Do Experts Matter? A Study of the Effect of Musicologist Testimony in Music Cases (forthcoming)

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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 permitting expert testimony, and, more radically, the rejection of expert testimony altogether. The issue examined by this Article goes well beyond evidence. The current manner in which music cases are litigated with a battle of experts may disproportionately impact musicians who lack resources to afford a musicologist—meaning less established, unknown, and aspiring musicians. The need to hire a musicologist to litigate a copyright lawsuit becomes a barrier to entry for new artists.