In most contested music copyright cases, yes. Courts consistently treat substantial similarity as a question requiring expert testimony. Without it, both sides are asking a judge or jury to make a technical musical determination and although copyright law has benefited from some very musically astute judges in the past century, and appropriate precedences have been set, most of the time, the court relies on expert testimony.

The best question isn’t really whether you need one. You do. It’s when to bring one in, and the answer is nearly always, “right away.”

What the Expert Actually Does

Courts, not musicologists, determine infringement. The forensic musicologist performs the musical analysis the court needs to evaluate the claim: comparison, inference of access and copying, transcription and comparison of both works, identification of the specific similarities at issue, prior art analysis to determine whether the material was original to the earlier work or drawn from common sources, and a written expert report suitable for federal or state proceedings. And then, later, deposition and trial testimony if it goes that far. It usually does not.

All of that is designed to illuminate the matter for the court. That’s the true role. Again, the musicologist doesn’t determine infringement. That’s for the finder of fact to determine. The expert translates the musical evidence into something the court can work with. It’s meant to be objective, and it should be.

Why Early Involvement Matters

Most cases resolve without ever seeing a live courtroom or a jury. The same musicological analysis underlying potential trial testimony also drives every earlier stage: filing decisions, pleadings strategy, settlement range, discovery scope. An expert brought in from the start is almost always more efficient than reactive work afterward, and since musicology is a driving force informing strategy, putting it off risks wasting cycles, causing missteps, and, too often, holes to dig out of!

When You’re the Plaintiff

Before filing, the expert analysis tells you whether you should be going into battle at all, whether what you’re alleging is going to have teeth. Of course you’ve found similarity. That’s a given. But musicological analysis puts those valid observations in the context that matters to copyright law — access and unlawful appropriation of protectable expression. Missteps are costly and, when an opposing expert is involved, often exposed quickly. The analysis should precede the complaint. You need it to proceed wisely and carefully.

When You’re the Defendant

The expert analysis tells you what you’re actually defending against: whether the similarity is real, whether the claimed elements are protectable, and whether prior art undermines the plaintiff’s ownership of the material at issue. A good attorney armed with a strong prior art argument built early can reshape the case entirely.

Getting Started

If you’re early stage, perhaps considering your options, you might certainly contact a musicologist first.

If you’re a potential plaintiff or defendant already at the litigation stage, discuss with your attorney whether the engagement should be initiated through counsel.

If you’re an attorney evaluating a matter or a party who has just received a complaint, call, email, or schedule directly.

To discuss a matter or ask a question — call, email, or schedule a preliminary call.

☎︎ Call: (212) 217-9512   ✉ Email: brianmcbrearty@gmail.com   📅 Schedule: Book a free preliminary call

→ Music Expert Witness services
→ Should I call a musicologist or a lawyer first?