Forensic Technologies in Music Copyright
| Published date | 01 August 2016 |
| Date | 01 August 2016 |
| DOI | http://doi.org/10.1177/0964663916628621 |
| Subject Matter | Articles |
Article
Forensic Technologies in
Music Copyright
Jose Bellido
University of Kent, Canterbury, Kent, UK
Abstract
The essay explores some recent controversies in British music copyright through the
evolving technologies used to perform or play music in the courtroom. Whilst the
conceptual tension between cases has caused doctrinal anxiety about the effect of
popular music in copyright, the essay contends that the recent stream of music copyright
cases can be considered from a historical perspective, taking into account the tools,
materials and experts as they featured in court. In doing so, the essay connects a history
of legal expertise to the emergence of new technologies whilst arguing that legal
knowledge about music copyright was, in fact, stabilized in the courtroom.
Keywords
Expert witness, media history, music copyright
In early 1987, almost a quarter of a century after his first appearance as an expert witness
in a music copyright trial, Geoffrey Bush was called again to the stand. The case
involved what has become an increasingly familiar copyright drama: the alleged
infringement of a famous pop song – in this case, Vangelis’ Chariots of Fire. With a
professional reputation built on developing strategies against copyright inf ringement
claims, it was hardly surprising to see Bush deployed by the defence, giving evidence
for one of the co-defendants. Indeed, the aural controversies at issue resembled those of
previous landmark cases in which he had already intervened: a degree of musical simi-
larity between songs, difficulty in establishing derivation and claims of subconscious
copying (Francis, Day & Hunter v. Bron 1963; Ledrut v. Meek, 1968; Roberton v. Lewis,
1976). However, in retrospect, there was o ne crucial difference that made this case
historically significant and that would have a then-unknown impact on the future of
Corresponding author:
Jose Bellido, University of Kent, Canterbury, Kent CT2 7NS, UK.
Email: j.a.bellido@kent.ac.uk
Social & Legal Studies
2016, Vol. 25(4) 441–459
ªThe Author(s) 2016
Reprints and permission:
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DOI: 10.1177/0964663916628621
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music copyright. In previous cases of this kind, the collaborative relationship between
experts, clerks and solicitors endured after the dispute (Bellido, 2013). However, this
time, the defence team included a young apprentice who had stumbled upon the case ‘by
mistake’, but who felt so drawn to the copyright world that he would continue to work in,
and subtly influence this realm for the next three decades.
1
The appointment of this young apprentice eventually led to the development of
forensic musicology as an area relevant to British copyright, and the apprentice even-
tually became one of the main forensic experts in British music copyright in the late 20th
century (Bently, 2009). His name was Guy Protheroe, a composer and conductor who,
like Bush, had studied at Oxford and later worked for the British Broadcasting Corpo-
ration (BBC) (Foreman, 1998; Miller, 2001: 658–659; Protheroe, 1994). And like Bush,
he had just been appointed as an expert witness for the defendants. However, unlike
Bush, he was a complete novice, not having any previous experience in music copyright
litigation. A few years later, when he looked back on the case he considered it a rite of
passage of sorts, describing it as a true ‘baptism of fire’ (Protheroe, 1994).
By describing his trajectory as an expert witness, the essay focuses not only on the
contingent ways in which expertise is established but also on the differen t forensic
practices developed by musicologists in order to materialize the intangible in the court-
room. In particular, it raises questions about the impact of these practices on the way
music was understood in legal terms and how this, in turn, affected the evaluation of
copyright issues such as the nature of musical authorship, the requirement of fixation and
the definition of copying. In doing so, the essay connects a history of expertise with the
emergence of technological artefacts, arguing that music copyright depended on a series
of practices that became stabilized in the courtroom and in turn, that music copyright
concepts have been shaped by these practices. This account shows music copyright as a
contingent product of the complex interaction between technology, music expertise and
legal knowledge. Although the literature on copyright has been preoccupied with the
impact of media technologies, it has not been so prolific in tracing the innovative use of
media in juridical processes of producing, ordering and assessing evidence in copyright
disputes. By highlighting the elusive ways in which new audio media and musicological
expertise momentarily converged, the essay contends that legal distinctions shape, and
are simultaneously shaped by, the material ways in which the intangible musical work is
constructed and sensed in the courtroom.
Cassette Tapes
The Introduction of Audio Guides
When the experts for the defence first met at the Vangelis studio in Marble Arch,
London, in order to prepare the case before it went to court, Protheroe quickly realized
an important feature of this case. It was not only that he was working with a musical
expert; it was that Bush had truly become a ‘copyright’ expert, someone who had
capitalized on his previous litigation experiences and used them to assist subsequent
clients. At the initial meeting, Bush explained one of the primary defensive tactics he had
learned previously, which the two experts decided to try in this case: the preliminary
442 Social & Legal Studies 25(4)
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