The other day, I wrote about a decision in the 2nd Circuit holding that Robin Thicke and Pharell Williams copied Marvin Gaye’s Got to Give it Up when they wrote Blurred Lines. There have been plenty of interesting articles on this case since it came down. Here, I want to focus on one from Rolling Stone that discusses Forensic Musicology.
Forensic Musicologists are experts in music theory who compare pieces of music to determine if something is a copy. The Rolling Stone article points out that there are at least two parts of forensic musicologists’ tasks. First, they look at the objective similarity between two pieces of music, comparing the notes, phrases, melody, harmony, etc. Second they use their findings to infer if the second work copied the first.
Copyright trials can often come down to a battle of experts. Both sides hire musicologists to argue that two pieces of music are similar or not. At the end of a trial, it is the job of the jury — as the trier of fact — to decide which side has the better argument.
We focus on how similar two works are, instead of if one work is an identical, carbon copy of another, because copyright does not require two works to be exactly the same to trigger infringement. It only requires them to be too similar. The standard that courts follow for copyright infringement is “substantial similarity.” There are two things plaintiffs must show to prove this. First, they must show “extrinsic similarity.” We can think of this as objective similarity, the same as the first task of a forensic musicologist that we discussed above. Second, plaintiffs must show intrinsic similarity. Intrinsic similarity is a subjective argument that an ordinary person — that is, not an expert — would recognize the similarity between the two works.
Unfortunately, it is very hard to figure out when two works are too similar. To address with this, University of Michigan has a great research guide on substantial similarity cases that can help figure this out.
Interestingly, the Rolling Stone article ponders whether the Blurred Lines case could be a bellwether for the future of music copyright cases. It points out that since the trial court decision a couple years ago, there has been an increase in cases requiring forensic musicologists to show when works are copies. This is because the Blurred Lines decision stands for the proposition — in some ways — that someone can have a copyright over a song’s “feel.” As such, it could open the door for cases where the extrinsic similarity between two songs is not immediately obvious. And in these cases, experts will be needed to argue both for and against infringement.
One thing I find interesting about this case is it implies that forensic musicology could be a way for people with music degrees to use their education beyond playing or teaching music. If we see more and more cases involving “music feel” infringement, then more and more experts will be needed to sort out which ones are too similar. We will keep watching this to see what happens with music copyright in the future.