The Finell Hierarchy of Elements in Assessing Substantial Similarities

In evaluating music enmeshed in plagiarism disputes, the foremost questions a musicologist addresses are:

• Are these works alike?
• If so, how are they alike?
• Are their underlying compositional features alike?

In my own musicological education and its application to copyright infringement disputes, I have developed and relied upon a hierarchy of musical features in assessing the degree of similarity between musical compositions. Most often, the elements at the top of the hierarchy carry greater weight than the lower ones.

Hierarchy of Elements in Assessing Substantial Similarity

1. Melody – pitch
2. Melody – rhythm (duration)
3. Harmony
4. Lyrics (if applicable)
5. Metric placement
6. Relative proportion of similar significant elements
7. Structure

Not all features are equally significant to a musical work, and some similarities are more fundamental to the expression of the works than others. There are also often overlaps between the hierarchical features. For example, metric placement describes the position of pitches and rhythms within the pattern of stressed and unstressed beats that propel a melody forward. Two songs can have a similar series of pitches and rhythms that do not align due to differing positions and stresses. The impact of stresses and position on musical expression is analogous to the English language, in which changing an emphasized syllable impacts the meaning of a word. For example, compare “inVALid” (adjective) to “INvalid” (noun), and “atTRIbute” (verb) to “ATtribute” (noun). The same sometimes applies to musical comparisons involving metric placement.

At times, the absence of one of these primary musical traits elevates the importance of items lower in the hierarchy. For example, many rap works contain rhythmic spoken lyrics with no melodic pitch. This means that the rhythm and rhyme scheme and underlying musical backdrop (referred to as the “bed”) become paramount in the comparison process over melodic elements. An extreme example of melodic minimalism are one-note songs, in which a single note is sung repeatedly with lyrics listing information. In opera, this genre is referred to as “catalogue arias,” and in musical theater, as “patter” songs. Examples include significant portions of “Johnny One Note” (Rodgers and Hammerstein), “One Note Samba” (Antônio Carlos Jobim), “I Am the Very Model of a Modern Major General” (Gilbert and Sullivan), and “(Not) Getting Married Today” (Stephen Sondheim). In the case of one-note melodies, pitch becomes secondary to rhythm, harmony, and lyrics.