Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 1 of 31 Page ID #:6968 1 KING, HOLMES, PATERNO & BERLINER, LLP HOWARD E. KING, ESQ., STATE BAR NO. 77012 2 STEPHEN D. ROTHSCHILD, ESQ., STATE BAR NO. 132514 ROTHSCHILD@KHPBLAW.COM 3 SETH MILLER, ESQ., STATE BAR NO. 175130 MILLER@KHPBLAW.COM TH 4 1900 AVENUE OF THE STARS, 25 FLOOR LOS ANGELES, CALIFORNIA 90067-4506 5 TELEPHONE: (310) 282-8989 FACSIMILE: (310) 282-8903 6 Attorneys for Plaintiffs and Counter7 Defendants PHARRELL WILLIAMS, ROBIN THICKE and CLIFFORD 8 HARRIS, JR. and Counter-Defendants MORE WATER FROM NAZARETH 9 PUBLISHING, INC., PAULA MAXINE PATTON individually and d/b/a 10 HADDINGTON MUSIC, STAR TRAK ENTERTAINMENT, GEFFEN 11 RECORDS, INTERSCOPE RECORDS, UMG RECORDINGS, INC., and 12 UNIVERSAL MUSIC DISTRIBUTION 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 15 PHARRELL WILLIAMS, an individual; ROBIN THICKE, an 16 individual; and CLIFFORD HARRIS, JR., an individual, 17 Plaintiffs, 18 vs. 19 BRIDGEPORT MUSIC, INC., a 20 Michigan corporation; FRANKIE CHRISTIAN GAYE, an individual; 21 MARVIN GAYE III, an individual; NONA MARVISA GAYE, an 22 individual; and DOES 1 through 10, inclusive, 23 Defendants. 24 25 AND RELATED COUNTERCLAIMS. 26 27 / / / 28 / / / 4112.060/851747.1 CASE NO. CV13-06004-JAK (AGRx) Hon. John A. Kronstadt, Ctrm 750 PLAINTIFFS’ OPPOSITION TO COUNTER-CLAIMANTS’ EX PARTE APPLICATION FOR CONTINUANCE OF TRIAL, RECONSIDERATION OF GRANTING MOTION IN LIMINE NO. 1-3 AND CERTIFICATION OF QUESTION FOR INTERLOCUTORY APPEAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SETH MILLER Action Commenced: August 15, 2013 Trial Date: February 10, 2015 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 2 of 31 Page ID #:6969 TABLE OF CONTENTS 1 Page 2 3 4 5 I. INTRODUCTION .................................................................................................... 1  II. THE MOTION FOR RECONSIDERATION SHOULD BE DENIED ................. 3  A.  THE COMPOSITION IS LIMITED TO THE DEPOSIT COPY LEAD SHEET......................................................................................... 3  B.  THE CREATION OF THE SOUND RECORDING HAS NO RELEVANCE HERE ........................................................................... 11  C.  THE COURT’S RULING WILL NOT “LEGALIZE WHOLESALE COPYRIGHT INFRINGEMENT” ............................. 12  D.  EXCLUDING THE GIVE AND DANCE SOUND RECORDINGS IS PROPER HERE ..................................................... 15  6 7 8 9 10 11 12 13 III. THE MOTION TO CONTINUE TRIAL SHOULD BE DENIED .................... 21  IV. THE MOTION FOR INTERLOCUTORY APPEAL SHOULD BE DENIED .......................................................................................................... 22  14 V. CONCLUSION ..................................................................................................... 24  15 16 17 18 19 20 21 22 23 24 25 26 27 28 KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 i Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 3 of 31 Page ID #:6970 TABLE OF AUTHORITIES 1 Page 2 3 4 5 CASES  Dan Kasoff, Inc. v. Novelty Jewelry Co., 309 F.2d 745 (2d Cir. 1962) .............................................................................. 6 Thomas Nelson, Inc., 6 Harper House, Inc. v. th 889 F.2d 197 (9 Cir. 1989) ............................................................................ 17 7 Jones v. Virgin Records, Ltd., 643 F.Supp. 1153 (S.D.N.Y. 1986) ................................................................. 15 8 9 Knowledgeplex, Inc., 942 F.Supp.2d 1045 (D. Idaho 2013) ................................................................ 6 10 Milliken & Co. v. Shaw Indus., Inc., 978 F.Supp. 1155 (N.D. Ga. 1997) ................................................................... 6 11 12 National Comics Pub., v. Fawcett Pubs., 191 F.2d 594 (2d Cir. 1951) .............................................................................. 6 13 Newton v. Diamond, 204 F.Supp.2d 1244 (C.D.Cal. 2002)........................................................ 14, 19 14 15 Scentsy, Inc. v. B.R. Chase, LLC, 942 F.Supp.2d 1045 (D. Idaho 2013) ................................................................ 5 16 Scentsy, Inc. v. Harmony Brands, LLC, th 585 Fed.Appx. 621 (9 Cir. 2014) .................................................................... 6 17 Inc., 18 Sch. Dist. No. 1J v. ACandS, 5 F.3d 11255 (9th Cir. 1999) .............................................................................. 3 19 Shoptalk, Ltd. v. Concorde New Horizon Corp., 168 F.3d 586 (2d Cir. 1999) ........................................................................ 9, 10 20 21 Stewart v. Abend, 495 U.S. 207, 233 (1991) .............................................................................. 2, 4 22 Three Boys Music Corp. v. Bolton, th 212 F.3d 477 (9 Cir. 2000) ...................................................................... 7, 8, 9 23 24 25 STATUTES  26 17 U.S.C. § 303...................................................................................................... 4, 10 27 28 U.S.C. § 1292.................................................................................................. 22, 23 28 Copyright Act of March 4, 1909 ........................................................................ passim KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 ii Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 4 of 31 Page ID #:6971 1 OTHER AUTHORITIES  2 M. Nimmer & D. Nimmer, 1 Nimmer on Copyright § 2.05 ..................................... 11 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 iii Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 5 of 31 Page ID #:6972 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 INTRODUCTION Defendants ex parte application (“Application”) is desperate to avoid a trial 4 5 because—as the evidence will show—the songs at issue here are not the same.1 There is no basis for the Application. Not only are there no new facts or 6 7 law—indeed, the Court has now ruled on these issues twice—but the Court’s ruling 8 on the copyright issue is correct and fully consistent with the clear language of 9 Section 9 of the 1909 Act. There is no manifest error, no basis for reconsideration, 10 and no reason for interlocutory appeal. Under the 1909 Act, copyright is “secured” 11 by publication with notice. The only material published with notice here is the 12 deposit copy. That is the only copyright that was “secured” here. Defendants do not and cannot explain how they, as heirs of Marvin Gaye, 13 14 own a copyright in any other composition. Marvin Gaye’s performance of other 15 musical elements on a sound recording is not publication with notice. No 16 manuscript copy of the composition was published other than the deposit copy. No 17 copyright was “secured” in any composition other than the deposit copy lead sheet. 18 Marvin Gaye never owned a copyright in “Got to Give It Up.” His 19 publisher, Jobete, owned the copyright. The copyright notice at the bottom of each 20 deposit copy states: “© [year] Jobete Music Company, Inc.” The copyright only 21 descended to his heirs after his death because the renewal rights vested in his heirs 22 as a matter of law when Marvin Gaye died. It was never Marvin Gaye’s song. 23 / / / 24 25 26 27 28 1 Hopefully, the Application was not filed as part of a plan to try this case in the press. Defendants filed their Application at 3:02 p.m. At 3:15 p.m., The Hollywood Reporter published a lengthy article about the Application. [Declaration of Seth Miller (“Miller Decl”), Exhs. A, B.] Clearly, Defendants sent the Application to the press before they filed it with the Court. Jury selection is less than two weeks away. KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 1 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 6 of 31 Page ID #:6973 1 Whatever Marvin Gaye allegedly did in the recording studio to create other 2 musical elements, and for which there is no evidence, anyway, has no bearing on the 3 scope of any copyright under the 1909 Act, and certainly not on Jobete’s copyright. 4 The 1909 Act is what it is. There is nothing unfair or unjust about it. There is 5 no reason for the Court to change its rulings because Defendants do not like them, 6 think they are unfair, or make hyperbolic claims about the supposed impact on the 7 music industry. The simple fact is that, prior to 1978 (and after), compositions for 8 popular music were considered to be the melody, harmony, and lyrics—i.e., the 9 song. No songwriter considered a hi-hat part, vocal “woo,” falsetto vocal style, 10 omission of a guitar, keyboard part, or other element of a sound recording of the 11 song to be the song itself. And if they did, they included that element in the written 12 composition they published with notice—just as Jobete did hear with a “bass intro” 13 in “Got to Give It Up.” Defendants now are facing a jury trial and wish that they 14 owned something other than the published composition that is nothing like “Blurred 15 Lines.” Their desire to distract and mislead the jury is not basis for reconsideration. 16 Finally, the notion that Defendants need more time to prepare for trial should 17 be rejected out of hand. Plaintiffs filed their summary judgment motion in July 18 2014 [Document 89], raising all these same issues regarding the deposit copy. The 19 Court ruled on the summary judgment on October 30, 2014 and made clear that 20 copyright is determined under the 1909 Act by publication or deposit of an 21 unpublished copy [Document 139, 8-9 (“The general rule under the 1909 Act was 22 that the publication of a work with proper notice was necessary to obtain statutory 23 copyright protection” (citing Stewart v. Abend, 495 U.S. 207, 233 (1991))] . 24 Defendants’ musicologists have had months to prepare any demonstratives based on 25 the Deposit Copy. Plaintiffs have cleared their busy schedules for the February 10, 26 2015, trial and are eager to prove that they did not copy Marvin Gaye’s songs. 27 Plaintiffs should not be deprived of their day in Court merely because Defendants 28 are unable to prove their claims. The Application should be denied in its entirety. KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 2 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 7 of 31 Page ID #:6974 1 II. 2 THE MOTION FOR RECONSIDERATION SHOULD BE DENIED A motion for reconsideration of the decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion. 3 4 5 6 7 8 9 L.R. 7-18. Defendants flagrantly violate the Local Rule. There is no material difference 10 11 in fact or law from the Court’s rulings earlier this week—and certainly not one that 12 in the exercise of reasonable diligence could not have been known to the Gayes 13 earlier this week. L.R. 7-18. There has been no “emergence of new material facts 14 or a change of law” since Monday of this week. Id. There is no “manifest showing 15 of a failure to consider material facts presented to the Court” before it ruled earlier 16 this week. Id. The Application repeats all of the arguments the Gayes made in the 17 prior motions in limine, including at the oral argument on January 26, 2015. Id. The Gayes acknowledge that a motion for reconsideration must be based on: 18 19 (1) newly discovered evidence; (2) intervening change in law; or (3) clear error by 20 the district court or a manifestly unjust ruling. [App. Memo, 5-6 (citing Sch. Dist. 21 No. 1J v. ACandS, Inc., 5 F.3d 11255, 1263 (9th Cir. 1999)).] As set forth below, 22 none of these factors apply here. The Gayes’ motion for reconsideration is just an 23 unwarranted attempt to reargue points that they lost. The motion should be denied. 24 A. The Composition Is Limited to the Deposit Copy Lead Sheet 25 Defendants contend that the Court took a “leap of logic that is not supported 26 by the law” [App. Memo (Document 232-1), 1:18] in ruling that “the composition 27 embodied on the sound recording is not protected under the 1909 Copyright Act.” 28 [Id., 1:21-22.] Defendants are incorrect. The Court ruled that copyright under the KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 3 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 8 of 31 Page ID #:6975 1 1909 Act could be secured only by: (a) publishing with notice; or (2) depositing 2 unpublished copies with the Copyright Office. [Minute Order re Plaintiffs’ Motion 3 for Summary Judgment Or, In the Alternative, Summary Adjudication (Document 4 139)(“10/30/14 Order”), filed 10/30/14, p. 9.] The Court further explained that 5 publication of a composition under the 1909 Act meant publication of a manuscript 6 copy, citing numerous authorities. [10/30/14 Order, 8-10.] The Court found that 7 “Defendants offer no evidence that prior to registration of the copyrights, ‘Got to 8 Give It Up’ or ‘After the Dance’ was published or reduced to a manuscript form that 9 was more complete than what is included in the lead sheets.” [10/30/14 Order, 9.] 10 Defendants still have no evidence of any other manuscript copy. Section 9 of 11 the 1909 Act provides that “any person … may secure copyright for his work by 12 publication thereof with the notice of copyright required by this Act.” Act of 13 March 4, 1909 (“1909 Act”), ch. 320 § 9, 35 Stat. 1075, 1078. Defendants’ 14 copyright registrations state that the compositions were published. [Miller Decl, 15 Exhs. C, D.] A sound recording is not a publication of the underlying composition 16 under the 1909 Act. 17 U.S.C. § 303(b); see also 10/30/14 Order, 10. Hence, the 17 only composition that was published with notice is the composition in the deposit 18 copy. The Court has consistently ruled as much. Its ruling is correct based on the 19 law and facts here. 20 Defendants arguments in the Application have been considered and rejected 21 by this Court both in the summary judgment motion and in the motions in limine. 22 Now, in their third attempt to make these identical arguments, Defendants 23 offer nothing new beyond wildly exaggerated rhetoric about the impact on the music 24 industry of the Court’s correct interpretation of the law under the 1909 Act. 25 Tellingly, Defendants offer no legal authority for how a copyright allegedly 26 was secured in material contained only in the sound recordings. Such material was 27 not published with notice. 1909 Act, § 9; Stewart v. Abend, 495 U.S. 207, 233 28 (1991). The composition in the sound recording also was not deposited in written KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 4 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 9 of 31 Page ID #:6976 1 form (or at all) unpublished, 1909 Act, § 11, nor is that even a possibility here since 2 the copyright registrations for “Got to Give It Up” (“GIVE”) and “After the Dance” 3 (“DANCE”) state that the works were published works. [Miller Decl, Exhs. C, D.] 4 So how was copyright “secured” in the composition embodied only in the 5 sound recording? Answer: it was not. It could only be secured by publication. 6 Defendants’ arguments to the contrary are disingenuous and incorrect. 7 Defendants argue (for yet a third time) that the deposit copy does not limit the 8 scope of the copyrighted work. But that is not the issue here. The Deposit Copies 9 of GIVE and DANCE are the only published copies in evidence. The Deposit 10 Copies are the copyrighted composition not because there are what was deposited 11 but rather because they are the only copies published with notice affixed so as to 12 secure a copyright. Tellingly, despite moving for reconsideration, interlocutory 13 appeal, and to continue trial, Defendants cite no authority for their unfounded 14 assertion that a composition that was never published with notice affixed is subject 15 to copyright under the 1909 Act—i.e., which would be contrary to the plain terms of 16 the Act. 1909 Act, § 9 (“any person … may secure copyright for his work by 17 publication thereof with the notice of copyright required by this Act”)(emphasis 18 added). Defendants also cite no authority for their claim that material contained not 19 in the written Deposit Copy but in an entirely separate sound recording—a recording 20 that also has nothing to with the copyright claimant (Jobete, see below)—somehow 21 obtains copyright registration because the lead sheet Deposit Copy was published. 22 Defendants’ authority is inapposite and incorrectly cited. Many of these cases 23 were addressed in prior motions in this case and are only briefly addressed below: 24  Scentsy, Inc. v. B.R. Chase, LLC, 942 F.Supp.2d 1045 (D. Idaho 2013) 25 was decided under the 1976 Act and concerns whether the scope of the 26 copyright is limited by the deposit copy and turns on the special rules 27 for deposit copies of sculptural works—here, the issue is whether the 28 KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 5 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 10 of 31 Page ID #:6977 1 published copy of a musical composition that secured the copyright is 2 the extent of the copyrighted material under the 1909 Act; 3  Scentsy, Inc. v. Harmony Brands, LLC, 585 Fed.Appx. 621 (9th Cir. 4 2014) is an unpublished Ninth Circuit case that is not citable under 5 Ninth Circuit Rule 36-3, is decided under the 1976 Act, and does not 6 concern the scope of a copyright whatsoever but rather concerns the 7 trial court’s application of the extrinsic and intrinsic tests for copying; 8  Knowledgeplex, Inc., 942 F.Supp.2d 1045 (D. Idaho 2013) was decided 9 under the 1976 Act and concerns whether the court had jurisdiction 10 over claims relating to material not contained in the deposit copy and 11 turns on special rules for deposit copies of computer code—here, there 12 is no jurisdictional issue, no computer code, and again, the issue is not 13 that the Gayes lack a copyright because the deposit was incomplete but 14 rather because the only published copy is the deposit copy lead sheet; 15  Milliken & Co. v. Shaw Indus., Inc., 978 F.Supp. 1155, 1158 (N.D. Ga. 16 1997) was decided under the 1976 Act and concerns whether the court 17 had jurisdiction over the copyright claim when the deposit copy of the 18 copyrighted carpet swatch allegedly was an incomplete copy of the 19 work—here, there is no jurisdictional issue, and the 1909 Act governs; 20  Dan Kasoff, Inc. v. Novelty Jewelry Co., 309 F.2d 745 (2d Cir. 1962) 21 concerned whether the copyright notice was defective because it used 22 the plaintiff’s trademark rather than the plaintiff’s name—here, there is 23 no issue that the name on the Deposit Copy notice is wrong; 24  National Comics Pub., v. Fawcett Pubs., 191 F.2d 594, 603 (2d Cir. 25 1951) concerned whether the copyright notice was defective because it 26 used the name of the proprietor’s affiliated corporation rather than the 27 copyright proprietor’s—here, there is no issue that the “Jobete Music 28 Company” name on the Deposit Copy notice is not the true owner. KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 6 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 11 of 31 Page ID #:6978 1 The cases cited by Defendants are inapposite. And then there is Three Boys. 2 Yet again. The Court has repeatedly ruled that Three Boys is inapposite because it is 3 a jurisdictional case. The Court is correct. Below is the entire relevant text: 4 5 6 7 8 9 10 11 12 13 14 The appellants argue that the district court did not have jurisdiction over this case because the Isley Brothers failed to register a complete copy of the song upon which the lawsuit was based. Although the 1909 Copyright Act requires the owner to deposit a “complete copy” of the work with the copyright office, our definition of a “complete copy” is broad and deferential: “Absent intent to defraud and prejudice, inaccuracies in copyright registrations do not bar actions for infringement.” … . Bolton and Goldmark argue that in 1964 the Isley Brothers deposited sheet music (“deposit copy”) of “Love is a Wonderful Thing” that differed from the recorded version of the song. Furthermore, they claimed that the deposit copy does not include the majority of the musical elements that were part of the infringement claim. At trial, the Isley Brothers’ expert, Dr. Eskelin, testified that the deposit copy included all of the song’s essential elements such as the title hook, chorus, and pitches. Dr. Eskelin even played the deposit copy for the jury on the keyboard. We refuse to disturb the jury’s finding that the Isley Brothers deposited a “complete copy” because (1) there was no intent to defraud and prejudice and (2) any inaccuracies *in the deposit copy were minor and do not bar the infringement action. 15 Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486-87 (9th Cir. 2000)(emphasis 16 added)(citation omitted). 17 The only issue in Three Boys was jurisdiction. The jury finding that the court 18 upheld was only whether a complete copy was deposited for purposes of complying 19 with the registration requirement of submitting a deposit copy so as to obtain the 20 right to sue for infringement. See id. It was a jurisdictional issue, pure and simple. 21 There is no dicta (let alone any holding) in Three Boys—or any language in 22 the case whatsoever—that discusses whether a copyright secured by publishing the 23 work with notice affixed can include any material not found in the published copy. 24 Defendants argue that Three Boys upheld the jury’s finding of substantial 25 similarity, but the entire relevant text of that portion of the opinion is as follows: 26 27 28 Bolton and Goldmark argue that there was insufficient evidence of substantial similarity because the Isley Brothers’ expert musicologist, Dr. Gerald Eskelin, failed to show that there was copying of a combination of unprotectible elements. On the contrary, Eskelin testified that the two songs shared a combination of five KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 7 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 12 of 31 Page ID #:6979 1 2 3 4 5 6 unprotectible elements: (1) the title hook phrase (including the lyric, rhythm, and pitch); (2) the shifted cadence; (3) the instrumental figures; (4) the verse/chorus relationship; and (5) the fade ending. Although the appellants presented testimony from their own expert musicologist, Anthony Ricigliano, he conceded that there were similarities between the two songs and that he had not found the combination of unprotectible elements in the Isley Brothers’ song “anywhere in the prior art.” The jury heard testimony from both of these experts and “found infringement based on a unique compilation of those elements.” We refuse to interfere with the jury’s credibility determination, nor do we find that the jury’s finding of substantial similarity was clearly erroneous. 7 8 Three Boys, 212 F.3d at 485-86. 9 There is not a shred of indication in the foregoing passage that it ever crossed 10 the Ninth Circuit’s collective mind that the lead sheet deposit copy may have 11 contained elements that were not subject to the plaintiff’s copyright, whether 12 because they were not found in the deposit copy or for any other reason. At a 13 minimum, it is crystal clear that the defendant never raised that issue in the case. 14 Defendants’ submission of trial transcripts from the Three Boys case also is 15 unavailing. The precedential authority of Three Boys is limited to the four corners 16 of the Ninth Circuit opinion. Defendants cite no authority for the implicit assertion 17 that this Court can or should look “under the hood” of the Ninth Circuit opinion or 18 analyze its “legislative history” (so to speak) to find a new meaning in the published 19 opinion beyond what the Ninth Circuit justices wrote in plain English. This is a 20 rather astonishing suggestion and flies in the face of established judicial procedure. 21 Even were the Court to consider the trial transcripts—and it should not—they 22 demonstrate nothing other than that recordings of the plaintiff’s song were played to 23 the jury but possibly may have contained material not found in the deposit copy lead 24 sheet. Whether the recording in fact did contain material not found in the lead sheet 25 is unknowable based on the trial transcript excerpts. First, it may be that there was a 26 published copy of the sheet music that in fact secured the copyright in the song and 27 that did contain the potentially omitted material. Second, any omitted material was 28 contained in an introduction, coda, and instrumental figure. [Declaration of Richard KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 8 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 13 of 31 Page ID #:6980 1 S. Busch, Exh. B (trial tr.), 760:24-761:15.] But the actual melody or other musical 2 elements claimed to be similar and contained in the introduction, coda section, or 3 instrumental figure in the sound recording also may have been in the deposit copy. 4 There is no way to know from the transcript. Third, the defendant did not raise the 5 issue of whether any material in the sound recording but not in the deposit copy was 6 subject to the plaintiff’s copyright (perhaps for one of the reasons stated above). In short, Three Boys does not address in any way, shape, or form whether 7 8 material not found in the deposit copy was subject to copyright. A case is not legal 9 authority for an issue it does not decide. Even had Three Boys addressed that issue, 10 it would still be a different issue from the issue here, namely: whether material not 11 contained in the published copies of GIVE and DANCE is (somehow, for some 12 unstated reason) subject to copyright. The 1909 Act says otherwise: copyright is 13 “secured” by publication with notice. 1909 Act, § 9. Defendants are the moving 14 party here. They bear the burden. The provide no authority for their assertions that 15 the composition in the Marvin Gaye recording falls within their statutory copyright. Finally, Shoptalk, Ltd. v. Concorde New Horizon Corp., 168 F.3d 586 (2d Cir. 16 17 1999) is inapposite and concerns whether, under the 1909 Act, a previously 18 unpublished work is published (i.e., and hence becomes public domain) if a 19 derivative work is published. The plaintiff in Shoptalk argued that the copyright in 20 the defendant’s screenplay was published when the motion picture based on the 21 screenplay was published, and thus copyright was secured in the screenplay, but 22 when the copyright in the motion picture expired, so did the copyright in the 23 underlying screenplay. The court held that only those portions of the unpublished 24 screenplay that were contained in the motion picture had been published: We conclude in the present case, based on the statute and the principles underlying the scope of copyright protection, that if a previously unpublished screenplay is embodied in a motion picture, so much of the screenplay as is disclosed in the motion picture is published when the motion picture is published. 25 26 27 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 9 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 14 of 31 Page ID #:6981 1 Shoptalk, 168 F.3d at 592 (emphasis added). Here, at most, only “so much of the” 2 GIVE composition embodied in the sound recording “as is disclosed” in the 3 published Deposit Copy arguably was published by publication of the Deposit Copy. 4 Id. But then the reverse is also true: any compositional material in the recording that 5 is not contained in the Deposit Copy was not published. Id. Under Shoptalk, the 6 copyright here clearly is limited to only the material published in the Deposit Copy. 7 Shoptalk thus fully supports the Court’s ruling. Shoptalk holds that the 8 publication of a derivative work (motion picture) publishes the underlying work 9 (screenplay) and thus secures a copyright in it only to the extent the published 10 derivative work embodies the unpublished work. In other words, under Shoptalk, it 11 is the published copy alone that limits and defines the scope of copyrighted material. 12 13 14 15 Defendants arguments are just stubborn insistence, unsupported by authority: The Gayes are aware of no authority supporting the proposition that the version of the composition protected must have been “published” in the form of sheet music prior to registration, and the Court cited no authority to support this conclusion. Instead, registration protects all versions of the composition that existed prior to registration. 16 [App. Memo (Document 232-1), 6:24-28.] 17 Contrary to the Gaye’s blunt assertion, the 1909 Act provides that copyright is 18 secured by publication with notice (§ 9), followed by registration (§ 10 )and deposit 19 of “the best edition thereof then published” (§ 12). 1909 Act, §§ 9,10, 12. The 20 version to be protected clearly must be published, registered, and deposited. Id. A 21 sound recording is not publication of a composition. 17 U.S.C. § 303(b). The Court 22 has cited these (and other) authorities for this proposition in the past. The Gayes 23 either refuse to acknowledge the law or seek to defy it through force of will alone. 24 As shown above, the Gayes cite no authority for any other interpretation of the Act. 25 Defendants fail to recognize the radical distinction between the 1976 Act and 26 the 1909 Act as it pertains to copyright in musical compositions. Under the 1976 27 Act, it is “possible to copyright a musical composition merely by recording it,” but 28 as Nimmer point out, “[t]his represents a sweeping departure from the 1909 Act KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 10 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 15 of 31 Page ID #:6982 1 and constitutes an intentional overruling of [the prior Supreme Court doctrine] that 2 in order to constitute a copy within the meaning of the then extant copyright law 3 [1909 Act], there must be a written or printed record in intelligible notation.” 4 M. Nimmer & D. Nimmer, 1 Nimmer on Copyright § 2.05[A] (emphasis added). This case arises under the 1909 Act. A written copy, published with notice 5 6 affixed, is required in order to secure copyright in a composition. The construction 7 of the law Defendants urge the Court to adopt would radically overturn the entire 8 logic of the 1909 Act. Under the 1909 Act, if sheet music was published without 9 copyright notice, or if the notice was even defective in some material respect, no 10 copyright was secured, and the work was injected into the public domain. It defies 11 common sense and legal precedent, not to mention the plain text of the 1909 Act, to 12 suggest that, while having a defectively worded “©” notice would work a forfeiture 13 of a copyright, publishing sheet music that omits substantial portions of an alleged 14 composition embodied only in a sound recording is nonetheless effective to secure a 15 copyright in a composition that has never been set forth in intelligible notation. 16 B. The Creation of the Sound Recording Has No Relevance Here 17 Defendants’ argument that GIVE was “written through the recording process” 18 and “that the version of the composition included on Marvin Gaye’s original 19 commercially released recording was a complete version of the composition that 20 existed prior to registration” [App. Memo (Document 232-1, 7:2-4] is immaterial. 21 To argue that the composition in the sound recording is the “complete 22 version” of the composition is meaningless. Nothing in the 1909 Act requires the 23 proprietor to copyright the “complete” version—or any version—of a composition. 24 Whatever the proprietor publishes with notice affixed secures a copyright. In this 25 case, that version is the Deposit Copy. Any material embodied in the sound 26 recording that is not found in the Deposit Copy is not subject to copyright. 27 The original owner of the GIVE and DANCE copyrights is not Marvin Gaye. 28 Marvin Gaye was the author, but the claimant (owner) of the copyright was his KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 11 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 16 of 31 Page ID #:6983 1 publisher, Jobete. [Miller Decl, Exh. C, D p. 1, § 1 (listing Jobete as copyright 2 claimant); Exhs. E-F, p. 1 (stating “© [year] Jobete Music Company, Inc.”).] The 3 Gayes only obtained copyright ownership after Marvin Gaye died as his heirs due to 4 the reversion provisions in the 1976 Copyright Act. Jobete owned the Deposit Copy 5 compositions in GIVE and DANCE from the outset. Marvin Gaye’s creation of a 6 sound recording of GIVE or DANCE has no bearing on the Deposit Copy that 7 Jobete published with notice in order to secure its copyright for the composition. Besides, there is no competent evidence of how Marvin Gaye created the 8 9 sound recording, let alone which portions at issue he supposedly created. Janis 10 Gaye—Marvin Gaye’s ex-wife—testifies only that she “was present when ‘Got to 11 Give It Up’ was recorded.” [Declaration of Janis Gaye (“Gaye Decl”), ¶ 5.] This 12 testimony is immaterial and does not evidence whether any elements in the sound 13 recording were created by Marvin Gaye To the contrary, Janis Gaye testified that 14 she did was not present on all days when GIVE was recorded—and that she does not 15 know if Marvin Gaye wrote sheet music or who created the Deposit Copy. [Miller 16 Decl, Exh. G.] Her testimony now in support of this Application that Marvin Gaye 17 did not write sheet music and that the lead sheet that became the deposit copy was 18 created after the song was recorded [Gaye Decl, ¶¶ 7-8] is not credible. If, in fact, 19 Marvin Gaye did write the lead sheet, or if it was written before he recorded the 20 song, then the Deposit Copy arguably is the “complete version” of the composition. None of the above matters, of course, since the compositional elements found 21 22 in the sound recording but not in the Deposit Copy were never published. Absent 23 publication, no copyright was secured in same under the Act. 1909 Act, § 9. 24 C. The Court’s Ruling Will Not “Legalize Wholesale Copyright 25 Infringement” 26 Defendants argue that “the Court’s ruling would have a devastating impact on 27 the rights of owners of pre-1978 musical compositions by allowing wholesale 28 copying of compositional elements not found in pre-registration published versions KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 12 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 17 of 31 Page ID #:6984 1 of the works or within the deposit copies themselves” and thus “would create 2 dangerous and potentially devastating precedent to the owners of such intellectual 3 property.” [App. Memo (Document 232-1), 1.] Defendants’ dire warnings about the demise of the United States copyright 4 5 law as a result of this Court’s pretrial rulings are greatly exaggerated. Defendants 6 argue that if pre-1978 copyrights are limited to the published compositions that were 7 copyrighted, then anyone can copy composition al material in any pre-1978 sound 8 recordings that was not copyrighted. Defendants are absolutely correct. That is 9 how copyright works. To obtain a copyright under the 1909 Act, the proprietor must publish with 10 11 notice a manuscript copy of the composition in which the proprietor claims a 12 copyright and must deposit “the best edition thereof then published” with the 13 Copyright Office. 1909 Act, §§ 9,10, 12. If the proprietor did not include certain 14 material in the published copy, then it is not subject to statutory copyright. If the 15 proprietor published without proper notice, the work is in the public domain, and 16 copyright is forfeited. The 1909 Act had specific requirements. Proprietors at the 17 time knew the rules and did what they did to obtain a copyright (or not). That a 18 proprietor failed to publish a complete copy of his composition does not alter the 19 meaning of the 1909 Act—it shows merely the proprietor’s failure to follow the Act. Defendants (rather hysterically) argue that. “under this Court’s ruling,” a 20 21 “clever infringer” can “take with impunity” material embodied in sound recordings 22 by the Beatles, The Rolling Stones, Elvis Presley, or—yes—even Marvin Gaye 23 because it was not contained in the published sheet music. [App. Memo, 2:1-5.] 24 This is wild-eyed speculation, since the Gayes have no idea what published sheet 25 music secured the copyrights in Elvis Presley, Beatles, or other artists’ songs, and 26 what compositional elements of the sound recordings are not copyrighted in same. 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 13 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 18 of 31 Page ID #:6985 1 More importantly, Defendants simply miss the musical point that the 2 composition of a popular song is contained the melody, harmony, and lyrics—the 3 very elements that are set forth even in a bare bones lead sheet version of a song. 4 5 6 7 A musical composition consists of rhythm, harmony, and melody, and it is from these elements that originality is to be determined. 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.05[D]. A musical composition captures an artist’s music in written form. … A musical composition’s copyright protects the generic sound that would necessarily result from any performance of the piece. 8 Newton v. Diamond, 204 F.Supp.2d 1244, 1249 (C.D.Cal. 2002), aff’d 388 F.3d 9 1189 (9th Cir. 2003)(citing A. Dustin Mets, Did Congress Protect the Recording 10 Industry Into Competition? The Irony of the Digital Performance Right in Sound 11 Recordings Act, 22 U. DAYTON L. REV. 371, 372-373 (1997)(emphasis added). 12 Defendants wrongly contend that every sound in a recording is part of the 13 “composition” (which in the case of GIVE includes vocal “woos,” hand claps, open 14 hi-hat, falsetto, party noise, omission of a guitar, etc.). This is not the case and was 15 not so during the era of the 1909 Act, e.g., Tin Pan Alley, Brill Building, etc. 16 Rather, “[c]omposers in the 1970s notated the vocal melody, lyrics, and notes in 17 lead sheet fashion because that was considered the composition of the song (i.e., 18 not how it was performed on any particular recording).” [Miller Decl, Exh. H, 10, 19 ¶ 30 (emphasis added).] Indeed, sound recordings themselves were not subject to 20 copyright under the 1909 Act prior to 1972. Elvis Presley’s famous sound 21 recordings from the 1950s and 1960s are not subject to statutory copyright. There is 22 nothing unfair or wrong about that. Congress provided the protection it provided. 23 Defendants argue that the Court’s ruling “would create a situation where the 24 compositions in the recordings are derivative works incapable of copyright 25 protection because, as pre-1978 recordings, the recordings could not be submitted as 26 the musical compositions.” [App. Memo, 2:5-8.] This assertion is flat out wrong. 27 Compositions in the sound recordings could always be fully protected—all that was 28 required was to publish sheet music with notice affixed that embodied all the KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 14 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 19 of 31 Page ID #:6986 1 compositional elements in which copyright was claimed. Any vocal or instrumental 2 part can be notated. Lead sheets were common because songwriters generally did 3 not consider the performance elements (drums, bass, etc.) to be the composition: the 4 “song” was the melody, harmony, and lyrics. Defendants’ “notion that common 5 use of lead sheets somehow precluded a composer in the 1970s from submitting a 6 score indicating all instrumental or vocal elements in which the composter claimed a 7 copyright is without foundation.” [Miller Decl, Exh. H, 10, ¶ 29.] Jones v. Virgin Records, Ltd., 643 F.Supp. 1153 (S.D.N.Y. 1986) cited by 8 9 Defendants [App. Memo, 11:4-6] held that sales of phonorecords do not constitute 10 publication of the underlying composition under the 1909 Act. Id. at 1158-1159. 11 That holding fully supports Plaintiffs’ position here. Footnote 13 of the Jones, cited 12 by Defendants, merely refers in dicta to the problems that might arise if each 13 recording of an unpublished song constituted publication under the 1909 Act and 14 thus would require the composition’s owner to register a revised composition each 15 time or else forfeit ownership. Jones has no bearing on the scope of copyright in a 16 published copy of a composition. The scope clearly is only the published copy. The Court’s ruling will not “essentially legalize wholesale copyright 17 18 infringement of pre-1978 compositions.” [App. Memo, 11:13-14.] By definition, 19 all pre-1978 copyrights have already been created. The published works are what 20 they are, and anything that was not published is not copyrighted; that is the law. 21 The Court’s ruling merely follows the law—it does not change the law one iota. 22 D. Excluding the GIVE and DANCE Sound Recordings Is Proper Here 23 Defendants argue that, due to this Court’s ruling, this “would be the only case 24 in history that the Gayes’ counsel can locate where two complete commercial 25 recordings at issue in a music copyright infringement action were not allowed to be 26 played to compare the expression of the compositional elements embodied in those 27 recordings.” [App. Memo 2:15-18 (emphasis added).] 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 15 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 20 of 31 Page ID #:6987 1 Again, Defendants’ hyperbole defies common sense. The Gayes cite no case 2 where the sound recording contained elements claimed to be similar but that were 3 not subject to copyright. In each case cited [App. Memo, 14-15], there was no issue 4 that the sound recording differed from the copyrighted work. That is the significant 5 difference here and is the reason why the Court’s ruling to exclude the GIVE and 6 DANCE sound recordings is correct. In other cases, the issue was not raised, 7 perhaps either because there were no meaningful differences between the 8 composition and the sound recording or because any additional material only found 9 in the sound recording was not claimed to similar. The cases do not address this 10 issue and are not precedent on it for that reason. To draw any conclusions from 11 these cases that do not involve claimed similarities in the sound recording but not in 12 the composition would be sheer speculation. Defendants cite no apposite authority. 13 To the contrary, there is significant danger of prejudice, confusing the issues, 14 and misleading the jury by playing Marvin Gaye sound recordings that contain 15 numerous elements not found in the Deposit Copy yet claimed by Defendants to 16 be substantially similar to “Blurred Lines” (“BLURRED”). The sound 17 recording of GIVE contains numerous elements, including drums, keyboard, bass, 18 cowbell, backup vocals, additional vocal melodies, and other musical elements that 19 Defendants contend are similar to BLURRED, and that are not found in the GIVE 20 Deposit Copy. The sound recording of DANCE similarly contains certain numerous 21 elements, including all of its instrumental parts, including the bass, and all backup 22 vocals, that are not found in WAR. [Miller Decl, Exh. H, 2-10, ¶¶ 6-28.] 23 The GIVE Deposit Copy contains no instrumental parts whatsoever (other 24 than an eight bar “bass intro” that is not found on the GIVE sound recording). The 25 DANCE Deposit Copy contains no instrumental parts whatsoever. Neither Deposit 26 Copy contains backup (harmony) vocals. Any interpretative, performance, or 27 arrangement aspects of how the songs are played on the sound recordings also are 28 not reflected in the Deposit Copies. [Miller Decl, Exh. H, 2-10, ¶¶ 6-28.] KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 16 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 21 of 31 Page ID #:6988 The vast majority of alleged similarities between BLURRED and GIVE exist 1 2 only in the GIVE sound recording. [Miller Decl, Exh. H, 3-5, ¶ 8(a)-(aa).] Clearly, 3 it would be unfair and prejudicial to have the jury hear all of these musical elements 4 on the GIVE sound recording that allegedly are similar but are not at issue here. Defendants’ musicologist, Judith Finell, testified that the only similarities 5 6 between GIVE and BLURRED that “are obvious enough that a lay listener would 7 hear them easily” and “without guidance from an expert like” Ms. Finell, are the 8 bass line, cowbell, and keyboard parts. [Miller Decl, Exh. I, 84:22-86:13.] In other 9 words, the only similarities a lay juror might hear are not found in the Deposit Copy. It is patently obvious why Defendants want to play the sound recording: they 10 11 do not own the music, but it is the only music they believe is similar to BLURRED. 12 Defendants want the jury to base its copying decision on the wrong song. 13 The vast majority—indeed, nearly all—of the similarities claimed by Defendants’ 14 musicologists are based on the recording only and are not found in the Deposit 15 Copy. [Miller Decl, Exh. H, 3-5, ¶ 8(a)-(aa).] Defendants are desperate to have the 16 jury compare the sound recordings, but do so would invite error. Harper House, 17 Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 207 (9th Cir. 1989) (reversing where 18 erroneous jury instruction failed to distinguish protectable material and made it 19 possible for the jury to find copying based on unprotectable elements). To do so 20 would also plainly cause a significant danger of prejudice, confusion, misleading the 21 jury, and significant waste of time by having four of Defendants’ experts (Judith 22 Finell, Ingrid Monson, Thomas Court, Ron Aston) and Plaintiffs’ expert, Sandy 23 Wilbur, testify about numerous alleged similarities not found in the Deposit Copy. 24 This is the precise reason FRE 403 exists: to avoid prejudice, confusion, waste of 25 time, and to make sure the jury considers the correct evidence in reaching a verdict. 26 / / / 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 17 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 22 of 31 Page ID #:6989 1 Defendants own the melodies, lyrics, and “bass intro” in the Deposit Copy. 2 Those three elements can easily be played for the jury on a newly made recording 3 that only contains the elements in the Deposit Copy and that does not contain any 4 additional elements of the GIVE sound recording not found in the Deposit Copy. 5 There is no reason to include any elements of the GIVE sound recording to do so. A 6 neutral recording can be made by the musicologists—without Marvin Gaye’s 7 signature voice or any elements of his sound recording—that fairly represents just 8 those compositional elements in the GIVE Deposit Copy claimed to be similar. A 9 similar neutral recording can be fashioned for “After the Dance” (“DANCE”). 10 Plaintiffs are in the process of creating such recordings now pursuant to the 11 Court’s rulings and will timely submit them on the schedule the Court has set. With 12 modern digital recording techniques, it is a simple and inexpensive process to create 13 a neutral rendition of the two Marvin Gaye songs that fairly represents all of the 14 material in the Deposit Copy and nothing more, let alone anything more that might 15 unfairly and prejudicially cause a jury to unknowingly hear similarities that are not 16 found in the Deposit Copy yet attribute them to Defendants’ limited composition. 17 There is no need to play the Marvin Gaye recordings or any portions of them 18 to the jury. They are not relevant to the intrinsic test. The Marvin Gaye sound 19 recordings simply are not Defendants’ copyrighted compositions. The “total 20 concept and feel” of the Marvin Gaye sound recordings is not the “total concept and 21 feel” of the compositions in the Deposit Copies—it is something very different. 22 Defendants entire argument is misplaced and ignores the Court’s rulings. 23 Defendants argue that “the compositions as embodied in the sound recordings are 24 the compositions at issue in this action.” [App. Memo, 13:6-7.] That simply is not 25 the case, as discussed above. The GIVE and DANCE sound recordings contain 26 numerous musical elements—including all instrumental and backup vocal parts— 27 that are not contained in the Deposit Copies. [Miller Decl, Exh. H, 2-10, ¶¶ 6-28.] 28 The compositions in the sound recordings are not the compositions Defendants own. KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 18 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 23 of 31 Page ID #:6990 Defendants’ argument that alleged copying of sound recording elements not 1 2 found in the Deposit Copy somehow shows copying of other, unrelated elements 3 that are contained in the Deposit Copy lacks merit. Even assuming arguendo that 4 Plaintiffs copied sound recording elements not found in the Deposit Copy, that does 5 not tend to show that any elements in the Deposit Copy are substantially similar. 6 This is particularly true where, as here, Plaintiffs concede access to the Marvin Gaye 7 songs. Thicke and Williams admire Marvin Gaye and knew his two songs here. On the other hand, the risk of prejudice, confusion, waste of time, and 8 9 misleading the jury by allowing evidence of elements in the recording that 10 Defendants do not own would be substantial. It is clear that Defendants want to 11 confuse the jury by having them think that alleged similarity of sound recording 12 elements not contained in the Deposit Copy—many of which are commonplace 13 stylistic or performance elements, such as use of a cowbell, keyboard, hi-hat, 14 falsetto voice. etc.—are somehow evidence that the melody of BLURRED is similar 15 to the melody of GIVE found in the Deposit Copy. The risk of confusing or 16 misleading the jury is substantial, and the logical inference does not follow that, 17 because unrelated elements allegedly are similar, the Deposit Copy was copied. Furthermore, it is not necessary to use the Gaye sound recordings. As the 18 19 Court has suggested, a recording of just those elements in the Deposit Copy can be 20 constructed without using Marvin Gaye’s voice or elements of his recordings. That Marvin Gaye was Defendants’ father or Janis Gaye’s his ex-husband is 21 22 irrelevant. The copyright is in a composition. Defendants have no more rights in 23 Marvin Gaye’s performance of the composition, and it is no better an example of the 24 composition, than any other rendition. To the contrary, it is misleading and 25 prejudicial and likely to confuse. Newton, 204 F.Supp.2d at 1249 (“A musical 26 composition’s copyright protects the generic sound that would necessarily result 27 from any performance of the piece”)(emphasis added). 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 19 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 24 of 31 Page ID #:6991 The jury can hear the “total concept and feel” of the Deposit Copy 1 2 compositions in a sound recording that only contains that composition and no other 3 elements. The Marvin Gaye sound recordings are not the best evidence of the “total 4 concept and feel” of the Deposit Copies because they contain numerous elements 5 that are: (a) not in the Deposit Copies; and (b) likely to mislead or confuse the jury 6 because of alleged similarity to Plaintiffs’ songs of those unprotected sound 7 recording elements. Defendants cannot justify why a recording that contains 8 numerous irrelevant evidence is more fair than one based only on the Deposit Copy. Defendants argue that the sound recording is necessary to show the alleged 9 10 “combination of unprotectable elements” that they claim were copied. That begs the 11 question—if those unprotectable elements are only found in the sound recording and 12 not in the Deposit Copy, then those elements are not subject to the Gayes’ copyright. There is no need to have a hearing with musicologists (all of whom live on 13 14 the East Coast, Ms. Finell and Ms. Wilbur in New York, and Ms. Monson in 15 Boston) so that Defendants can have their experts plead for the use of a sound 16 recording that has very little bearing to the Deposit Copy compositions at issue. 17 Rather than waste their time attempting to explain why they based their opinions 18 predominantly, if not entirely on elements not found in the Deposit Copy, Ms. Finell 19 and Ms. Monson should set to work creating whatever demonstratives they need. Any musicologist can easily can create (or hire musicians to create) a 20 21 recording of the song that: (a) only contains the elements in the Deposit Copy and 22 (b) does not contain any elements of the Marvin Gaye sound recordings that are not 23 found in the Deposit Copy. The recording would have melody, lyrics, harmony, and 24 the “bass into” found in the GIVE Deposit Copy and the melody, lyrics, and 25 harmony found in the DANCE Deposit Copy. The jury will hear what the actual 26 composition that Defendants own sounds like and can compare it to Plaintiffs’ work. 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 20 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 25 of 31 Page ID #:6992 Plaintiffs will have a proposed version of the Marvin Gaye songs ready for 1 2 the jury to hear and will timely exchange same with Defendants, per the Court’s 3 Order. That approach is the fairest to all parties and insures a fair result at trial. 4 III. 5 THE MOTION TO CONTINUE TRIAL SHOULD BE DENIED There is no reason to continue the trial. The only reason asserted by 6 7 Defendants is that their experts purportedly need more time to prepare 8 demonstrative exhibits for trial. This argument should be rejected out of hand. Expert discovery is long since closed. Defendants’ musicologists have 9 10 produced reports and have been deposed. They cannot change their opinions now. The only alleged issue is retooling alleged demonstratives for trial. This is 11 12 not an insoluble problem. Whatever charts or demonstratives that Defendants’ 13 musicologists have prepared that are based on elements found only in the sound 14 recording cannot be used. Any charts or demonstratives based only on elements 15 found in the GIVE and DANCE deposit copies can be used at trial. It is simple. 16 To the extent some demonstratives need reworking, there is time to do so. 17 The notion that it will take voluminous amounts of time to prepare new 18 demonstrative sound recordings is hugely exaggerated. The Deposit Copies have 19 minimal elements—vocal melody, lyrics, harmony (chords), a “bass intro” in GIVE, 20 and vocal melody, lyrics, and harmony (chords) in DANCE. A musicologist can 21 prepare a recording of those elements in an afternoon using digital recording 22 technology. Defendants have had since July 2014, when Plaintiffs filed their 23 summary judgment motion and raised the Deposit Copy issue, and since October 24 2014 when the Court limited the motion to elements in the Deposit Copy to prepare. 25 What were Defendants doing all this time? Hoping that the Court’s ruling on the 26 summary judgment motion would go away at trial? Defendants knew that the 27 Deposit Copy limitation was an issue but chose—and still choose—to ignore it. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 21 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 26 of 31 Page ID #:6993 1 Furthermore, the Court’s ruling on summary judgment and its rulings on the 2 motions in limine have been clear. There is no reason for confusion, nor are 3 Defendants confused in any manner that would prevent them from preparing any 4 demonstrative exhibits. Defendants just refuse to accept the Court’s rulings. Rather 5 than adjust their trial planning to the Court’s Orders, Defendants balk and reargue. 6 Defendants seek almost $42 million in damages. They have multiple lawyers 7 and experts working round the clock on this case. Plaintiffs are busy, in-demand 8 musical artists who have cleared their schedules for the February 10, 2015, trial. 9 Plaintiffs want their day in Court to prove to the world that they did not infringe. 10 If Defendants are not ready for trial, they only have themselves to blame. 11 If the Court’s criminal calendar prevents at a trial in February, that cannot be 12 helped. But there is no reason to continue the trial because Defendants are not 13 ready. The Court’s rulings, after all, are not carte blanche for Defendants’ experts 14 to come up with new opinions not contained in their reports and on which they have 15 not been deposed. The issue, at most, is demonstrative evidence—charts, etc.—to 16 illustrate the opinions that the experts have already been deposed on. There is no 17 reason why such demonstratives cannot be prepared on the schedule the Court set. 18 Indeed, Plaintiffs are prepared to exchange demonstratives based on the 19 Court’s ruling—including demonstrative sound recordings of the Deposit Copies, 20 per the Court’s rulings—in the timing that the Court has set in its recent Orders. 21 IV. 22 THE MOTION FOR INTERLOCUTORY APPEAL SHOULD BE DENIED 23 There is no basis for interlocutory appeal. There is no “controlling issue of 24 law as to which there is substantial ground for difference of opinion.” 28 U.S.C. 25 § 1292(b). There is no legal basis for the Gayes’ opinion that they have secured a 26 copyright in something other than the sheet music that was published with notice. 27 As discussed above, the Court’s ruling adheres to Section 9 of the 1909 Act. 28 Defendants are unable to cite any authority that supports their claim to own a KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 22 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 27 of 31 Page ID #:6994 1 statutory copyright under the 1909 Act in a composition found only in a sound 2 recording and never published in manuscript form or registered as such. The interlocutory appeal also will not “materially advance the ultimate 3 4 termination of the litigation.” 28 U.S.C. § 1292(b). The case will go to trial, now o 5 after the interlocutory appeal. The appeal undoubtedly will fail, in which case it will 6 just delay the process. Even if the appeal succeeds, the case will still go to trial. 7 The interlocutory appeal does not “materially advance” termination of the litigation. 8 The ordinary process should be followed here. The Court has made its pretrial 9 rulings. The case will go to trial. After the judgment, either party can appeal. The 10 Gayes fail to show any reason why this case is different from any other case in 11 which the trial court’s rulings on evidentiary or other issues affect the scope of trial. Finally, the Gayes’ alleged costs, potential liability for legal fees, or supposed 12 13 inability to post an appeal bond have no bearing on the issue of interlocutory appeal. 14 Given that the Gayes seek almost $42 million from Plaintiffs—an outrageous 15 sum—it is hardly a basis for an interlocutory appeal that they are incurring litigation 16 costs. 17 Plaintiffs want their day in Court. They did not copy Defendants’ songs. 18 The Court should deny the Application in its entirety. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 23 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 28 of 31 Page ID #:6995 1 v. 2 CONCLUSION 3 For the foregoing reasons, the Court should deny the Application and should 4 grant such other and further relief as the Court deems just and proper. 5 6 DATED: January 30, 2015 KING, HOLMES, PATERNO & BERLINER, LLP (& 11~ ((.;- 7 8 By: 9 HowARD E. KING 10 S ETH MILLER Attorneys for Plaintiffs and Counter-Defendants PHARRELL WILLIAMS, et al. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K tNG , H OLMES, P ATERNO & B ERLINER , L LP 4112060/851747 1 24 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 29 of 31 Page ID #:6996 DECLARATION OF SETH MILLER 1 2 I, Seth Miller, declare as follows: 3 1. The facts set forth below are true of my personal knowledge unless 4 otherwise indicated. If called upon to testify, I could and would testify competently 5 thereto. 6 2. I am an attorney duly admitted to practice before this Court. I am a 7 partner with King, Holmes, Paterno & Berliner, LLP, attorneys of record for 8 Plaintiffs and Counter-Defendants PHARRELL WILLIAMS, ROBIN THICKE and 9 CLIFFORD HARRIS, JR. and Counter-Defendants MORE WATER FROM 10 NAZARETH PUBLISHING, INC., PAULA MAXINE PATTON individually and 11 d/b/a HADDINGTON MUSIC, STAR TRAK ENTERTAINMENT, GEFFEN 12 RECORDS, INTERSCOPE RECORDS, UMG RECORDINGS, INC., and 13 UNIVERSAL MUSIC DISTRIBUTION (collectively, “Plaintiffs”). 14 3. Attached hereto as Exhibit A is a true and correct copy of an email I 15 received from the Court (cacd_ecfmail@cacd.uscourts.gov) at 3:03 pm on January 16 29, 2015, that reflects that Defendants filed their Ex Parte Application at 3:02 p.m. 17 4. Attached hereto as Exhibit B is a true and correct copy of an article 18 regarding Defendants’ Application posted online by The Hollywood Reporter at 19 3:15 p.m. on January 29, 2015, at: http://www.hollywoodreporter.com/thr20 esq/marvin-gaye-family-seeks-blurred-768223. 21 5. Attached hereto as Exhibits C and D, respectively, are true and correct 22 copies of copyright registrations for “Got to Give It Up” and “After the Dance” that 23 were previously filed with the Court in Document 91-2, filed 7/22/2014, as exhibits 24 to the Declaration of Donna Stockett (“Stockett Decl”) filed in support of Plaintiffs’ 25 Motion for Summary Judgment Or, In the Alternative, Partial Summary Judgment. 26 6. Attached hereto as Exhibits E and F, respectively, are true and correct 27 copies of the deposit copies for “Got to Give It Up” and “After the Dance” that also 28 were filed with the Court in the Stockett Decl (Document 91-2, filed 7/22/2014). KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/851747.1 25 Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 30 of 31 Page ID #:6997 1 7. Plaintiffs took the deposition of Janis Gaye on August 29, 2014. 2 Attached hereto as Exhibit G is a true and correct copy of relevant excerpts from 3 the transcript of the deposition ofMs. Gaye. 4 8. Attached hereto as Exhibit H is a true and correct copy of relevant 5 excerpts from the Declaration of Sandy Wilbur In Support of Plaintiffs' Motions In 6 Limine filed on January 6, 2015 (Document 173). 7 9. Plaintiffs took the deposition of Judith Finell on April 18, 2014. 8 Attached hereto as Exhibit I is a true and correct copy of relevant excerpts from the 9 transcript of the deposition of Ms. Fin ell. 10 I declare under penalty of perjury under the laws of the United States of 11 America that the foregoing is true and correct. 12 Executed on January 30, 2015, at Los Angeles, California. ~fuM~~~s 13 14 Seth Miller 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K ING , H OLMES , P ATERNO & B ERLINER , LLP 4 112 060/85 1747 I 26 ~ Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 31 of 31 Page ID #:6998 1 2 CERTIFICATE OF SERVICE I hereby certify that on January 30, 2015, I electronically filed the foregoing 3 PLAINTIFFS' OPPOSITION TO COUNTER CLAIMANTS' EX PARTE 4 APPLICATION FOR CONTINUANCE OF TRIAL, RECONSIDERATION 5 OF GRANTING MOTION IN LIMINE NO.1 3 AND CERTIFICATION OF 6 QUESTION FOR INTERLOCUTORY APPEAL; MEMORANDUM OF 7 POINTS AND AUTHORITIES; DECLARATION OF SETH MILLER with the 8 Clerk of the Court by using the CM/ECF system. I certify that all participants in the 9 case are registered CM/ECF users and that service will be accomplished by the 10 CM/ECF system. ~ A~Mtt 11 12 .TOes: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K ING, H OLMES, PATERNO & B ERLINER, LLP 411 2 060/851 7471 ssett Case Document 233-1 Filed 01/30/15 Page 1 of 2 Page ID #:6999 EXHIBIT A Case 2:13-cv-06004-JAK-AGR Document 233-1 Filed 01/30/15 Page 2 of 2 Page ID #:7000 Seth Miller From: cacd_ecfmail@cacd.uscourts.gov Thursday, January 29, 2015 3:03 PM ecfnef@cacd.uscourts.gov Activity in Case 2:13-cv-06004-JAK-AGR Pharrell Williams et al v. Bridgeport Music Inc et al Ex Parte Application to Continue Sent: To: Subject: This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA Notice of Electronic Filing The following transaction was entered by Duvall, Paul on l/29/2015 at 3:02PM PST and filed on 1/29/2015'-J Case Name: Pharrell Williams et al v. Bridgeport Music Inc et al :_) Case Number: 2:13-cv-06004-JAK-AGR Filer: Frankie Christian Gaye Marvin Gaye, III Nona Marvisa Gaye Document Number: 232 Docket Text: EX PARTE APPLICATION to Continue Trial from February 10, 2015 to Date to be Determined by Judge Kronstadt , EX PARTE APPLICATION for Reconsideration of Document 231 and Document 226, EX PARTE APPLICATION to Certify Question for Interlocutory Appeal filed by Defendants and Counter-Claimants Frankie Christian Gaye, Marvin Gaye, lll(an individual), Nona Marvisa Gaye. (Attachments:# (1) Memorandum of Points and Authorities in Support of Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (2) Declaration of Richard S. Busch in Support of Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (3) Declaration of Judith Finell in Support of Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (4) Declaration of Ingrid Monson in Support of Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (5) Declaration of Ron Aston in Support of Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (6) Declaration of Thomas Court in Support of CounterClaimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting Motions 1 ~ Case Document 233-2 Filed 01/30/15 Page 1 of 4 Page ID #:7001 EXHIBIT Caser:JIIIIn 2:13-cv-06004-JAK-AGR Document 233-2 Filed 01/30/15 Page 2 of 4 •Page ID ® tml #:7002 11LIIte Newsletfefs H0 IIywood, Esq. POWER LAWYERS POWER m'i!NESS NANAGERS Da1tyPOf r!:.-. Log m ~ · ' the intersection of entertainment and lalV :.~: ',,, (" TOP EIITERTAIIIMEHT lAWS&HOOLS SUBSCRIBE TO Ilollfl.tp!J.Wl TODAY! ' CLICK HERE Marvin Gaye Family Seeks ·slurred Lines· Appeal, Warns of .. Devastating Consequences.. of Key Ruling (Exclusive) I] 3 c 0 ti J 1m 0 e 0 ~ Email ~ Print Comments In an bid to delay the trial. the judge is told his interpretation of the law would "essentially legalize wholesale copyright infringement" of Beatles songs, plus disadvantage those who can't read music. SUNDANCE: ON THE SCENE SUNDANCE 2015 Sundance: Jeson Sudeikis! Winona Ryder Pick Their " Last Meals" \\lith just two weeks to go before a scheduled trial owr whether Robin Thicke's "Blurred Lines'' is a copyright infringement of 1\Ianiu Gaye's "Got to Giw It Up," the dispute has gone nuclear in the past 24 hours with a judge's abrupt change-of-mind on a key issue and then an attempt to delay the trial for an appeal. In new papers, the Gaye family asserts the judge is misreading cop)Tight law to the extent. that it could ha\·e "drastic and devastating The Scene at Sundance Film Festival2015 (Photos) consequences for intellectual property" and "allow infringers to steal classic portions of the songs by Marvin Gaye: the Beatles, the Rolling Stones~ Ehis Presley, and every other iconic artist whose works were created before 1978... To briefly recap, Pharrell \Villiams and Thicke RECOMMENDED 'American ldor Winner Files Bold Legal Claim to Escape 'Oppressive' Contracts (Exclusive) • Funk Legend Sly Stone Awarded S5M in Lawsuit ,. sued first in an attempt to \\-in judicial relief that their monster hit wasn't an infringement. Manin Gaye's children then brought cross-claims saying otherwise. Last October, \\'llliams and Thicke failed to win the case on summary judgment. but got the judge to issue Sundance: Kevin Bacon Reacts to 'Guardians of the Galaxy's' Kevin Bacon Jokes a key ruling that because the "Got to Giw It Up" sound recording wasn't deposited \\;th the Copyright Office in the 1970s, Gaye's copyrights on the song were limited to elements expressed in the sheet music compositions. As a result, \'·ohen it came time to determining what evidence a jury could hear. U.S. District Judge John Kronstadt precluded use ofGaye's sound recording so that the jury wouldn't be prejudiced by hearing stuff like Gaye's ·mice. percussh-e choices and back-up \'OCals. Sundance: Kristen Wiig , Jack Black Revea l Who 'l;hnnlri <\rnrP <;nunritrl'lrk tn ThPir I ivP-: NiriPn\ Case 2:13-cv-06004-JAK-AGR Document 233-2 Filed 01/30/15 Page 3 of 4 Page ID Should Score Soundtrack to Their Lives (Video) Read more Recording Academy Gets Tough on Grammy Awards Ticket Scalping #:7003 MUST READS l11at meant that prospective jurors won't be hearing the original "Got to Gi\·e It Up" ~UIIUI2111..~. 1"\ll:tl~ll nny , -.1121..1\ Ull21..1\ 1"\~'1'~121 't't ii V recording to compare to "~ Blurred Lines, .. even though that's what most people do when trying to figure out whether the two songs are similar. The 1ay obsezver's opinion is important under \\·hat's known as the "'intrinsic test." and the Gaye family argues that the rom position and sound recording were created simultaneously and that the entire composition is embodied and e),:pressed by the recording. Richard Busch. attorney for the Gayes. told The Holly wood Reporter earlier in the week that if the ruling stands, he does not believe that a fair trial can take place. Then~ on \Vednesday afternoon. Judge Kronstadt came out with a remarkable new order- one that indicates that the judge took some time to think about this issue and came to a New All-Female 'Ghostbusters' Cast Chosen new conclusion. While sticking with his belief that the introduction of the original Gaye recording at trial would unfairly prejudice \Villiams and Thicke, he said there was "merit" to the Gaye family's contention ''that it could be difficult for them to present their e\-idence of intrinsic similarity if the sound recordings are inadmissible in their entirety." Ha\i.ng the musicologists play the sheet music on keyboards - a proposal made the \Villiams side- might not do the trick. And so, the judge offered up his own suggestion: The Gaye family could create a new \·er.sion of "Got to GiYe It Up," one that's stripped of non-protected elements. Mar\'iD Ga.ye singing would still be in this new version and would be addressed \\ith instructions to the jury. The judge e\·en nodded to the fact that the Gaye family had created special mash-ups to prm·e their case. ''Two of the 'mash-up' tracks submitted by Defendants as potential trial exhibits. which consisted of Ga.ye's Yocals from 'Got to Give It Up' laid m;er instrumentals from 'Blurred Lines,' sho\". that Defendants possess the technical capabilitie.s to isolate protected from unprotected elements of the recordings of their compositions," \\TOte the judge. Despite the judge's new inclination to allow at least some form of sound recording for the jUIJ-to hear, the Gaye family isn't satisfied. Far from it with their lawyer telling the judge it "would be the only case in history'' where something like that happened. They add that as "much as forty percent of the similarites found by the experts" haYe been excluded and that the order would require them to ''re-tool their testimony and the. demonstrative exhibits Oscars: 'The Imitation Game' Finally Plays the Gay Card they have spent months developing." On Thursday, an application for continuance of the trial and certification for an interlocutory appeal was filed. Read ntore Sony, Google~ Apple Hit "\Vith Lawsuits OYer Pre-1972 Music _.\ccording to the latest filing, "The law is clear that a plaintiff suing for copyright infringement under the 1909 Copyright Act need only produce a cop}Tight registration identifying a work as published. As long as the work is properly registered, the registration rovers not only the composition as reflected by the deposit copy, but also other versions of the composition that existed at the time of registration." Julianne Moore Believes in Therapy, Not God (and Definitely Not Guns) The Gaye family faults the judge for taking the position that the \·ersion of the composition embodied on a sound recording isn't protected. ''Not only is there no support for this proposition in the case law: but adopting such a position would create dangerous and potentially devastating precedent to the owners of such intellectual property," states the fUing. ln a bid to get the judg·e to either reconsider once again or send the case up on appeal before a trial takes place, Busch argues that if the judge's limiting position is adopted, clever infringers would be able to compare sheet music with \\-·orks by artists such as Eh-is Presley, and then legally steal the. non-compositional elements. So sampling Presley's voice? Maybe permissible. Busch also argues that it would ha\"e a "particularly harsh effect on indiv-iduals who may be great composers of songs 1 but do not read or write music" since those who didn't have access to music education and couldn't properly annotate their sheet music would get less legal protection. "It would create a situation where the compositions in the recordings are derivati\·e works incapable of copyright protection because, as pre-1978 works. the recordings could not be submitted as the musical compositions:" continues the filing. ''That is not and cannot be the law. Instead. the Cop}Tight Act required publication and registration. but once these statutory formalities are met, all ,·ersions of the composition fairly identified by the deposit oopy were protected." It's not often that judges certify interlocutory appeals- ones that come before claims are resoh-ed at trial - but the Gaye f.unily says it would be "prohibitiYely expensi,·e" to ha\·e a second trial if one proceeds next month and then a successful post-trial appeal requires a do-over. Stay tuned. The "Blurred Lines" case probably just gaw ewryone in the music industry a stake. Email: Eriq.Gardner@THR.com Twitter: @eriqgardner Larry Wilmore Reveals Roots of Bill Cosby Dislike: "Man, What an Asshole" Case 2:13-cv-06004-JAK-AGR Document 233-2 Filed 01/30/15 Page 4 of 4 Page ID #:7004 i:l.:~oi! 2.13-cv-O&CXJ.l ·JAK·AGR Doclllm!nl232·1 FdetJ 011291lS Puge 1 ol29 Payl! 10 :C:(i87& ~/~~ arJll u\\ '"iJm S.tr.J R. flli,. (l"K RVR 0 )0760) l[lm har E-M rt il : ~><: ll i:..a km!!hall(nu:nm K I ~G & DAl.LO\\ l "lt r·J .115 Gnnm St n:~l. Su111: I !00 i\'a.~h\ 1 l h: . TN J72U I ( 615) ~5 ').] -1 56 A l!t lmt: \~ f ax: (615\?:0-5417 ftlr Dert, u.b.n L~ :.snt.! Counter· How DreamWorks Anim~tion Can Claw Its Way Back C' l :u m :ni L, franJ...t c Chn..tt.ltlCi J\~ ;mJt\:un.t r..tmi:.aGay.: P.wl N. Ph 1hp~ • {SON IR79 ~) f- i\ l.til J1l§l\\~ PiuliJh ~I1J)A~~.rl~~ r:1\.: (Jn)ss..t-t~90~ Auumt:) for Defendant and Ct)UJ1lL-r-C imnm l lvl,minG<~) t:lf1 lr:\:ITED STATES DISTRICT COURT The Making of 'American Sniper': How an Unlikely Friendship Kickstarted the C lint Eastwood Fi lm Ilou. John A. Knubt:to.IL Plain t ill~ . JO l\rF.:'\ I ORA:X D U~I .:!i) ~ 1 OR IDG EPORT }.nJSIC. rNC .. a --- ~W.~i§tL';.~Y,~~i-Tta~~~;fJ~:~t : M A RVIN Ci.-\ '{[. Ill. :ln i!llli\lcluJI. _::~ indu:-iH:. ~ 3 ~~~~i~~t~~,X'ti X 1 of 29 0,. 0,. ~ Email ~ P rint 7' liiJ - ~') X Yes.... No •.•• 6255 SUNSET BLVD. Yes .... No-·-- Yes.... Nu ---- I words & mus lc Citizenship: U.S.A. -----(Check if U.S. citizen) Ocher ------------------- --{Nilme of counrry) Address ----------------·-------········---------------- Autbor of ---------------------------(Sc.ate which: words, music, arn:ngemc::nt, etc.) Name --------·-·-·· ......... . ... _••.. ·----- · -···· ............ ... ............. (Give lcg>l r~amc lullowcd by pscudonrm if 1>11« •ppc.ts on the mpies) Domiciled in U.S.A. Other ----------------------(Name of country) Address --··-----------·--···--··-----------------------, Authpr of ---------.------------------(St.aco wh•ch: wnttht mus1c, arrangemtn t. c:t<.) Nime -------------- · --- .......... ------- ---·----· . ..... ...... --------------- (Give tcg:~t name followed by p-scudOn)·m if llncr ;~ppcus on 'he copies) OOtnidled in U.S. A. ~- Cidzeosbi(?: U.S.A. --(Check .r U.S. dtizon) ..... Citizenship : U.S.II.. .••• •• (Check if U.S. citi>y ) (~!onth) lbl Plac~< of Publication: Give the n:tme of 1hc -- ----------·- --- . -·-- .......... .. --- ....... ... ------------.--. -- --~ NOTE: LLeave all spaces of CO\lntr)' ~ (Yc>r) in which this particular version of the work was ftrst pub!i 5 hccl. --------US A------------------ ............. ---- ----- ------------------------------ --~--- lin~ ·s:-blank unless .!~e Instructions below apply to your s; Pre~ious Registration or Publication: If a claim to copyrtgl_lt m any sub.>rall!ial pur of this work was previously registered in the U.S. Copyright Office in unpublished form, w;;£] ~ if any subslantial part of the work was previously published anywhere, give re"----------------------- ·-c.>d;>·-----------· =-. _._ --- -- ---·- .- -. ,-;::-::====.-~-: .-:::-=.-=-=-==---==:=.= _;-=-.:::::-:::::-::-.---:-.. - ~:·~-== ==::-: :..::=. =· ~ - ~ I CERTIFY that the sratemcnts made by me in this application are correct to the best of my knowledge. 9. Certification: ...,.. -~ - ---------~-------------------------------- - (Application not acceptable unless signed) isnature of copyriRh< doim>nt or duly auen and (b) If published, two copies of the best edition of the work 1 and the registration fee of S6. 3 ancf4 should contain exactly the same information 1 and 2, and may be carbon copies. Make your remittance payable to the Register of Copyright5. right Cfaimantes.l and Ad.drus(esl:. Give the nam~(s) and .addrcss(es) of the copyright owncr(s). The narne(s) should be the same as m the nonce of copynght on the copte~ deposttcppeort on the ropiu) .•. --··------- ---------------------- --· -- --------- - ------- -- -- --- .••. ---.-.-- ·- ---.--------- .• - ----· -------.-------------------- --· Authors include comf>Osers of music, authors of words, ar· 'citizenship and domicile information must be rangers, compilers, etc. If the copyright claim is based on new a work was made for hire, the employer is the matter (sec line 5) give information about the author of the The citizenship of organizations formed under U.S. nc'v tnaucr . or Stntc law should be stawd as U.S.A. llf:'-~-~-~-.,.: .in u.s.A. Yes .X.. No- - -- • ::. Address 6464--.S.un..seti --lH.:t,rd-.--llo.l-l)tWOOd:~..: (?alth~r of .IJ.C\.rds--.and--Mus-ie{.)U.te wlucb: woidS: ffiusJc, arrnngemffit', etc.) U . ~. A .... .;<.. !Chock if U.S. cicixcn) Citizenship: in Ocher -------- -- - - - - ----- ---(Name of country) U.S.A. y., -X.- No---- Addreu 6464-.Sun.set.--gl.:t,rd,- - ~io-l-1y~d-- Authpr of .WA.:~;ds---and---Mus-il name followed by pseudonym ill>trcr l PP<'>n on the wpico) me of country) Author of --·· ------- _______ • •.• ---- -'""'hich: wordJ, muJicy .unngemcnt, etc.) (St~tc I ~ NOTE: L~av~ all spac:u of line 4 blank Date of Publlc:atlon: Give the date when copies of this .,.,., .~..... ,,.,.,u \'ersion of the work were first placed on sale, sold, distributed. The date when f opies were made, or reproduced, or the date when the wo rk wa~ per- unless your work has been PUBLISHED. / ~ formed or recorded, should not be confused with the date of publication. NOTE : The full d:11c (month, day, and year) must be given. 1tZ:i·------------------------·------------------------ &;~:,;:~----------------- ------ -------------------- ~if"M~t- ----- ··i.r:li><,----- ---1 (b} Plate of Publication: Give the n:une of the country in whkh chis particular ve r;ion of the work was first published. 11);-;:-·<---·-···-··-···----------------- ·-- ·· -- -· ------------------·· -----· .W-r~.A-.----- · ·· · ··- -·· ·---· · •· ··• · ·· ·-------- ·· · · ----- ·-· ---· ---· . -- , _ ~ NOTE: I Leave all spaces of line 5 blank unleu tha Instructions b~law apply to your "':'lous Registration or Public:atlon: If a claim to cop}'. t.n a~y substantial part of this work was previously tn the U.S. Copyright Office io unpublished form, worl( Pr• ...~ -- y es ----- ~N o W . u e . Y N cs ----- o :: _ _,___ " -;.c-- or if any substantLi..l part of the work wa.s previousl y published anrwhcrc, give re<:jue~ted information. D ate o 1 rcHututton •· · ______ ,. _______ .,. __ ___ ~ 0 are o I wo-T£J 1-C bl' · pu rCHlon - -------- - --- .. -------- n C"gntr::ltton · · num b tt ' ---------------------- · HegtstrJtiOn number------ ... --------------- any substantial NEW MATTER in this version? Yes .. . ... .. . No ......... If your answer is " Yes," give a brief general of the n_a~ re of rhe NEW MATTER in this version. (New maner may con si.s r of compilation, arrangement, ada ptareviSion, and the like, as well as additional words ond music. ) ~------··------ ----- ----c;;;,;pr;;;-;,iTdFfii<~hi;-;pa;-.,- -o;;-~-;;;-p~g;------------- ------------------ ~I' rI Case 2:13-cv-06004-JAK-AGR Document 233-4 Filed 01/30/15 Page 3 of 3 Page ID #:7010 6. If registration 1u Is to bot charged to a dcposlt account cstablishcd In thc Copyright Officc , give nom" of occoalt: Jo. lte.t~ 11.!-l ~J-~- _r,g -~---. _________________ __________________________ _____ ___________ _______ ________ ____________________ _ 7. Name ahd address of penon or organixation to whom correspondence or refund, If any, should be sent: NiUDt J.ob.et..e..HLUJ.i!::. __CQ ..__ ---------------------- -- -------- ------- ... .... ~ Belo-v: Addrc» -------------- • .• •. • . - - - -- --- --- •.•• --- - -- - ------- - -------- 8. Send cc:rtlfic:atc to: (Type or N.:t m.c print name nod address) Add ross -J obete--Husi:c--eo-i - ---- - ---------------------- - - - - -- - ---- - -- - - -- --------- - - -- · · · - --- - 64~4- -&unnet··B lvd ~-- - -- - - ~~~nWTr ;-;;s~;;;<·, ) - · ----------- --- ---- ----------·--- ----Ho-1-lywoo~~).) Gtt; ---- -4002-8----·-cs,;;;;- ---- --- ·---- -· -- ·-----(zii> ~~ ci; )- · -- · ------- I. e in this applicntion arc co;rcct to the best of my 9. Certification: (Application not acceptahlc unless signed) ~ -----·-···- --__ j Application Forms Copies of the following forms will be supplied b)' the Copyright Office without charge upon requ est: Class A Form A-Published book manufactured in the United States of America. Form A-D Foreign-Book or periodical mnnufacrured outside the UniH.'t.l States of America (except worb subject to Oass A the nd inter.im provisions of the copyright Jaw). or B { Form A-B Ad Interim-Book or periodical in the English language manufncturcd and first published outside the U nired Swucs of America. . Form B-Pcriodical manufact-ured in the United States of America. Class B { Form BB--Conrribution to a periodic-al manufactured in the United States of America. Class C Form C-Lecture or similar production prepared for oral dcli\'ery. Onss D Forrn D--Drn.m atic or dramatico-musical composidon. Class Class Class Class Class Class Class Form E-Musicul composition the author of which is a citizen or dom iciliHy of the Unircd S!Jltes of America or which was first published in the United States of America. E Form E Foreign-Musical composition the author of which is not a citizen or do~iciliury of the United States of { .America nud which was not first published in the United Sta res of .America. F Form F-Z..fap. G Form G-W ork of art or n model or design for a w ork of art. H Form H-Rcproduction of u work of art. I Form I-Drnwing or plastic work of a scien;ific or technical chnracwr. J Form ]-Photograph. Form K-Print or pictorial illustration. K { Form KK-Print or lubcl used for un article of merchandise. L} Form L-M-Motion picture. Chss ~r M Class N • • Form N-Sound recording. Form R-Renewul copyright. Form U-Nocice of ..usc music on mechanical instrum ents. _ of copyrighted -· -- --·· - -·- -FOR COPYRIGHT OfFICE USE ONLY AK pfJ"~o ~ r oc ~v'] dr :\ " l .). 1 .I On e . 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FJJM M41 AF r€1!. -nl£ DIWL€ -~--- tJA-IJLE _ .f!.L"T Ill- lfaJ wAAJr A/JO EMA.1 so_ I OH- I{{){} Cim CIIr.t 811 1?114 A1111 .11AtJUf _ €.MA.:f rwt1 .....__ ......_. _wm/ Mt£ BA- All1 OAJJt:e_ Case Document 233-7 Filed 01/30/15 Page 1 of 8 Page ID #:7019 EXHIBIT Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 2 of 8 Page ID #:7020 Page 1 1 2 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 3 --------------------------x 4 PHARRELL WILLIAMS, an individual; 5 Plaintiff, 6 vs. )No. CV13-06004-JAK (AGRx) 7 8 9 10 11 12 13 ) BRIDGEPORT MUSIC, a Michigan corporation; FRANKIE CHRISTIAN GAYE, an individual; MARVIN GAYE III, an individual; NONA MARVISA GAYE, an individual; and DOES 1 through 10, inclusive, ) ) Defendants. --------------------------x 14 15 16 17 18 DEPOSITION OF JANIS GAYE Los Angeles, California Friday, August 29, 2014 19 20 21 22 23 24 25 Reported By: SUSAN A. SULLIVAN, CSR #3522, RPR, CRR Job No. 82589 TSG Reporting- Worldwide (877) 702-9580 Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 3 of 8 Page ID #:7021 Page 7 1 Q I've heard of the song. 2 A Good. 3 Q Did you participate ln the writing of "Got 4 To Give It Up"? 5 A No. 6 Q Did how did it come about that you knew -- 7 what to slng on "Got To Give It Up" or maybe let me 8 step back. In your own words tell me how it came about 9 10 that you performed on "Got To Give It Up." 11 A Well, it wasn't easy but I had asked Marvin 12 if he would let me sing on something, anything. 13 he had a brother Frankie who has since passed away. 14 Frankie and I went to him and said could we sing 15 background and he hesitated for a moment and then he 16 said, 17 we'll be fine." "Why not. j Q Okay. 19 A To a point. And is that what happened? He added his vocal to it as 20 well so it was sometimes three-part harmony, 21 sometimes four. 23 Q Okay. And Just sing what I tell you to sing, 18 22 I And was this all recorded ln one evenlng or -- 24 A No. 25 Q Over what period of time was it recorded? ' [i ~==~======~~==~~~==~== ~.~-==----== ~------~ - ~====~~~===============-~!' TSG Reporting- Worldwide (877) 702-9580 Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 4 of 8 Page ID #:7022 Page 8 1 A I don't recall the length of time. not months, it was I would say -- I don't know. 3 Honestly I don't remember how long it took. 4 Q Do you remember where it was recorded? 5 A Absolutely. 6 Q Where 1s that? 7 A 6553 Sunset. 8 Q Okay. 9 A It didn't have a name. 12 .J What was the name of the studio? It was Marvin's personal studio. 11 Q II li Who else was present while you were there ~ I performing your portion of the song? 13 A Oh, Marvin's sister Zeola. There were 14 different people on any given day because there were 15 different parts being done on different days so it 16 was never one set group of people. 17 Q Okay. 18 A But definitely his sister, his brother, - 19 friends, people that were in the area that just 20 wanted to drop by and see what was going on in the 21 studio. 22 party put on tape so -- 23 24 I It was 2 10 1 Q It was a party song and it was literally a Other than Marvin, were there other musicians there playing li ve while you performed? 25 A - On certain days. I wasn't there every day - --- TSG Reporting- Worldwide (877) 702-9580 •. 11 Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 5 of 8 Page ID #:7023 Page 9 1 of the production but his drummer was there one day, 2 I specifically remember during the latter part of 3 the recording Johnny McGee being there. 4 know if you are familiar with him or not. I don't 5 Q I'm not. 6 A He was -- I believe he is still living, the 7 guitarist for LTD. And another gentleman, David Ii. 8 9 Q How do you spell Ii? 10 A I-i. 11 Q Never would have guessed, okay. 12 Was he a musician? 13 A Yes. 14 Q Was Mr. Ashford there at all while you were 15 there? 16 A 17 18 A saxophone player. I never saw Mr. Ashford that I recall but that doesn't mean that he wasn't there. Q So I'm not a musician. Describe to me how 19 Marvin instructed you and Frankie what you were 20 supposed to do. 21 A Very simple process. He would sing what he 22 wanted us to sing, we would repeat it, they would do 23 a take, see what it sounded like. 24 that great he would say, "Okay, we're going to do it 25 again," if he wanted to change something he would, TSG Reporting- Worldwide (877) 702-9580 If it sounded not j Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 6 of 8 Page ID #:7024 I! Page 10 1 and we just followed his lead. 2 3 Q Were you furnished with any sort of sheet music to follow? 4 A No. 5 Q Do you read sheet music? 6 A No. 7 I used to as a child when I played piano but those are along ago memories. 8 Q Did Marvin read sheet music? 9 A To a point. - I never was really sure. He 10 would look at it and the music would come out. 11 don't believe that he read traditional sheet music 12 but he knew his notes and he knew how to write them 13 down and how to convey it to his musicians. 14 15 Q Okay. I Do you know if he knew how to write sheet music? 16 A I don't. 17 Q You don't have any idea, do you, who created 18 the deposit copy that I think you saw in one of your 19 children's depositions? 20 A I have no idea. 21 Q Have you ever seen the deposit -- prior to 22 this litigation had you ever seen the deposit 23 copy -- 24 A No. 25 Q -- for "Got To Give It Up"? -- --- - TSG Reporting- Worldwide (877) 702-9580 - li Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 7 of 8 Page ID #:7025 Page 14 1 Q Okay. 2 A I was. 3 Q Okay, good. 4 A Very much so. 5 Q And as far as "Got To Give It Up," were you It sounds like you were there. 6 there for the entire creation of the song or just 7 when you participated in your vocals? 8 9 10 I was not there every single day that there A was something being recorded, no. Q How about being -- well, do you know if the 11 song was written by Marvin as it was being recorded 12 or had been written before it was recorded? 13 A It was a work in progress. 14 Q Okay. 15 So it was developed as it was recorded. 16 A Yes. 17 Q Okay. But you don't know who ultimately 18 wrote down what notes and other musical elements 19 were embodied in "Got To Give It Up," right? 20 MR. BUSCH: Object to form. It assumes facts 21 not in evidence that somebody wrote something down 22 that was an attempt to be embodied in "Got To Give 23 It Up. 24 25 II MR. KING: Richard, all day Wednesday you told me not to do speaking objections; you said object to TSG Reporting- Worldwide (877) 702-9580 - Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 8 of 8 Page ID #:7026 Page 15 1 2 the form. MR. BUSCH: You didn't listen to me. Read back the question. 3 4 MR. KING: 5 THE WITNESS: 6 MR. KING: 8 Q No, I will ask a different one. Do you have any idea how any written record of what comprises "Got To Give It Up" was created? 10 MR. BUSCH: 11 THE WITNESS: 12 Object to form. Are you talking about the deposit copy that you showed me -- showed us in New York? BY MR. KING: 13 Q 14 MR. BUSCH: 15 16 You can read it back or ask a different one, that's fine. 7 9 I will just ask a different question. Let's start with that. It has been asked and answered. You can answer the question. Q BY MR. KING: So let's start with that. Do you have any idea, do you have any 17 18 knowledge whatsoever as to how the deposit copy for 19 "Got To Give It Up" was created? - 20 A No. 21 Q Do you have any knowledge whatsoever as to 22 how any written documentation of the song "Got To 23 Give It Up" was created? 24 25 MR. BUSCH: Object to form, assumes facts not in evidence that there was any other written document TSG Reporting- Worldwide (877) 702-9580 Case Document 233-8 Filed 01/30/15 Page 1 of 15 Page ID #:7027 EXHIBIT Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 2 of 15 Page ID #:7028 Case 2: 3-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 1 of 21 Page ID #:4364 1 KING, HOLMES, PATERNO & BERLINER, LLP HOWARD E. KING, ESQ., STATE BAR No. 77012 2 STEPHEN D. ROTHSCHILD, ESQ., STATE BAR No. 132514 ROTHSCHILD@KHPBLA W.COM 3 SETH MILLER, ESQ., STATE BAR No. 175130 MILLER@KHPBLA W.COM 4 1900 A VENUE OF THE STARS, 25TH FLOOR LOS ANGELES, CALIFORNIA 90067-4506 5 TELEPHONE: (31 0) 282-8989 FACSIMILE: (31 0) 282-8903 6 Attorneys for Plaintiffs and Counter7 Defendants PHARRELL WILLIAMS, ROBIN THICKE and CLIFFORD 8 HARRIS, JR. and Counter-Defendants MORE WATERFROMNAZARETH 9 PUBLISHING, INC., PAULA MAXINE PATTON individually and d/b/a 10 HADDINGTON MUSIC, STAR TRAK ENTERTAINMENT, GEFFEN 11 RECORDS, INTERSCOPE RECORDS, UMG RECORDINGS, INC., and 12 UNIVERSAL MUSIC DISTRIBUTION 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 15 PHARRELL WILLIAMS, an individual; ROBIN THICKE, an 16 individual; and CLIFFORD HARRIS, JR., an inaividual, 17 Plaintiffs, 18 vs. BRIDGEPORT MUSIC, INC., a 20 Michigan corporation; FRANKIE CHRISTIAN GAYE, an individual; 21 MARVIN GA YE III, an individual; NONA MARVISA GA YE, an 22 individual; and DOES 1 through 10, inclusive, Defendants. 24 25 AND RELATED COUNTERCLAIMS. 26 27 Ill 28 Ill 4112 060/836839.1 DECLARATION OF SANDY WILBUR IN SUPPORT OF PLAINTIFFS' MOTIONS IN LIMINE Final Pretrial Conference: 19 23 CASE NO. CV13-06004-JAK (AGRx) Hon. John A. Kronstadt, Ctrm 750 D.ate: January 26, 2015 T1me: 3:00 p.m. Ctrm.: 750 Action Commenced: August 15, 2013 Trial Date: Feoruary 10, 2015 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 3 of 15 Page ID #:7029 Case 2: 3-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 2 of 21 Page ID #:4365 1 DECLARATION OF SANDY WILBUR 2 I, Sandy Wilbur, declare as follows: 3 1. I am over the age of 18 and not a party to this action. I have personal 4 knowledge of the facts set forth herein, which are known by me to be true and 5 correct, and if called as a witness, I could and would competently testify thereto. 6 A. SUMMARY OF MY WORK IN THIS CASE 7 2. I have worked extensively as a forensic musicologist for over 25 years. 8 My background and qualifications are discussed in more detail below. 3. 9 I have reviewed the notated music for the Marvin Gaye compositions 10 "Got to Give It Up" (Parts 1 and 2) ("GIVE") and "After the Dance" 11 ("DANCE")( co-written by Leon Ware) that I understand was obtained from the 12 Library of Congress, and which I refer to herein as the "Deposit Copy" for GIVE 13 and DANCE, respectively. In order to easily find elements of the composition 14 contained in the Deposit Copies, I have added typewritten measure numbers to the 15 Deposit Copies of GIVE (parts 1 and 2), and DANCE, true and correct copies of 16 which are attached hereto as Exhibits A and B. 4. 17 I have reviewed the commercially released Marvin Gaye sound 18 recordings of GIVE and DANCE and commercially released Robin Thicke sound 19 recordings of"Blurred Lines" ("BLURRED") and "Love After War" ("WAR") that 20 came from the following albums and that were downloaded from iTunes: 21 a. "Blurred Lines" by Robin Thicke (featuring T.I & Pharrell) on the 22 Robin Thicke album "Blurred Lines (Deluxe Edition)" released in 23 2013; 24 b. "Got To Give It Up" from the Marvin Gaye album "Every Great 25 Motown Hit of Marvin Gaye" released by Motown in 1977; 26 c. "After the Dance (Vocal Version)" from the 1976 Marvin Gaye 27 album "I Want You;" and 28 Ill KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/836839.1 1 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 4 of 15 Page ID #:7030 Case 2: 3-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 3 of 21 Page ID #:4366 1 d. "Love After War" from the 2011 Robin Thicke album entitled "Love 2 After War (Deluxe Edition). 3 5. I have reviewed the expert reports of Judith Finell and Ingrid Monson 4 in this case, each of their prior declarations in this case, Ms. Fin ell's preliminary 5 report dated October 17,2013, and the transcript ofMs. Finell's April18, 2014, 6 deposition in this case. I also attended the December 3, 2014, deposition ofMs. 7 Monson. I also have reviewed the declarations of Ron Aston and Thomas Court. 8 B. THE GIVE COPYRIGHT DEPOSIT 9 6. The GIVE Copyright Deposit (Parts 1 and 2; see Exhibit A hereto) 10 consists of six pages (i.e., six pages of musical notation, copied on four printed 11 pages) that show, on each of the continuous single staves, the lead vocal melody of 12 GIVE as a sequence of notes and rests with the lyrics written below the staff and the 13 chord symbols (e.g.. "A7'') written above the staff. 14 7. Apart from the lead vocal melody, lyrics, and chord symbols, the only 15 other compositional elements notated in the GIVE Copyright Deposit are as follows: a. 16 An eight-measure "bass intra" in the first eight measures of 17 GIVE Part 1, which ends with the word "bass simile" written under the staff ("bass 18 simile" means that the bass is to continue playing the same bass phrase throughout); b. 19 The spoken phrase "we heard that," which is set to a rhythm 20 consisting of an eighth note and two quarter notes, starting on the offbeat of beat 21 two, and notated in the first measure ofthe third staff on page 3 of GIVE Part 1 22 (measure 63); c. 23 The notation "sax ad lib over vocal" under the first staff on 24 page 1 of GIVE Part 2 (starting in measure 1), which indicates an improvised 25 (unscored) saxophone melody; d. 26 The spoken phrase "Let's dance, let's shout, getting' funky's 27 what it's all about," which is set to a rhythm of eighth, quarter, and sixteenth notes, 28 KING, HOLMES, PATERNO & BERLINER, LLP 4 I 12.060/836839. I 2 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 5 of 15 Page ID Case 2: 3-cv-06004-JAK-AGR Document #:7031 173 Filed 01/06/15 Page 4 of 21 Page ID #:4367 1 notated in the last two measure of the last staff on page 2 of GIVE Part 2 2 (measures 91-92); 3 e. A two measure guitar melody in a rhythm similar to the spoken 4 phrase rhythm in the last two measure of the last staff on page 2 of GIVE Part 2 5 (measures 91-92); f. 6 The notation "ad lib - long fade" at the end of the last staff on 7 page 2 of GIVE Part 2 (starting in measure 92), indicating an improvised repeat of 8 the ending measures. 9 8. The following musical or lyrical elements discussed by Ms. Finell and 10 Ms. Monson are not notated or found in the GIVE Deposit Copy: 11 a. Musical Example 3A, transcribed at page 8, ~ 20, of the Finell 12 10/17113 Preliminary Report (referred to as the GIVE hook with backup vocals; it is 13 only the backup vocals (harmony part) to the "hook" that are not contained in the 14 Deposit Copy); 15 b. Musical Examples 4A and SA, transcribed on page 10, and on 16 page 12, ofthe Finell10/ 17/ 13 Preliminary Report (referred to as the GIVE "Theme 17 X" or the phrase "Dancing ladies" -Examples 4A and SA are the identical melody, 18 transcribed twice). c. 19 Musical Example 6A, transcribed at page 13, ~ 29, of the Finell 20 1011 7113 Preliminary Report, referred to as the GIVE bass line bars 1-4 (a similar 21 four bar phrase does appear in the Deposit Copy, but one note is missing and the 22 duration of six of the notes is different in the Deposit Copy); d. 23 Musical Example 6C, transcribed at page 14, ~ 31, of the Finell 24 10/ 17/ 13 Preliminary Report (referred to as the GIVE descending bass melody); e. 25 Musical Example 7A, transcribed at page 1S, ~ 32, of the Finell 26 10/ 17113 Preliminary Report (referred to as the GIVE keyboard bars 1-2); f. 27 Musical Examples 2-4 at page 11, ~~ 28-30, of the Finell 28 10/31/14 Report (GIVE sound recording bass parts, as transcribed by Ms. Finell, KI NG, HOLMES, PATERNO & BERLINER , LLP 4112 060/836839. 1 3 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 6 of 15 Page ID #:7032 Case 2: 3-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 5 of 21 Page ID #:4368 1 where in Example 2 five of the notes do not have the same duration as in the 2 Deposit Copy, and Examples 3 and 4 are not in the Deposit Copy at all); g. 3 Musical Example 5 at page 12, ~ 34, of the Finell 10/31114 4 Report (GIVE sound recording keyboard part, as transcribed by Ms. Finell); h. 5 Musical Example 7 at page 13, ~ 34, of the Finell 10/31114 6 Report (GIVE sound recording keyboard part. as transcribed; a similar transcription 7 is discussed at Monson 10/31 / 14 report, attached Musical Example 13); 8 1. The nonsense syllable "woo" spoken several times in the GIVE 9 sound recording (discussed at page 14, ~~ 37-40, of the Finelll0/31/14 Report); 10 J. Hand claps (transcribed at page 16, ~ 41, ofthe Finelll0/31114 k. Musical Example 9 at page 17, 11 Report); 12 ~ 44, of the Finell 10/31 / 14 13 Report (referred to as "doo wop" vocals; also discussed and transcribed at Monson 14 10/31114 report, Musical Example 11); 15 1. Musical Example 10 at page 19, ~50, of the Finell10/31114 16 Report (a similar four bar phrase does appear in the Deposit Copy, but the duration 17 of the notes is different in the Deposit Copy); m. 18 The words "hey," "hey, hey," or "hey Clayton" found in the 19 GIVE sound recording (page 20 , ~51, ofthe Finelll0/31/14 Report); n. 20 Musical Example 12 at page 21, ~53, of the Finelll0/31 / 14 21 Report (tom-tom drum part in GIVE sound recording); o. 22 The timing in the GIVE sound recording of the so-called 23 "parlando" section (discussed at page 22, p. 24 ~ 57, of the Fin ell 10/31114 Report); The "doo wop" vocal lyrics, e.g.. "hop, fop, fop, doo, wop," 25 "bop, bop, du wop, bop, bop, bop, du wop," (discussed at page 26, ~ 61, of the 26 Finelll0/31114 Report; see also Monson 10/31/14 report, Musical Example 11); 27 q. Cowbell (discussed at pages 15-16, ~ 33 .a of the Finell 10/ 17/13 28 Preliminary Report, and at Monson 10/31/14 report, Musical Example 1); KING , HOLMES, PATERNO & BERLINER, LLP 4112.060/836839. 1 4 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 7 of 15 Page ID #:7033 Case 2: 3-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 6 of 21 Page ID #:4369 1 r. Hi-hat (discussed at page 16, ,-r 33.b of the Finell10/17/13 2 Preliminary Report, and at Monson 10/31/14 report, Musical Example 8); s. 3 Bass parts from GIVE sound recording (transcribed at Monson 4 10/31114 report, Musical Example 6); 5 t. Tom-tom (discussed at Monson 10/31114 report, Musical 6 Example 6; see also Musical Example 12, page 21, ,-r 53, ofFinell 10/31114 Report); 7 u. Drums or percussion of any kind (discussed and transcribed at 8 Monson 10/31/14 report, Musical Examples 1, 6-8); v. 9 Party noises (discussed at page 17, ,-r 39 of the Finell 10/17/13 10 Preliminary Report) ; 11 w. Instrumental score "omitting a guitar" [discussed at page 17, 12 ,-r 38, of the Finell 10117113 Preliminary Report] 13 x. Keyboards of any kind; 14 y. Falsetto vocal (discussed at page 17, ,-r 37 of the Fin ell 10/17/13 15 Preliminary Repmi); 16 z. Any explicit instruction for "parlando" singing style. 17 aa. Any tempo indication; while composers can and often do 18 indicate a tempo in the upper left corner of the notated music, the GIVE Copyright 19 Deposit has no tempo indication. 20 9. The GIVE Deposit Copy contains an eight measure "bass intra" in the 21 first two staves on page 1 of GIVE Part 1. Musical Examples 6A and 6C (pp. 13-14, 22 ,-r,-r 29-30, of the Finell 10/17/13 Preliminary Report), which Ms. Finell refers to as 23 the GIVE bass line bars 1-4 and GIVE descending bass melody, are only found in 24 the GIVE sound recording (the Fin ell 10/17113 Preliminary Report indicates below 25 each transcription the number of seconds [":05" I ":08"] into the GIVE sound 26 recording where Musical Examples 6A and 6C appear). The "bass intra" in the 27 Deposit Copy is not the same sequence of notes (pitch/duration/placement) as 28 Musical Examples 6A and 6C. KING , HOLMES, PATERNO & BERLINER, LLP 4112 060/836839 I 5 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 8 of 15 Page ID #:7034 Case 2: 3-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 7 of 21 Page ID #:4370 1 10. Musical Examples 2-4 at page 11, ,-r,-r 28-29, of the Finell10/31/14 2 Report also are bass parts that only appear in the GIVE sound recording. Musical 3 Examples 2-4 do not appear in the Deposit Copy. The GIVE Deposit Copy only 4 contains the bass notes set forth in the eight measure "bass intra." 5 11. The four-note melody that is sung to the words "darrein' lady" in GIVE, 6 and identified as Finell's Musical Example 4A, is transcribed at page 10, ,-r,-r 25-27, 7 ofthe Finell 10/17113 Preliminary Report (referred to as the GIVE "Theme X"). 8 This GIVE "Theme X" does not appear in the GIVE Deposit Copy. "Theme X" has 9 the scale degree sequence 3-3-2#-3 set to the rhythm of four eighth notes in a row. 10 12. The sung phrase "fancy lady" appears on page 2 of GIVE Part 2 in the 11 Deposit Copy (See Exhibit A measures 49-62). "Fancy lady" in the Deposit Copy 12 is not the same melody as "Theme X" ("darrein' lady") in Ms. Finell's Preliminary 13 Report. "Fancy lady" uses the scale degrees 5-5-6-5 set to the rhythm of two eighth 14 notes, quarter note, quarter note. "Theme X" has chromatic movement; "fancy 15 lady" does not. They are not similar. 16 13. Ms. Fin ell refers in her report to "outgrowths" of melodic material 17 within GIVE. There are no "outgrowths" that form part of the GIVE composition 18 contained in the Deposit Copy other than what is notated in the Deposit Copy. 19 14. The keyboard part in the GIVE sound recording is not notated in the 20 GIVE Deposit Copy. The lower left hand part of the keyboard part in the GIVE 21 sound recording (transcribed at page 12, ,-r 34, Musical Example 5, of the Finell 22 10/31/14 Report) does not appear in the Deposit Copy, including that the left hand 23 (lower staff) of Musical Example 5 does not appear in the GIVE Deposit Copy. 24 15. The GIVE Deposit Copy contains certain chord symbols, e.g., "A7." 25 The chord symbols do not indicate that any particular instrument, including electric 26 piano or keyboards, is part of the composition. There is a virtually infinite number 27 of ways for a pianist, guitarist, or other accompanist to play an A 7 chord under the 28 vocal melody of GIVE. The GIVE Deposit Copy does not indicate which, if any, KING, HOLMES, PATERNO& BERLINER, LLP 4112.060/836839.1 6 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 9 of 15 Page ID Case 2: 3-cv-06004-JAK-AGR Document #:7035 173 Filed 01/06/15 Page 8 of 21 Page ID #:4371 1 instrument should play the chords notated in the Deposit Copy. The GIVE Deposit 2 Copy does not notate or indicate in any fashion the specific voicing (choice of notes 3 on the keyboard) that is used for the chords played on the electric piano (keyboard) 4 in the GIVE sound recording. The Deposit Copy does not indicate the specific 5 rhythm of the chords played on the electric piano (keyboard) in GIVE. The GIVE 6 Deposit Copy contains no keyboard indications whatsoever. It does not contain the 7 specific offbeat keyboard chords that Ms. Finell claims are similar to BLURRED. 8 16. The chord symbols in the Deposit Copy indicate the harmony (chords) 9 for the melodies in the Deposit Copy. It is up to the performer or arranger to decide 10 what notes to play on any instrument that may be used to accompany the vocal 11 melody in any performance of the song. The specific chords and rhythms of the 12 electric piano part in the GIVE sound recording (see Finell 10/17/13 Preliminary 13 Report, Musical Example 7(a), page 15) are not notated in the GIVE Copyright 14 Deposit. 15 17. There are no drum, hi-hat, cowbell, or other percussion parts in the 16 GIVE Deposit Copy. Ms. Finell opines that there are "many parallels" for the hi-hat 17 rhythm in the Deposit Copy (page 41, ,-r 106.e, ofthe Finell10/31/14 Report). The 18 rhythm of the hi-hat in GIVE is a series of constant eighth notes (i.e., eight per 19 measure) in every measure, mostly on closed hi-hat cymbals (a "hi-hat"), but 20 occasionally on an open hi-hat. There is no vocal melody in GIVE that has constant 21 eighth notes. Ms. Finell opines that playing an open hi-hat on the second half of 22 beat four is a similarity found in GIVE. There is no vocal melody in GIVE that 23 contains a note sung only on the second half of beat four. Even if a vocal melody in 24 the Deposit Copy had such a rhythm (there is none), it would not be a hi-hat part or 25 indicate a hi-hat. 26 18. Ms. Finell opines that certain vocal melodies in the Deposit Copy have 27 a note played on the second half of beat four of the measure, e.g., at the lyric "par-" 28 in measure 8, or at the lyric "ner-"in measure 12 of the GIVE Deposit Copy (see KING, HOLMES, PATERNO & BERLINER,LLP 4112.060/836839.1 7 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 10 of 15 Page ID #:7036 Case 2: 3-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 9 of 21 Page ID #:4372 1 page 42, ,-r 107.e.ii of the Finell10/31/14 Report). In each case, the rest of the vocal 2 melodic phrase has a very different rhythm from the hi-hat rhythm in the GIVE 3 sound recording, which plays eight eighth notes per measure. It is not correct that 4 any of these partial vocal melodies somehow indicate a hi-hat part; they do not. 5 19. A composer notates a hi-hat part by writing the word "hi-hat" at the 6 side of the staff to indicate the instrument that is to be played and by denoting the 7 specific rhythm of the hi-hat in ordinary musical notation and using "x's" and "o's" 8 to denote closed or open hi-hat, respectively. If Marvin Gaye had wanted to include 9 a hi-hat as part of the GIVE composition, it could have been very easily notated. 10 20. The GIVE Deposit Copy does not "omit" a guitar. It contains a vocal 11 melody and chord symbols. It neither includes nor excludes the possibility of the 12 song being played with a guitar. There is a two-bar guitar melody in GIVE Part 2 13 (starting in measure 91). 14 21. The "party noise" on the GIVE sound recording consists of a sound 15 recording of people chattering, mostly indistinctly, background noise, and other 16 sounds intended to evoke a party. This recorded "party noise" appears over the 17 entire four minute recording of GAYE. The Copyright Deposit has no indication of 18 any "party noise," nor is "party noise" a compositional (or even musical) element. 19 The party noise is an element only of the GIVE sound recording. 20 22. The Copyright Deposit contains two spoken vocal phrases ("We heard 21 that," and "Let's dance, let's shout, getting funky's what it's all about"). In each 22 case, specific rhythms (duration and placement in the measure) are notated for each 23 of the spoken phrases (the "notes" are indicated by an "x" instead of an oval note 24 head). These spoken phrases are entirely different from the continuous party noise 25 that plays in the background over the entirety of the four minute GIVE recording. 26 (See Exhibit A GIVE Part 1, measure 63, and GIVE Part 2, measures 91-92). 27 23. Musical Example 6C in the Finell Report (dated 10-17-13, page 14) is 28 described by Ms. Finell as a descending bass melody. Musical Example 6C does KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/836839.1 8 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 11 of 15 Page ID #:7037 Cas 2:13-cv-06004-JAK-AGR Document 173 Filed 01106/15 Page 10 of 21 Page ID #:4373 1 not appear in the GIVE Deposit Copy. There are two measures (measures 4 and 7) 2 in the eight measure "bass intro" notated at the beginning of the GIVE Deposit Copy 3 that Ms. Finell opines contain a descending bass melody, but the pitches, durations, 4 and placement of the notes in measures 4 and 7 are not the same as in Musical 5 Example 6C. 6 24. The words "bass simile" in the GIVE Deposit Copy at the end of the 7 eight measure bass intro indicate that the bass part notated in measures one through 8 eight should continue in the same manner throughout the song. The word "simile" 9 does not indicate any specific new or different notes for the bass to play. The word 10 "simile" is an instruction to the performer; it has no compositional content beyond 11 that. The bass player on the GIVE sound recording improvises a variety of bass 12 melodies over the course of the song, none of which are found in the GIVE Deposit 13 Copy. Those improvised phrases are part of the bass player's performance. The 14 only bass notes contained in the Deposit Copy are notated in the "bass intro" itself. 15 25. There is no eight-measure section in the Marvin Gaye sound recording 16 of GIVE (Parts 1 and 2) that contains the same bass pattern as is notated in the eight 17 measure "bass intro" in the Deposit Copy. In fact, there appear to be no two eight18 measure sections in the GIVE sound recordings that have the identical bass pattern. 19 The bass part on the GIVE sound recordings appears to be through-composed 20 (played from beginning to end in one take) and improvised throughout. The eight 21 measure bass patterns that are found in the GIVE sound recording are not the same 22 eight measure pattern as the eight measure "bass intro" in the Deposit Copy. 23 C. THE DANCE COPYRIGHT DEPOSIT 24 26. The The DANCE Copyright Deposit (Exhibit B hereto) consists of 25 three pages (i.e., three pages of musical notation, but copied on two printed pages) 26 that show, on each of the continuous single staves, the lead vocal melody of 27 DANCE as a sequence of notes and rests with the lyrics written below the staff and 28 the chord symbols (e.g., "C#m") written above the staff. (See Exhibit B.) KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/836839.1 9 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 12 of 15 Page ID #:7038 Cas 2:13-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 11 of 21 Page ID # :4374 27. 1 Apart from the lead vocal melody, lyrics, and chord symbols, there are 2 no compositional elements notated in the DANCE Copyright Deposit, including that 3 there are no instrumental parts and no backup vocal parts in the Deposit Copy: 28. 4 Ms. Finell's and Ms . Monson's reports discuss several musical 5 elements found in the Marvin Gaye sound recording of DANCE that they opine are 6 substantially similar to musical elements of WAR. The following elements 7 discussed in their reports do not appear in the DANCE Copyright Deposit: a. 8 The lower register (backup vocal) to the vocal melody that is 9 sung in the chorus of the DANCE sound recording, which lower register vocal 10 contains the scale degree sequences 4-5-3 and 5-4-5-3 (discussed at page 27, 11 ~~ 64-65 , ofthe Finell 10/31 / 14 Report) ; b. 12 The bass line played in the chorus of the DANCE sound 13 recording (discussed at page 11 of the Ingrid Monson 10/31/14 Report and at its 14 attached Musical Example 17). NO LIMITATION TO MUSICAL ELEMENTS THAT CAN BE 15 D. 16 PROVIDED IN A DEPOSIT COPY 17 29. The elements of the GIVE and DANCE sound recordings discussed 18 above that do not appear in the Deposit Copies easily could have been notated in a 19 written score and submitted as a deposit copy had Marvin Gaye chosen to do so. 20 30. The notion that the common use of lead sheets somehow precluded a 21 composer in the 1970s from submitting a score indicating all instrumental or vocal 22 elements in which the composer claimed a copyright is without foundation. 23 Anything that can be played can be notated. Composers in the 1970s notated the 24 vocal melody, lyrics, and notes in lead sheet fashion because that was considered the 25 composition of the song (i.e., not how it was performed on any particular recording). 26 E. DEFENDANTS' AUDIO EXAMPLES 1-5 ("MASH-UPS") 27 31 . Defendants ' experts have prepared five audio examples, as follows. 28 KING , H OLMES, PATERNO & B ERLINER, llP 4 112.060/836839. 1 10 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 13 of 15 Page ID #:7039 Cas 2:13-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 16 of 21 Page ID #:4379 1 I created my mashups to demonstrate that mashups are inherently misleading and 2 probative of nothing other than that any two songs, if adjusted for key and tempo, in 3 most instances can be fit together with greater or lesser discordance. Mash ups do 4 not show at all or make it more likely than not that any extrinsic expression (as 5 opposed to generalized phrasing, structure, and harmonic content) in one song is 6 similar to expression found in the other song over which it has been "mashed up." 7 45. The vocal track of GIVE can be played over any number of songs. 8 That it fits over the above songs for which I created mashups does not indicate that 9 any of those songs copy GIVE, or vice-versa. My opinion is that mashups, 10 including those submitted by the Defendants here, are not a proper, let alone 11 generally accepted, forensic musicological practice. I am not aware of any 12 musicological literature, studies, or analysis supporting the use of mash ups in 13 forensic musicology and am aware of at least one article criticizing mash ups. 14 46. The group "Axis of Awesome" in a Y ouTube video that can be found 15 at http://www.youtube.com/watch?v=5pidokakU4I shows us that many hit songs are 16 roughly compatible because they use the same four chords (I V vi IV). The video is 17 an amusing illustration of how so many popular songs have similar structure and 18 chords-not because they infringe each other but because these are generic choices. 19 That these songs can be played over the same backup instrumental signifies nothing. 20 F. WHAT THE DEPOSIT COPY COMPOSITIONS SOUND LIKE 21 4 7. If it becomes necessary to demonstrate to the jury what the 22 compositions contained in the GIVE and DANCE Deposit Copies sound like (i.e., 23 without any interpretative performance or arrangement aspects added to the 24 composition itself), the most accurate and objective way to do so would be to play 25 the Deposit Copy melodies on a keyboard (or sing them) while playing the chords in 26 root position on a keyboard on the first beat of each measure. That way, the 27 melodies and harmonies as notated in the Deposit Copy can be heard with the least 28 amount of subjective performance or arrangement interpretation added to them. The KING, HOLMES, PATERNO & BERLINER, LLP 4112 060/8368391 15 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 14 of 15 Page ID #:7040 Cas 2:13-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 17 of 21 Page ID #:4380 1 spoken phrases similarly can be spoken in the rhythms notated in the Deposit Copy. 2 This is common practice for forensic musicologists in a trial setting. The GIVE bass 3 4 intro similarly can be played with a bass sound on a keyboard. 48 . The GIVE and DANCE sound recordings contain a large number of 5 musical elements (including instrumental parts and certain vocal parts, as discussed 6 above) that are not found in the GIVE and DANCE Deposit Copies, including many 7 elements that in my opinion are performance, recording, or arrangement aspects of __ 8 the Marvin Gaye sound recordings and not part of the underlying compositions. , 9 G. BACKGROUND AND QUALIFICATIONS 10 49. For the last 25 years, I have been a testifying expert in several trials and 11 a full-time musicology consultant to record, film, and publishing companies, artists, 12 composers and advertising agencies. As president of Sandy Wilbur Music, Inc. 13 DBA Musiodata, I first served as an expert witness in a copyright infringement case 14 in 1981 and have been working extensively as a musicologist since 1989. I have 15 compared and analyzed thousands of musical pieces and samples, have created 16 chatis and exhibits, have done public domain and prior art searches, and copyright 17 valuation research and have consulted on a wide range of musical issues for law 18 firms , advertising agencies, film , television, and record companies, music publishing 19 and production companies. In 201 2 alone, the last time I counted, I cleared 20 approximately 335 pieces of original music for release or broadcast, performed 21 approximately 112 preliminary musicological analyses of which 5 were extensive 22 reports involving potential or pending litigation and 15 required recommended 23 changes before release or broadcast. I also performed 18 sample analyses mainly 24 for record companies about half of which concerned potential litigation. 25 Additionally, I did 8 prior art research reports and determined the public domain 26 status of 29 songs. Over the last several years, I have been consulted on an average 27 of 10- 15 potential litigation matters per year, about three of which are ongoing at 28 any given time and most of which settle. K ING, H OLMES, PATERNO & BERLINER, LLP 4 11 2 060/836839 I 16 Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 15 of 15 Page ID #:7041 Case 2·13-cv-06004-JAK-AGR Document 173 Filed 01/06/15 Page 20 of 21 Page ID #:4383 1 55. I received a B.A. from Sarah Lawrence College, and an M.A. in 2 Ethnomusicology from the University of California at Los Angeles, with emphasis 3 on African, Indonesian, and Native American music and culture. My M.A. 4 dissertation was entitled "Music of the Pawnee Indians; With Special Reference To 5 Present Day Oklahoma Practices." I have taught music courses at several 6 universities and institutes, including Rutgers University, The Songwriter's Guild of 7 America and the State University ofNew York. 8 56. I have received creative awards from ASCAP, CLIO, The New York 9 International Film Festival and The American Song Festival, among others. I am or 10 have been a member of ASCAP, SAG, AFTRA, AFM, Women in Music (previous 11 board member), and the Songwriters Guild of America (previous board member), 12 Copyright Society of the USA, among others. My complete resume and 13 qualifications are attached hereto as Exhibits E and F, respectively. 14 I declare under penalty of perjury under the laws of the United States of 15 America that the foregoing is true and correct. 16 Executed on January 5, 2015, at New York, New York. 17 18 19 Sandy Wilbur 20 21 22 23 24 25 26 27 28 KING, HOLMES, PATERNO & BERLINER, LLP 4112.060/836839.1 19 Case Document 233-9 Filed 01/30/15 Page 1 of 4 Page ID #:7042 EXHIBIT I Case 2:13-cv-06004-JAK-AGR Document 233-9 Filed 01/30/15 Page 2 of 4 Page ID #:7043 Case 2:13-cv-06004-JAK-AGR Document 175-10 Filed 01/07/15 Page 2 of 36 Page ID #:4612 Page 1 1 2 3 4 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION PHARRELL WILLIAMS, an individual;) ROBIN THICKE, an individual; and ) CLIFFORD HARRIS, JR., an ) individual, ) 5 ) Plaintiffs, ) 6 ) vs. 7 ) CV13-06004-JAK ) 8 9 10 BRIDGEPORT MUSIC, INC., a ) Michigan corporation; FRANKIE ) CHRISTIAN GAYE, an individual; ) MARVIN GAYE III, an individual; ) NONA MARVISA GAYE, an individual;) and DOES 1 through 10, inclusive,) 11 ) Defendants. 12 13 ) ---------------------------------) 14 15 16 17 18 VIDEOTAPED DEPOSITION OF JUDITH FINELL New York, New York Friday, April 18, 2014 19 20 21 22 23 24 Reported by: Philip Rizzuti Job No. 72812 25 TSG Reporting - Worldwide 877-702-9580 Case 2:13-cv-06004-JAK-AGR Document 233-9 Filed 01/30/15 Page 3 of 4 Page ID #:7044 Case 2:13-cv-06004-JAK-AGR Document 175-10 Filed 01/07/15 Page 5 of 36 Page ID #:4615 Page 83 Page 82 1 2 Q. Let me ask you to tum to page 2 of your report, and in paragraph 6 you talk about a constellation of eight substantially similar features, do you see that? A. I don't think -- oh yes, excuse me, I see it. Q. And that is referring to the similarities 1 through 8 that are identified later in the report? A. Exactly. Q. When you say these similar elements occur simultaneously in each work, what do you mean by that? A. Well among those eight elements, elements I through 5 which are-- yes, I am sorry, elements 1 through -- excuse me a minute -- 1 through 6 contain melodic elements. I am going to correct myself. 1 through 5, those elements are vocal in nature and they are part of the key vocal melodies in each of the two songs. And those are supported by the instrumental accompaniment which are elements 6, 7 and 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8. So they occur, the instrumental accompaniment occurs simultaneously as these various vocal themes and what I am calling themes, hooks, et cetera, are occurring. So the elements 6, 7 and 8 are going throughout both songs continuously while the vocal part is sung and is heard. Q. You say in paragraph 7 the two songs' substantial similarities surpass the realm of generic coincidence reaching to the very essence of each work. Can you explain what you mean by that? A. Yes. The song "Blurred Lines" has certain repeated musical themes and phrases, and they are either the initial what you call in musicological terms the initial statement of that phrase such as the first time you hear that particular melody with the first time you hear those particular words, like I talked about the signature phrase. Then what occurs in "Blurred Lines" is that phrase sometimes is repeated quite a bit. In one case one phrase is repeated 21 times for example, 1 2 3 4 5 6 7 8 9 1o 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 [ another one lengthier. It is a song built on repeats of material. And ifyou would think of it this way, they are basically individual modules of melodies, and those-- each one of those vocal melodies I was able to find to be substantially similar to an important melody in Mr. Gaye's song. And that is why I referred to it in the way that I did in paragraph 7, that it was not just an occasional similarity, it was not a similarity that could have occurred because they shared certain underlying materials that are common throughout the literature, they were very specific and that is why I used the words that I did. Q. And again you are referring to the eight similarities that are identified in the report; correct? A. Yes. Q. And then in paragraph 8 you say in listening to these two songs the ordinary lay listener would likely recognize substantial similarities between -- , Page 85 Page 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TSG Reporting - Worldwide them. Other than what is set out in the report is there any basis for that opinion? A. Some of the similarities to me are obvious enough that a lay listener would hear them immediately, such as the bass line, the cowbells, the keyboard parts, and some would take guidance from an expert like myself in terms of understanding how to isolate the similar materials and understanding how to listen in a way where they would be able to hear the similarities more easily. Q. Is there anything other than the bass line and the cowbell that you think are obvious to a lay listener? A. Depends on the sophistication level of the listener to be honest with you. But I did say the keyboard also. Q. And the keyboard, okay. A. I would just add one point there, that each of those three elements that I mentioned, bass line, cowbell and keyboard recur constantly through both 877-702-9580 22 J Case 2:13-cv-06004-JAK-AGR Document 233-9 Filed 01/30/15 Page 4 of 4 Page ID #:7045 Case 2:13-cv-06004-JAK-AGR Document 175-10 Filed 01/07/15 Page 6 of 36 Page ID #:4616 Page 87 Page 86 songs, and especially in the case of "Blurred Lines" the bass line and the 3 cowbell become what I would consider the 4 musical glue of the song. For example 5 when it changes into a rap section the 6 only thing holding it together musically 7 is that bass line that is substantially similar to Mr. Gaye's song, and the ~ ~ cowbell, and at times the keyboard, and b that becomes the glue ofthe song and 1 holds together all the various sections 2 within "Blurred Lines", and I see it as 3 substantially similar to Mr. Gaye's song. ~ MR. BUSCH: Give me one second 15 before you ask the next question 16 please. 17 Q. Your report does not make any 18 reference to copying. Is it your opinion 19 that you would be adding later to the 20 report or is it your -- is it your opinion 21 that "Got to Give It Up" copied "Blurred 22 Lines"? 23 MR. BUSCH: I believe you are 24 mischaracterizing her report within 25 that question. I object to the form 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ofthe question. A. I think you meant is it my opinion that "Blurred Lines" copied "Got to Give It Up", not the other way around. Q. That is correct. A. Thank you. So -MR. BUSCH: I object however to the extent that you have misrepresented her report, a more basic level by suggesting she doesn't suggest that there is copying when she does. Go ahead. A. Could you please repeat the question. Q. Sure. The word copying does not appear in your report, so what I am asking is is it your opinion that "Blurred Lines" copied elements of "Got to Give It Up"? MR. BUSCH: And my objection is you are completely mischaracterizing the report by suggesting that. A. As I understand the role of a musicologist in this kind ofproceeding, it is to give objective analysis and Page 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 compare two musical works, and so in doing that I pointed out the similarities. But because there are so many prevalent similarities that really are woven into the fabric of "Blurred Lines" and affect its whole identity, I would say that I do believe that "Blurred Lines" did copy Mr. Gaye's song. But I didn't use that word, you are correct. Q. And that is based upon what is stated in your report? MR. BUSCH: Objection to the form. Q. Your opinion that there has been copying is based upon what has been put forth in your preliminary report? MR. BUSCH: And in addition to her testimony today about what she might add to her report, or just the report? MR. MILLER: I would appreciate just a regular objection. Q. You can answer it however you like, but-MR. BUSCH: Here is the issue. Page 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TSG Reporting - Worldwide You wanted to know what she would add to her report earlier. I could have objected and said you could find out when she does her report. I agreed to allow her to testify about what else she as she sits here today might add. So I think it is fair if you are going to ask her a question about her conclusion about copying to say is that based upon what you have analyzed up until now which might include what she has already testified at length she would add. So I think it is fair. Q. Let me ask it very openly. What is your opinion that there is copying based on? MR. BUSCH: Asked and answered. A. I would say it is a couple of things. Musically it is the similarities I found so far, and the knowledge that I will find more that are also quite significant and very substantial just because of the way the composition has been organized and written by the writers 877-702-9580 23