Can I Get a (Defense Expert) Witness? The Role of the Expert Witness for the Defense in a Music Copyright Infringement Matter

E. Michael Harrington
William Paterson University

Abstract

The role of a defense expert witness, particularly an experienced one, during a copyright infringement case can be indispensible. First, experienced expert witnesses conduct their own musical and lyrical analysis from their own transcriptions. Additionally, they will have extensive knowledge regarding music copyright law and past copyright infringement rulings; they will then intertwine this information into their findings. For example, in addition to a melodic, harmonic, and lyrical comparative analysis between the defendant and plaintiff’s copyrights, the expert witness will conduct a comparison with outside copyrights. Experienced expert witnesses will go one step further and choose outside copyrights that were in previous infringement rulings. They will then strategically order this evidence, even if superficially so, in a fashion that will strengthen the defense’s case, such as playing copyrights that are of similar tonal centers, tempos, and form. This analysis’ structure and presentation can be so impactful as to sway a particular decision. Thus, the defense expert witness’ insight and subtlety is paramount to the defense’s case.

Keywords: music law, copyright law, music theory, music analysis, copyright infringement, expert witness, music industry, music business

Harrington, E. Michael. “Can I Get a (Defense Expert) Witness? The Role of the Expert Witness for the Defense in a Music Copyright Infringement Matter.” Journal of the Music and Entertainment Industry Educators Association 11, no. 1 (2011): 83-111. https://doi.org/10.25101/11.4

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