Blurred Lines Trial - transcript Exhibit G part 2.pdf

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BY MR. BUSCH:

Q. What is it that we're about to hear, Ms. Finell?

A. Two versions of Happy Birthday. First, the traditional

version and then with the rhythm modified.

Q. And what do you believe this shows?

A. It shows that the song is still completely recognizable,

even with shifts in the rhythm.

MR. BUSCH: Okay. Please play.

(Whereupon, the audio was played for the jury.)

BY MR. BUSCH:

Q. Thank you.

And is the rhythmic differences -- in your opinion, is

the rhythmic dissimilarities in what we just heard in those two

versions of Happy Birthday greater or less than the rhythmic

differences in Got to Give it Up and Blurred in the signature

phrase?

MR. MILLER: Objection.

THE COURT: Sustained.

BY MR. BUSCH:

Q. All right. Take that off the screen, please.

We talked about what the hook was before the break.

Improper --

Exhibit 376, page 8, slide 8, is two versions of hooks

so you can explain to the jury; correct?

A. Yes.

MR. BUSCH: I do not believe we have an objection

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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 1 of 70 Page ID #:9795

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about this, your Honor.MR. MILLER: No objection, your Honor.

THE COURT: Correct. That's right. This was

previously displayed.

You may play it.

BY MR. BUSCH:

Q. Before you play it, can you explain what the jury is about

to hear?

A. Yes. In popular music, as I mentioned before, there is

often a phrase that becomes more or less what you would think of

as sort of the identifying phrase of the song. Sometimes nowIt's thewith ringtones, that's what the ringtone would be.

hook of the song. So

THE COURT: Stop there.

Next question, please.

BY MR. BUSCH:

Q. And so what are we going to hear?

So you'll hear the hooks of two popular songs. One theA.

song from the show Annie and the other one Cyndi Lauper's Girls

Just Wanna Have Fun.

Q. And are these the hooks to these two songs?

That's right.

Can a hook be very short?

Very.With respect to Beethoven's 5th, which we heard earlier,

A.

Q.

A.

Q.

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A. There are only four notes.

THE COURT: Sustained. It's cumulative.

BY MR. BUSCH:Q. And what are the hooks in Got to Give it Up and Blurred

Lines?

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A. Four notes. I'm sorry. The lyrics -- could you put that

back on, please.The lyrics in Got to Give it Up, which contains one

hook that's repeated, is with the words keep on dancin', and in

Blurred Lines it has two hooks. One is take a good girl and the

other one is I hate these blurred lines.

Q. What makes up these hooks?

MR. MILLER: Objection. Vague.


Are you going to play these?

MR. BUSCH: They've just been played -- yes. We will.

Q. With respect to the hooks --

Page 9 -- we won't put

MR. MILLER: Don't put them on the screen.

MR. BUSCH: No.

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Q. With respect to the hooks, keep on dancin' from Got to Give

it Up, is -- did you prepare a transcription?

A. Y~s, I did.Q. And is the transcription you prepared from the lead sheet?

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A. It's exactly as it is in the lead sheet, yes.

Q. Okay. And you prepared a transcription from Blurred Lines

as well; correct?

A. That's correct.MR. BUSCH: Your Honor, we would ask for permission to

display page 9 of Exhibit 376, similarity hooks.

THE COURT: Any objection?

MR. MILLER: Yes. I have several objections to this

slide, your Honor. The fourth bullet point is a reference to

the sound recording of Marvin Gaye. The transcription is not an

accurate reflection of the actual notes as they appear in the

deposit copy.THE COURT: You may display this, but eliminate just

the -- following the bullet points.MR. BUSCH: Just play without the bullet points?

THE COURT: Just show -- if you wish to display this,

start with, quote, Got to Give it Up, and don't display the

other portion, and you can achieve that either by your computer

or use of the projector.MR. BUSCH: Thank you, your Honor.

THE COURT: And I understand your objection with

respect to the other issue.

BY MR. BUSCH:Q. Okay. And so, Ms. Finell, looking at your transcription on

Got to Give it Up and the Blurred Lines hook, what do your

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transcriptions show?

A. They show the comparison of pitches, meaning scale degrees.

So out of the four notes from the Got to Give it Up hook and

four notes from Blurred Lines, three are identical in their

scale degrees.

Q. Okay.

A. The fourth one is a repeat of one of the three identical

notes in Blurred Lines.

Q. And is the rhythmic placement similar?

A. Yes. The rhythmic placement is similar in that there are

two notes before the bar line and two notes after the bar line

which affects the stressing.

Q. And why is that significant?

A. Well, music's divided into smaller units. A long piece of

music is divided up into individual bars which are also called

measures. And the placement in the measure has a lot to do with

the pulse or the emphasis of particular words.

In the case of these two hooks, the significance of

the two notes before and the two notes after the bar line, which

is circled, is that the keywords of the hook -- what you would

think of as the money words -- meaning dancin' in Got to Give it

Up and good girl in Blurred Lines, occurred immediately after

the bar line and therefore they are -- the first part of that is

what you call the downbeat. It's the strongest beat right after

the bar line.

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Q. And in the sheet music, is there -- does the Got to Give it

Up hook repeat?

A. Oh, yes, it does.Q. Okay. And how many times does it repeat?

A. I believe it's 14.Q. Okay. And in Blurred Lines, the similar hook that you've

described, how many times does it repeat in Blurred Lines?

A. Well, there are two Blurred Lines hooks, but combined, they

occur 12 times in the song, which is quite repetitious.

Q. Okay. And have you prepared audio examples using a MIDI

synthesizer for the hook of Got to Give it Up, keep on dancin',

and the Blurred Lines, take a good girl?

A. Yes, I have.Q. And is the audio excerpt keep on dancing from Got to Give

it Up in the deposit copy lead sheet?

A. It is.MR. BUSCH: All right. We would like to play now

Exhibit 376, page 10, your Honor, and we could display the

exhibit just by -- fine. My -- we have already --

THE COURT: Excuse me. The first recording is based

on the recording that's admissible; is that correct?

MR. BUSCH: Yes, your Honor.THE COURT: Okay. Subject to your prior objections,

any objection to this being played?

MR. MILLER: No objection, your Honor.

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THE COURT: No new objection. Thank you.

You may play these.

Excuse me. Is the second -- one second.

Could you pause that?

Is there any pitchshifting in these?

MR. BUSCH: I do not believe so, your Honor.

THE WITNESS: Excuse me. I think you need to show the

I'm sorry.

slide that goes with that. This isn't the right one.

MR. BUSCH: It's page 10.

THE COURT: Could confirm whether there is any

pitchshifting in the recording?

MR. MILLER: I have an objection to the bullet point.

Same objection to the bullet point.

THE COURT: Okay. I understand.

Ladies and gentlemen, what is in the demonstrative

It's designed to facilitate -- as Iexhibits isn't evidence.

told you, it's merely to help you understand the opinions being

offered by Ms. Finell.

Okay. Is each of these recordings taken from the

evidence that's admissible?

MR. BUSCH: Yes, your Honor.

THE COURT: Okay. Thank you.


BY MR. BUSCH:

Q. What did we just hear?

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A. That's the hook from Got to Give it Up with the words that

would have been keep on dancin'.

Q. Okay. And next, we have -- what do we have -- what's the

second audio?

A. The first hook in Blurred Lines which is take a good girl.

Q. And what is it that we just heard as far as the note

comparison?

A. Yes. There are four notes in each hook, of which three are

identical, they're shown with the arrows above them, meaning 75

percent of the notes are identical and the note that isn't

identical is really identical to itself in that in take a good

girl, the note for the word good is a scale degree 1, which is

already heard before and after itself, so those are the

similarities.

Q. We heard -- did we hear rhythmic changes within the last

two audio excerpts?

A. No.Q. Have you identified a similarity that you have identified

or called Theme X?

A. Yes, I have.

Q. Okay. And what is Theme X?

A. Theme X is a melody -- a four-note melody. In Got to Give

it Up, it's what I would call a backup melody sung to the words

dancin' lady. And in Got to Give it Up -- I'm sorry, in Blurred

Lines, it's the main theme that occurs throughout all four

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verses with words like --

THE COURT: You may finish.

THE WITNESS: Okay. Excuse me. With words like if

you can't see, if you can't hear, etc., and it also occurs in

the choruses and in the signature -- it's embedded in the

signature phrase.MR. MILLER: Object and move to strike. There is no

evidence before the Court that this is in the deposit copy.

There is no foundation for it.

MR. BUSCH: I can lay the foundation.

THE COURT: I'm going to strike the response at this

point subject to establishing a foundation.

Ladies and gentlemen, you may remember one of the

early instructions I read you talked about deposit copy, and

that certain -- that the actual commercial recording wasn't at

issue in this case.So we're touching on these issues and we will come

back and do more explaining to you about it later.

Establish the foundation, please. Or seek to do so.

BY MR. BUSCH:Q. Is Theme X, as you've described it, the backup hook in Got

to Give it Up in the deposit copy lead sheet?

MR. MILLER: Objection. Vague, your Honor.

THE COURT: Do you understand the question?

THE WITNESS: I do.

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THE COURT: By in -- what do you mean by in the

deposit copy lead sheet?

BY MR. BUSCH:

Q. Is it shown in the deposit copy lead sheet?

MR. MILLER: Same objection, your Honor. Are the

notes in the deposit copy?

MR. BUSCH: I will rephrase the question.

THE COURT: Just restate the question so that the

witness can address whether -- the basis for her view as to what

issue -- whether Theme X is shown in the lead sheet. Thank you.

BY MR. BUSCH:

Q. Is the audio excerpt that we have -- that I have -- that

you have prepared with respect to Theme X in the deposit copy

lead sheet?

MR. MILLER: Same objection, your Honor.

THE COURT: Define in, please.

BY MR. BUSCH:

Q. Do you believe it is consistent with, in, reflected by --

do you believe it's in the deposit copy lead sheet?

MR. MILLER: Same objection, your Honor. The question

is whether it's identical to what's in the lead sheet.

THE COURT: Sustained. Restate it, please.

BY MR. BUSCH:

Q. Do you believe the audio excerpt that you have prepared

with respect to Theme X is specifically -- is it in the deposit

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copy lead sheet?I'm not sure how else to ask the question, your Honor.

MR. MILLER: Same objection, your Honor. The question

is is it identical to notes in the lead sheet.

THE COURT: Well, lay the foundation, please, as to

the basis upon which the witness has evaluated the lead sheet

with respect to this issue.

BY MR. BUSCH:

Q. All right. Have you reviewed the deposit copy lead sheet

with respect to Theme X?

A. Yes.Okay. And do you have an opinion about whether the depositQ.

copy the audio example that you have prepared is in the


Same objection.

We have to establish what she did with theMR. MILLER:

THE COURT:

lead sheet --

MR. BUSCH:

THE COURT:

you.

BY MR. BUSCH:

I will.

-- before you get to that question. Thank

Q. What did you do in order to reach your opinion about

whether Theme X is in the deposit copy lead sheet?

THE COURT: And talk more slowly, please.

Q. What did you do in order to reach your opinion that Theme X

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is in the deposit copy lead sheet?

A. I reviewed both part 1 and part 2 of the lead sheet. I

found the section in part 2 of the lead sheet which contained

what I consider a variant of Theme X, and I saw it as referring

to the Theme X that I've been discussing in my analysis.

Q. Can you explain why you believe Theme X -- why it is your

opinion that Theme X is found in the deposit copy lead sheet?

A. Yes. Theme X, as it's shown in the lead sheet, has a

couple of limitations imposed on it. If I could explain about

that. That has an impact on my analysis.

THE COURT: Ask the questions, please.

BY MR. BUSCH:

Q. Okay. Would you please explain the limitations that you

have just described.

A. Okay. A lead sheet is in essence a musical -- musical

shorthand for musicians to understand what the music should be

performed as.

So in the case of Theme X, the actual part 2 of the

lead sheet only shows one of three lines that are being sung at

the same time by singers who are harmonizing, a group of

singers, so there's a high voice, a middle voice and a low voice

all singing parallel notes but not the same notes

MR. MILLER: Objection. Move to strike. She is not

answering the question.

THE COURT: The word is nonresponsive. Do not argue

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Q. So if you would please explain, Ms. Finell, your analysis

why Theme X is in the lead sheet, please do so.

A. Theme--

MR. MILLER: Objection. Asked and answered.

THE COURT: I'll see. You may respond and it's

subject to a motion to strike. Go ahead. Thank you Ms. Finell.

Please proceed.

THE WITNESS: Thank you. Theme X, in the part 2 of

the lead sheet, consists of what we would call music. It's a

four-note melody. I consider it what you call a cell, meaning a

short melody or pattern.

The notes are -- the same note repeated once, which is

called static. In other words, the same note, same note, and

then it goes up one note in the scale and back down one note.

So basically it's static, static, up, down.

about the what the witness is doing. Thank you.

I'm going to strike after So in the case of Theme X.

The answer is So in the case of Theme Xr the actual

part 2 of the lead sheet only shows one of three lines that are

being sung. The rest of it is stricken.

You need to make sure to focus, please, on the lead

sheet, the sheet music, as opposed to the sound recording.

MR. BUSCH: Right.

THE COURT: Thank you.

BY MR. BUSCH:

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Theme X occurs also on the recording of part 1 in a

mirror form, which I can explain.

MR. MILLER: Objection, your Honor.

THE COURT: Excuse me. What -- I want to understand

what the witness meant by the word recording.

I believe she's talking about --

Why don't we find out.

MR. BUSCH:

THE COURT:

BY MR. BUSCH:

Q. What do you mean by the word recording?

A. Well, Theme X in the part of the lead sheet where I

identified it is referring to an earlier variant of that same

theme and that's what I was trying to explain.

MR. MILLER: Objection. Move to strike.

THE COURT: Strike that.

MR. BUSCH: I can clarify, I believe, your Honor.

THE COURT: Just a minute.

Ms. Finell, you said Theme X also -- excuse me. You

said Theme X occurs also on the recording of part 1.

Do you recall saying that?

THE WITNESS: I do.

THE COURT: What -- when you said the word recording,

what -- to what were you referring?

THE WITNESS: Well, there were two recordings that I

reviewed. One was a -- an approximately four-minute recording,

and another one was what you call an extended recording, which

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was a much longer recording of Got to Give it Up.

THE COURT: I want to understand what these recordings

are before I determine whether to strike the response.

MR. BUSCH: Okay.

Q. Is the audio excerpt that you have created what you have

referred to as the recording that is consistent with what you

say is in the lead sheet?

A. Yes.MR. MILLER: Your Honor, I would object and move to

strike. That's not the question.

THE COURT: Is there an exhibit --

MR. BUSCH: Yes.

THE COURT: -- associated with the recording as you

have -- as it's just been defined?

MR. BUSCH: Yes, sir.

THE COURT: What is --

MR. BUSCH: Yes, your Honor.

THE COURT: What is the exhibit number, please?

MR. BUSCH: It is 376, page 11.

THE COURT: So based on that understanding, with that

limitation, the answer may stand.

MR. BUSCH: Thank you.

We would ask, based on that, to play the audio

excerpts on that page.

THE COURT: Okay.

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1 MR. MILLER: Your Honor, I would object that there has 03:

2 been no lacks foundation as to Theme X being in the deposit 03:

3 copy. She has testified it's in the Give sound recording. 03:

4 THE COURT: I understand. All right. 03:

5 MR. MILLER: That's her testimony. 03:

6 THE COURT: I thought the testimony was that these 03:

7 recordings -- that the testimony was based on the recordings 03:

8 that are admissible the one -- the recordings that are 03:

9 admissible. 03:

10 MR. BUSCH: That is correct. 03:

11 MR. MILLER: She has testified that it's in 376, 03:

12 Exhibit 11, which is an excerpt from the Marvin Gaye sound 03:

13 recording. 03:

14 MR. BUSCH: It is an excerpt that has been allowed to 03:

15 be played 03:

16 THE COURT: It's the edited one? 03:

17 MR. BUSCH: Edi ted one, correct. 03:

18 THE COURT: Okay. Again, ladies and gentlemen, I'm 03:

19 referring -- we are referring to what I have told you is that 03:

20 the commercial recording is not at issue in this case. A 03:

21 different version -- I have explained that in the instruction. 03:

22 We will be talking to you more about it. All right. 03:

23 MR. MILLER: I just would renew my objection that 03:

24 there has been no foundation that this is part of the deposit 03:

25 copy. 03:

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I understand. Thank you. Overruled.THE COURT:

It's a subject for cross-examination.

BY MR. BUSCH:Q. Okay. Ms. Finell, looking at what I have placed on the

screen, which is Exhibit 376, page 11, would you please explain

what we are viewing.A. Yes. The first audio example -- this is to compare the

Theme X in the two songs at issue here, Got to Give it Up and

Blurred Lines.

So the first sound example is Got to Give it Up, it's

backup hook to the words dancin' lady, and that is compared to

two different phrases in Blurred Lines. As I said, Theme X in

Blurred Lines occurs in every verse of the entire song and,

therefore, the words keep changing but it's still the same

musical cell, which I explained before.

Q. And in the Got to Give it Up deposit copy, is there a

reference to Theme X repeating?MR. MILLER: Objection, your Honor. Lacks foundation

to Theme X in the deposit copy. The question is whether the

phrase occurs in the deposit copy as it's about to be played.

THE COURT: All right. Restate the question, please.

BY MR. BUSCH:Q. Is the phrase that you've referred to as Theme X repeated

in the deposit copy?MR. MILLER: Same objection. The question is whether

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the phrase that's about to be played is heard in the deposit

copy.

THE COURT: I understand. Restate the question. It's

not about repeated, whether it appears.

MR. BUSCH: All right.

Q. We talked about that it appears. You have a reference here

to Got to Give it Up, dancin' lady repeats 28 times in 28 bars.

What do you mean by that?

A. It should say repeats 14 times in part 2. I don't know

where you are reading from.

Q. Okay.A. And that refers to the deposit copy.

that means repeat this phrase.

It has a symbol in it

Q. Okay.

A. In music notation.Q. All right. And then Blurred Lines you wrote Theme X in

variance occurred 25 times. What do you mean by that?

A. I mean it occurs in all four verses of Blurred Lines,

multiple times in each verse plus in the signature phrase and

throughout the chorus.Q. Okay. And what are the audio excerpts we're going to hear?

A. The first audio excerpt is Theme X with the words dancin'

lady from Got to Give it Up and then the second two are from

different sections of Blurred Lines that contain Theme X.

Q. And they are both pitchshifted up?

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A. Yes. They are shifted up to be in the same key so they're

more easily compared.

MR. MILLER: Your Honor, I would object to playing any

of these examples as we have yet to have an answer to the

question whether Theme X appears with those notes that are about

to be played exactly in the deposit copy.

THE COURT: Okay. Can you respond to that question?

THE WITNESS: Theme X in the deposit copy part 2 is

referencing an earlier version and it's a mirror of the earlier

version. I've explained that. It's an analytical and

compositional technique. It has the same number of notes, it

goes static, static, down, up, in its original version and

static, static, up, down, in its mirror version and it has the

word lady in both but one has dancin' lady and one is, I think,

mistranscribed in their deposit copy as fancy lady but other

than that, they are clearly the same. They are the same theme.

They are the same cell.

MR. MILLER: I would object and move to strike the

testimony is that other than not being the same notes or the

same lyrics, they -- the phrase exists in the Marvin Gaye sound

recording. It does not exist in the deposit copy.

THE COURT: Well, what did you mean by earlier

version?

THE WITNESS: Well, there the deposit copy part 2

begins after the first four minutes of the extended version. It

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doesn't start at the beginning of the song. It starts where the

shorter version stops.So it doesn't -- it's missing the first four minutes.

MR. MILLER: I would object and move to strike that

that's all testimony about the Marvin Gaye sound recording.

THE COURT: Just a minute. Thank you. All right.

Let me talk to you briefly.

(Sidebar conference commenced.)

THE COURT: Until it's established that the recording

you wish to play is based on the deposit copy, then I don't want

it played.

MR. BUSCH:

THE COURT:

It is based on the deposit copy.

Well, she hasn't said that. She said it

was based on a prior version and then she explained that the

prior version was something other than deposit copy.

MR. BUSCH: She can clarify that.

THE COURT: Well, you need to, because you have been

at this for 15 minutes.

MR. BUSCH: No. He's going to have to --

THE COURT: Excuse me. It's your job to establish

that what she wants to say and what she wants to play is in the

deposit copy. You need to do that. And until you do that, it's

not going to be played. And if you think you need to meet with

your witness and further explore this, then maybe move to a new

area so you can efficiently use the time now.

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MR. BUSCH: What's happening, your Honor, is that

Mr. Miller is trying to re-argue the entire -- the Court has

never ruled that the notes themselves have to be identical.

THE COURT: I didn't say that, but she just answered

my question as to what she meant by the prior version and she

didn't say that was the deposit copy. She referred to another

part of a song, I think.

MR. BUSCH: No.

THE COURT: I didn't understand her to say it's in the

deposit copy.

MR. BUSCH: I'll get that answer.

MR. MILLER: Your Honor, if I may be heard on this.

THE COURT: Briefly.

MR. MILLER: Very briefly. What she is testifying to,

and I will continue to object, is that the Marvin Gaye sound

recording has something that's called dancin' lady that has

certain notes in it. Neither the lyrics nor those notes are in

the deposit copy and she cannot get to it without --

THE COURT: I think I said that. I don't really need

to hear from you six times on the same thing either.

So I would suggest that an efficient use of your time

perhaps is to move to a new area, come back -- listen, you've

estimated hours on this, still further hours. You use your time

as you wish, but I'm cautioning you if it's not efficiently

done, then we're going to --

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112MR. BUSCH: I have one question that can clarify this

whole thing and then we can move on.

THE COURT: Good. Thank you.

(Sidebar conference ended.)

THE COURT: Okay. Please proceed, Mr. Busch.

Thank you for your patience, ladies and gentlemen. As

I have said in our instructions, when we have these conferences,

we know we are keeping you waiting but we are trying to make

ultimately things more efficient.

Go ahead, please, Mr. Busch.

BY MR. BUSCH:Q. In the deposited -- deposited with the Got to Give it Up

copyright registration, are there two lead sheets filed?

Registered?

A. Yes, there are.Q. And are they called Got to Give it Up part 1 and part 2?

A. Yes.Q. Okay. Is Theme X, in your opinion, in the deposit copy

filed with the United States copyright office?

MR. MILLER: Same objection, your Honor. Asked and

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answered.

THE COURT: Overruled.

You may answer.

THE WITNESS: Yes, it is.

MR. BUSCH: Okay. Thank you.

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I would like to play, your Honor, the audio excerpts

on this page.

THE COURT: You may play.

MR. MILLER: Same objection.

THE COURT: All right. Same objections. Overruled.

You may play them.

MR. BUSCH: Thank you. Play all three

back-to-back-to-back.

THE COURT:

MR. BUSCH:

And is any of these pitchshifted?

Yes. Two of the three as reflected on the

exhibit are pitchshifted.

THE COURT: So the second and third?

MR. BUSCH: Yes, sir.

THE COURT: Same instruction, ladies and gentlemen, as

to the second and third. It's the expert's opinion that

matters. The purpose of your hearing this is to understand

so you can evaluate the expert's opinion.

(Whereupon, the audio was played for jury.)

BY MR. BUSCH:

Q. What did we just hear, Ms. Finell?

A. You heard the initial song from Got to Give it Up with the

words dancin' lady is in scale degree comparison is 3, sharp 2,

3, 3.

Q. AndA. I'm sorry. I did that backwards. Pardon me. It was 3 --

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114

dancin' lady. Excuse me. 3, 3, sharp 2, 3 is what you heard

with Marvin Gaye's song.

Q. And with Blurred Lines?

A. The same cell with two extra syllables added, so it's 3, 3,

sharp 2, 3 and then again sharp 2, 3. And that's for both of

the Blurred Lines examples. They're exactly the same.

Q. Okay. Turn to slide 13 . Exhibit 376, slide 13.

Oh, do you have additional audio examples to further

illustrate your point that the notes were the same?

A. Yes.Q. Okay. And what is the next audio example you've prepared

to show that the notes are the same?

A. May I see the slide, please?THE COURT: Just publish the lower portion of that.

Thank you.

BY MR. BUSCH:Q. And what are these audio examples that you have prepared to

show the notes are the same?A. This is, again, dancin' lady from Got to Give it Up, the

Theme X. And then the section in the signature phrase, which is

connected with the hook in Blurred Lines, it's the phrase

that -- it's embedded in the signature phrase we've already

discussed and it's for the words and that's why I'm and it's

right before the hook.MR. BUSCH: Okay. Can we play those two, please.

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BY MR. BUSCH:

Q. And what does this show in your opinion?

That they are very, very similar through the same musicalA.

material.

Q. Why are they the same musical material?

They are the same notes, very similar rhythm and they --A.

it's just the same.

Q. Okay. Do you have a third musical example to put a pin in

your opinion about this -- the fact that the notes are the same?

A. Yes.

MR. BUSCH: Can you put that on the screen, just the

lower portion, please. Slide No. 14?

THE COURT: You can have a standing objection.

MR. MILLER: Yes, I have a standing objection.

BY MR. BUSCH:

Q. And what is this audio example?

This is just to remove the distraction of the words sinceA.

what's similar about them is the melodies, not the words. So

the first one is dancin' lady again played on a synthesizer,

just the notes themselves, and the second one is a synthesizer

playing the words you just heard of Blurred Lines. If the words

were there it would be and that's why I'm.

Q. So this is the music with words removed?

That's right.A.

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MR. BUSCH: Okay. Play it, please.


BY MR. BUSCH:

Q. What did we just hear?

A. You heard the Theme X in both songs. And in the case of

Blurred Lines, it occurs throughout the song. I believe it's 25

times allover the verses. It's used with different words but

it's the same theme.

Q. And are the notes identical, in your opinion?

A. Yes. In this case, they are.

Q. No difference?

A. Nope.

Q. And Theme X appears in the Got to Give it Up lead sheet 14

times?MR. MILLER: Objection, your Honor.

THE COURT: Asked and answered, let's move on, please.

BY MR. BUSCH:Q. Have you prepared a chart showing the bar numbers and times

that Theme X appears in Blurred Lines?

A. I have.MR. BUSCH: We would like to put on the screen slide

No. 15, your Honor, Exhibit 376.

THE COURT: Any objection to that being displayed?

MR. MILLER: Subject to my standing objection

THE COURT: Thank you. You may publish that.

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BY MR. BUSCH:

Q. What does this chart show?

A. This -- this chart shows where throughout the song Blurred

Lines Theme X appears. As I said, it appears in all four verses

so the -- the theme -- oh, did I just do that? I'm sorry. I'm

not familiar with this technology.

So the first -- the first left-hand column shows where

it is in the song, verse 1, verse 2, etc.

The middle column tells the bar numbers. As I said,

music is divided into individual bars.

And the third column just tells the timing of when

they occur.

And at the bottom is the total.

So out of the entire song, all of these occurrences

total 31 out of 130 total bars. Blurred Lines is 130 total

bars. So out of that, about 25 percent of the song, which is

31 bars, contain Theme X. It's probably the most used theme in

the song.

May I add --

THE COURT: There's no question pending.

BY MR. BUSCH:

Q. Okay. Do you believe that the -- the identical notes being

used that you've just described was a conscious choice?

MR. MILLER:

THE COURT:

Objection

Sustained.

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BY MR. BUSCH:

Do composers make -- in your opinion, does music is

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Q.

music created randomly?

A. No. Music is composed and represents a series of

individual choices that composers make. The exact note that's

chosen, how long to hold the note, how to take a lyric, a word

like love or happy or any other kind of lyric and set it to

tones.


THE COURT: I'm going to strike after the word No.

BY MR. BUSCH:

Q. Would you please explain why you believe music does not

happen randomly?

A. Well, like any art form, music is a -- represents a series

of choices that composers make in terms of exactly what notes

they decide to use, how many what kind of rhythms, how they

decide to express the lyrics of -- with notes and the harmonies,

etc. All of that is a conscious choice on the part of a

composer. It's not just accidental.

Q. Okay. Earlier in your testimony when you were talking

about your methodology, you stated that you sometimes look for

broken rules.

A. Yes.

Q. Would you explain what you mean by broken rules.

MR. MILLER: Objection. Asked and answered,


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your Honor. We did this yesterday.

MR. BUSCH: I don't believe that --

THE COURT: Answer it, but please focus on the

question.

THE WITNESS: Thank you.

Okay. The reason I explained about broken rules is

music has traditions and one of the traditions is a scale of

seven notes, as I said.

Well, in the compared Theme X

THE COURT: Stop right there.


BY MR. BUSCH:

Q. When you were comparing the Theme X in Got to Give it Up

with Blurred Lines, the similarities, did you note any broken

rules?

MR. MILLER:

THE COURT:

Objection.

Overruled.

Leading, your Honor.

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You may answer.

THE WITNESS: Yes. Yes. Exactly. These particular

comparisons of Theme X contain the broken rule of the sharp 2.

The reason why it's called sharp 2 is there's no sharp 2 in that

key. The note had to be changed so that they both have the

series 3, 3, sharp 2, 3. Well, that sharp 2 isn't in the key.

THE COURT: Stop there, please.

Next question.


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MR. BUSCH: Okay.

Q. Why is the sharp 2 in both songs the same broken rule, in

your mind?

A. They both deviated from their own scale exactly in the same

way.

Q. Is that unusual?

A. Well, it's a red flag when I'm comparing music.

MR. MILLER: Objection. Move to strike as

nonresponsive.

THE COURT: Yeah. It's -- let's move on, please.

MR. BUSCH: Okay.

THE COURT: It's cumulative.

BY MR. BUSCH:

Q. Where else does this four-note melody that you've been

describing as Theme X -- where else is it found in Blurred

Lines? Is it found in the signature phrase?

A. Yes, it is.

Q. Okay. How could you explain that to the jury, please.

A. Excuse me. It's embedded in the signature phrase for

MR. MILLER: Objection, cumulative, your Honor.

THE COURT: Sustained. How is this different than the

chart that was just discussed?

MR. BUSCH: I'm not sure the signature phrase is on

the chart.

THE WITNESS: It -- it is.

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BY MR. BUSCH:

Q. Okay? It is? All right.

Okay. Is there more? Have you found additional

similarities, Ms. Finell?

A. Yes, there are.

Q. Okay. I want to now move to bass melodies, if I could.

Is the bass melody that you have identified, the

similar bass melodies, is the part from Got to Give it Up in the


MR. MILLER: Objection, your Honor. Vague.

THE COURT: All right. Overruled. Subject to

establishing the same issue -- the same matters that we've

discussed before.

BY MR. BUSCH:

Q. Did you review the deposit copy lead sheet with respect

to bass melodies --

THE COURT: And talk more slowly, please.

BY MR. BUSCH:

Q. Did you review the deposit copy lead sheet with respect to

the bass melodies?

A. Yes.

Q. Is the bass melody that you are analyzing and comparing to

Blurred Lines in the deposit copy lead sheet of Got to Give it

Up?

MR. MILLER: Same objection, your Honor.

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You may answer.

THE WITNESS: Yes.

Q. Does the deposit copy lead sheet for Got to Give it Up

reflect that the bass line continues throughout the song?

A. Yes.Q. Okay. How often does the bass line and descending bass

line appear in Blurred Lines?

MR. MILLER: Objection. Lacks foundation.


BY MR. BUSCH:

Q. Go ahead.A. The bass line in Blurred Lines and its similar features

recur throughout Blurred Lines. It's a repetitious song.

Q. Have you created audio examples comparing

A. Oh, I didn't complete my answer.

THE COURT: Excuse me. Next question, please.

BY MR. BUSCH:

Q. Did you want to correct something, Ms. Finell?

A. Thank you. I believe --

THE COURT: Restate the question, please.

BY MR. BUSCH:Q. Does the bass melody from Got to Give it Up repeat -- how

often does the bass line repeat throughout Blurred Lines?

A. Yes. Yes, I believe it's 77. It occurs in 77 --

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THE COURT: Would you read the question, please?

Okay. Restate the question, please.

Miss Finell, wait until I tell you to respond. Thank

you.

Go ahead.

Q. How often does the bass line from Got to Give it Up that

you've identified appear in Blurred Lines?

MR. MILLER: Same objection. Asked and answered.


You may answer briefly.

THE WITNESS: I think it's in 77 of the measures. Out

of 130.

BY MR. BUSCH:Q. Okay. We played earlier for the jury, if you recall, the

bass line and keyboard together that you've described as the

heartbeat of the song?

A. Yes.MR. BUSCH: Okay. Now, your Honor, we would like to

put on the board, based on Exhibit 376, slide 16.

THE COURT: All right.

MR. MILLER: Same objection, your Honor. The

transcription of the bass part is not what's in the deposit

copy.THE COURT: All right. Same rUling. You can have a

standing objection on that.

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You may display that.

BY MR. BUSCH:

Q. And can you explain to the jury what they're about to --

what they're reviewing first, Ms. Finell?

A. Yes. This is from the individual tracks of the recordings

of each song, so Got to Give it Up, it's the first four bars in

the introduction section of the song. And the same with Blurred

Lines, the first four bars, pitchshifted up to be in the same

key as Got to Give it Up.

Q. And you've prepared comparative transcriptions of the two;

correct?

A. Yes.Q. Would you please explain to the jury the numbers and the

arrows that are above the transcription?

A. Yes. The arrows show where the notes are the same.

They're called target notes in this analysis. So that means

that in my opinion, those are the most important notes; the

essential notes of each bass line. And it shows that the Is and

the flat 7, the little -- the flat 7 looks like a small B, lower

case B and a 7 but that means flat 7.

So the Is and the flat 7s are the same between the

songs and often in the same rhythmic positions. And beyond

that, both songs have a leap up from scale degree 1 to 4.

Q. Okay. Can you please explain what you mean by both songs

have a leap up from scale degree 1 to 4?

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A. Yes. In analyzing melodies, melodies can go in three

different ways. They can repeat themselves, as I earlier said,

static, meaning that the note repeats itself, it does not go up

higher or down lower. Or a note can go -- the second note in a

series and then the third note, etc., can go up higher or down

lower.And when it goes up higher or lower, it can either go

to the next note, adjacent note, if you think of a piano, it

would be like the next white note above the C would be to D, to

E, etc. That's call step wise. Or you could jump over those

notes and go from one lower note to a note quite a bit higher,

or the reverse, from one note to another note quite a bit lower

and that's called a leap.

Q. And why is the similarity in the leap significant in your

mind?A. Because it represents a shared creative choice of going

from exactly the same scale degree 1 to the exact same scale

degree 4 in both.Q. In your opinion, are the notes that you have transcribed

between a comparison of the notes that you've transcribed, Got

to Give it Up versus Blurred Lines with respect to the bass

melody, very similar?

A. Very similar, yes.

Q. Okay. Do you have audio of the bass line with the

keyboards removed?

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A. Yes. The audio that we will be hearing is only of the bass

line by itself.

MR. BUSCH: Okay. Would you please play.


BY MR. BUSCH:

Q. Okay. Have you prepared a mash-up where the two bass lines

play over each other?

A. Yes.

Q. Okay. And what is a mash-up?

A. A mash-up is when two different recordings in this case are

played at the same time so that you can see whether or not they

have coinciding notes. It's -- in visual terms, it would be

like superimposing two different musical lines to see if all

the melodies have the same pitches, for example.

Q. And what is it in your view that it shows if the two

mashed-up songs play on top of each other very well without

differences being noticed?

A. It definitely suggests similarity.

Q. Do you have an opinion whether if that were not the case,

there would be a clash?

A. Yes. There would be what musically you would call

dissonant. It would be a clash, yes.

Q. And how was -- how was the mash-up you prepared for the two

bass lines for this case prepared? How were they prepared?

A. Well, they were pitchshifted so that they would be in the

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same key and then it was a matter of just playing each of them

individually at the same time.

Q. And did you use the multi-tracks from both songs of the

bass line?

A. Yes, I did.

Q. Okay. Did you satisfy yourself as part of this process

whether the two components that were mashed-up actually

reflected the lead sheet of Got to Give it Up and the commercial

recording of Blurred Lines?

A. Yes.

MR. BUSCH: We would like to play the mash-up on

page 17, your Honor.

THE COURT: You may.

MR. BUSCH: Thank you.


BY MR. BUSCH:

Q. And what do you believe that shows, Ms. Finell, with

respect to the notes?

A. That the two lines coincide very closely through most of

it.

Q. I want to talk now about the descending bass melody, if we

could.

A. Okay.

Q. And with respect to the descending bass melody between Got

to Give it Up and Blurred Lines, do you have an opinion about

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whether those are similar?

A. Yes. They are very similar.

Q. Why is that?

A. The descending bass line, which means a bass line that

moves down to lower notes from higher notes -- the descending

bass line in Got to Give it Up both begin on the 5 of the scale

and end on the 1 of the scale. So they end up on the same

targeted destination.MR. MILLER: Objection and move to strike. This is

based on the sound recording now, it's not based on the deposit

copy.MR. BUSCH: I will establish the foundation.

THE COURT: All right. Let's see.

Ladies and gentlemen, I will rule in a moment based on

the next answer.

BY MR. BUSCH:Q. Is the descending bass line in the deposit copy lead sheet?

MR. MILLER: Objection. Vague.

THE COURT: Overruled. We have been over this.

Do you understand the question?

THE WITNESS: I do.

THE COURT: You may answer.

THE WITNESS: Yes.

BY MR. BUSCH:Q. And is your transcription that you have prepared for this

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from the deposit copy lead sheet of Got to Give it Up?

THE COURT: Slow down with your questions, please.

BY MR. BUSCH:

Q. Is the transcription that you prepared in the deposit copy

lead sheet of Got to Give it Up?

A. It is it is shown in the deposit copy, yes.

Q. Okay. All right. I would like to put on the screen

page 18, Exhibit 376.

Would you please describe your transcription.

A. Yes. So if you see the arrows above the numbers, the upper

line is Got to Give it Up and the bottom line is Blurred Lines.

So, again, we're talking about two bass lines that go

down or descend in the same way with the same target notes.

In Got to Give it Up, which is the upper line -- I

don't know if I okay. This is the upper line so you can't

see it now. So could you circle that? Thank you.

So the upper line shows a 5 and then a 4 and then a 3

flat, which I'll explain in a minute, and a 1.

And music analysts are taught to analyze through

directions that music goes, that melodies go, and analyze the

notes that are contained in those movements.

So what we're talking about is something that goes

from 5, which is the first note, down to a 1.

THE COURT: Next question, please.

MR. BUSCH: Okay.

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Q. And do you believe that to be significant?

A. Yes. In comparison to Blurred Lines, yes.

Q. Why?

A. Because Blurred Lines also has its bass melody descend from

a 5, which is the first arrow, and ends on a 1, and has some of

the same intervening notes, which are less important, but

they're there.

Q. Okay. With respect to Blurred Lines, is there something

that you have identified called octave rebound or doubling going

on?

A. Yes. Some -- okay.

Q. What is that

A. Thank you.

Q. -- could you please explain?

A. All right. So octave rebound is a term in music analysis

in which you see that the same note is played again at a

different octave.

Octaves mean the notes are 8 notes apart so that in a

standard scale of 7 notes, C, D, E, F, G, A, B, the next note

that you would hit if you were playing it on a keyboard would be

another C and that's called an octave.

So if you sing, you know that sopranos sing in one

octave or register and somebody else could sing the same notes

an octave below if that person were an alto.

So in this case, what's happening is that the descent

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is the same. It's from 5 to 1 with some intervening notes, but

in addition, each note is echoed in what you call an octave

rebound. So it's played -- the note itself is played first by a

lower note and then up to the same register as the -- if we

could circle the unparenthesized notes, you see the 5 there and

then the 4 and then the 3 and then the 1.

So these notes are like the above, the 5, the -- if

you could circle the 5 -- no, no.

THE COURT: wait a second.


THE WITNESS: Okay.

BY MR. BUSCH:

Q. All right. Can you -- are the notes that have been circled

the same as the notes in Got to Give it Up?

A. Yes.

Q. And is there doubling going on?

A. Yes. That's what I meant by the echo. The lower element

of each note, the ones that are in parentheses on the Blurred

Lines are the lower octave first. So that it alternates low,

high, low, high, low, high. But all the highs are the same note

and the low one is the same note an octave below.

Q. Is this in your experience, this doubling, something a

composer does oftentimes to camouflage similarities in another

work?


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BY MR. BUSCH:

Q. Is this a disguising technique?



BY MR. BUSCH:Q. Why do composers often time double, in your experience,

Ms. Finell?MR. MILLER: Same objection.


BY MR. BUSCH:Q. Do you have an opinion about what the purpose of octave

rebounding is?


Let's move on, please.

BY MR. BUSCH:Q. Do you have an example of octave rebound, Ms. Finell?


THE COURT: Sustained. It's been explained.

Is there something new?

MR. BUSCH: I would like to have the jury hear --

Q. Can you play on the keyboard the same composition with

octave rebound and then with octave rebound removed in order to

show the two notes are similar?

A. Yes.MR. MILLER: Objection. 403.

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THE COURT: Is that different than what is shown on

the exhibit, the audio excerpts shown in page 18?

MR. BUSCH: It is different.

THE COURT: All right. You may play that.

THE WITNESS: Thank you.

THE COURT: Are you planning to play what is on

page 18?

MR. BUSCH: No, your Honor. She is going to play an

example.

THE COURT: Okay. So it's one or the other; right?

MR. BUSCH: Yes.

THE COURT: Would you read the question, please.

(Record Read)

THE COURT: Do you have the question in mind?

MR. BUSCH: She answered yes.

THE COURT: I didn't hear.

THE WITNESS: Yes.

BY MR. BUSCH:

Explain to the jury what you are about to

THE COURT: I think we just did that

BY MR. BUSCH:

Q.

go ahead.

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Q. Explain to the jury the composition you are about to play

with and without the octave rebound.

THE COURT: I think this question was just posed which

is what I had read. That was what you asked her to do. And


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that's why I asked her if she understood the question and she

said yes.Read the question once more, please.

(Record Read)

THE COURT: Go ahead.

THE WITNESS: Okay. So this is octave rebound in

Blurred Lines.

I'm sorry. I'll do it again.

(Whereupon, the witness plays for the jury.)

THE WITNESS: And then with no octave rebound.

(Whereupon, the witness plays for the jury.)

BY MR. BUSCH:Q. Can you play the comparison of the descending bass line

from Got to Give it Up so the jury can hear the comparison of

the two.A. I don't have that here at the keyboard. I would just be

doing it by memory.

Q. Okay.(Witness plays for the jury.)

THE WITNESS: That's Got to Give it Up.

(Witness plays for the jury.)

BY MR. BUSCH:

Q. And that is?

A. Blurred Lines without the octave rebounds.

Q. Thank you.

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Do you have an opinion about whether the descending

bass line in Blurred Lines versus Got to Give it Up -- whether

the notes are very similar?

A. Very similar.

Q. Please explain why.

A. Well, they have all the same target notes. They're used in

the same way to close the phrase. It -- they're significant to

both songs in the same way.

Q. Okay.

A. They have most of the same notes.

Q. All right. Thank you.

We've -- we previously talked about the keyboard being

in the deposit copy. Do you recall earlier I asked you about

that?

A. Yes.

MR. BUSCH: Okay. Your Honor, I would like to now

play -- or show on the screen Exhibit 376, slide 20.

MR. MILLER: Same objection.

THE COURT: That's fine. Overruled.

BY MR. BUSCH:

Q. Can you explain to the jury with respect to the keyboard

parts the transcriptions that we are reviewing and similarities

that you have found?

A. Yes. But this -- this isn't the right slide.

Q. 19. My mistake.

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A. Thank you.

Q. Same question. Please explain to the jury what they're

seeing and why you believe they are similar.

A. Yes. The keyboard parts in the two songs, as I described

them earlier, are part of the heartbeat or the pulse of the

song.

They're very similar between them for two -- two or

three reasons. Primarily the keyboard part plays harmonies or

chords that are indicated in the lead sheet.

In Blurred Lines there are two chords that alternate

in the song and in Got to Give it Up, those two chords appear in

a slightly decorated form.

So they share the three main notes of their primary

chords together. The chords in -- and number two is how -- how

often those chords are played in terms of the rhythm and

repetition.

THE COURT: All right. Stop there.


MR. BUSCH: Okay.

Q. Would you please explain what you mean when you say that

they share the distinctive offbeat rhythm, please.

A. Yes. As I mentioned about rhythm, there are beats, what we

think of as beats in a measure. If you're tapping your foot to

rhythmic music that you're listening to, the onbeat, so to

speak, is the part where your foot goes down to the floor and

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when you raise your ankle up to prepare for the next tap, that

would be the offbeat.So it's strong, weak, strong, weak, strong, weak.

That's what rhythm about in this case -- context.

Well, both songs here use -- play their keyboards with

their same harmonies on the offbeat and it's very distinctive.

It throws the pulse off. It feels dislocated.

Q. And is that something you found to be unusual coincidence

between the two?

A. Yes. A distinctive trait.

Q. Okay. And you also say that they have the same two root

chords of three notes in Blurred Lines with two identical scale

degrees. Would you explain that?

A. YesMR. MILLER: Objection. Asked and answered.


Let's take a brief break here, ladies and gentlemen.

We will take a break for 10 minutes. Don't discuss the case.

Thank you.(Jury Out)

THE COURT: You may step down, Ms. Finell. You may be

seated.We will resume in 10 minutes. We have a request for

this from the jurors.(Recess taken)

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(Jury Out)

THE COURT: Is Ms. Finell here? Would you have her

come up, please.(Jury In)

THE COURT: Please be seated. All eight jurors are

back.Ladies and gentlemen, does any of you have a

scheduling conflict this afternoon? Okay. We will probably go

for about another 45 minutes to an hour. Does that work? All

right. Thank you.

Please proceed, Mr. Busch.

BY MR. BUSCH:Q. I believe we were on the keyboard parts. We had gone

through the first two similarities on the page.

Would you please describe what you mean by same

rhythmic suspension?A. Yes. The keyboard parts, as I say, have this constant

offbeat rhythm that I describe as a pulse. But it's interrupted

in both keyboards in the same way.

If you look at the fourth bar in the upper -- in

the -- if you could circle the fourth bar with the rhythmic

suspension, that's it right there. You'll see that also below

it in the fourth bar is a rhythmic suspension.

So what rhythmic suspension means here is that that

constant pulse of going on the offbeat is interrupted

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temporarily and the notes are held longer and it's done very

similarly. So it's a temporary interruption and that's the

purpose of the word suspension.

Q. Is that temporary interruption or suspension in both of the

keyboard parts in your mind a significant similarity?

A. Yes. I would consider it a shared creative choice that

both composers made.Q. And the last bullet point that you describe is left-hand

parts share distinctive rhythmic traits and pitches.

Would you describe what you mean by that.

A. Yes. On a keyboard such as a piano, the keyboard is

basically divided in half. The first half -- a piano keyboard

has 88 keys.So your right hand is more or less responsible for all

the keys -- all 44 keys from middle C up to the top -- top

highest note, and your left hand is responsible in essence for

all the notes from middle C down to the very bottom notes.

So when I say the left-hand part, I'm talking about

the lower notes that are played with the left hand. Keyboard

player's left hand, I mean.Q. And what are the distinctive rhythmic traits and pitches

that are shared?A. Yes. The left hand has similar target notes that are

actually primarily the same in both, meaning the A, which is

scale degree 1, and then the flat 7, which is scale degree --

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scale degree flat 7, which is a G natural in both.

In Blurred Lines, the main target notes in this

particular four bars is all As so it's all target number --

target note, scale degree 1, but it shares the same off -- the

same rhythms in the sense that there's many, many bars of --

moments of silence. That's what -- it's hard to explain but

there are rests, which mean don't play any notes.

So they share the same rests. And silence is as much

of a rhythm as a note playing is. So they share the same

silences as well as where the notes occur, say, on the second

half of beat 4 quite often.

Q. Are these four similarities, in your opinion, the result of

shared creative choices?

A. Absolutely. There is no accident about them.

MR. BUSCH: Okay. Would you please play the two

audios.

MR. MILLER: Objection. And move to strike.

THE COURT: I'm going to strike the last sentence,

there is no accident about them, as not part of the case.


BY MR. BUSCH:

Q. And then that was what did we just hear?

A. Yes, that was Got to Give it Up, bars 1 through 4.

Q. And now what will be the next thing we will hear?

A. Blurred Lines, bars 1 to 4.

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BY MR. BUSCH:

Q. Okay. And have you also prepared a slowed-down, or in tech

terms, time-stretched audio example of the keyboards?

A. Yes. A comparison of both keyboards slowed down quite a

bit, yes.

Q. And why did you do that?

A. It's easier to focus for a listener if you slow it down.

It's similar to slow motion if you're watching a football game.

You can focus on it more easily if the music is slowed down a

little bit.

MR. BUSCH: I would like to play, then, Exhibit 376,

No. 20.


BY MR. BUSCH:

Q. That was Got to Give it Up?

A. Yes.

Q. And now is Blurred Lines?

A. Yes.


BY MR. BUSCH:

Q. What does that illustrate as far as you are concerned?

A. It illustrates all of their similarities that they are

playing the same chords, that they are playing the same rhythms,

that their left hand alternates with the upper hand rhythms and

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that they're very similar.Q. What do you mean when you say that the left-hand parts are

in both songs?A. Well, again the left hand is what you would call sparse.

If you look -- maybe you could circle this. If you look at the

lower -- what's called the left hand, it's -- in essence, it's

the bass part within the piano itself. So the low notes are --

I'm sorry. I'll have to explain it with notes. It's the A and

the G and the A and the G in Got to Give it Up and in the lower

part, it's A, A. See how they have all the rests there. It's

very silent for almost -- most of the bar. So they alternate

with the upper. So you will have that low, high, low, high.

And the high part is always on the offbeat.

So it's very -- it's almost like a conversation

between the lower -- that lower left-hand part and that higher

response, in a sense, chord in the right-hand part and they're

done in the same rhythms. They are very similar rhythms.

Q. All right. Thank you. Have you found -- we can move on

from the keyboards now.Have you found even more similarities, Ms. Finell?

A. Yes. Quite a few more.

Q. Okay. Have you found similarities in lyrics and music that

you have identified as word painting?

A. Yes, I have.Q. Okay. Would you please explain to the jury what you mean

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when you say word painting.

A. Yes. In music, there's a compositional technique in which

the music in terms of the melodies, rhythms, harmonies, any

number of melodic traits, can be used to actually illustrate or,

so to speak, paint the words in the lyrics.

For example, if it's a song about you want your --

your beloved to return to you, a melody that does that may take

a note and then depart from that note to another note and keep

coming back to the first note. What we would call rebounding.

So that musically it illustrates the meaning of that lyric.

Another example is if a song is singing about going

higher, that the notes also go higher in pitch as a way of

illustrating that. That's called word painting.

Q. Okay. Is word painting a long- established musical

composing technique?

A. Yes. It's been used for many centuries.

Q. Do you believe there is very similar word painting in Got

to Give it Up and Blurred Lines?

A. Yes.MR. BUSCH: Exhibit 376, slide 32.

Q. What does this -- what does this slide show?

A. In both songs, Got to Give it Up and Blurred Lines, there's

a section of each song with a similar series of words, each sung

within very short phrases of two or three notes in length, one

after the other. In both songs this is in a section called a

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bridge section, which means a transition from other sections or

two other sections.

Q. Okay. With respect to the bridge sections, are they

parallel in your mind between Blurred Lines and Got to Give it

Up?

A. Very much so.

Q. Can you explain to the jury how?

A. Well, they both share the word painting element, and there

are other elements that they have in common with the melody, in

other words, the way they do the word painting, as well as the

words themselves.Q. So it's the melodies, the words. Is there a comparable

function of each in both songs?

A. Yes. The function is the bridge. It's meant to transition

between one section and another.

Q. Okay. So it's lyrics, the melodies sung to the lyrics or

the melodies that underlie the lyrics and the function; is that

correct?

A. That's right. All four.

Q. And is there a shared unusual compositional technique as

well?A. Well, the technique is word painting, as I said, but I

should say that their bridge acts in each case like a bookend to

another important section which I'll be talking about a little

bit later, but both the Blurred Lines and the Got to Give it Up

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in essence bookended another key section of their songs in

similar ways.Q. All right. So let's start with No.1, the similarity of

lyrics. Explain what this page reflects with respect to the

similar lyrics in the two songs?

A. Okay. In Got to Give it Up the series of lyrics that are

each separated by rests, so they are separate phrases one right

after another, are move it up, turn 'round -- I'm sorry -- turn

it 'round, ooh, shake it down.

And then in Blurred Lines, there's the similar series

of phrases, one right after another, and the words are also

there but in a slightly different order. So in Blurred Lines,

it's shake around, get down, get up. And the arrows show

where -- how they relate to one another on the page.

Q. All right. You also said there was a similarity in the

music these phrases are set to. What is that similarity?

A. Well, for example, of the three -- of the four notes that

are contained in these three phrases, each of them being so

short, altogether they have four scale degrees that they use in

their three phrases. Of those four scale degrees, three are

identical, No.1.No.2, the way they paint the words is similar. Where

it says move it up, both of them go up in the same way to the

next scale degree. When it says get down, they both end up

down -- coming down onto scale degree 1 on what you call the

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downbeat or the strongest emphasized beat of the bar. So

there's that illustration element, too.

Q. Your third similarity within this is a shared function.

What do you mean by that?

A. It's that bridge function again.

Q. Okay. And I'm not sure you mentioned this specifically

yet, but what is the section in the songs, respective songs,

where the bridges appear?A. Yes. In Got to Give it Up, there's a section of the song

that we have -- we will discuss soon called parlando section,

which I'll explain, which is a deviation from anything before or

after it in the song.In Got -- I'm sorry. In Blurred Lines, there is a

section that is a rap section that you can hear clearly because

it's completely different from the before and after portion of

that song.So in Got to Give it Up, this bridge, move it up, turn

it 'round, shake it down, is immediately before the parlando

section, which is a chanted section that's a deviation. And

it's a bookend. That's just the best way I can describe it.

And with Blurred Lines, it's immediately after the rap

stops and then it's shake it 'round, get down, get up, and

that's the bookend on the other side of that similar parallel

section.Q. Okay. And I may have neglected to mention this, but are

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these -- is this the lyrics and the melody underlying the

lyrics reflected in the lead sheet?

A. Absolutely, yes.

All right. Would you please turn to Exhibit 376,

I would like to put on the board, please.

Could you please explain to the jury what they're

seeing on this demonstrative.

A. Yes. This describes the points I've already made, really,

Q. Okay.

slide 33.

about the pitches, the way in which the word down and up is

painted similarly in the melody, and the way the lyrics, the

series of lyrics from Got to Give it Up are reorganized in

Blurred Lines and their shared location as a bridge and

function.

Do you -- should I explain what we're going to hear?

Q. I will ask you the question.

A. Excuse me.

Q. And I see you have some audio here. What is the audio

excerpt that you have prepared that we're about to hear?

A. Well, this is in a way a mash-up, meaning that in order to

illustrate how parallel these are, I changed the order so that

Got to Give it Up's lyrics are alternating in their related way

with Blurred Lines. If you remember the prior slide with the

arrows crossing over each other, it's to show you how they would

sound the same if they were actually done in the same order.

So you'll be able to hear them. First, the one song

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148

and then the other with the shared lyrics, so they're not out of

order any longer.

MR. BUSCH: Would you please play the audio excerpt,

please.

(Whereupon, the au¢io was played for the jury.)

BY MR. BUSCH:

Q. In your opinion, what did we just hear?

A. Three very similar phrases between Got to Give it Up and

Blurred Lines.

Q. And melodically?

A. Melodically very similar and the word painting is, you

know, an unusual choice that they both share.

Q. In addition, did you identify what you believe are similar

themes within Got to Give it Up and Blurred Lines?

A. Themes in terms of the story lines that they share, yes.

Both songs do share an overall theme of their story

lines. Blurred Lines in a way talks to another person, whereas

Got to Give it Up is speaking about himself mostly.

But in Got to Give it Up, the story line is of an

introverted person who wishes that he could be more liberated,

more free, more attractive to women who he would hope would want

to dance with him. So there's a transformation that he is

trying to make in himself and that's what he talks about in the

song, and then actually addresses women that he's flirting with

in the song.

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In Blurred Lines, the transformation is on the part of

the singer is really of the other person, hoping that the

young -- the girl that he is seeing to will transform from a

good girl to a more sexually liberated girl and there is a

singing back and forth about that in that song.

MR. MILLER: I would object and move to strike in that

she has been qualified as an expert in music and this is a

literary theme.

THE COURT: sustained.

Disregard the last question and answer.


BY MR. BUSCH:Q. Have you prepared a chart that shows lyrical similarities

between the two songs?

A. Yes.MR. BUSCH: Could you put on the chart page 35.

MR. MILLER: Your Honor, I would object to this

exhibit on the third column, for the same reasons as the prior

objection.THE COURT: Sustained.

So do you have an objection to columns 1 and 2? I

think that's something similar to what was shown by the Thicke

parties in opening, isn't it?MR. MILLER: That's correct, in response to this.

THE COURT: All right. You may show columns 1 and 2.

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MR. BUSCH: Thank you.THE COURT: But please focus your questions, in light

of my ruling, with respect to literary versus musical issues.

Thank you.MR. BUSCH: I understand.

Q. Have you prepared comparative lyrics between Got to Give it

Up and Blurred Lines?

A. Yes.Q. And the Got to Give it Up lyrics that you've identified in

column 1 are identified -- those -- each one is next to a --

MR. MILLER: Your Honor, I apologize for interrupting.

The header is also -- I didn't notice that.

THE COURT: Okay. Go ahead. Ask the questions. I

don't know that you need this chart to display this, so ask the

questions. Let's go.

MR. BUSCH: Okay.

THE COURT: Please.

BY MR. BUSCH:Q. You've compared the lyrics but my body yearned to be free

with the lyrics just let me liberate you; correct?

A. Yes.Q. And you compared the lyrics somebody watching might wanna

make romance with I know you want it, must wanna get nasty;

correct?

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Q. And the lyrics you can bump me when you want to, babe,

let me be the one you backversus -- I apologize in advance

that ass into; correct?

A. Yes.Q. And the lyrics let me slip into your erotic zone

versus I'll give you something -- and I'll apologize again

I'm not going to read it. You can read it on the screen. I

lost that bet.All right. Okay. You've been discussing, Ms. Finell,

the rap parlando section similarities in those compositional

similarities; correct?

A. Yes.Q. Okay. Can you please explain for the jury the next

similarity you found which is the rap parlando similarity?

A. Yes. In Got to Give it Up, there's a section that

deviates, and I mentioned earlier that a musicologist looks at

broken rules or deviations from the norm.

So it deviates from itself in the in the sense that

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the music changes from melodic music to chanted music, some of

which is just sung in a monotone, almost in a spoken way. That

technique of not having a melody --MR. MILLER: Objection. Your Honor, this is about the

sound recording.MR. BUSCH: No, your Honor, we've addressed this.

THE COURT: I think you can be more focused. She has


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already testified extensively about this, so what is your

focused question, please?

BY MR. BUSCH:Q. Let me ask this question first in light of the objection by

Mr. Miller.Is the chanted -- is the chanted spoken portion of the

parlando in the lead sheet?A. Yes. I could show it in the lead sheet. It's very clearly

notated.

Q. Okay. Thank you.Now, with respect to the parlando rap section, is

there anything -- what is the most significant thing that you

have identified with respect to it?

A. WellMR. MILLER: Objection to form.

THE COURT: I agree. Sustained. Are you referring to

sections or section?MR. BUSCH: I understand what my limitation is,

your Honor, so let meTHE COURT: Because you referred to parlando and rap

in the same question.

MR. BUSCH: That's fine.

Q. with respect to the parlando section that you just

described, the spoken, chanted section, what is the bar on which

it begins in Got to Give it Up?

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A. 73.Q. And with respect to the rap -- T.I. 's rap section in

Blurred Lines, what bar does it begin on?

A. 73.Q. with respect to the parlando chanted section in Got to Give

it Up, what bar does it end on?

A. 88.

Q. With respect to the rap section of Blurred Lines, what bar

does it end on?

A. 88.

Q. Do you have a chart that you've prepared that illustrates

this?

A. Yes.Q. Would you please put on the screen 376/37.

Would you please describe for the jury what this chart

shows.A. This chart illustrates where in the structure of each song

the parlando section occurs in Got to Give it Up and the rap

section occurs in Blurred Lines. It's in the same location.

Q. Okay. And you say deviation from material before and

after.What do you mean by that?

A. In both songs, before and after these sections, the songs

are sung in a melodious way in Got to Give it Up, where the

melodies rise and fall many notes, 6, 7, 5 notes, up and down,

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as I say, with leaps, etc., but when it changes to parlando, it

sho~s on the lead sheet. It's just a single note, for example,

It's just a single note sung repetitive wayfor a whole bar.that you would chant, almost like you would speak instead, and

it shows -- it even changes the rhythm to what you call

triplets. It's more as an inflected speaking than it is a full

out singing.And that goes on until bar 88, and then it goes right

back to the signature phrase which is very melodious and

involves all the different movements of the note. So it's

definitely a deviation.The same things happens in the rap. Of course, there

it's really obvious because it goes to pure speaking in a

rhythmic sense. But parlando is a precursor to the rap, in my

opinion, many years before -- before rap was used as an art

form.Q. When you say the third phrase similar starting lyrical

phrase, what do you mean?A. Yes. In the parlando, the early phrase is you can bump me

when you want to, babe, is the lyric. And in the rap section,

right after the first statements, the immediate next phrase

is -- right after one thing I ask you is the phrase that we

didn't want to say before. And I don't have it in front of me.

But it means the same thing.Q. Okay. All right. Do you have audio examples to show the

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bridge followed by the spoken part followed by the bridge in

both songs?A. Yes. It will show the way the contrast exists and also the

bridge being the bookend for these separate sections, yes.

MR. BUSCH: Would you please play the audio on slide

38, Exhibit 376.(Whereupon, the audio was played for the jury.)

BY MR. BUSCH:Q. All right. At some -- before you play that, where was

the -- where did the spoken end and the more melodic singing

begin within that?A. It was right where he started -- I mean, I'd have to have

it in front of me, but it was right where he started -- I think

it was you can move your body, baby.

Q. And was the bars that preceded that 73 to 88?

A. Yes.Q. Okay. All right. Let's play the second track, which is

Blurred Lines rap and surrounding bars.(Whereupon, the audio was played for the jury.)

BY MR. BUSCH:

Q. Okay. Okay.Now, underlying both sections, did we hear the organ

and bass playing as well?A. Yes. The heartbeat is always going and that's what I mean

about the constellation. There's so many similarities at the

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same time.

Okay. Now--

MR. MILLER:

THE COURT:

the question.

Q.

Move to strike everything after yes.

Motion is granted. It's not responsive to

Let's move on, please.

MR. BUSCH: All right.

Q. with respect to the third audio exhibit, what are we going

to hear?A. SO this is the same thing but without the -- any of the

instruments playing so you can focus on how the -- how the vocal

lines change.Q. Okay. Now, with respect to Got to Give it Up, is there a

portion toward the end where the chanting goes back to a more

melodic singing?

A. Yes, there is.Q. And I just want, for the jury's sake -- the chanting ends

at bar 88 and more singing begins?

A. Yes. It's just -- it transitions right back to the way it

was in the earlier part of the song. The deviation is over, in

essence.Q. Okay. And is that the same length as the T.I. rap that we

heard?

A. Exactly the same length.(Whereupon, the audio was played for the jury.)

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BY MR. BUSCH:Q. Okay. So bars 73 to 88 were up to but not including when

you move -- when you're moving your body?

A. That's right. That's when it goes back to the melodious

part.Q. And the T.I. rap is 73 to 88 as well?

A. That's right.

Q. And would you play -- what is the fourth --

A. It's the vocal track only in Blurred Lines.

Q. Let's play that, too.(Whereupon, the audio was played for the jury.)

BY MR. BUSCH:Q. So with respect to that last audio example, was that bridge

that you've identified in Blurred Lines shown or heard right

after the rap section?

A. Yes, it was.Q. And in the last example of Marvin Gaye's parlando preceding

his parlando was the bridge that you just identified heard?

A. Yes. The bridge with the word painting was, yes.

Q. And do you consider that significant?

A. Yes. I I think it's what you might call a fingerprint.

Q. What do you mean by fingerprint?

A. In musical terms, I mean that it's the -- the similarity is

so unlikely otherwise that it's a fingerprint and --

MR. MILLER: Objection, your Honor.

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MR. BUSCH: Her opinion, your Honor.

THE COURT: I agree. Just a minute.

3 Strike the last response.

4 What's the next question, please?

5 BY MR. BUSCH:6 Q. Is it unusual to have two such similarities like you

7 just like we just heard in two songs?

A. Yes. Very much.

Have you ever, in your years of experience in thisQ.

business -- have you ever seen similarities like that, beginning

and starting at the same bar and measure with the same bookends?

Have you ever seen anything like that?

MR. MILLER: Objection. Relevance. 403.

THE COURT: No. Overruled.

You may answer that.

THE WITNESS: No.

BY MR. BUSCH:

Q. Okay. We have prepared have you prepared a chart

showing those constellations of similarities that we have gone

over at length over the last day and where they appear within

Blurred Lines?

A. Yes.

Q. Okay.

THE COURT: Is there something new that you are

offering now that hasn't been covered?

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MR. BUSCH: We're showing where -- I'm almost

finished, your Honor. It will take 30 seconds.

MR. MILLER:

THE COURT:

Object on 403 to going over all this.

Based on the question you just asked, this

has already been covered.

MR. BUSCH: It hasn't been covered to show where it

runs throughout the entire song.

THE COURT: This is a demonstrative exhibit.

MR. BUSCH: Yes.

THE COURT: She has already testified I think

concerning this. So let's see what your question is.

BY MR. BUSCH:

Q. Do you have a document that illustrates how pervasive the

use of Got to Give it Up in Blurred Lines is?

MR. MILLER: Objection. 403.

THE COURT: Sustained. That's not a demonstrative

exhibit.

BY MR. BUSCH:

Q. Well, do you have a --

THE COURT: Does she have an opinion, perhaps, but not

a demonstrative exhibit.

BY MR. BUSCH:

Q. Do you have an opinion about the elements that are

contained in Blurred Lines that are very similar to those in Got

to Give it Up?

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THE COURT: This is cumulative.

Is there something new?

BY MR. BUSCH:

Q. Is there any bars of Blurred Lines that do not contain

something substantially -- very similar to Got to Give it Up?

A. Very few. Out of 130 bars, almost none.

MR. BUSCH: That's all we have for Ms. Finell,

your Honor.

THE COURT: All right. Thank you. Thanks for being

expeditious.

What's your time estimate on your cross-examination?

MR. MILLER: Hour, hour and a half, I'd say. Probably

more like -- probably over an hour, I would guess.

THE COURT: All right. Then I think probably the most

efficient thing, ladies and gentlemen, would be to let you go

home. You don't want to go home?

Well, I -- as counsel know, I agree with that.

Can you cover a section in 15 minutes?

MR. MILLER: Yeah, I guess I could.

THE COURT: All right, then, let's proceed for 15

minutes, approximately. Is there any other juror who has a

conflict? No. All right.

Go ahead, please, Mr. Miller.

CROSS-EXAMINATION

BY MR. MILLER:

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Documents

Blurred Lines Trial - transcript Exhibit G part 2.pdf