Musicologist Takes Look At Recent Court Rulings

by Judith Greenberg Finell

New York Law Journal, May 15, 1992.

This is the first installment of a three-part article.

THE NATURE of requests for a musicologist-expert witness has been changing. In the past, musical experts have been called in connection with a specific lawsuit that was commenced, threatened, or was being considered by a prospective plaintiff. A client would ask the musicologist to compare the musical compositions and performances involved, analyze and develop the musical issues, and assist counsel throughout the case — from framing the pleadings, through motions, discovery, and trial.

But today there are an increasing number of clients who desire preventative services: to advise clients who use and produce music, especially advertising agencies, who wish to minimize the potential for litigation over the music that they use. This is because of some recent music copyright and plagiarism cases that have expanded the potential liability for the advertising, recording and music publishing industries. In turn, this requires increased vigilance and planning to minimize costly litigation.

THERE ARE three areas that seem to have changed: sound-alikes, sampling and disguised infringement. (The latter two will be discussed in upcoming issues.)

Since Midler v. Ford Motor Co. was decided, advertising agencies are more and more concerned that they may have recorded a jingle in which singer or instrumentalist sounds like a well-known performer, usually one who has performed a song similar to the jingle. Because sound-alike claims are increasingly common, this is a legitimate concern. However, a proper musicological evaluation will often show that an asserted or potential sound-alike claim is not well-founded. Before analyzing the degree of similarity between two performance styles, a musicologist must give careful consideration to whether the actual or potential claimant has a sufficiently distinctive and recognizable musical style as to permit protection under the Midler principles.

There are several criteria to consider when this question arises, depending on the type of musical performance involved.

Solo Vocalist Sound-Alikes — Not all singers are Bette Midler. While Satchmo’s gravelly voice can be immediately recognized, and Frank Sinatra’s vocal color and attack are unmistakable, most singers do not have a sound that is so unique to warrant the special protection accorded in the Midler case. Unlike copyright, where only minimal originality is required to invoke copyright protection, a sound-alike claimant must demonstrate a very distinctive, recognizable “sound” as a precondition to any judicial remedy for allegedly appropriating the claimant’s performance style.

Some of the traits that contribute to a singer having a unique sound include:

An extraordinary vocal range, position, or voice quality.
Unorthodox vocal production techniques, such as extreme breathiness (like Betty Boop), or a deep, guttural female voice.
Use of unusual sound effects while singing, such as making clicking noises, squealing, etc.
Phrasing, vocal style, and interpretation that distinguish the singer form others who might perform the same song.

Vocal Group Sound-Alikes — There have been several actions threatened when a vocal group from the 1960s or 1970s believes that a current ad campaign has taken its performance or “sound.” These claims may involve copyright issues, sound-alike issues, or a combination.

The typical copyright questions include the following:

If an advertising agency has licensed a song from a publisher, has it also licensed the performances embodied in the master recording?
Did the vocal group contribute original material to the recording that is not covered by the license? There are often many additions and changes during the recorded performance that do not appear on the musical score. The performing vocalists may claim to be the authors of the changed material, which may constitute an arrangement of the original song. In these cases, it is important to compare the copyrighted musical score or lead sheet with the recorded version as well as with the potentially infringing work.
Many singing groups have similar sounds, with a homogeneous blend of fairly ordinary voices, and sound-alike claims would not usually be valid with this kind of group. The following factors should be considered in determining whether the group’s sound is sufficiently distinctive and recognizable to warrant protection from alleged sound-alikes:
Does the group employ a distinctive blend of its singers’ voices?
Is there an unusual tessitura (vocal character) or vocal range of a member of the group, such as a rare bass voice or extraordinarily high male or female voice?
Does the group harmonize in an unusual way, such as all in unison or forming unusual chord patterns rather than the more common method of consonant intervals (thirds, sixths, octaves)?
Is there a particular musical fragment or lyric associated with the group, which can be regarded as the group’s trademark? One rap group, for example, has an exceptionally low bass singer who says, “Oh, yeah,” in a very distinctive and easily recognizable manner.

Instrumental Sound-Alikes –Instrumental sound-alikes raise more subtle questions than vocal sound-alikes. It is easier to recognize someone’s speaking or singing voice from pronunciation, vocal quality and inflection than to recognize an instrumentalist, which is more abstract for the lay listener. Even where an instrumentalist’s style is recognizable to a sufficiently knowledgeable listener, it is not clear whether courts will extend sound-alike protection to protect a distinctive instrumental playing style.

Some instrumentalists may believe that their sound has been taken by another when, instead, both instrumentalists subscribe to the same established school of playing. For example, a particular horn technique could be shared by numerous horn players because they studied with the same teacher or his or her disciples. However, if an instrumentalist has a unique and unorthodox performance style that is identifiable sight-unseen by a listener, the instrumentalist may be able to claim sound-alike protection against an imitator.

While many instrumentalists believe that their sound is distinctive, the lay listener for the most part cannot recognize the vast majority of instrumentalists by their playing style. Though Dizzy Gillespie would be hard to miss, many other virtuoso trumpet players, for example, do not have their own trademark sound. However, if a clarinetist has a particular “riff” (short melodic unit that is often repeated) associated with him or a peculiar sound, an imitation of this might be actionable.

Some experimental and new-age instrumentalists have enhanced or altered their instruments to create a distinctive tone. If these modifications are present on another recording, then, again, it might be considered a sound-alike.

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.