This Article presents the results of a behavioral experiment we conducted to identify what effect, if any, expert musicologist testimony has on jurors in a simulated music copyright lawsuit. Forensic musicologists are considered essential to deciding whether one song infringes the copyright of another song. But this conventional wisdom has never been tested or validated. Contrary to this accepted view, our study found that expert musicologists have little to no effect on jurors when presented as a battle of experts of the parties. However, a court-appointed expert had a significant effect on subjects who lacked training or knowledge in music. These findings call into serious question the current approach to expert testimony in music lawsuits. We consider several alternatives as possible reforms, including greater use of court-appointed experts, the courts’ exercise of a greater gatekeeping role in the dissection of the works at issue, or even the radical idea of excluding musicologist testimony at trial altogether.
a. Professor of Law and Co-Director, Program in Intellectual Property Law, Chicago-Kent College of Law, Illinois Institute of Technology. Many thanks to faculty at the 2021 Intellectual Property Law Scholars Conference for their comments. We thank our research assistants Sarah Anderson and Alexandra Hronas, who provided invaluable help (including Anderson’s impressive music knowledge and skills, and creation of the music clips). This study was approved for human subjects testing by the Institutional Review Board of Illinois Institute of Technology.
b. Associate Professor, and Director of Education, Business Law & Taxation, Monash University.
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