Throughout the twentieth and twenty-first centuries regulations on expert testimony have sought to minimize the impact of disagreeing experts. Yet, disagreements between forensic musicologists still play a large role in contemporary music copyright decisions. This paper suggests that the disagreement between partisan experts is due, in part, to confirmation bias rather than ethical or financial allegiance. An expert hired by a plaintiff, or the party alleging copyright infringement, may start their analysis by searching for similarities between two works. On the other hand, an expert retained by the defendant, or the party denying infringement, may start their analysis by searching for differences. Given the multiple musical components present in even the “simplest” musical work, both starting points will lead to valid observations about the work, allowing for expert disagreement. This article uses a hypothetical case study to demonstrate the risk of confirmation bias in forensic musicology and concludes by proposing that appointing a panel of third-party musicologists to conduct forensic analyses from a neutral starting point could minimize the effect of confirmation bias in such cases.
Searching for Similarity: Confirmation Bias in Forensic Analyses of Popular Music
Dana DeVlieger earned her PhD in music theory from the University of Minnesota in 2020. Her dissertation work focused on the use of music analysis in music copyright infringement litigation. After completing her PhD, Dr. DeVlieger began law school at Northwestern Pritzker School of Law and will graduate with a JD in 2023. Her research interests include music copyright law, popular music, Irish folk music, the music of Bruce Springsteen, and music theory pedagogy.
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Dana Devlieger; Searching for Similarity: Confirmation Bias in Forensic Analyses of Popular Music. Journal of Popular Music Studies 1 June 2022; 34 (2): 91–111. doi: https://doi.org/10.1525/jpms.2022.34.2.91
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