Searching for Similarity

Abstract

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.