Pharrell_Williams and Thicke v. Gaye - order on evidence order 138.pdf

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.

/ / /

/ / /

Case 2:13-cv-06004-JAK-AGR Document 138 Filed 10/30/14 Page 1 of 191 Page ID#:3574


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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

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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,

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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

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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

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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

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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

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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




not the product of


methods. FRE 702.

The mashups do not

evidence extrinsic

similarity or any


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


3. Sustained for

purposes of this



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4112.060/822464.1 8

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is a recording that combines elements

from two or more recordings.



not the product of


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

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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




not the product of


methods. FRE 702.

The mashups do not

evidence extrinsic

similarity or any


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




5. Sustained for

purposes of this

Motion only. See

Ruling on



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music track from its original key of A

down to G.

not the product of


methods. FRE 702.

The mashups do not

evidence extrinsic

similarity or any


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



not the product of


methods. FRE 702.

The mashups do not

evidence extrinsic

similarity or any


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


not the product of


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,

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methods. FRE 702.

The mashups do not

evidence extrinsic

similarity or any


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


opinion, not helpful tothe trier of fact, and

not the product of


methods. FRE 702.

The mashups do not

evidence extrinsic

similarity or any


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,

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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




not the product of


methods. FRE 702.

The mashups do not

evidence extrinsicsimilarity or any


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

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Ron Aston, Exhibit 2 Mashup

Example No. 2 (Non-paper Exhibit

lodged concurrently with this filing)




not the product of


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

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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.


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,

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Video, in which he admits that when

creating Blurred Lines, he wanted

to do something like Marvin Gayes

Got to Give it Up.


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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g. Track 7: Pharrell Williams

Admits Blurred Lines Was

Inspired By Marvin Gayes Got

to Give it Up, on or about

October 31, 2013.


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.


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.


true and correct copy of excerpts of



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4112.060/822464.1 17

KING,HOLMES,

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April 23, 2014 Deposition of Robin

Thicke.



April 21, 2014 Deposition of Pharrell

Williams.


true and correct copy Declaration of

Sandy Wilbur inBourne Co v.Twentieth Century Fox.



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



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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correct copy of the August 23, 2013

Rolling StonearticleRobin Thicke,

Youre No Marvin Gaye, by David

Ritz.

13. Irrelevant. FRE

402.

13. Overruled



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.


a true and correct copy of Sandy

Wilburs 2012 Musicology Services

Brochure for Music Suppliers and

Advertisers.


a true and correct copy of a DVD

containing Deposition Video of from



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4112.060/822464.1 19

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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



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


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.


FRE 802.

16. Overruled


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.


FRE 701.


FRE 802.

17. Overruled



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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.


FRE 701.


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



not the product of


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




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


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




not the product of


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


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


either song.

24. [Objection No. 23] The two songphrases Im analyzing seem to be

easily aligned.

23. Irrelevant. FRE402.

Improper expert



not the product of


methods. FRE 702.

Unsupported and

improper expert


Walton, 492 F.3d at

1008; Samuels, 656

F.3d at 952-53.The mashups do not

evidence extrinsic

similarity or any



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



2014.


Tom Court, Exhibit 1 Mashup

Example No. 3 (Non-paper Exhibitlodged concurrently with this filing)

24. Irrelevant. FRE


opinion, not helpful tothe trier of fact, and

not the product of


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


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


FRE 702; Walton, 492


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




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



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



28. Overruled



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This Constellation is greater and

more significant than any of the

individual, substantially similar

features.


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



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.



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




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




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.




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


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




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




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




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


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



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



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




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




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

Case 2:13-cv-06004-JAK-AGR Document 138 Filed 10/30/

Pharrell_Williams and Thicke v. Gaye - order on evidence order 138.pdf

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Transcript of Pharrell_Williams and Thicke v. Gaye - order on evidence order 138.pdf