Music Report Meets Rule 702 Requirements

The U.S. District Court for the Southern District of New York decided that opinion testimony of a copyright-infringement musicologist that was consistent with his infringement-analysis report would be admissible expert evidence, if needed. Velez v. Sony Discos, 05 Civ. 0615(PKC).

Pro se plaintiff Victor Velez alleged that recording-artist Victor Manuelle 'knowledgeably infringed plaintiff's [song 'Hasta Hoy'] and purposely changed the lyrics so as to conceal such infringement' in Manuelle's two versions of his 'Tengo Ganas.' Velez also claimed that Sony Discos, for which Manuelle recorded, was 'contributory liable' by 'approv[ing] and release[ing] production containing infringed and concealed music.' The defendants hired musicologist Lawrence Ferrara as their expert. Velez filed a motion to exclude Ferrera's report.

Rule 702 of the Federal Rules of Evidence states: 'If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if: 1) the testimony is based upon sufficient facts or data; 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.'

The district court noted: 'Dr. Ferrara's curriculum vitae reveals that he has a B.A. in music, a M.M. in Piano/Music History, and a Ph.D. in Music Theory/Piano ' He has been a professor of music at New York University in various capacities since 1979, has taught at both the undergraduate and graduate levels, and has been the Chair of the Department of Music and Performing Arts since 1995 ' Dr. Ferrara has authored several books and articles on music and music theory, and presented articles, delivered addresses, and been a panelist member at many conferences in his field … Dr. Ferrara has been credited and relied upon as an expert on several occasions in this Circuit and others. ' [Thus,] Dr. Ferrara is eminently qualified by his knowledge, skill, experience, training, and education to render expert opinions on the musicological similarities and differences between Tengo Ganas and Hasta Hoy.'

Per Rule 702, the district court further found that Ferrera's report was based on reliable methods because it, for example, 'explains that the constituent elements of all songs are 'structure,' 'harmony,' 'rhythm,' 'melody,' and 'lyrics,' and the report goes on to carefully analyze the similarities and the differences between the two songs in terms of each component. ' The report explains this technical terminology in a manner that is understandable to the lay listener, and uses the terms consistently throughout the report. This internally consistent and easily followed analysis leads to the report's conclusion that the songs are dissimilar.'

The district court then emphasized that it 'need not decide whether experts are generally necessary to disentangle claims of music plagiarism, where, as here, the songs at issue do not sound obviously alike.' But the court added: 'At bottom, plaintiff's dissatisfaction with the Ferrara Report reduces to his disagreements with the substance of Dr. Ferrara's opinions, which is not a valid basis for excluding the report.'

The court concluded: 'Even if the scant similarities apparent from the record were sufficient to enable a reasonable jury to infer that Manuelle actually copied Hasta Hoy in creating Tengo Ganas, the record cannot support a finding that such copying amounted to an 'improper appropriation.” Simply put, Hasta Hoy and Tengo Ganas are two starkly different pieces of music.'

The U.S. District Court for the Southern District of New York decided that opinion testimony of a copyright-infringement musicologist that was consistent with his infringement-analysis report would be admissible expert evidence, if needed. Velez v. Sony Discos, 05 Civ. 0615(PKC).

Pro se plaintiff Victor Velez alleged that recording-artist Victor Manuelle 'knowledgeably infringed plaintiff's [song 'Hasta Hoy'] and purposely changed the lyrics so as to conceal such infringement' in Manuelle's two versions of his 'Tengo Ganas.' Velez also claimed that Sony Discos, for which Manuelle recorded, was 'contributory liable' by 'approv[ing] and release[ing] production containing infringed and concealed music.' The defendants hired musicologist Lawrence Ferrara as their expert. Velez filed a motion to exclude Ferrera's report.

Rule 702 of the Federal Rules of Evidence states: 'If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if: 1) the testimony is based upon sufficient facts or data; 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.'

The district court noted: 'Dr. Ferrara's curriculum vitae reveals that he has a B.A. in music, a M.M. in Piano/Music History, and a Ph.D. in Music Theory/Piano ' He has been a professor of music at New York University in various capacities since 1979, has taught at both the undergraduate and graduate levels, and has been the Chair of the Department of Music and Performing Arts since 1995 ' Dr. Ferrara has authored several books and articles on music and music theory, and presented articles, delivered addresses, and been a panelist member at many conferences in his field … Dr. Ferrara has been credited and relied upon as an expert on several occasions in this Circuit and others. ' [Thus,] Dr. Ferrara is eminently qualified by his knowledge, skill, experience, training, and education to render expert opinions on the musicological similarities and differences between Tengo Ganas and Hasta Hoy.'

Per Rule 702, the district court further found that Ferrera's report was based on reliable methods because it, for example, 'explains that the constituent elements of all songs are 'structure,' 'harmony,' 'rhythm,' 'melody,' and 'lyrics,' and the report goes on to carefully analyze the similarities and the differences between the two songs in terms of each component. ' The report explains this technical terminology in a manner that is understandable to the lay listener, and uses the terms consistently throughout the report. This internally consistent and easily followed analysis leads to the report's conclusion that the songs are dissimilar.'

The district court then emphasized that it 'need not decide whether experts are generally necessary to disentangle claims of music plagiarism, where, as here, the songs at issue do not sound obviously alike.' But the court added: 'At bottom, plaintiff's dissatisfaction with the Ferrara Report reduces to his disagreements with the substance of Dr. Ferrara's opinions, which is not a valid basis for excluding the report.'

The court concluded: 'Even if the scant similarities apparent from the record were sufficient to enable a reasonable jury to infer that Manuelle actually copied Hasta Hoy in creating Tengo Ganas, the record cannot support a finding that such copying amounted to an 'improper appropriation.” Simply put, Hasta Hoy and Tengo Ganas are two starkly different pieces of music.'