Part 2: Judith Finell Explains The Roles Musicologists Play In Resolving Copyright Infringement Claims Involving Music

As I suggested in Part 1 of my conversation with Judith Finell, even most copyright lawyers have little idea of the role musicologists play in resolving copyright infringement disputes. In Part 1 of that conversation, which is here, Judith helps dispel the mystery. She explained the on-the-job training musicologists need to be effective in this forensic activity and the issues musicologists deal with before music is released and after it becomes the subject of litigation.

In Part 2 of my conversation with Judith that is below, she discusses music sampling, how musicologists assist counsel in resolving copyright disputes and the techniques, including spectrogram analysis, they use. In part 3, which I will post shortly, Judith ends our conversation by sharing some of her unique experiences in music litigation.

Here is Part 2

Q. Let’s talk about music sampling what is it and how much sampling is too much.

A. Digital sampling involves either (a) the conversion of analog sound waves into digital code or (b) the use of pre-recorded digitally recorded excerpts. One can then take the digital code that describes the sampled music or other sounds and reuse, manipulate or combine it with other digitized or recorded sounds using a machine with digital data processing capabilities, such as a computer or computerized synthesizer.

From a copyright law perspective, digital sampling involves the taking of the fixation of sound from one recording and incorporating it into a new recording. Even a two-second sample may be infringing if it is copied and inserted into the new composition without permission of the copyright owner, especially if the sample is recognizable and important to the copyrighted work. (See discussion of the cases below.) Unfortunately, sampling has become one of the ways in which recordings are now being produced in many countries and therefore sampling has become a challenging and constant issue.

Q. Give us a feel for the kinds of legal issues a musicologist addresses once a copyright case has been filed and how a musicologist helps resolve them.

A. There are many ways in which a music expert can help, depending on the issues in the case. Some of the most common areas include:

1. A musicologist, when comparing two musical works that contain similar material, perhaps found in repeated sections in both songs, may quantify the similar material. For example, if Song A (the earlier song) contains a 5-second “hook” (the part of the song usually associated with the title and lyrics of the song, and its “signature” phrase), and Song B contains a similar “hook,” then one can identify the number of repeats of the hook in each song, and determine the percentage of similar material within the context of the entire length of each song. For example, if each 4 minute song has 1 minute or 25% of similar material, the attorneys can use this quantification to negotiate a settlement.

2. A musicologist can often play the standard expert role of providing a very detailed assessment of the strengths and weaknesses of the opposing expert’s report as well as a rebuttal report disputing the opposing expert’s opinions, if they are inaccurate or unfounded.

3. A musicologist can provide the attorney with technical musical questions to be asked of the other side’s witnesses and experts at deposition and trial. Further, a musicologist can help the attorney prepare the cross-examination of the other side’s experts at trial. A musicologist can also assist the attorney in understanding and applying music’s unique and sometime obscure terminology, in addition to explaining its often unwritten industry standards.

Q. Are there some technical tools a musicologist uses in her or his analysis that assist in determining whether a song is infringing?

A. Yes, for example, when digital sampling is suspected, there are several techniques that can be used.  One such modern technique is spectrogram analysis, where it is possible to see visually the harmonic content of a recorded sound signal.  Every sound is constructed of unique combinations of frequencies and the strength of those frequencies.  If the spectrogram analysis shows a very close or identical match in the signal content between two segments of recorded music, that can be a strong clue towards verifying whether the same sample is shared between the two. There is no substitute for the human ear, however, and the interpretation and contextualization of the information is really essential in most cases.

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This is great Judith. Thanks so much. In the comments section below, please add to the conversation. Also stay tuned for Part 3 of my conversation with Judith Finell that I will be posting shortly.

Further, if you are interested in taking a look at the sampling cases, you may want to note the disagreement in the circuits whether how much sampling is too much. Compare the 6th Circuit’s Bridgeport Music, Inc. v. Dimension Films case (giving a broader scope of protection for sound recordings than for musical compositions or other copyrightable works and finding that  sampling constitutes infringement, no matter how small the sampled snippet) with Saregama India Ltd. v. Mosley (refusing to follow Bridgeport; stating that the Eleventh Circuit imposes a “substantial similarity” requirement as a constituent element of all infringement claims, including music and finding a one-second snippet consisting of 3 notes looped four times not to be infringing where the songs otherwise bear no similarities). (Note that Saregama was recently affirmed.)

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One Response to “Part 2: Judith Finell Explains The Roles Musicologists Play In Resolving Copyright Infringement Claims Involving Music”

  1. […] Part 2 of my conversation with Judith which is here, she discusses music sampling, how musicologists assist counsel in resolving copyright disputes and […]

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