With fraught court battles over plagiarism regularly netting six-figure payouts, the role of musicologists serving as expert witnesses has never been more important. In this feature, we speak to two seasoned forensic musicologists and unpick this complex world.

In the wake of a series of headline-grabbing legal battles, one of music’s biggest success stories admitted that he’d now taken to videotaping every single songwriting session he partakes in. “We’ve had claims come through on songs and we go, ‘Well here’s the footage and you watch, and you’ll see that there’s nothing there’” divulged Ed Sheeran to Newsnight, following his recent court win.

These seemingly OTT copyright safeguarding lengths came as a result of 2017’s settled claim of plagiarism for his hit single Photograph and, most notably, a recent court vindication, wherein the judge agreed with Sheeran (and his co-songwriters John McDaid and Steve Mac) that their global smash Shape of You neither consciously or subconsciously stole ideas from Sami Chokri (aka, Sam Switch)’s track Oh Why.

Despite the positive outcome for Ed, the battle to reach an integrity-affirming verdict was a long and arduous road. “Lawsuits are not a pleasant experience and I hope with this ruling it means in the future baseless claims like this can be avoided. This really does have to end.” Sheeran told his Instagram followers.

While the realm of popular music has been no stranger to fierce plagiarism cases in the past five decades, in recent years it seems the number of new claims has grown exponentially.

The Blurred Lines vs Got To Give It Up case in 2015 was a particular turning point. It was here that Robin Thicke and Pharrell Williams’s questionably-themed mega-hit was determined to have in fact been derived from Marvin Gaye’s 1977 disco smash, with the final ruling granting the estate $5 million, the late icon granted a posthumous songwriting credit, and ongoing royalties being sent to his estate.

Since then, more and more claims – some in the public eye, many not – have been filed to courts across the world. Sheeran’s Shape of You battle was fought to completion precisely *because* of the seeming ease in which new claimants can reach easy settlements, due to the long winded (and complex nature) of proving musical theft.

HOOK, LINE, AND SINKER

Forensic musicologists are required by both sides to unpick the numerous similarities and commonalities of the music in question. Justifying the case – or its defence – from a theoretical standpoint. One of the world’s leading musicologists, and part of the team behind the Gaye estate’s win, is Judith Finell. We spoke to Judith about just how she and her team determines, legally, that theft has or hasn’t taken place within two pieces of music. But, firstly, we asked how she found herself working as a forensic musicologist.

“My education was in Musicology,” Judith explains, “There’s no such course or degree called ‘Forensic Musicology’ in the United States. Basically, the people who do testify and give opinions in cases are the people who usually have pretty heavy duty academic training in music theory and analysis. When I began working in the music field in New York City about 25 years ago, I would occasionally receive calls from attorneys who were involved in disputes and who needed music experts.”

Following her hiring to represent a well-known theatrical composer who had been accused of copyright infringement, Judith began to develop a reputation as a go-to dissector of music theory, irrespective of genre. “I started getting more calls because they saw that I was able to take this music theory and my classical background and apply it to the music regardless of how straightforward the music may have been.”

So, how does Judith make her determinations? “I’d look at the comparative elements of two musical works, or one that was accused of copying another. I’d also apply music theory to determine whether or not the similarities rose to the level of copyright infringement. So now that’s become a big part of what I do.”

MELODY TAKER

Finell relies on a useful inverted triangle-structured hierarchy in unpacking the elements of a piece of music, with melody sitting right at the very top. “The triangle is my theory, but it’s been accepted by judges and the attorneys who are presenting cases.” Judith says, “It’s the basis by which I analyse music and how I see it, but it’s also in concert with the copyright law in terms of the US which has two different types of copyright. There’s the copyright of the music composition (the melody, harmony, structure, lyrics etc) which is represented by © ,then there’s the recording copyright, represented by ℗. That covers the particular characteristics of a specific recording of a song. So it depends on if you’re arguing that the song itself has been copied, or the specific recording has been lifted and plagiarised.”

A track’s melody, then, is important to both copyrights. “If it’s very very similar for a sustained amount of time between two pieces of music then that very well could be copyright infringement, but that has nothing to do with the recording copyright. That’s a whole distinct copyright, that addresses an arrangement followed by vocal style, recording style – the vibe if you will.” Judith details, “There have been a lot of misunderstandings around this issue in writings post [the Blurred Lines] trial on what exactly is covered and what has absolutely nothing to do with copyright protection.”

For musicologists to prove that purposeful imitation has taken place is different between UK and US courts, Judith explains to us how she and the team of seven other musicologists she works alongside operate in the US system. “The melodies need to have a large number of the same properties, it can’t just be random. But if the melody can be proved to exist in prior music – then it wasn’t theirs to start with. In those situations, the case falls apart.”

Judith continues, “We get many cases (or enquiries about cases) from around the world. I’d say 80 percent of the ones we evaluate never go forward because we don’t think they’re strong enough. Most of them never emerge in the press, and the ones that go forward – many are dismissed before they see a jury. In American law, in order to proceed in a copyright infringement case, you have to prove that the potential for the defendant to be exposed to the original music was high. This is called access. So, even if they’re 100% dead-on audibly identical, if the defendant never heard or was never in any way exposed to the music, then you probably cannot win.”

BLURRING THE LINES

Peter Oxendale is the head of Peter Oxendale Music Services, and has been a professional forensic musicologist for over four decades. Highly regarded as one of the world’s leading figures in forensic musicology, Peter is hugely enthused about Ed Sheeran’s recent victory. “I have a great deal of respect for Ed Sheeran.” Oxendale tells us, “He’s fought his corner and stood up not only for himself but the whole music industry. He didn’t have to do that but he fought it. Trials are stressful.”

Peter, who wrote reports on the songs that were at issue in the trial, and who represents many big name artists from all around the world, points the finger at the case in which Finell was involved, as the cork-popping moment which has led to the influx of the new claims, “The claims are all coming in after one specific verdict – Blurred Lines. I was involved in that case and I prepared a report for EMI Music in which my unequivocal view was that there was no infringement of copyright. I was staggered, as most of my colleagues were, when this verdict came through. It was quite shocking.”

Unlike Judith, Oxendale’s determination is that the jury in the Blurred Lines case reached the wrong conclusion. “It could be argued that Blurred Lines is a pastiche of the style of Marvin Gaye – and I would concur with that. But, one of the basic premises of copyright is that there is no copyright in style or technique.”

Peter partly puts this down to the differences between how courts work in the UK and the US. “With respect to the musicologists involved, I think if this case had happened in the UK. It would have been a very different verdict. I testified at one jury trial in Los Angeles, and, although my client was successful, it was a tough call and very different from the UK in that I had to convey my points to a jury rather than a judge.”

THE THREE-LEGGED STOOL

Peter outlines what, in UK courts, the pillars musicologists seek to explore when dealing with these types of difficult-to-determine cases. “I call it the ‘Three-Legged Stool’” Peter explains, “To make a claim for copyright infringement stand up, three tests have to be satisfied and these are copying, substantiality and originality otherwise the case, like the stool, falls over.”

Peter outlines his three-legged theory:

Copying – “There must be access, sometimes artists accidentally stumble upon the same musical patterns coincidentally. That’s what people don’t tend to understand, you get all these spurious, baseless claims concerning short melodic phrases which are similar. Put simply, without access, there can be no infringement.”

Substantiality – “There must be substantial similarity. Short phrases that are too trivial to be protected by copyright are referred to as ‘De minimis’. Even though a part that’s been copied might be a relatively short piece of music, if it is a major hook, it becomes a case of quality over quantity. The quality of that hook makes it more substantive in a copyright sense.”

Originality – “This means that the contentious part of the music hasn’t been created before. We often undertake what are known as ‘prior art’ searches in order to determine whether certain melodies or hooks are sufficiently original to be protectable or whether they are historically commonplace.”

THE CASE MOUNTAIN

Despite some differing opinions on the specifics of that pivotal Blurred Lines case, one thing that both musicologists are keenly aware of is the increase in the number of new cases coming to their door each week.

“I’ve been a full time forensic musicologist for more than 20 years now.” Peter says, “Since the mid 2010s, my workload has escalated to the extent that I’ve employed my son Jamie, who has a First Class Masters degree in music from York University, to work with me full time. We are both flat out.” After seven years working alongside his father, Peter’s son has continued to serve as a vital part of his professional life. “I rely on Jamie so much now, that I couldn’t do my job without him.” Peter reveals, “It’s so full-on now. He’s already done more than three and a half thousand cases with me, and that number is rising rapidly.”

Judith explains that, in her view, a big reason behind the case escalation has been down to the law struggling to keep up with changes in technology, particularly with the rise of such things as DIY beat-making, virtual instruments and AI music generation. “I became involved in many, many cases over the years (alongside my team of forensic musicologists who work with me) When concepts like sampling started around forty years ago, that started to become contentious. I testified in a case when a high profile artist was accused of unlicensed sampling. But, there was no licensing mechanism at the time – it takes time for the music industry to catch up with technology. It was a similar story with ringtones. So often these kinds of cases rise when there’s been a notable technological shift.”

“It takes decades to catch up” continues Finell, “And, usually it’s down to one important, milestone case that makes the music industry wake up and say ‘wait a minute, judges are seeing this as a form of infringement’ Then an entire licensing mechanism is developed, but it takes time for them to catch up.”

While the musicologists are keeping bush, perhaps the ultimate loser in all of these fraught legal battles however, is the creatives. “Some of my bigger clients now also film every session.” Explains Peter, “The loser in all of this, is creativity. Many songwriters and artists are now fearful that they’re going to get sued for a vibe or a style or for taking inspiration from another work. They feel as though they are being held to ransom.”

Judith Finell – www.jfmusicservices.com/judith-finell/
Peter Oxendale – www.oxendale-music.co.uk/