main theme, also in the same tango rhythm, as 2-2-3-4-5. Technically, these are opposites. Yet the two pieces can have a very similar impact on the listener. Other coinciding distinctive features that both songs share, and the way that they are combined, may lead to a conclusion of substantial similarity notwithstanding the alteration of the copyrighted work’s main theme.

IF THERE IS an obvious perceptible similarity between two pieces of music that is not reflected by simple comparative methods, then it is the obligation of the expert to go further to explain analytically why the pieces are perceived to be similar, rather than rigidly relying on a simple linear comparison that, in some situations, will conceal more than reveal.

This is not to say that whenever two pieces share some of the same features, copying is necessarily the cause. The related traits may have resulted from common musical roots, a third song (perhaps in the public domain) to which both are referring, or unprotected shared materials.

Many advertising agencies have become increasingly cautious before releasing a new jingle. There are many legitimate ways in which to evoke the spirit of a particular song without copying it. For example, melodic, harmonic and instrumental changes can be made in such a way as to retain the desired mood but reduce the risk of a copyright infringement claim.

Composers for advertising agencies often like to use established musical pieces as sources for their music. This has become a very dangerous practice. Since commercial music is used to evoke a certain feeling or response in the listener, a musical consultant sometimes works closely with commercial agency composers to achieve a desired mood without copying another piece of music. For example, the ethereal quality of a day in the Caribbean for a travel ad campaign can be evoked by music scored for the purity of a boy-choir as well as trills on the flute or a glissando on a harp. Similarly, the speed of a race car can be shown by accelerated syncopated drum rhythms, a fast-rising keyboard line, or brass instruments playing a repetitious pattern that continually intensifies. It is not necessary to copy, or even imitate, another piece that creates the desired feeling, and thereby risk costly litigation.

Often, the agency has already used a particular song in a presentation to a client who accepts the proposal. The client wants to purchase the rights to the song, but the offer is declined by the copyright owner or the client is unwilling to pay the requested fee. Then, the agency sets about to imitate the spirit of the song. For example, perhaps the desired song conveys a certain energy and exuberance through its rhythmic drive and bright harmonies. However, there are many rhythmic patterns and chord structures that could achieve this excitement without infringing the copyrighted song. Even if the agency’s client was disappointed at not being able to license the song of its choice, perhaps the client will decide that he or she likes the newer alternative as well or better, and also manage to avoid a legal battle.

If litigation continues at its current pace and the nostalgia trend also continues, the need for preventive musicology will continue to grow. As long as technology expands the ways in which music can be copied, new methods of evaluation, detection and comparison will also evolve. If so, we may find a new inspiration for original musical composition — fear of litigation!

Judith Greenberg Finell is a musicologist and the president of Judith Finell MusicServices Inc., a consulting firm in Scarsdale, a suburb of New York City. She has served as an expert witness and consultant in various litigations involving copyright infringement, and often advises advertising agencies on making musical choices to avoid litigation. She has also done work in the area of digital sampling.