Blurred Lines: Musical Expertise in the History of American Copyright Litigation Dissertation Presented in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate School of The Ohio State University Katherine M. Leo, J.D., M.A. Graduate Program in Music The Ohio State University 2016 Committee: Graeme M. Boone, Ph.D., Advisor Charles M. Atkinson, Ph.D. Guy A. Rub, S.J.D., L.L.M., M.A., LL.B. Mark L. Rudoff, M.M., LL.B. Copyright by Katherine M. Leo 2016 Abstract In March 2015, a jury awarded Marvin Gaye’s estate nearly $7.4 million, finding that Robin Thicke and Pharrell Williams infringed on Gaye's 1977 song, “Got to Give It Up,” with their own 2013 hit, “Blurred Lines.” The highly publicized federal copyright lawsuit has raised concerns about the ramifications of this outcome for the legal protection of music and the future of artistic creativity. The question underlying this case, as in much of federal copyright litigation, involves negotiating the putative similarities and differences between expressive works. Although the court system has developed methods designed to assist triers of fact in such legal analysis, the unpredictable outcomes of these cases illuminate the problematics of this task. Triers of fact may hear testimony from expert witnesses, whose specialized knowledge, skill, and experience is intended to inform the decision-making process. The results of such testimony, however, are not only insistently variable, but they also reflect unsettled debates over how, and by whom, musical identity can best be defined. Given this situation, how should we understand the historical and contemporary role of the musical expert witness in American music copyright litigation? Drawing on research methods from musicological and legal scholarship, the present dissertation examines extant court records and judicial opinions of prominent ii cases chronologically from their origins in the mid-nineteenth century through to recently-decided lawsuits. In situating the role of the musical expert in the context of the legal similarity inquiry and considering their contributions to it, the study reveals the essential role that experts have historically played. It then recasts contemporary problems with case outcomes as a result of the similarity inquiry itself and looks to expert testimony as one potential area of reform. Such study of musical expertise sheds light on the courtroom as a forum for musical experts, particularly contemporary musicologists, and elucidates their understudied, yet often significant, relationship to the American judicial system. It is through a greater understanding of this role that musicologists should be better equipped to assist courts in resolving the blurred lines that separate, and bind together, so many works of music. iii Dedication For my mentors. iv Acknowledgments A journey through graduate and professional school is impossible without the guidance, inspiration, and encouragement from so many people, to all of whom I am profoundly grateful. I would like to recognize my academic communities, teachers, colleagues, friends, and family for their contributions to this research and my identity as a scholar. Among them are the following people and organizations that I would like to acknowledge by name: The Graduate School, College of Arts and Sciences, and School of Music at The Ohio State University for their generous financial support of my research through the 2015-16 Presidential Graduate Fellowship, the Arts and Humanities Small Travel Grant, the A. Peter Costanza Doctoral Programs in Music Endowment Fund, the School of Music Professional Travel Grant, and the Musicology Area Discretionary Grant. The archivists at the Chicago, Kansas City, New York City, Riverside, Philadelphia, and San Bruno branches of the National Archives and Records Administrations, and the records division clerks at the Southern District of New York and Central District of California, who worked tirelessly with me to locate sources and reproduce the records at the core of this research. My special thanks to Alison Bandek, Doug Bicknese, Jake Ersland, Heather Glasby, Matt Law, and Trina Yickley. My dissertation committee, Dr. Boone, Dr. Atkinson, Mark, and Prof. Rub, for being the sage guides through my scholarly travels, from master’s thesis, through law v school and candidacy exams, to this dissertation and everywhere in between. Thank you for opening your ears and office doors to me, but perhaps most importantly, for teaching me to be a stronger writer and a more thoughtful scholar. David Clampitt, Bob Judd, and Debby Merritt for generously sharing their resources and expertise to enrich my research and writing process. My friends and family, who have celebrated the highs, struggled through the lows, and who have walked the scholarly road alongside me. Andrew, John, Stuart, KJ and Cathy, and Mom: my infinite love and appreciation to you! My mentors, from professors to internship advisors, who in their own ways have taught me life’s most important lessons. You are the ones who have given me the tools I need to achieve my goals. As an expression of my gratitude, this dissertation is dedicated to you. vi Vita 2015-16......... Presidential Graduate Fellowship, The Ohio State University 2015............... J.D., The Ohio State University Moritz College of Law 2012.............. M.A., Musicology, The Ohio State University 2010-14......... Graduate Teaching Associate, The Ohio State University 2009-10......... Graduate Fellowship, The Ohio State University 2009............... B.A., summa cum laude, Music, George Mason University 2009............... B.A., summa cum laude, Anthropology, George Mason University Publication 2015 Katherine M. Maskell, Speech and Safety: Interest Balancing in First Amendment Analysis as Applied to Bible Believers v. Wayne County, 76 OHIO ST. L.J. FURTHERMORE 141 (2015). Fields of Study Major Field: Music Law vii Table of Contents Abstract............................................................................................................................... ii Dedication.......................................................................................................................... iv Acknowledgments............................................................................................................... v Vita................................................................................................................................... vii List of Tables..................................................................................................................... ix List of Figures..................................................................................................................... x Introduction......................................................................................................................... 1 Chapter 1: What is Expertise?........................................................................................... 15 Chapter 2: The Foundations of Music Copyright Law..................................................... 51 Chapter 3: Into the Twentieth Century, 1909-45.............................................................. 79 Chapter 4: Arnstein, Krofft, and the Narrowing Role of Expertise................................. 114 Chapter 5: Late-Century Experts and the Problems with Arnstein and Krofft............... 155 Chapter 6: Expertise in the New Millennium................................................................. 198 Chapter 7: Similarity, Expertise, and the Blurred Lines of Music Copyright................ 241 Bibliography................................................................................................................... 261 Appendix A: Glossary..................................................................................................... 270 Appendix B: Cases Cited................................................................................................ 275 Appendix C: Sources of Research.................................................................................. 279 viii List of Tables Table 1: Similarity Tests by Circuit................................................................................ 195 Table 2: Defendants’ Expert Analytical Criteria for “Blurred Lines”............................ 234 Table 3: Music Copyright Cases Referenced.................................................................. 275 Table 4: Other Copyright Cases...................................................................................... 277 Table 5: Common Sources for Musical and Legal Research.......................................... 282 ix List of Figures Figure 1: First Pages of Reed (L) and Carusi (R), “The Old Arm Chair”........................ 58 Figure 2: Blume v. Spear, First Page of Comparison Chart, Sigismond Lasar................. 67 Figure 3: Blume v. Spear, First Page of Comparison Chart, Charles Pratt....................... 70 Figure 4: Hein v. Harris, Comparison Chart.................................................................... 84 Figure 5: Haas v. Leo Feist, Comparison Chart............................................................... 89 Figure 6: Cholvin v. B&F Music, Comparison Chart, Harold Barlow........................... 142 Figure 7: Packston v. Jobete Music, Comparison Chart, Robert Silverman................... 146 Figure 8: Bright Tunes v. Harrisongs, Expert Report, David Greitzer........................... 161 Figure