GLOSSARY
Beat
“Beat” refers to the underlying pulse in a musical work. Like a human pulse, a beat or pulse in a work of music is a steadily repeating palpable, typically audible, demarcation of time. In the round “Kookaburra”, for instance, while the first bar of the song (“Kookaburra sits in the”) has seven syllables that are sung to seven notes, if we were to tap along while singing or hearing the song, we’d likely tap twice or perhaps – if feeling frisky or caffeinated – four times while these seven syllables were being sung. These taps indicate the beat of the song that, as we see from the “Kookaburra” example, may depend somewhat on an individual’s response to a particular musical work. (In the snippet below we see from the 4-4 time signature that Marion Sinclair, the author of the song, heard the tune as having four, and not two, beats in each bar. I hear and feel this tune as having two beats to a bar.)
The written opinions of music copyright infringement cases that refer to musical “beat” invariably use this term as it is commonly understood to mean a rhythmic pattern that is typical or recurrent within a particular musical genre – “disco” beat, “hip-hop” beat, etc. – or a rhythmic pattern idiosyncratic to one of the works in dispute. In Jones v. Blige (2009) for instance, Judge Cole writes: “Aside from the lyrics, the melodies and beats of the two songs do bear a passing resemblance to each other, but the similarity is not so striking as to allow an inference that copying necessarily occurred.”
In the factual summary of the Vargas v. Transeau (2007) opinion, we find the following statement that sounds impressive from an evidentiary perspective, but is meaningless from a musical one: “Breakz from the Nu Skool contains 403 separate beats that Transeau contends he created on Reason.” These are careless uses of the term, and carry implications of other stylistic elements like timbre and tempo. One would never use the term “waltz beat” or a “polka beat” because the terms “waltz” and “polka” themselves carry information about the beat of works in these genres. This is not true of broader categories like “disco”, “jazz”, and “hip-hop”. In his opinion in Moore v. Columbia Pictures (1992) Judge Heaney excoriates the plaintiff’s expert: “In addition to admitting that he could not classify the songs as part of a particular genre, McCormick conceded that although he had heard of the term “hip-hop,” he had no understanding of what it meant…. Thus, he testified that he was not aware that a particular sound, beat, or base line characterized hip-hop music.” “Base line” indeed — the correct term is, of course, “bass line” — a malapropism all the more delicious appearing within such self-righteous language.