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HIBIT G
Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 1 of 66 Page ID #:9729
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Thursday, February 26, 2015
UNITED STATES DISTRICT COURT
2 CENTRAL DISTRICT OF CALIFORNIA
4 THE HONORABLE JOHN A. KRONSTADT
5 UNITED STATES DISTRICT JUDGE PRESIDING
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7 Pharrell Williams, et al.,
8 Plaintiffs,
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vs. Case No.
CV 13-06004-JAK(AGRx)
12 Bridgeport Music, Inc., et al.,
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Defendants.
REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS
Day 3
Los Angeles, California
22 Pamela A. Batalo, CSR, FCRR, RMROfficial Reporter
23 Roybal Federal Building255 East Temple Street
24 Room 181-1Los Angeles, California 90012
25 (213) 687-0446
United States District Court, Central District of California
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 2 of 66 Page ID #:9730
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correct?
A. Yes.
Q. And you wrote the liner notes on the re-issue of Live At
The London Palladium, the album on which Got To Give It Up
initially appeared; correct?
A. Yes.
Q. So you are very familiar with the song Got To Give It Up;
correct?
A. I am.
Q. Now, you had -- it is your view that you listened to
Blurred Lines when it came out and you believed that Blurred
Lines and Got To Give It Up sounded very similar; correct?
A. Yes.
Q. And it was your view that when you heard Blurred Lines, you
believed that it was utterly based on Got To Give It Up;
correct?
A. I may have said that.
Q. You may have said it or you did say it?
A. I did say it.
Q. And your view that Blurred Lines was utterly based on Got
To Give It Up led you to send an e-mail onJune27.2013.to
Doug Barasch, a senior director of digital marketing and
strategy at UMG; correct?
A. Yes.
Q. Would you please put on the board Exhibit 1200 at 1.
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 3 of 66 Page ID #:9731
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2 Kirk Bonin?
Q. Mr. Weinger, did you send this e-mail on July 9, 2013,
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A. Yes, I did.
And in this e-mail where you say, Yep, theyQ.
5 sampled/borrowed from Marvin and all is well, that was based
6 upon -- the part that says they sampled/borrowed from Marvin
7 based upon your listening to the two songs and your belief;
8 correct?
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A. No.
It was not?
No.
Q.
A.
MR. BUSCH: Okay. Let me play then page 48 -- hold on
one second.
Q. Was what was the they sampled/borrowed from Marvin based
upon?
A. I had had a conversation with Jan about the song. We
discussed its similarities and she said that it had been -- it
had been official, that everything was okay.
That it had been licensed?
THE COURT: One second, please. When you referred to
Jan, to whom are you referring, please?
Q.
THE WITNESS: Jan Gaye.
THE COURT: And if you could use --
THE WITNESS: That was my understanding of the
conversation.
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 4 of 66 Page ID #:9732
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Q. What is the difference between the -- the ownership of the
compositions and ownership of the sound recordings?
MR. BUSCH: Objection, your Honor.
THE COURT: Sustained. As framed, it's a legal issue.
MR. KING: Okay.
Q. Do you know who collects the money from the sale of the
songs or the exploitation -- let me rephrase that.
Do you know who collects the money from the
exploitation of the sheet music of Got To Give It Up as it's
embodied in sound recordings?
A. I believe in the case of most of Motown recordings, they
would be controlled by Sony ATV, publishing concern.
Q. Is there any affiliation that you're aware of between Sony
ATV and Universal Music Group?
A. There's not.
Q. In connection with the sale by Universal Music of the sound
recordings of the Marvin Gaye catalog, does Universal use the
name and likeness of Marvin Gaye to sell records?
A. Yes.
Q. Do you read music?
A. No.
Q. I'm sorry. Do you read music?
A. No.
Q. You're not a musicologist, are you?
A. No.
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 5 of 66 Page ID #:9733
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Q. Do any of your job duties at Universal Music Enterprises
involve looking for potential infringement claims that your
label might have against others who have used your products
without permission?
A. No.
Q. When you said to your bosses the song sounded familiar or
words that Mr. Busch read to that effect, what sounded familiar
to you at the time you first heard the sound recording of
Blurred Lines?
A. It had a certain groove, the party sounds and the record,
the bass line, the percussion, all had a familiar sound to it.
Q. Did you ever consult the deposit copy of Got To Give It Up
to see whether any of those items you just mentioned were in the
deposit copy?
A. You might have to explain deposit copy.
Q. Did you ever look at any sheet music of Got To Give It Up
to see if any of those elements you just mentioned, the crowd
noise, the percussion, etc., were in the sheet music as opposed
to being in the record that you had heard of Got To Give It Up?
A. I've never -- no. I've not seen sheet music for Got To
Give It Up.
Q. When you said you thought the songs sounded similar because
they had a style or a groove, were you expressing some opinion
that the songs had been copied from each other, that Blurred
Lines had copied Give It Up?
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 6 of 66 Page ID #:9734
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A. I mean, I felt it was an homage to Marvin Gaye, certainly.
Q. What do you mean by an homage?
A. There were just a lot of similarities in the way the record
was sung, the way the record feels.
Q. Other than that what you mentioned, the crowd noise and the
percussion, did the falsetto contribute to that impression?
A. Yes.
Q. The hi-hat, did that contribute to that impression?
A. Yes.
Q. The lyrics, did the lyrics contribute to that impression?
A. No.
Q. Did you find any similarity in your initial listening to
the two songs as it related to the lyrics?
A. Not at all.
Q. Okay. What would you say was the most important similarity
that caused you to send those as between the items you just
listed?
A. They had a similar kind of energy, so similar to what I was
saying about the groove and the vibe, they just seemed really
alike.
Q. Now, what was your job at the time as it related to
exploiting the sound recording of Got To Give It Up?
A. Well, we obviously in creating a Marvin Gaye greatest hits
record, it was one of his biggest hits, we would have included
it on a hits record. You know, we had done the re-issue of the
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 7 of 66 Page ID #:9735
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original LP. But the time of that record being popular had
passed so any time we can sell a record from almost 40 years
ago, we look for any sort of opportunity.
And with this sort of similarity and what I had been
reading in kind of the Court of the public, it seemed like,
oh, this sounds similar, I thought why not associate them and
get some visibility for Got To Give It Up.
Q. Were you trying to increase the sales of Got To Give It Up?
A. Yes.
Q. Were you trying to do anything with respect to the sales of
Blurred Lines?
A. No. It seemed to be doing okay on its own.
Q. Now, Mr. Busch showed you some e-mails. I don't think I
need to put them up, but I will if you need to refresh your
recollection.
When you said that all is good, was that based upon a
conversation you had -- I think you said it was based on a with
conversation with Jan Gaye.
Can you describe for me the conversation you had with
Jan Gaye that caused you to say that basically all was good?
A. Oh, it was a combination of things. Both -- we had talked
it over and I had -- my recollection of the conversation was
that it seemed like things had been worked out. And then when
she had sent the Tweet, the combination of those things, it
seemed like everything was fine between the two parties.
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Q. So you sent, I think, two e-mails to your superiors about
trying to create something that would link Got To Give It Up to
the success of Blurred Lines; correct?
A. Yes.
Q. Did you get any response?
A. No.
Q. Did the matter end then, as far as you were concerned?
A. As far as I -- there was no follow-up.
Just one question. I didn't understand what's a buy-fromQ.
link. You suggested in one of these e-mails that the video of
Blurred Lines, which the jury has already seen, have a buy-from
link.
What does that mean?
A. Well, often in this new age of digital marketing, if a
video is up on any of the video services like YouTube, whether a
song is -- whether there is an official video or a fan video,
very often what YouTube allows the record labels to do is put a
button that allows the consumer when they hear the song to click
and it will take you to a digital store to buy that song. I was
hoping we could get the association between the two.
Q. Okay. So you were seeking to have a link that would allow
people who were listening to Blurred Lines to press a button and
basically buy a record from you?
A. Yes.
Q. Of Got To Give It Up?
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 9 of 66 Page ID #:9737
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A. Yes.
MR. KING: Okay. I have no further questions. Thank
you.
THE COURT: Any recross?
MR. BUSCH: Yes, your Honor.
REDIRECT EXAMINATION
BY MR. BUSCH:
Q. Can you put on the -- I want to -- you just discussed --
you just mentioned in your conversation -- your examination by
Mr. King of a supposed conversation you had with Jan Gaye; is
that right?
A. Uh-huh, yes.
And concerning Got To Give It Up and Blurred Lines?
Yes.
Q.
A.
MR. BUSCH: Your Honor, I would like to publish to the
jury Mr. Weinger's testimony at page 32, line 16 through line21.
THE COURT: Do you propose to play it or read it?
MR. BUSCH: Read it. I don't have that video ready.
THE COURT: Any objection to that being read?
MR. KING: I'm sorry. 13 to
MR. BUSCH: 32, line 13, to page 32, line 21.
THE COURT: Is it starting at line 13 or 16?
MR. BUSCH: I'm sorry. Line 16. My mistake.
MR. KING: I would object. There's no proper purpose
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 10 of 66 Page ID #:9738
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for this.
MR. BUSCH: It's directly contrary to his testimony.
THE COURT: Excuse me.
No. Let's move on, please.
MR. BUSCH: Your Honor, may I have a sidebar?
THE COURT: No. Let's move on, please. I read it.
This witness is here for a limited purpose. Thank you.
BY MR. BUSCH:
Q. Okay. Mr. Weinger, on cross-examination by Mr. King or
examination by Mr. King, you made the point that you work in New
York; is that
A. Yes.
And that you do -- you are involved with many projectsQ.
from -- with the Interscope, Geffen, and Motown who are based in
Los Angeles; isn't that right?
A. I'm not involved in any projects with Interscope.
with Geffen and with Motown located in Los Angeles; right?
Motown at the time I was working this was in New York.
Does the fact that you live in New York and Interscope is
Q.
A.
Q.
located in Los Angeles affect in any way your ability to receive
e-mails?
A. No.
Does it affect your ability to listen to two songs andQ.
reach an opinion about your view of two songs?
MR. KING: Objection. It's argumentive and beyond the
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 11 of 66 Page ID #:9739
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scope.
403, 402.THE COURT: Yes, sustained.
MR. BUSCH: Okay.
Q. In examination by Mr. King, he said that you stated that
in your e-mails and your testimony, that the two songs -- the
words Mr. King used were sounded familiar. Did you hear that?
Do you recall him saying that?
MR. KING: Object to the form of the question.
THE COURT: Sustained.
BY MR. BUSCH:
Q. You didn't say in your e-mails and the correspondence with
various executives at UMG that the two songs sounded familiar,
did you?
A. I mean, I don't have them in front of me, so .
Q. Do you remember me showing you an e-mail where you said
that Blurred Lines was utterly based on?
A. Sure.
Q. And
THE COURT: Wait for the question, please, before you
respond. Thank you, Mr. Weinger.
Go ahead, please.
BY MR. BUSCH:
Q. And do you recall saying that you had a reaction when you
listened to Blurred Lines and the song sounded very similar to
you?
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MR. KING: It's -- I object to the form and --
THE COURT: Sustained.
BY MR. BUSCH:
Q. And did I hear you right to say that --
THE COURT: Sustained. These are not in the proper
form.
BY MR. BUSCH:
Q. Isn't it true, sir, that you believe the bass lines between
9 the two songs sounded very similar?
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A. I do.
And just to be clear, you are an employee of a defendantQ.
12 this case; correct?
13 MR. KING: Objection. Asked and answered,
14 argumentive.
15 THE COURT: You may answer.
16 BY MR. BUSCH:
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Q. You are an employee of a defendant in this case; correct?
Yes.A.
MR. BUSCH: Nothing further.
THE COURT: Just a minute. You may read page 32,
21 lines 16 through 21.
23 your Honor.
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MR. BUSCH: Thank you, your Honor. Thank you,
Q. Mr. Weinger
THE COURT: No. Just read them, please.
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MR. BUSCH: Just read them? Okay. Page 32, line 16:
Q. Have you spoken to Jan about this case and these
songs?
A. Not about this case, no.
Q. Not about -- not about 'Blurred Lines' or 'Got To
Give It Up'?
A. I don't recall.
THE COURT: Okay. Any further questions?
MR. KING: One question.
RECROSS-EXAMINATION
BY MR. KING:
Q. Mr. Weinger, when you testified that you thought the
bass lines sounded very similar, were you talking about the bass
lines that were in the sound recordings or the bass lines that
were reflected in the sheet music for Got To Give It Up?
A. I only listened to the two records, the recordings. I
didn't look to the sheet music.
MR. KING: Thank you.
THE COURT: Mr. Weinger, thank you for your testimony.
Sir, you're excused. Have a safe trip home.
THE WITNESS: Thank you.
THE COURT: Mr. Busch, are you going to resume with
Ms. Finell?
MR. BUSCH: Yes, your Honor.
THE COURT: All right. Would she come forward,
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please.
MR. BUSCH: The witness?
THE COURT: Yes. Ms. Finell, she's here. Would you
come forward, please.
Judith Finell, previously sworn
THE COURT: Please be seated. Good afternoon,
Ms. Finell.
THE WITNESS: Good afternoon.
THE COURT: Would you please restate your name. You
do not have to spell it.
THE WITNESS: Judith Finell.
THE COURT: And do you understand that you remain
under oath?
THE WITNESS: Yes, I do.
THE COURT: Thank you.
Please proceed, Mr. Busch.
MR. BUSCH: Thank you, your Honor.
DIRECT EXAMINATION
BY MR. BUSCH:
Q. Good afternoon, Ms. Finell.
A. Good afternoon.
Q. Picking up with our examination from yesterday, are there
several ways to notate a musical composition?
A. Yes.
Q. And in your experience, are you familiar with lead sheets
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and their creation?
A. I am.
Q. How so?
A. Well, I spent many years as a music editor for music
publishers, and one of my responsibilities was to work very
closely with composers on expressing the music the music that
they intended on the scores of the music that was then
published, for example.
Q. Okay. And how would you describe the notation within a
lead sheet?
A. A lead sheet is really meant as from a musician
professional musician standpoint, as a shorthand for what is
intended by the composer. Not all the music lS written out as
it would be, say, in a classical musical work.
MR. MILLER: I object. 402, 403, your Honor. Expert.
THE COURT: Well, I'll overrule the objection at this
point, but the testimony must be focused as previously ordered.
MR. BUSCH: Yes, sir. Yes, your Honor.
Q. Have you reviewed the deposit copy lead sheet for Got To
Give It Up and After the Dance filed with the United States
copyright office?
A. I have.
Q. Okay. I'm going to be asking you to discuss with the jury
during your testimony about eight different similarities you've
identified between Blurred Lines and Got To Give It Up. So I
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will ask you this in more detail as we discuss each similarity.
But is each element from Got To Give It Up that you
have identified as being very similar to Blurred Lines and
contained within Blurred Lines substantially reflected in those
deposited copy lead sheets you have reviewed?
MR. MILLER: Object to form.
THE COURT: Sustained.
MR. BUSCH: Okay.
Q. Is each element from Got To Give It Up that you have
identified as being very similar to Blurred Lines and contained
within Blurred Lines substantially reflected in the deposit copy
lead sheets?
THE COURT: Sustained. It's the word substantially.
BY MR. BUSCH:
Q. Okay. Is each element of Got To Give It Up that you have
identified as being very similar to Blurred Lines and contained
within Blurred Lines reflected in those deposit copy lead
sheets?
A. Yes, it is.
Q. Okay. Now, you have created various musical excerpts in
this case that you intend to play for the jury; correct?
A. Yes.
Q. I will also ask you this in more detail as we discuss each
specific similarity, but are the recorded excerpts within your
demonstratives that you intend to playa fair and accurate
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representation of the expression of what is in the deposit copy
lead sheets for Got To Give It Up?
MR. MILLER: Objection. Overbroad.
THE COURT: Yes. Sustained as framed.
BY MR. BUSCH:
Q. The first slide I intend to play, the audio exhibit is a --
are the bass lines and keyboards in Got To Give It Up and
Blurred Lines.
Are the bass lines and keyboard and keyboard rhythms
all reflected in the deposit copy lead sheet for Got To Give It
Up?
MR. MILLER: Objection to form. It's vague. I don't
know what he's referring to.
THE COURT: Well, it's compound so break it down and
perhaps if you would show the witness the exhibit that
constitutes the lead sheet and focus your questions in that
manner.
MR. BUSCH: Well, let's break it down.
Q. Are the bass lines that are within the audio excerpt that
you intend to play contained within the lead sheet?
A. Yes.
Q. Are the keyboard portions that are within the audio excerpt
that you intend to play contained within the lead sheet?
A. Yes.
Q. Are the keyboard rhythms within the audio excerpt that you
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Give 01:
1 intend to play contained within the deposit copy lead sheet?
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A. Yes.
Okay. Is there an indication in the deposit copy leadQ.
4 sheet that the bass line repeats throughout the song Got To
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It Up?
MR. MILLER: Objection. Leading, your Honor. This is
going beyond having her play something.
THE COURT: The experts may be led, but restate the
question, please.
BY MR. BUSCH:
Q. With respect to the bass line within the Got To Give It Up
lead sheet, is there or is there not anything that shows that it
plays throughout the entire song?
A. Yes. In the lead sheet after the first eight bars, it says
bass simile, which means continue in a similar fashion. And
that also applies to the keyboard.
Q. Do you have an opinion about whether the expression in the
audio excerpts that we will play consistent with the composer's
intended expression of the composition?
MR. MILLER: Objection. Calls for speculation --
THE COURT: Yeah, sustained. Frame the questions
based on the sheet music, please. So restate the question.
MR. BUSCH: Okay.
Q. Is the sheet music consistent with the audio excerpts
you're about to play?
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Absolutely.
MR. BUSCH: Okay. We'd like to publish slide 2 in
Ms. -- a demonstrative.
A.
MR. MILLER: Which demonstrative?
THE COURT: Don't publish it. Please defer publishing
until we find out what it is. What are you proposing to
publish, please?
MR. BUSCH: Slide 2.
THE COURT: What exhibit?
MR. BUSCH: Exhibit 380, Demonstrative l.
MR. MILLER: 380?
MR. BUSCH: Yes.
MR. MILLER: It says sound recording.
THE COURT: There is -- 380 just refers to the
demonstrative Exhibit 63.
MR. BUSCH: I apologize, your Honor. It's
Exhibit 376, demo 1.
THE COURT: Just a moment.
MR. MILLER: 376. I apologize, your Honor. I don't
know what he means by demo, your Honor. There are a number of
slides in 376.
MR. BUSCH: It is the first slide in line, Mr. Miller.
THE COURT: 376, page Ii is that it?
MR. BUSCH: Yes. It is the -- it's page 2, demo 1
with the heading instrumentals, the heartbeat of the songs.
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THE COURT: This is a demonstrative exhibit; correct?
MR. BUSCH: Yes.
THE COURT: Is there any objection to this being
displayed during the testimony?
MR. MILLER: I'm still -- I apologize. I'm still
having trouble finding what he's referring to.
THE COURT: Exhibit 376. Do you have 376?
MR. MILLER: Yes. And the first page of it has
something to do with Ms. Wilbur.
THE COURT: Turn to the -- turn to the next page. Do
you have that page?MR. MILLER: Yes. There are no audio examples on the
next page.
THE COURT: Well
MR. BUSCH: Yes, there are.
THE COURT: Well, there's pictures of speakers. Is
that the designated audio file?
MR. BUSCH: That does. Here, Mr. Miller, if you need
it, I have an extra set for you.
THE COURT: Okay. Which pages of this exhibit are
you -- do you propose to display?
MR. BUSCH: We're going -- at this time, this page,
and we're going to go right through the
THE COURT: So every page?
MR. BUSCH: Yes.
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MR. MILLER: Your Honor, I would object to page 2
because of your order regarding admissibility of sound
recordings. If you note the numbered colon 19, this is a
transcription of a sound recording by Marvin Gaye.
MR. BUSCH: There's no transcription here and this is
the audio excerpt that your Honor has ruled may come in.
MR. MILLER: The audio excerpt is different from the
pink highlighted part with the colon 19 in the left-hand corner.
THE COURT: What page of the exhibit
MR~ BUSCH: You're not looking at the right
THE COURT: Wait, wait. Could you wait, please.
To which page of the exhibit are you referring?
MR. MILLER: I apologize, your Honor.
THE COURT: I'm sorry. Page 5?
MR. MILLER: I was on the wrong page, your Honor.
THE COURT: To what page are you referring?
MR. MILLER: Page 3.
THE COURT: What is your objection?
MR. MILLER: My objection is that it is a
transcription of the sound recording so it's contrary to the
rulings in this case.
THE COURT: And what's your -- is this the same --
MR. BUSCH: It is.
THE COURT: Excuse me. Is this the sound recording or
the sheet music?
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MR. BUSCH: It is the sheet music. Ms. Finell will 01:
testify that they are the same. 01:
THE COURT: Well -- 01:
MR. MILLER: Your Honor 01:
THE COURT: Is this the sheet music? 01:
MR. BUSCH: This is her transcription. The answer is 01:
01:that they're the same.THE COURT: Well, no, my question was is this an image
of the sheet music that was filed with the copyright office.
MR. BUSCH: This is not an image. This is her
transcription.MR. MILLER: Your Honor, whether it's the same notes
as the deposit copy is not the issue here. The issue here is
she has listened to the sound recording. She has transcribed
it. I have no objection to the audio itself. You have ruled on
it.
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THE COURT: I understand.
Let me talk to you briefly.
(Sidebar conference commenced.)
THE COURT: First, Mr. Busch, my question wasn't
complicated when I asked you is this a copy of the deposit copy,
so don't make me ask the same question three times to get the
correct answer.
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But what is this? Is this something that -- is this
what the witness prepared from what?
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MR. BUSCH: This is what the witness originally
prepared from the recording but she then went and compared it to
the deposit copy lead sheet, and she will testify that it is the
same and truly reflective of the deposit copy.
THE COURT: The only thing that's relevant is whether
what she has prepared here is consistent with the sound
recording whose admission I've permitted.
MR. BUSCH: Yes, it is.
THE COURT: So her testimony will be that the edited
sound recording, this is her transcription of that edited sound
recording; is that right?
MR. BUSCH: That is correct.
THE COURT: What is your objection, Mr. Miller?
MR. MILLER: My objection is we covered this in the
hearing the other day. I made the exact same objection. You
ruled that all this stuff should be taken out of the slides.
They have had plenty of time to take the deposit copy excerpt of
this page and put it in here. Why are we looking at a
transcription of something that's excluded?
THE COURT: Here's what I think. First of all,
demonstrative exhibits are not admissible. The purpose is to
facilitate an understanding by the fact finder.
I think what you should do, if you wish to, is to
display the deposit copy to the witness and the witness can
testify as to the deposit copy and the recording. So you don't
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need to put this exhibit up because as presented, I don't know
whether this accurately reflects the deposit copy.
MR. BUSCH: She's going to say it does as an expert
witness.THE COURT: Well, if you -- as I said, that wasn't
what you first said and now I understand what you are saying,
but I have just ruled. And I think what you need to do -- I
think -- listen, I think what you need to do is to be efficient,
and whether you publish this with a jury whom I'm going to tell,
as with any demonstrative, it's not evidence. You need to
establish this through the witness.
MR. BUSCH: I'm trying to -- I will do that.
THE COURT: Do that. I don't think you need all the
demonstratives to do that, and we get into some potential 403
issues because there could be a dispute as to whether this does
accurately reflect that if it were prepared previously from the
sound recording and now she is adopting that and saying it is
the same as to the edited one.
MR. BUSCH: Your Honor, it is one thing to say that
the what is admissible are the elements that are reflected in
the deposit copy lead sheet, which we have done and which we
have created.
THE COURT: Right.
MR. BUSCH: These -- she is going to testify, and I
will lay the foundation, that the notes are in fact the same and
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that her transcription is entirely consistent with --
THE COURT: Once that's established, then I may permit
it, but until it is, I won't.
Yes, Mr. Miller?
MR. MILLER: That is exactly my point here and this
one is a little less troubling, but when we get into the bass
parts that she has done the same way and these are
transcriptions from her October 2013 report
THE COURT: You are going to need to establish that is
accurate. Again, let me be focused here. This isn't going to
the jury -- it's not going to the fact finder, whether myself or
the jury.So you need to focus on her testimony, her opinions.
For example, she has already testified that although she can
play certain pitchshifting things, that's not going to the jury.
Only her opinion. So it's a similar thing.
I think you need to be focused on how to be efficient
and consistent with my rulings.
MR. BUSCH: I understand. But their side is saying
the notes don't match up. I am showing by this that the notes
actually do --
THE COURT: You need to establish that through her
testimony. And, you know, I may have to hear it outside the
presence of the jury if this were prepared prior to -- from the
sound recording, I want to know what steps she took after that
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to confirm that it's consistent with the lead sheet. So
establish that.
MR. BUSCH: All right. Thank you.
THE COURT: That's my ruling.
(Sidebar conference ended.)
THE COURT: One moment, please, Mr. Busch. Okay. One
moment.Ladies and gentlemen, I've read an instruction about
this before, but -- I think I have, but if I haven't, I want to
make something clear.
During the course of the trial, you have already seen
some exhibits and you'll be seeing other exhibits. There's
something that's called a demonstrative exhibit, and the
demonstrative exhibit is a different kind of exhibit. It's not
evidence.
A demonstrative exhibit is one that's designed to
facilitate your understanding of some testimony that's being
presented or other evidence. So you may see it, but the
demonstrative exhibit during -- or one or more demonstrative
exhibits during the trial, their purpose is so you can better
understand other testimony. The demonstrative itself is not
evidence. Okay.
Go ahead, please, Mr. Busch.
MR. BUSCH:
THE COURT:
May I display this particular --
After you have established a foundation.
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MR. BUSCH: I'm talking about the original one that
doesn't have the transcription on it.
THE COURT:
MR. BUSCH:
THE COURT:
MR. BUSCH:
What page --
That was page 2.
Slow down. This is Exhibit 376, page 2?
Yes. Entitled Instrumentals equal the
heartbeat of the song.
MR. MILLER: Your Honor, it's testimony in the form of
a slide. It's a demonstrative.
THE COURT: Well, I have explained it's not evidence.
You may display that.
Also, ladies and gentlemen, we are going to get to
some sounds during the course of the trial where a witness may
be able to testify concerning what the witness -- the witness's
opinion about certain sounds.
What's admissible is the witness's opinion in some
instances and not the sounds themselves. It's a little
confusing, but before that testimony occurs, I'll remind you of
that distinction.
And so, Mr. Busch, before you elicit that testimony,
then let me know so I can give my limiting instruction.
Thank you.
BY MR. BUSCH:
Q. Okay. Ms. Finell, would you look on the screen at the
demonstrative in front of you entitled Instrumentals equal the
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heartbeat of the song and would you explain this for the jury,
please.MR. MILLER: Calls for a narrative.
THE COURT: Yes. Restate the question, please.
BY MR. BUSCH:
Q. What do you mean when you say that the bass line and --
bass melodies and descent and the keyboard chord pitches and
rhythms equal the heartbeat of the songs?
MR. MILLER: Object to form. Leading.
THE COURT: All right. Overruled.
You may answer.
BY MR. BUSCH:
Q. You can answer.
A. Yes. The two songs contain a really similar, what I
consider, a heartbeat in that it's a pulse that runs through the
song and drives each song. In essence, it's always going, sort
of like our own pulses or our own hearts are beating constantly.
It moves the song forward.It does it in a very similar way with two of the same
components, meaning the keyboard and the bass. And within those
components, there are many important similarities between the
two songs.Q. Okay. And have you prepared audio excerpts to demonstrate
these similarities?A. Yes. The first audio excerpt is from the bass and keyboard
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of Got To Give It Up and the second one is from the bass and
keyboard of Blurred Lines.
Q. And is it your opinion that these two are significantly
similar?
A. Yes. They're the first eight bars, which is the
introduction, and they are significantly similar.
MR. MILLER: Your Honor, I'm going to object and move
to strike. The expert is here to testify in extrinsic
similarities and there is no testimony, either foundation to
these orTHE COURT: Sustained. And also it's inconsistent
with the ruling on the word substantial.
So establish, please, the foundation for the creation
of the recordings and then let's go from there.
MR. BUSCH: Okay.
THE COURT: Thank you.
BY MR. BUSCH:
Q. Would you explain how these recorded excerpts were
prepared.
A. Yes. They come from the -- the first recording that was
used for this was the Marvin Gaye song in its approximately
four-minute version. It's called the single. And it was taken
right off the recording, but it was reduced -- the other
instrumentation that I was told I was not allowed to use was
removed. So this is only the keyboard and only the bass line.
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The same is true with Blurred Lines.
MR. BUSCH: Okay. May I play the
MR. MILLER: Your Honor, there is no foundation that
this is what is in the deposit copy.
THE COURT: You need to establish that.
BY MR. BUSCH:
Q. And is is this audio from Got To Give It Up consistent
with what's in the deposit copy?
A. Yes.
Q. Okay.
THE COURT: It's -- keep -- you need to lay that more
precise, please. Not consistent with.
BY MR. BUSCH:
Q. Is it reflected in the deposit copy lead sheet?
MR. MILLER: Same objection, your Honor.
THE COURT: Sustained.
BY MR. BUSCH:
Q. How is it reflected by what's in the deposit copy lead
sheet?
A. The bass line is very, very similar to all of the notes and
rhythms that are shown in the deposit copy, and the keyboard,
also very similar to what's indicated in the deposit copy. And
also the chords.
MR. BUSCH: Okay. May I play it, your Honor?
MR. MILLER: Your Honor, I would object. There's
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first of all, the testimony is that it's not the same notes;
it's similar. And second of all, there's no explanation of how
it's the keyboard part.THE COURT: Establish again, what is it please
establish what -- please seek to establish the basis the
foundational basis for what you're about to play, beyond just
similar to.The testimony thus far has been that the bass line is
very, very similar, etc., so I need you to establish the
foundation for the recording based on the lead sheet, sheet
music.
MR. BUSCH: Okay.
Q. Do you believe that the audio excerpts that you are -- that
you have prepared are consistent with and reflected in the
deposit copy lead sheet and is a consistent expression of what's
in the deposit copy lead sheet?
MR. MILLER: Objection. Compound.
THE COURT: Yes -- well, those are the same words --
BY MR. BUSCH:
Q. Is what you are about to play consistent with the
expression of what's in the deposit copy lead sheet?
MR. MILLER: Same objection, your Honor.
THE COURT: Same ruling. Sustained. That word was
used before. I want you to ask the witness whether this is what
the deposit copy shows.
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BY MR. BUSCH:
Q. Is this what the deposit copy shows?
A. Yes.THE COURT: That's the witness's opinion. Do you want
to confirm that, please, that is her opinion.
BY MR. BUSCH:
Q. That is your opinion?
A. Yes.
THE COURT: That's fine. Go ahead.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. And that was Got To Give It Up?
A. Yes.MR. BUSCH: And now could we please hear Blurred
Lines.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. Would you please explain to the jury what they just heard.
MR. MILLER: Objection. Calls for a narrative.
THE COURT: Sustained.
BY MR. BUSCH:
Q. Were those the first eight bars of both songs?
A. Yes.
Q. Does that keyboard and bass line that we just heard from
both songs run throughout the entirety of both songs?
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 33 of 66 Page ID #:9761
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A. Yes, it does.THE COURT: And Mr. Busch, again, just to avoid any
ambiguity, the word songs was just used. Please make sure you
are focusing on the sheet music.
MR. BUSCH: Yes.
THE COURT: Thank you.
BY MR. BUSCH:Q. Did you compare the sheet music from Got To Give It Up with
Blurred Lines in order to analyze whether -- why those excerpts
sound as they do?MR. MILLER: Objection, your Honor. It's an extrinsic
test that she's testifying to. How they sound is for the
juryTHE COURT: Yes. Focus on the elements, please.
BY MR. BUSCH:
Q. Did you review -- compare the sheet music of Got To Give It
Up with Blurred Lines to -- as part of your analysis?
A. Yes.Q. Okay. And have you prepared transcriptions of the keyboard
and bass line of Got To Give It Up from the deposit copy lead
sheet compared to Blurred Lines? Have you done that?
MR. MILLER: Objection. Move to strike. The deposit
copy is the lead sheet.
THE COURT: Just a minute.
I think you misstated it. What I mean is I think you
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 34 of 66 Page ID #:9762
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left out the verb.
MR. BUSCH: Okay.
Q. Did you prepare transcriptions comparing the elements in
the deposit copy lead sheet, the notes, with the comparable
passage from Blurred Lines?
A. Yes.Q. Okay. And have you prepared a demonstrative showing that
comparison?
A. Yes. I believe it's later in this exhibit.
Q. Okay. All right. And we'll go to that next.
The next thing I would like to play, the next thing
I'd like to move to is slide 3, signature phrase, same exhibit.
MR. MILLER: Your Honor, I'll just object for the
record. Again, I don't believe that there is any evidence that
this is based on the deposit copy.
THE COURT: You need to -- before displaying this --
MR. BUSCH: I will.
THE COURT: Please take it down. Before displaying
it, please -- it's not being displayed, excuse me. The
foundational basis for what is on page 3 in terms of the written
music and that it is -- it is what you just asked about.
MR. BUSCH: Okay.
THE COURT: Thank you.
BY MR. BUSCH:
Q. So looking at -- do you have -- you've prepared a
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 35 of 66 Page ID #:9763
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transcription of the signature phrase in the two compositions;
correct?
A. I did.
Q. Okay. And is the transcription that you provided from Got
To Give It Up from the deposit copy lead sheet?
A. It's reflected -- it's the same as the deposit copy lead
sheet. I've compared them note for note.
Q. Okay. And what do you call the signature phrase?
MR. MILLER: Objection. Vague, your Honor.
THE COURT: No. Overruled.
THE WITNESS: I -- I identified it as the signature
phrase because I see it as an identifying or very recognizable
phrase in both songs. For example, in Got To Give It Up, it's
the first vocal phrase that one hears in the song. And when one
hears it, you would know that this is you're about to hear
Got To Give It Up.
MR. BUSCH: Okay.
MR. MILLER: Objection. Move to strike as
nonresponsive.
THE COURT: No. Overruled.
BY MR. BUSCH:
Q. And, again, what is the signature phrase in Blurred Lines?
A. It's -- well, I -- it would be helpful to have it in front
of me, but it's basically I'm gon' to take a good girl.
Q. And what do you call the signature phrase in Got To Give It
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 36 of 66 Page ID #:9764
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Up?
A. The words are I like to go out -- I used to go out to
parties. Excuse me.
Excuse me, I misspoke. The exact words I believe for
Blurred Lines is and I'm gon' take a good girl.
Q. Why do you call both of those an identifying phrase?
A. They're recognizable. They have what you would consider a
melodic profile that is recognizable, and in the case of Marvin
Gaye's song, it's the first time you hear Marvin Gaye's singing
voice.
MR. BUSCH: Okay. And so at this time, your Honor, I
would like to publish for the jury slide 3, similarity signature
phrase.
MR. MILLER: Object, your Honor, for the reasons we've
discussed. Just looking at it, I can see it is not music in the
deposit copy.
THE COURT: That's all right. You can cross-examine
on that point.
Again, ladies and gentlemen, what you are going to see
now is not evidence. It's designed to facilitate your
understanding of the testimony of the witness and the opinions
she's expressing.
BY MR. BUSCH:
Q. So that you can explain this to the jury, Ms. Finell,
this at the top you see the signature phrase identifies four
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 37 of 66 Page ID #:9765
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similar elements.
What are the four similar elements that you found?
A. Yes. In Got To Give It Up and Blurred Lines, there -- a
musical analyst, I should just explain, is taught to look at
musical phrases, for example, and identify
THE COURT: sustained. Excuse me, Ms. Finell.
Restate the question, please.
And, Ms. Finell, if you could focus on the questions,
please. Thank you very much. And if you don't understand a
question, please tell me and I'll have Mr. Busch rephrase it.
THE WITNESS: All right.
THE COURT: Thank you.
Please proceed.
BY MR. BUSCH:
Q. with respect to the four similar elements, what does your
training teach you that allows to you identify these four
similar elements?
A. My training teaches me to look at two melodies in the case
of this kind of situation and compare what I hear in terms of
the -- when I say hear, I mean when I look at sheet music, I can
hear what the music is intended to be to sound like.
So what the notes are in terms of the pitches, which
are the tones, and how long the notes last, which are the
rhythms, and other elements such as whether or not the notes go
up or down, that's called the contour of the melody.
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 38 of 66 Page ID #:9766
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So all of those -- all of those components are what an
analyst looks at to compare two melodies.
Q. And with respect to the signature phrase, it -- I see here
that you say you found four similar elements. Would you please
explain to the jury those four similar elements with respect to
the two signature phrases?
A. Yes. So I've identified them here with brackets as
elements A, B, C, and o. The most powerful similar element in
my mind is element B, which I'll get to in a moment.
But each phrase begins with repeated notes.
I should also tell you that the numerals above each of
the notes in the diagram that you're looking at refer to what is
called scale degrees. So when an analyst is looking at music, a
scale, for example, in our culture has seven notes so a C
scale -- if you think of all the white notes right adjacent to
one another on a scale, the note C would be 1, the next note up,
0, would be 2, the next note would be E, would be 3, sort of
like the alphabet, and that's how I compare music.
MR. MILLER: Your Honor
THE COURT: Just a minute. Yes?
MR. MILLER: I'm going to object. She is
THE COURT: I understand.
MR. MILLER: It should be a question and answer.
THE COURT: I agree. I understand. Just state your
objection.
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 39 of 66 Page ID #:9767
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You need to focus -- please ask questions.
want to have a --
MR. BUSCH: A narrative.
THE COURT: -- narrative. So focus that and then,
I don't
just to make it -- just focus your questions, please.
Ms. Finell, again, please focus on each question and
there will be additional questions.
BY MR. BUSCH:
Q. I think we need to do a little background before you start
getting into the four similarities. So would you explain to the
jury what the numbers are -- above the transcription mean.
A. Yes. If you look at the top musical line, you'll see a
series of numbers with brackets above them.
So the first -- thank you. So the first series is 5,
5, 5 with a little bracket that says A. The next group is 5, 6,
1, 2, 1, 5 with brackets showing a B. And underneath are
brackets also. The first six notes underneath have a bracket C,
which will -- I'll talk about in a minute in terms of rhythms.
And then D, the last bracket on the bottom, shows the last
similarity I'm going to talk about.
MR. MILLER: Your Honor, I move to strike. It's
nonresponsive. The question is what the numbers show.
THE COURT: Yes. Just a minute.
Well, this is foundational.
MR. BUSCH: Thank you.
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 40 of 66 Page ID #:9768
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THE COURT: Restate the -- would you read the most
recent question, please.
(Record Read)
THE COURT: And by the way, Ms. Finell, if you touch
that screen, you can use it to draw.
THE WITNESS: Oh. Thank you.
Do you have the question in mind?THE COURT:
THE WITNESS: Yes. I'm going to talk about the
comparison of the numbers. I'm sorry?
THE COURT: Read just the last part of the question,
please~(Record Read)
THE COURT: Do you have that question in mind?
THE WITNESS: Yes.
THE COURT: Could you respond, please.
THE WITNESS: Thank you.
Yes. The numbers above the transcription indicate the
scale degrees, and that's how an analyst compares melodies.
BY MR. BUSCH:
Q. And what about -- same question with respect to the letters
C and D that you have underneath the transcription.
A. Yes. C and D indicate two of the four similarities I found
in this phrase to do with rhythmic and other musical elements.
Q. Okay.Now let's turn to the four similar elements that you
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 41 of 66 Page ID #:9769
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found in these two phrases. Would you explain to the jury the
four similar elements that you found.
A. Yes.
Q. Okay.THE COURT: Well, do it one at a time, please.
BY MR. BUSCH:Q. Let's take it -- as the judge requested, let's take it one
at a time.The first similar element, what did you find?
A. That would be element A, and the reason why I found that
similar was that in both songs, they begin with repeated notes.
They aren't the same repeated notes, but the fact that they're
repeated is significant in musicological terms.
And those notes in Got To Give It Up are the repeated
5, 5, 5 for the first three words I used to. And for Blurred
Lines, it's a repeated 3, which for a moment goes down to a 2
sharp but then up to a 3. So the 3, 3, 3s are what I'm
referring to with the A brackets below for the words and
that's -- and then I'm.
Q. Would you also explain to the jury along these lines
whether the melody that goes along with lyrics is important in
your analysis.
A. Yes. Very much so.
Q. And could you explain to the jury why?
A. Well, the -- when I compare melodies, I'm looking for
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 42 of 66 Page ID #:9770
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similar pitches, meaning the tones, as well as other elements.
How -- how long the tones last or how often they're used. But
the most important element in comparing melodies is whether or
not they have a succession of similar or the same tones.
None of the other considerations beyond that are as
powerful as that.Q. Okay. Let's talk about the second similarity you found,
which I believe you said a moment ago you found to be the most.
striking?A. Yes. The next similarity, which is marked with a bracket B
as in boy, shows a series of really six notes in a row, of which
five are identical in their scale degrees.
So we're talking about what I would consider sort of
the meat of the phrase because it's go out to parties for Got To
Give It Up and it's gon' take a good girl in Blurred Lines,
which is the main musical expression of that phrase as well as
in terms of lyrics. It's what the lyrics are primarily
discussing.Q. And then the third similarity that you found?
A. The third similarity is that in the first six notes of the
same phrase, it's marked as similarity C -- or, I'm sorry,
element c. It has six identical rhythms which are called 8th
notes in each of the two songs.
Q. Okay. And then the fourth similarity within these two
phrases that you found?
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 43 of 66 Page ID #:9771
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A. The fourth is called a melisma. That's similarity D, like
David, and I could discuss it, if you like.
Q. Yes. Would you explain what a melisma is, please.
A. Yes. Well, in setting vocal music, in other words, songs,
there are two considerations for a composer. One is what notes
those individual words are sung with, an A or B or C, when
you're singing Happy Birthday, for example.
And the other element is how you treat each of those
words. Words are broken up into, say, syllables so the word
happy of happy birthday has two syllables, H -- H-A-P and then
P-Y. So hap-py.A composer setting that to music has to have a note
for each of those syllables. So a composer might have one note
on hap and another note on py.
And the same is true here, or the composer can
decide --MR. MILLER: Your Honor, move to strike. This is not
about a melisma.
THE WITNESS: It -- I --
THE COURT: Excuse me.
MR. MILLER: This is nonresponsive to the question.
THE COURT: Let's move on.
Next question, please.
BY MR. BUSCH:
Q. Do you have examples of what -- how a composer would
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 44 of 66 Page ID #:9772
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demonstrate a melisma?
THE COURT: Restate the question as to what is a
melisma.
BY MR. BUSCH:
Q. Let's break it down, Ms. Finell. First, what is a melisma?
A. SO a melisma is counter to the individual syllables being
with only one note each. A melisma means that you take one of
those syllables and you sing it over several notes instead.
Q. Do you have examples of melisma?
A. The examples are here in my comparison. For the last
syllable of Got To Give It Up for the last half of the word
parties, T-I-E-S, there are three notes sung there instead of
the normal one that I just explained in happy birthday.
Q. Okay. All right.
Have you prepared audio excerpts to compare these two
signature phrases?
A. Yes, I have.
Q. Okay. And on this particular page, is the audio excerpt
from Got To Give It Up reflective of the lead sheet?
A. Yes.
Q. Okay. And would you explain what is in these two audio
excerpts?
A. This is the vocal phrase from Got To Give It Up from the
individual track so it's just -- I believe this one is just the
voice alone, and the same is true of Blurred Lines from the
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 45 of 66 Page ID #:9773
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individual vocal track.
Q. Okay. And can you explain what you mean by the individual
vocal track?
A. Yes. When music is recorded, individual vocalists and
instrumentalists are recorded individually, if you will, on what
we call tracks, and then later all of that is blended together
in what is referred to as a mix.
And so when you hear a full-scale recording, you may
hear 16 different tracks going at the same time with the guitars
and the drums and the bass and the voices.
So what we've done in order to help isolate this and
understand where I heard the similarities or where I saw the
similarities, I was able to show you just in the individual
track in this case of the voices from the recordings.
Q. Okay. And I see a notation here about pitchshifting. I
believe you explained that to the jury yesterday, but just to
refresh the jury's recollection about what pitchshiftingmeans,
which is reflected at the bottom of this demonstrative.
A. Yes. This is accepted musicological practice for
transposing two songs that are in different keys into the same
key so you can eliminate that factor and really focus on what
relates between the two songs.
Q. Okay.
Would you please -- may I play the two excerpts,
your Honor?
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 46 of 66 Page ID #:9774
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MR. MILLER: Your Honor, I would object in that the
expert's testimony is directed to extrinsic similarities. She
has explained those on the slide. There is nothing in the audio
that would demonstrate any objective extrinsic similarity.
THE COURT: Okay. Overruled. However, the
and gentlemen, I told you a few minutes ago that when
ladies
that
certain audio recordings are the basis for opinion only. And
the -- what's admissible evidence is the opinion and not the
recording.And this -- one of the two -- the second recording you
are going to hear has been what has been explained has been
pitchshifted.So accordingly, what is admissible is the opinion of
the expert, not the recording. And here the recording is part
of to understand the basis for her opinion.
Go ahead. You may play the first
BY MR. BUSCH:
Q. So what will be played first?
A. The first is the signature phrase in Got To Give It Up.
Just the vocalist.
Q. Okay. And would you play that.
And then what is the second audio excerpt?
A. It's also the signature phrase in Blurred Lines, only the
vocalist.(Whereupon, the audio was played for the jury.)
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 47 of 66 Page ID #:9775
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BY MR. BUSCH:Q. Okay. Would you please turn to the next slide. And on the
next slide, we have the same transcription.
Do you see that, Ms. Finell?
A. I'm sorry. There's nothing --
Q. Slide 4.
A. There is nothing here.
Q. I'm sorry. Have you prepared another slide with an audio
example that has the vocal and with the instrumental using a
MIDI synthesizer for the signature phrase?
A. Yes, I did.
Q. And what is the purpose of that?
A. It enables a listener to hear the melodic comparison
without the distraction of the voices or lyrics.
Q. Okay. And is the example with respect to Got To Give It Up
on this next demonstrative consistent with the deposit copy lead
sheet?MR. MILLER: Objection to the form --
THE COURT: Sustained. Not consistent with.
MR. BUSCH: Okay.
Q. Is the Got To Give It Up audio excerpt consistent with the
Got To Give It Up deposit copy lead sheet?
MR. MILLER: Same objection.
THE COURT: Sustained.
MR. MILLER: He is asking whether the notes are --
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 48 of 66 Page ID #:9776
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THE COURT: I agree. Sustained.
BY MR. BUSCH:
Q. Are the notes reflected by the deposit copy lead sheet?
Yes.A.
MR. BUSCH: All right. We would ask that this be
allowed to be played.
THE COURT: And the second -- are you playing the
first and the second or just the first?
MR. BUSCH: This is the first followed by the second.
THE COURT: And the second has been pitchshifted;
correct?
MR. BUSCH: Yes.
THE COURT: Same instruction, ladies and gentlemen, as
to the second excerpt you will hear.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. Would you explain, Ms. Finell, what compositionally we just
heard?
A. What we just heard --
MR. MILLER: Objection, your Honor. Leading.
THE COURT: Please ask for the expert's opinions.
Thank you.
BY MR. BUSCH:
Q. What comparative notes did we just hear?
MR. MILLER: Same objection.
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 49 of 66 Page ID #:9777
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THE COURT: Sustained. Ask for opinions, please.
BY MR. BUSCH:Q. Okay. What is your opinion of the comparative notes that
we just heard?A. These two phrases are significantly similar, as I say,
because of the four elements that they share but especially
element B.
Q. And what do you mean by element B?
A. Element B contains six of the notes, which is the majority
of the phrase of which five are identical.
Q. Okay. Thank you.Do you have -- now, what is so significant in your
mind about the four similarities within one phrase?
A. Well, you're talking about a phrase here of, you know, very
few notes. I mean, there's 11 notes, I believe, and out of
those, every note is accounted for in one or more similarities.
So that's a great deal of similarity.
And it's also occurring during the playing of the bass
and the keyboard.
Q. And what is the significance of that, in your mind?
A. Well, as I studied the music in this case, I realized that
the there is always more than one similarity occurring at the
one at the same time and that's very unusual.
I believe that because of the way they intersect at
the same time so that you have the bass line going while you
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 50 of 66 Page ID #:9778
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have a similar vocal part and you also have the similar keyboard
while you have something else, that it's -- it coincides in a
way that I see it as a constellation. And this is an example of
why I began to see it that way when I analyzed the music.
Q. And can you explain to the jury what you mean by a
constellation?
A. I use the word constellation because there's more than one
occurring similarity and instead of a consecutive similarity
where you maybe have a signature phrase and then maybe a few
bars later you have some other phrase by itself that's similar
and there may be similar isolated phrases like that or other
kinds of similarities, what you have is often two, three, four
or more similarities all occurring at the same moment in the
music.
And that's -- that was pretty stunning, and that's why
I believe that the similar features interact and relate to one
another in a way that it's a constellation.
MR. MILLER: Your Honor, I'm going to move to strike
these narrative answers.
THE COURT: Well
MR. MILLER: She went far beyond
THE COURT: Just a minute.
I'm going to strike and that's -- that was pretty
stunning and -- from there to the end of the answer, but leave
in from I use the word 'constellation' from all occurring at the
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 51 of 66 Page ID #:9779
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same moment in the music.
BY MR. BUSCH:Q. Do you have an opinion about whether that constellation in
comparing the two songs is unusual?
MR. MILLER: Objection. Lacks foundation.
THE COURT: Sustained.
BY MR. BUSCH:Q. Have you compared how many songs have you compared for
determining whether there are similarities between the songs in
your career?
A. Over the last 20 --
Q. Yes.
A. 20-plus years?
Q. Yes.
A. Hundreds.Q. Okay. And in your experience, do you find this
constellation of elements appearing similar elements
appearing at the same time in the same way unusual?
MR. MILLER: Objection. Lacks foundation as to the
issue here. There has been no testimony on a constellation.
THE COURT: Overruled.
BY MR. BUSCH:
Q. You may answer.
A. Highly unusual.MR. BUSCH: I would like to play those two audio
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Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 52 of 66 Page ID #:9780
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