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8/10/2019 Pharrell_Williams and Thicke v. Gaye - order on evidence order 138.pdf
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4112.060/822464.1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
PHARRELL WILLIAMS, anindividual; ROBIN THICKE, anindividual; and CLIFFORD HARRIS,
JR., an individual,Plaintiffs,
vs.
BRIDGEPORT MUSIC, INC., aMichigan corporation; FRANKIECHRISTIAN GAYE, an individual;MARVIN GAYE III, an individual;NONA MARVISA GAYE, anindividual; and DOES 1 through 10,inclusive,
Defendants.
CASE NO. CV13-06004-JAK (AGRx)Hon. John A. Kronstadt, Ctrm 750
ORDER RULING ON PLAINTIFFSAND COUNTER-DEFENDANTSEVIDENTIARY OBJECTIONS INSUPPORT OF MOTION FORSUMMARY JUDGMENT OR, INTHE ALTERNATIVE, PARTIALSUMMARY JUDGMENT (DKT. 136)_
Date: October 20, 2014Time: 8:30 a.m.Ctrm: 750
Action Commenced: August 15, 2013Trial Date: February 10, 2015
AND RELATED COUNTERCLAIMS.
/ / /
/ / /
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4112.060/822464.1 1
KING,HOLMES,
PATERNO&
BERLINER,LLP
Plaintiffs and Counter-Defendants PHARRELL WILLIAMS, ROBIN
THICKE and CLIFFORD HARRIS, JR. and Counter-Defendants MORE WATER
FROM NAZARETH PUBLISHING, INC., PAULA MAXINE PATTON
individually and d/b/a HADDINGTON MUSIC, STAR TRAK
ENTERTAINMENT, GEFFEN RECORDS, INTERSCOPE RECORDS, UMG
RECORDINGS, INC., and UNIVERSAL MUSIC DISTRIBUTION
(Plaintiffs/Counter-Defendants) submitted Plaintiffs and Counter-Defendants
Evidentiary Objections in Support of Motion for Summary Judgment or, in the
Alternative, Partial Summary Judgment on September 22, 2014, Document 126.
The Court rules on the objections as follows:
DECLARATION OF RON ASTON
DECLARATION OF RON ASTON OBJECTION RULING
I, Ron Aston, declare as follows:
1. I am over the age of 18 and not a
party to this action. I have personal
knowledge of the facts set forth
herein, which are known by me to be
true and correct, and if called as a
witness, I could and would
competently testify thereto.
2. I began my music career as a
drummer, starting at the age of 10. I
took private drum lessons in Hartford,Connecticut, and eventually took
private drum and percussions lessons
at the Hartt School of Music in
Hartford.
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4112.060/822464.1 2
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
3. I am a member of the Motion
Picture Editors Guild Local 700 Los
Angeles, as well as a member of the
Musicians Union Local 47 Los
Angeles.
4. I moved to Los Angeles in 1972,
and began touring as the drummer for
several pop and jazz recording artists,
including Seals & Crofts, The HuesCorporation, Minnie Riperton and
Tom Scott. After playing drums for
many groups and individual recording
artists of various genres including
several R&B groups and artists; I am
very familiar with that genre of
music.
5. After several years of touring as a
drummer, I became a studio drummer,
playing drums on various records,
motion pictures and television music
scores. I recorded with Barry White,
Hamilton Joe Frank & Reynolds,Minnie Riperton and Tom Scott, as
well as others recording artists.
6. In 1979 I began playing drums and
percussion on motion picture scores,
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4112.060/822464.1 3
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
television scores, and commercials
including the TV shows, Simon and
Simon,In the Heat of the Nightand
NCIS.
7. In the 1980s I was the house
drummer on the music variety show,
Solid Goldand played drums on
backing tracks for the top recording
artists of the day for five years.8. I was one of the first Los Angeles
studio drummers to adapt to
drums/percussion programming using
computers, which is when I began
learning the art of audio sound editing
for music-related purposes and have
been doing this for least 25 years.
Since then, Ive played drums and/or
programmed drums and percussion
for movies includingApollo 13,
Courage Under Fire,Ransom, I.
X-Files: I Want to Believe, and The
Wolfman.
9. For the past seven years I have
worked in the field of sound editing
for motion pictures and television
post production sound. This involves
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4112.060/822464.1 4
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
creating sound effects and
atmospheres, and editing dialog in
motion picture and television
productions.
10. I am very familiar with R&B
music as well as the original recorded
versions of the hit records Blurred
Lines by Robin Thicke and Got to
Give It Up by Marvin Gaye.11. [Objection No. 1] I was asked to
create three audio examples (mixes)
in such a way that demonstrates the
similarities between these two songs.
1. Irrelevant. FRE
402. Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
1. Sustained for
purposes of this
Motion only. The
mashups relate to
the subjective
intrinsic test
performed by the
factfinder at thetime of trial, and
are not considered
in the extrinsic
analysis performed
in connection with
this Motion.
Swirsky v. Carey,
376 F.3d 841, 845
(9th Cir. 2004).
12. I conducted my analysis on this
project using the program Pro Tools
to produce the musical exhibits I
created. I am also a member of the
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4112.060/822464.1 5
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
Pro Tools beta team, and have been a
member of this team for over ten
years. I am involved with the testing
and development of Pro Tools, which
is the world standard for digital audio
editing programs. I also provide
feedback and new feature
suggestions to Avid, the company that
makes Pro Tools.13. I examined the audio tracks
provided and compared them to the
original, commercially released
tracks. I determined that the tracks
were identical to the commercial
releases of each song. All examples
were created from the original source
material that I was provided with.
Nothing was done to alter the sound
of the source files of the two songs.
14. King & Ballow supplied me with
several pieces of music that included
the original the multi-track Pro Toolssession of the song Blurred Lines,
which included all of the vocal and
instrumental tracks. They also
supplied me with a stereo mix of the
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4112.060/822464.1 6
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
Music only and another stereo mix of
vocals only for the song Got to Give
it Up I used these elements to create
the audio Examples that I created
within a New Pro Tools session. A
Pro Tools session is a file that
contains all of the individual vocal
and music tracks, as well as the
effects (reverbs, delays, etc.), alongwith the automation data that controls
the volume, panning, and other
parameters of each track which
ultimately contribute to the creation
of the final mix of a song.
15. In the case of Blurred Lines,
the tracks were supplied to me as a
Pro Tools session. I was able to open
the session on my Pro Tools system in
the same way that a record company
would open it to create a master
recording.
16. From the Blurred Lines ProTools session, I was able to create
two stereo mixes. Mix-1 contained
just the mix of vocals only with no
instrumental music. Mix-2 contained
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4112.060/822464.1 7
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
a mix of just the instrumental music
tracks with no vocals.
17. King & Ballow also provided me
with two stereo mixes of the original
release version of Got to Give it
Up, Mix-A contained just the
instruments and background vocals
(but no lead vocals). Mix-B
contained only Marvin Gayes mainvocals
18. [Objection No. 2] Using the
source material as described
previously, I had the capability to mix
the instrumental tracks and the vocal
tracks from both Blurred Lines and
Got to Give it Up so that I could
mix and match between the two songs
to create the audio examples. In other
words, I could play the instruments
only track from one song along with
the vocals only track from the other
song, or the reverse, in either eachsongs original or transposed key for
the purpose of creating the examples.
2. Irrelevant. FRE
402. Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
2. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
19. [Objection No. 3] I created
mashup Examples 1 & 2.A mashup
3. Irrelevant. FRE
402. Improper expert
3. Sustained for
purposes of this
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4112.060/822464.1 8
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
is a recording that combines elements
from two or more recordings.
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects ofeither song.
Motion only. See
Ruling on
Objection No. 1,
supra.
20. To complete the task of creating
my examples, I used Pro Tools for
editing, which included beat-
matching. I used Blurred Lines as
the master reference for tempo. By
tempo, I am referring to the speed
of a recordings pulse, referred to as
beats per minute in the recording
industry.
21. I subsequently aligned the tempo
of Got to Give it Up with Blurred
Lines to match one another exactly.
22. This was a small adjustment
because both songs in their
commercially released recordings
were already very close to one
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4112.060/822464.1 9
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
another in the tempo of 120 BPM,
within 1 to 3 beats per minute, or
BPM.
23. The beat-matching aligned the
songs tempos. Starting with music
track of Got to Give it Up, I first
used the Elastic Audio function of Pro
Tools to match this track to be in
perfect synchrony with the tempo ofBlurred Lines
EXAMPLE-1
24. [Objection No. 4] Example 1 is a
mashup (combination) of Got to
Give it Up music instrumental only
track transposed down to the key of G
and the Blurred Lines vocals only
track in its original key of G.
4. Irrelevant. FRE
402. Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
4. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
25. [Objection No. 5] To do this I
used the Pro Tools Audio Suite plug-
in, Pitch n Time (Serato) to do the
transposing of the Got to Give it Up
5. Irrelevant. FRE
402. Improper expert
opinion, not helpful to
the trier of fact, and
5. Sustained for
purposes of this
Motion only. See
Ruling on
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4112.060/822464.1 10
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
music track from its original key of A
down to G.
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
Objection No. 1,
supra.
26. [Objection No. 6] I thencombined the transposed (to the key
of G) Got to Give it Up
instrumental music combined with the
vocals only track of Blurred Lines
in its original key of G to create the
resulting mix that is referred to as
Example 1.
6. Irrelevant. FRE402. Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
6. Sustained forpurposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
EXAMPLE-2
27. [Objection No. 7] Example 2 isGot to Give it Up vocals and
Blurred Lines instrumental music
mixed together in their original keys.
7. Irrelevant. FRE
402. Improper expertopinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
7. Sustained for
purposes of thisMotion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 11
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
28. [Objection No. 8] I first beat-
matched the vocal only track of Got
to Give it Up in its original key of Ato be in the exact 120 BPM tempo of
the Blurred Lines instrumental
music track in its original key of G
and then combined these elements,
creating a mix of this combination,
which is referred to as Example 2.
8. Irrelevant. FRE
402. Improper expert
opinion, not helpful tothe trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
8. Sustained for
purposes of this
Motion only.See
Ruling on
Objection No. 1,
supra.
EXAMPLE-4
29. Example 4 contains the full songs
Got to Give it Up and Blurred
Lines in succession in their originalmixes and original keys.
30. After all editing was completed, I
created a stereo mix for each of the
previously described examples.
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4112.060/822464.1 12
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
Then, I exported each of the three
example mixes as monoral MP3
music files and sent them to Thomas
Court, a music technologist also
working on this project with King &
Ballow. Mr. Court then added a
visual video player to each of the
examples I provided.
Pursuant to 28 U.S.C. 1746, Ideclare under penalty of perjury that
the foregoing is true and correct.
Executed this 7th day of September
2014.
[Objection No. 9] Declaration of Ron
Aston, Exhibit 1 Mashup Examples
No. 1 (Non-paper Exhibit lodged
concurrently with this filing)
9. Irrelevant. FRE
402. Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsicsimilarity or any
extrinsic aspects of
either song.
9. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
[Objection No. 10] Declaration of 10. Irrelevant. FRE 10. Sustained for
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4112.060/822464.1 13
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RON ASTON OBJECTION RULING
Ron Aston, Exhibit 2 Mashup
Example No. 2 (Non-paper Exhibit
lodged concurrently with this filing)
402. Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or anyextrinsic aspects of
either song.
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
DECLARATION OF RICHARD BUSCH
DECLARATION OF RICHARD BUSCH OBJECTION RULING
I, Richard S. Busch, declare and state:
1. I am a partner in the law firm of
King & Ballow and lead counsel for
Counter-Claimants Nona Marvisa
Gaye and Frankie Christian Gaye in
the above captioned matter. My
application to appear and participate
in this actionpro hac vicehas been
approved by the Court. The
information contained in this
Declaration is based upon my
personal knowledge. If called as a
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4112.060/822464.1 14
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RICHARD BUSCH OBJECTION RULING
witness in this action, I could and
would testify competently to the
contents of this declaration.
2. Attached hereto as Exhibit 1is a
true and correct copy of Counter-
Defendant Robin Thickes
Supplemental Responses to
Defendants and Counter-Claimants
Frankie Christian Gaye and NonaMarvisa Gayes First Set of
Interrogatories.
3. Attached hereto as Exhibit lAis a
true and correct copy of Counter-
Defendant Robin Thickes Amended
Supplemental Responses to
Interrogatory Nos. 16 & 21 of
Defendants and Counter-Claimants
Frankie Christian Gaye and Nona
Marvisa Gayes First Set of
Interrogatories.
4. Attached hereto as Exhibit 2is a
true and correct copy of the July 9,
2013 Billboard. com article,Robin
Thicke on Wifes Impact on Blurred
Linesand the May 7, 2013 G.Q.
article,Robin Thicke on That Banned
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4112.060/822464.1 15
KING,HOLMES,
PATERNO&
BERLINER,LLP
DECLARATION OF RICHARD BUSCH OBJECTION RULING
Video, in which he admits that when
creating Blurred Lines, he wanted
to do something like Marvin Gayes
Got to Give it Up.
5. Attached hereto as Exhibit 3is a
true and correct copy of a CD
containing:
a. Track 1: Robin Thickes
interview with Hot 97, on orabout June 11, 2013
b. Track 2: Robin Thickes
interview with VH1, on or about
May 6, 2013
c. Track 3: Robin Thickes
interview with Twitter Take
Over On or about July 20, 2014
d. Track 4: Robin Thickes
interview with Inside Track on
Fuse TV, on or about July 29,
2013
e. Track 5: Robin Thickes
interview with Oprah, on orabout October 13, 2013
f. Track 6: Robin Thickes
interview with TMZ, on or about
September 26, 2013
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4112.060/822464.1 16
KING,HOLMES,
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DECLARATION OF RICHARD BUSCH OBJECTION RULING
g. Track 7: Pharrell Williams
Admits Blurred Lines Was
Inspired By Marvin Gayes Got
to Give it Up, on or about
October 31, 2013.
6. Attached hereto as Exhibit 4is a
true and correct copy of the March 4,
2014 XXL article Pharrell Has
Found His Happy Place in the
Mainstream, by Dan Rys, in which he
admits that he was trying to pretend
that he was Marvin Gaye when
creating Blurred Lines.
7. Attached hereto as Exhibit 5is a
true and correct copy of the
October 31, 2013 HipHollywood.com
article Pharrell Williams Admits
Blurred Lines Was Inspired By
Marvin Gayes Got to Give it Up,
by Ashley Williams, in which he
admits that he was inspired by Marvin
Gaye and he tried to take the feelingthat Got to Give it Up gave him,
when creating Blurred Lines.
8. Attached hereto as Exhibit 6is a
true and correct copy of excerpts of
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April 23, 2014 Deposition of Robin
Thicke.
9. Attached hereto as Exhibit 7is a
true and correct copy of excerpts of
April 21, 2014 Deposition of Pharrell
Williams.
10. Attached hereto as Exhibit 8is a
true and correct copy Declaration of
Sandy Wilbur inBourne Co v.Twentieth Century Fox.
11. Attached hereto as Exhibit 9is a
true and correct copy of excerpts of
August 27, 2014 Deposition of Sandy
Wilbur.
12. [Objection No. 11] Attached
hereto as Exhibit 10is a true and
correct copy of a profile of Robin
Thicke posted on Allmusic.com,
discussing Robin Thickes perpetual
Marvin [ Gaye] fixation.
11. Irrelevant. FRE
402.
11. Overruled
13. [Objection No. 12] Attached
hereto as Exhibit 11is a true and
correct copy of the August 8, 2013
New York Times.com article Why
Blurred Lines Wont Go Awayby
Rob Hoerburger.
12. Irrelevant. FRE
402.
12. Overruled
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14. [Objection No. 13] Attached
hereto as Exhibit 12is a true and
correct copy of the August 23, 2013
Rolling StonearticleRobin Thicke,
Youre No Marvin Gaye, by David
Ritz.
13. Irrelevant. FRE
402.
13. Overruled
15. [Objection No. 14] Attached
hereto as Exhibit 13is a true and
correct copy of the July 30, 2013Vice
article Why Dont We Have a Song of
the Summer Yet?, by Paul Cantor.
14. Irrelevant. FRE
402.
14. Overruled
16. Attached hereto as Exhibit 14is
a true and correct copy of excerpts of
Trial Testimony of Sandy Wilbur in
Guzman v. Hacienda Records, United
States District Court, Southern
District of Texas, Case No. 6:12-cv-
00042, Dkt. No 148.
17. Attached hereto as Exhibit 15is
a true and correct copy of Sandy
Wilburs 2012 Musicology Services
Brochure for Music Suppliers and
Advertisers.
18. Attached hereto as Exhibit 16is
a true and correct copy of a DVD
containing Deposition Video of from
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the Depositions of Mr. Thicke and
Mr. Pharrell.
Pursuant to 28 U.S.C. 1746, I
declare under penalty of perjury that
the foregoing is true and correct.
Executed this 7th day of September
2014.
[Objection No. 15] Declaration of
Richard Busch, Exhibit 10 Profileof Robin Thicke posted on
Allmusic.com
15. Irrelevant. FRE
402. Lacks personalknowledge. FRE 602.
Inadmissible hearsay.
FRE 802.
15. Overruled
[Objection No. 16] Declaration of
Richard Busch, Exhibit 11
August 8, 2013New York Times
article Why Blurred Lines Wont Go
Awayby Rob Hoerburger
16. Irrelevant. FRE
402. Lacks personal
knowledge. FRE 602.
Improper lay opinion.
FRE 701.
Inadmissible hearsay.
FRE 802.
16. Overruled
[Objection No. 17] Declaration of
Richard Busch, Exhibit 12
August 23, 2013Rolling Stonearticle
titledRobin Thicke, Youre No
Marvin Gaye, by David Ritz
17. Irrelevant. FRE
402. Lacks personal
knowledge. FRE 602.
Improper lay opinion.
FRE 701.
Inadmissible hearsay.
FRE 802.
17. Overruled
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[Objection No. 18] Declaration of
Richard Busch, Exhibit 13 July 30,
2013 Vicearticle titled Why Dont We
Have a Song of the Summer Yet?by
Paul Cantor
18. Irrelevant. FRE
1402. Lacks personal
knowledge. FRE 602.
Improper lay opinion.
FRE 701.
Inadmissible hearsay.
FRE 802.
18. Overruled
DECLARATION OF THOMAS COURT
DECLARATION OF THOMAS COURT OBJECTION RULING
I, Thomas Court, declare as follows:
1. I am over the age of 18 and not a
party to this action. I have personal
knowledge of the facts set forth
herein, which are known by me to be
true and correct, and if called as a
witness, I could and would
competently testify thereto.
2. I am a field trained audio engineer,
and I have a GED from the United
States Coast Guard where I schooled
first in electronics as a fire-control
technician but due to war I changed
my study and graduated as corpsman.
I was honorably discharged after two
years. After my service in 1972, I
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installed, wired and ran a recording
studio called Fiddlers Music, in
Detroit.
3. In the mid-1970s, I was invited to
create a music-sound-design
laboratory for disco producers at a
large studio, Electronic Music
Laboratories (Mouth Music). This
allowed opportunity for beta testingof emerging musical-instrument
technology for large companies, and
subsequently I was invited to multiple
studios in the Detroit-region to help
wire up modern technology as
technology progressed.
4. From 1978-1981 I toured the
United States as a front of house
sound mixer for Detroits Rockets
and Figures on a Beach. I also
served as a live-production
synthesizer musician with The
Eurge.
5. I progressed in my career when
asked to work fulltime-freelance
(International Alliance of Theatrical
Stage Employees local 812) at the
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General Motors Headquarters in
Detroit, Michigan, where my position
as chief audio engineer for industrial
training aligned me with filmmakers,
videographers, and top engineers for
satellite communications (long
distance learning broadcasting).
6. This expanded my experience into
optical-audio prints for film andpositioned me at the dawn of an
industry going from audio tape
recorders to digital audio technology.
This led me to begin working with
SoundTools and the beta-test period
that became Pro Tools in the early
1980s. My tenure with GM
(Photographic division) lasted over 18
years when GM downsizing closed
their studio down.
7. Pro Tools is the digital audio
workstation-standard for computer
software in the music and filmindustry that runs on multiple types of
platforms, Windows or Macintosh. It
is essentially the modern
tape_recorder for making
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(recording and finishing) music.
8. In the late 1990s I was invited and
then appointed to develop and run the
Music Technology Program at Wayne
State University, Department of
Music in Detroit, Michigan, where I
have spent the last 16 years as the
primary educator in charge of the
Music Technology Program. Due tomy non-academic in-field-training
experience my academic title
continues as full-time lecturer.
9. [Objection No. 19] After my
retention with King & Ballow, I
created a mashup of the songs
Blurred Lines and Got to Give it
Up. A mashup represents a
composite of both songs, which
allows the listener to recognize the
similarities in the two works.
19. Irrelevant. FRE
402.
Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
Unsupported and
improper expertopinion or conclusion.
Walton v. U.S.
Marshals Service, 492
F.3d 988, 1008 (9th
19. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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Cir. 2007)(excluding
expert testimony on
summary judgment
where expert failed to
give a factual basis for
his opinion); Samuels
v. Holland American
Line-USA Inc., 656
F.3d 948, 952-53 (9
th
Cir. 2011) (same).
10. I conducted my analysis by
primarily working on an Apple
computer, using Pro Tools digital
audio software.
11. When I first started working on
this project, King & Ballow supplied
me with files released from iTunes,
Got to Give It Up and Blurred
Lines.
12. The first tracks were supplied to
me were the stereo-mixed releases.
13. King & Ballow also provided me
with a separate digital audio multi-
track recording for Blurred Lines in
the Pro Tools session-format so that I
did not have to change any format and
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I could open them on my research
system. The audio files were a
finished master-session as would be
delivered to a record company. This
allowed me to separate just the
Blurred Lines vocals and
instrumental tracks into separate
monaural track-stems. One vocal-
only and one music-only.
1
1 By music-only, I am referring
in this document to the
instrumental accompaniment
tracks, rather than the vocal
tracks.
14. I listened and compared all og the
tracks (released versions and
separated stem version) in order to
verify they are one and the same. I
determined that the tracks provided
were identical to the commercially
released versions.
15. [Objection No. 20] My approachusing isolated vocal and music stems
revealed that there was something
interchangeable between the two
pieces, Blurred Lines and Got to
20. Irrelevant. FRE402.
Improper expert
opinion, not helpful to
the trier of fact, and
20. Sustained forpurposes of this
Motion only. See
Ruling on
Objection No. 1,
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Give it Up. Like a puzzle cut with
the same jigsaw, I could move the
Got to Give it Up vocal-only
(Example 3) from the songs,
measures 108 through 124 (16 Bars),
and have it play back simultaneously
with the Blurred Lines music-only
from that song, measures 105 through
121 (16 bars). The result, without anypitch manipulation, played as if they
were one song.
not the product of
reliable principles or
methods. FRE 702.
Unsupported and
improper expert
opinion or conclusion.
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53.
supra.
16. Having access to the separated
music and vocals from both songs and
because they were delivered in
finished-master-archive format, I did
not remix or add any special effects or
use any specialized software. The
Blurred Lines multi-track was
wellbalanced and I only had to mute
the music to create my vocal-only
track, and then mute the vocals and
create the music-only track for myanalysis. The Got to Give it Up
tracks were already pre-mixed with
ambient-reverb2for the vocal-only
(common for the era of the music).
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mapping on Pro Tools to determine
and adjust the BPM for both Blurred
Lines and Got to Give it Up.
18. The beat-mapping revealed that
both song recordings were within 1%
of each others tempo. My
adjustment was to conform each
tempo to a solid 120 beats per minute
(BPM).19. The Blurred Lines iTunes
release was at 119 BPM. However,
the multi-track master for Blurred
Lines BPM (the multi-tracks being
the most authentic) were set at 120
BPM, which verified that my
approach was accurate. The tempo
discrepancy could have been from the
transfer of master recordings to CD
format, then digitized to mp3 or other
web-compressed formats.
20. The Got to Give it Up iTunes
release was slightly faster at
approximately 122 BPM. I can only
give an approximate BPM because it
had varying tempo, typical of
recording sessions with live
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musicians.
21. For my mashup I used Pro Tools
software to import all four isolated
audio tracks (one vocal-only and
music-only for each song) from the
two separate recordings of Got to
Give it Up and Blurred Lines. I
then edited a 16-bar phrase from each
song (as discussed in paragraph 15above). [Objection No. 21] I then
just played them exactly as-is with no
alterations, namely two different
songs playing together in parallel. It
is what I would call a true
composite, and not mashed or
altered from the original.
21. Irrelevant. FRE
402. Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702;
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53. The
mashups do not
evidence extrinsic
similarity or anyextrinsic aspects of
either song.
21. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
22. To display visually and audibly
the tracks outside of Pro Tools I
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exported my selected 16-bar phrases
for playback in any music-player, I
utilized the widely used Apple iTunes
player. I used computer screen-
capturing software (SreenFlow)
visually recording my playback in
iTunes one track at a time for both
Got to Give It Up Vocals-only and
Blurred Lines Music-only. Becausethe iTunes player has time counters, I
could then align both playback visual
screen-captures (one for Got to Give
it Up and the other for Blurred
Lines) to start at 00:00 time. This
allowed both players to be played and
heard at the same time. This is the
identical result as in Pro Tools
without the audio-waveform displays
which some may not understand.
23. [Objection No. 22]
Simultaneously playing the above-
described selections enables thelistener to gain an understanding of
the correlation between the song Got
to Give it Up, vocals (phrasing of the
lyrics) and the Blurred Lines
22. Irrelevant. FRE
402. Improper expert
opinion or conclusion.FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
The mashups do not
22. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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instrumental music. This comparison
revealed their unique abilities to
synchronize with each other.
However these files are played,
whether in Pro Tools or as individual
music players playing at the same
time, the resulting mashup
composite is the same.
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
24. [Objection No. 23] The two songphrases Im analyzing seem to be
easily aligned.
23. Irrelevant. FRE402.
Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
Unsupported and
improper expert
opinion or conclusion.
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53.The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
23. Sustained forpurposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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either song.
Pursuant to 28 U.S.C. 1746, I
declare under penalty of perjury that
the foregoing is true and correct.
Executed this 7th day of September
2014.
[Objection No. 24] Declaration of
Tom Court, Exhibit 1 Mashup
Example No. 3 (Non-paper Exhibitlodged concurrently with this filing)
24. Irrelevant. FRE
402. Improper expert
opinion, not helpful tothe trier of fact, and
not the product of
reliable principles or
methods. FRE 702;
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53. The
mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
24. Sustained for
purposes of this
Motion only. SeeRuling on
Objection No. 1,
supra.
DECLARATION OF JUDITH FINELL
DECLARATION OF JUDITH FINELL OBJECTION RULING
I. MATERIALS REVIEWED
1. The following documents were
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provided by King & Ballow for
review:
a. Williams v. Bridgeport Motion
for Summary Judgement
b. Williams v. Bridgeport
Wilbur Declaration
c. Audio Exhibit: CD filed with
MSJ
d. Williams v. Bridgeport Stockett Declaration
2. The musical works discussed
below will be referred to as follows:
a. Got to Give it Up, by Marvin
Gaye
b. Blurred Lines, by Robin
Thicke and Pharrell Williams
c. After the Dance, by Marvin
Gaye and Leon Ware
d. Love After War, by Robin
Thicke
3. The Motion for Summary
Judgement will be referred to in thereport below as the MSJ.
4. The Declaration of Sandy Wilbur
will be referred to below as the
Wilbur Declaration. It will be cited
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as WD, followed by the paragraph
number.
II. CONCLUSIONS
5. I have reviewed the MSJ, the
Wilbur Declaration and deposit
copies of Got to Give it Up and
After the Dance accompanying the
Stockett Declaration.
6. Nothing stated in the MSJ, theWilbur Declaration, or the deposit
copies changed my findings or
conclusions as stated in my
preliminary report of October 17,
2013.
7. [Objection No. 25] In addition to
the numerous substantial similarities
and findings already identified in my
preliminary report, I believe that my
final report will identify additional
similarities between the works. It will
also further address the quantitative
and qualitative significance of the
similar material. My Preliminary
Report, and its findings, is
incorporated herein. My Preliminary
Report is attached hereto as Exhibit 1.
25. Irrelevant. FRE
402. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
25. Sustained
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A. Overall Findings
8. [Objection No. 26] The findings
and conclusions of the Wilbur
Declaration and the MSJ are flawed
as they are based on faulty premises
and methodology.
26. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
26. Overruled
9. [Objection No. 27]Neither
document credibly nor accurately
responded to the substantialsimilarities already discussed in my
preliminary report, nor do they fully
address the overriding basis for my
conclusion of substantial similarity.
This conclusion is based on my
finding that the similar features
operate in combination with one
anotherintersecting and co-
existingand they permeate Blurred
Lines. They are undeniably linked to
Got to Give it Up. Blurred Lines
simply would not be recognizable
without them.
27. Unsupported and
improper expert
opinion or conclusion.FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
27. Sustained in
part
10. [Objection No. 28]This
aggregation of similar features in the
two works results in their two
substantially similar Constellations.
28. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
28. Overruled
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This Constellation is greater and
more significant than any of the
individual, substantially similar
features.
F.3d at 1008; Samuels,
656 F.3d at 952-53.
11. [Objection No. 29]Both the
MSJ and the Wilbur Declaration
distract from this collective similarity,
instead focusing myopically on its
isolated individual elements. TheConstellation is mischaracterized as
a random assembly of individual
features, and both the MSJ and the
Wilbur Declaration overlook the
magnitude of the similar musical
content embedded in Blurred Lines.
This is largely a result of an
inappropriate methodology that drives
the MSJ and Wilbur Declaration. As
discussed below, this methodology
attempts to deny the similarities by
the following means:
a. To deconstruct andmicroscopically dissect the
individual similar features in
isolation, outside the context of
the overall musical work
29. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008;Samuels,
656 F.3d at 952-53.
29. Sustained in
part
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b. To dismiss and obscure the
individual similarities by
applying irrelevant and
inappropriate criteria to the
comparison process
c. To define as ideas rather than
expression the musical content of
the works
d. To mischaracterize the similarmusical features as collections of
commonplace devices
e. To mislead by disregarding the
continuous integrated presence
of the similarities and their
significance to Blurred Lines
f. To separate the Copyright
Deposit from the recording of
Got to Give it Up, attempting
to disqualify the recording from
the comparison process1
g. To cite irrelevant prior art that:
i. does not meet the comparisoncriteria and standards that the
Wilbur Declaration and the
MSJ apply to the two songs at
issue, and
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ii. lacks the collective
similarities present in these
songs.1This report This report refers to the
Copyright Deposit for Got to Give it
Up (PART 1) as found in Exhibit C
of item 1d above: Williams v.
Bridgeport - Stockett Declaration.
Got to Give it Up (PART 1)correlates to the recording I reviewed
in my preliminary report of
October 17, 2013.
12. This flawed methodology will be
discussed in greater detail below.
B. Flawed Methodology
i. To deconstruct and
microscopically dissect the
individual similar features in
isolation
13. The eight intersecting similarities
discussed in my preliminary review
recur repeatedly and oftensimultaneously throughout Blurred
Lines. They are not one-time
occurrences or random fragments.
Rather, together, they form the
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identity of Blurred Lines,
occupying its essence in vocal
melodies and instrumental material,
occurring throughout the chorus and
verse sections.2 They arethe song.
2A melody is defined as pitch (or
tone) plus rhythm (meaning the
duration of each successive pitch).Harvard Dictionary of Music, Second
Edition by Willi Apel, Harvard
University Press, 1979. Musical
works are divided into smaller
sections, much as books are divided
into chapters. In popular songs, these
sections are often alternating
choruses and verses, as well as
transitional sections such as bridges
and interludes, and ending sections
called codas or outros.
14. [Objection No. 30]These eight
features, and their variations, weavetogether to form the vocal and
instrumental fabric of Blurred
Lines. Their substantial similarity to
Got to Give it Up is undeniable.
30. Unsupported and
improper expertopinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
30. Overruled
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15. [Objection No. 31]The MSJs
implication that so many coinciding
similarities occur as a result of mere
shared generic features is incorrect
and misleading.3 Rather, it is the
result of many similar deliberate
creative choices.
3
In this report, when discussing theMSJ as it repeats the Wilbur
Declaration, this will be referred to
collectively as the MSJ. In cases
where findings are specific to only
one of these documents, the document
will be specified.
31. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
31. Sustained in
part
16. [Objection No. 32]The faulty
approach in the MSJ is to separate
each of the eight similar features, and
then further dissect each feature
individually, reducing it to many
small compositional elements. Each
of these elements is then dismissed asan ordinary building block,
device, or idea.
32. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
32. Overruled
17. [Objection No. 33]Reducing
elements of the musical expression to
33. Unsupported and
improper expert
33. Overruled
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common devices or building blocks is
inaccurate. Due to flawed
methodology, the resulting
conclusions presented in the MSJ are
faulty.
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
18. [Objection No. 34]If this same
methodology were applied, for
example, to assessing the originality
and artistic expression embodied bythe Guggenheim Museum in New
York, the resulting conclusion would
also be faulty. One could deconstruct
and reduce its brilliantly curved walls,
skylight, and distinctive rotunda to
mere elements of concrete, glass, and
metal, namely common building
blocks. With this approach, one
could erroneously claim that Frank
Lloyd Wrights iconic design is not
an original, but rather an assembly of
architectural materials and
devicesideas rather thanartistic expression. This inaccurate
conclusion would be the result of the
same faulty methodology that the
MSJ and the Wilbur Declaration
34. Unsupported and
improper expert
opinion or conclusion.
FRE 702;Walton
, 492F.3d at 1008; Samuels,
656 F.3d at 952-53.
Irrelevant. FRE 402.
This case does not
involve buildings.
34. Sustained
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apply to the musical works in this
case.
19. [Objection No. 35]Likewise,
here, the microscopic approach leads
to a misrepresentation of the actual
musical material found similarly in
Got to Give it Up and Blurred
Lines, and provides an inappropriate
basis for comparison.
35. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
35. Overruled
ii. To dismiss and obscure the
individual similarities by
applying irrelevant and
inappropriate criteria to the
comparison process
20. [Objection No. 36]Ms. Wilbur,
as reflected in the Wilbur Declaration
and the MSJ, has misapplied musical
criteria, thus invalidating the resulting
conclusions regarding similarity.
36. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
36. Sustained in
part
21. When comparing two melodies,
the assessment involves a hierarchy
of three factors. These factors carry
unequal weight and are
interdependent. To determine
substantial similarity, these factors
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must be applied correctly. Ms. Wilbur
has not done so.
22. Melodies are comprised of two
elements: pitch plus rhythm (duration
of each pitch). In comparing melodies
for similarities, pitch is normally the
more important element.
23. The hierarchy of factors in
assessing compared melodies forsubstantial similarity is:
A. Similar series of pitches
B. Similar series of durations
within similar pitches
C. Similar rhythmic placement
(positioning) within similar
series of pitches and durations.
24. Factor C (rhythmic placement)
does not apply unless Factor A is
present, and to a lesser extent Factor
B. In other words, if two melodies do
not contain a high degree of similar
pitches (Factor A), in a similar
rhythm (Factor B), then their location
within the bar or section (Factor C)
does not make them any more
similar.4 Likewise, two melodies can
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be substantially similar with only
Factors A and B, even if their
locations (Factor C) differ.
[Objection No. 37] In comparing the
8 Similarities in Got to Give it Up
and Blurred Lines, where certain
shared pitches are not in the exact
same location within the bar, this is
often due to minor rhythmicdisplacement and does not impact
their similarity. For example, the
placement is often shifted to the
neighboring beat or half-beat, while
many of the individual note rhythms
remain identical. The Wilbur
Declaration and the MSJ do not
recognize this due to faulty
methodology.
4Musical works are divided into
groups of beats, and each group is
referred to as a bar or measure. Indescribing a musical piece, one
usually refers to the location within a
piece by bar number. The number of
beats per bar is usually 2, 3, 4, or 6. In
37. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
37. Overruled
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musical notation, bars are separated
by vertical lines called bar lines.
Rhythmic placement describes the
location within a bar of a particular
tone. For example, 2 tones with the
same rhythmic placement would
occur on the same beat, such as beat
1, 2, 3, or 4, or on subdivisions of that
beat.25. [Objection No. 38]Ms. Wilbur
has over-emphasized Factor C
(rhythmic placement), thereby
discrediting, and disqualifying the
many similarities in pitch and rhythm
found in Got to Give it Up and
Blurred Lines. In other words, Ms.
Wilbur insists that the only basis for
similarity is that in which all 3
factors, A, B, and C apply to every
note in a melody.
38. Unsupported and
improper expert
opinion or conclusion.
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53.
38. Overruled
26. [Objection No. 39]This over-
emphasis on less importantcomparison factors, and rigid
insistence on literally 100% identical
material pervades the entire Wilbur
report, distorting all of Ms. Wilburs
39. Irrelevant. FRE
402.Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
39. Sustained in
part
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findings, and, consequently, the MSJ. F.3d at 1008; Samuels,
656 F.3d at 952-53.
27. [Objection No. 40] I know of no
other music copyright infringement
case in which every melodic factor
was identical in comparing two
musical works. Other than in digital
sampling cases, copyright infringers
are rarely found to have copiedverbatim entire passages from another
work. Again, small rhythmic
placement differences do not change
or reduce the similarity between
pitches and their rhythms, which
comprise a melody.5
5This is more obvious in digital
sampling cases. For example, if a
sample lifted from the Beatles
recording of their songs hook phrase
I want to hold your hand were
interpolated into another recording, itwould be immediately recognizable,
regardless of its rhythmic placement
on the new recording. For example,
even if the hook phrase in the original
40. Irrelevant. FRE
402. This case does
not involve digital
sampling.
Unsupported and
improper expert
opinion or conclusion.FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
40. Sustained
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Beatles recording occurred beginning
on beat 1 of the measure, and in the
new recording, its interpolation began
on beat 3, it would remain fully
identifiable due to its identical
melody, lyrics, and individual note
rhythms. For this reason, Factor C
would be entirely irrelevant.
28. [Objection No. 41]This can belikened to a comparison in visual
expression. For example, if one were
to compare two paintings, one with a
figure of a young red-haired woman
in a blue floral dress in the center of
the painting, standing before a tree,
the other of a young red-haired
woman in a blue floral dress on the
lower left corner of the canvas,
standing before a tree, the similarities
of the woman, her dress, and the tree
would supersede the difference in
location on the canvas. The same istrue here. The consistent similarities
in pitches, rhythms, and function of
the primary melodic material in
Blurred Lines compared to Got to
41. Irrelevant. FRE402. This case does
not involve visual art.
Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
41. Sustained
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Give it Up far override the
differences in minor details, including
rhythmic positioning.
29. In sum, Ms. Wilburs and the
MSJs application of every factor
indiscriminately to the musical
features in this case obstructs arrival
at accurate conclusions and misleads.
iii. To define as ideas ratherthan expression the
musical content of the works
30. Mischaracterizing the melodic
material as ideas rather than
creative expression, as done in both
the MSJ and the Wilbur Declaration,
is inaccurate and misleading. A song
is traditionally defined by its vocal
melodies (pitch and rhythm),
harmonies, lyrics, and structure.6
Additional distinctive features in the
instrumental content may contribute
to the identity of a work. The specificway in which these elements are
created is the embodiment of the
expression, and this is the reason why
we can recognize a musical work and
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distinguish it from another.
6Harmony is the chordal
accompaniment to a melody. A chord
is the simultaneous sounding of three
or more tones. A series of chords is
called a chord progression, or
harmonic progression.
31. For example, we recognize thedistinction between Happy
Birthday and Jingle Bells because
of their differing expression, namely
their specific melodies, harmonies,
and lyrics. They do contain some of
the same building blocks or ideas
such as major chords, repeated notes,
and quarter note rhythmsbut the
specific way their composers used
these building blocks surpasses ideas,
and results in their differing
individual expression.7
7In traditional harmony, three-note
chords, called triads, are either
major or minor, differing from
one another with the middle note
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being lowered (flattened) in the minor
chord, and raised in the major chord.
Consequently, a C major chord
comprises the pitches C-E-G, and a C
minor chord comprises the pitches C-
E flat-G. Rhythm describes the
duration of one note or rest (silence)
followed by the next. Rhythms are
defined by the length of beats theyoccupy. In a traditional four-beat bar,
for example, a quarter note would
occupy one beat, a half note, two
beats, and a whole note, four beats.
The beats may also be subdivided, for
example, into eighth notes (each are a
half beat), sixteenth notes (each are a
quarter beat), and so on.
32. The same is true here. The vocal
melodies, harmonies, and
instrumental parts in Blurred Lines
and Got to Give it Up are specific
creative expression, and form theirrespective underlying songs. These
elements are much more than a mere
concept or an assembly of pre-
existing musical ideas or devices. To
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define it otherwise, as stated in the
MSJ, is misleading and erroneous.
33. [Objection No. 42]The MSJ
misleads by exploiting the ambiguity
of the term idea in Ms. Wilburs
report, especially when imbuing it
with legal implications in the MSJ by
combining it with the word
unprotectable.
42. Unsupported and
improper expert
opinion or conclusion.
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
42. Sustained
iv. To mischaracterize the
similar musical features as
collections of commonplace
devices
34. The MSJ mischaracterizes the
similar features discussed in my
report as mere devices, which
misleads. Terming these features as
devices distorts, and implies that
they are ideas, not meaningful
expression.
35. Merely using the same device or
building block would not alone result
in two songs sounding substantially
similar enough to support a claim of
infringement. All composers share
devices and building blocks, but it is
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the way in which they use them that
distinguishes their musical works.
36. For example, Beethovens
famous theme in his Fifth Symphony
is a 4-note melody, comprised of 3
repetitions of the pitch G followed by
the pitch E-flat, with common
rhythms.8 Yet, applying the
methodology of the WilburDeclaration and the MSJ would
reduce Beethovens masterpiece of
musical expression to a commonplace
device or idea comprised of a C-
minor chord (arpeggio) with a
repeated first note.9
8If a tone is raised, it is referred to as
sharp, indicated with a # symbol.
If it is lowered, it is referred to as
flat, and is indicated with a b
symbol.9
Arpeggios are chords played withthe notes sounded in succession rather
than simultaneously. The theme in
Ludwig van Beethovens Fifth
Symphonyto which I refer above
.
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contains an arpeggio of a C minor
chord, using the pitches G-G-G-E-
flat.
37. This is precisely what the MSJ
has done in discussing Got to Give it
Up and Blurred Lines. Again, it is
howthe device is used that
determines its distinctiveness and
original expression, and when twosongs use devices in similar ways,
such as in the case of Got to Give it
Up and Blurred Lines, this results
in substantially similar expression.
v. To mislead by denying the
constant integrated presence
of the similarities and their
significance to Blurred
Lines
38. The MSJ grossly undervalues the
magnitude of similar material
throughout Blurred Lines, both as
to its quantity and significance. Theeight Similarities specified in my
preliminary report were meant as
examples of the shared similar
features, but were by no means the
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