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Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 1 of 129 Page ID

#:5791

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Peter J. Anderson, Esq., Cal. Bar No. 88891


E-Mail: pja@pjanderson.com
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
100 Wilshire Boulevard, Suite 2010
Santa Monica, CA 90401
Tel: (310) 260-6030
Fax: (310) 260-6040
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT, JOHN PAUL JONES, WARNER/CHAPPELL
MUSIC, INC., SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and WARNER
MUSIC GROUP CORP.
Helene Freeman, Esq., admitted pro hac vice
E-Mail: hfreeman@phillipsnizer.com
PHILIPS NIZER LLP
666 Fifth Avenue
New York, NY 10103-0084
Tel: (212) 977-9700
Fax: (212) 262-5152
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT and JOHN PAUL JONES

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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MICHAEL SKIDMORE, etc.,


Plaintiff,

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vs.
LED ZEPPELIN, et al.,
Defendants.

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Case No. 2:15-cv-03462 RGK (AGRx)


DECLARATION RE DOCUMENTS
CITED IN DEFENDANTS TRIAL
BRIEF
Date: June 14, 2016
Time: 9:00 a.m.
Courtroom of the Honorable
R. Gary Klausner
United States District Judge

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 2 of 129 Page ID


#:5792

DECLARATION OF PETER J. ANDERSON

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I, Peter J. Anderson, declare and state:

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I am an attorney admitted to practice before this Court and all Courts of

the State of California. I have personal knowledge of the following facts and could

competently testify to these facts if called upon to do so.

2.

represent

defendants

James

Patrick

Page,

Robert

Plant,

Warner/Chappell Music, Inc., Atlantic Recording Corp. and Rhino Entertainment

Company in this action. This Declaration is submitted to provide recent documents

cited in defendants Trial Brief.

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3.

Attached to this Declaration as Exhibit 1 is a true and correct copy of

Dr. Alexander Stewarts new report provided by plaintiff on May 2, 2016.


4.

Attached to this Declaration as Exhibit 2 is a true and correct copy of

Erik Johnsons new report provided by plaintiff on May 2, 2016.


5.

Attached to this Declaration as Exhibit 3 is a true and correct copy of

Kevin Hansons new report provided by plaintiff on May 2, 2016.


6.

Attached to this Declaration as Exhibit 4 is a true and correct copy of

Brian Bricklins new report provided by plaintiff on May 2, 2016.


7.

On May 17, 2016, I took the deposition of Dr. Alexander Stewart. As

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of the filing of defendants Trial Brief, I have not received any changes or

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corrections to the transcript of his deposition.

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Exhibit 5 are true and correct copies of pages from the transcript of his deposition

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and which contain the testimony cited in defendants Trial Brief. Exhibit 2058

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referenced at page 142 of his transcript is the 1967 Taurus deposit copy.

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8.

Attached to this Declaration as

On May 18, 2016, I took the deposition of Erik Johnson. As of the

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filing of defendants Trial Brief, I have not received any changes or corrections to

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the transcript of his deposition. Attached to this Declaration as Exhibit 6 are true

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and correct copies of pages from the transcript of his deposition and which contain

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the testimony cited in defendants Trial Brief.


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Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 3 of 129 Page ID


#:5793

9.

On May 18, 2016, I took the deposition of Kevin Hanson. As of the

filing of defendants Trial Brief, I have not received any changes or corrections to

the transcript of his deposition. Attached to this Declaration as Exhibit 7 are true

and correct copies of pages from the transcript of his deposition and which contain

the testimony cited in defendants Trial Brief.

10.

The deposition of Brian Bricklin was noticed and a subpoena issued for

May 18, 2016, but that morning plaintiffs counsel told me that Mr. Bricklin had

been hospitalized and could not appear for his deposition.

11.

Attached to this Declaration as Exhibit 8 is a true and correct copy of D.

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Begault, H. Heisse & C. Peltier, Forensic Musicology An Overview, cited in

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defendants Trial Brief.

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I declare under penalty of perjury that the foregoing is true and correct.
Executed on June 7, 2016.

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/s/ Peter J. Anderson


PETER J. ANDERSON

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Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 4 of 129 Page ID


#:5794

EXHIBIT 1

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 5 of 129 Page ID


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Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 6 of 129 Page ID


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Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 7 of 129 Page ID


#:5797
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3:06 vamp 1 (two chord) interlude
3:29 C
3:41 C
3:56 vamp 1 (two chord) interlude
4:19 C1 (drums enter)
4:30 C1
4:45 vamp 1 (two chord) interlude
5:07 C1
5:18 C1

EXHIBIT 1
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Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 8 of 129 Page ID


#:5798
4
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Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 9 of 129 Page ID


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'.*!*0)$)/#>0-0.?'.#/+*.$/*+4%!"*&+&%E')$)"*)
/R$)(.0-Q:#*)'4$!!-)$./#//#/*!L$.#-$)/#'*2-1*$$)
>0-0.:?


S
2*=.-+'4.$(0'/)*0.'4*)/#!$-.//*!>0-0.?
T
2*L=.-+'4.$(0'/)*0.'4*)/#/#$-/*!/#.*)(.0-*!>/$-24:?
U
0.*!-*0)$)"/*)-./#'!+-)/7+-)/".(4)*//*/'3/'4POO:

EXHIBIT 1
10

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 13 of 129 Page ID


#:5803
9


3(+'U

>*./-/$1)((*-'?+-/*!>/$-24?('*4'.*!*0)$)
>0-0.?



3(+'V+-*1$./#*/#-*0--).*!/#./2**).0/$1)*/.$)/#>0-0.?
+*.$/*+4)>/$-24:?.).)7$)>0-0.?/**0-.)$/$*)'/2*/$(.
)/**)*/#-/$(:'-'47/#.+$-.*!)*/.-+-.)/)$(+*-/)/2$/#$)/#
*(+*.$/$*)*!>0-0.?.2''.>/$-24:?

3(+'V: /#-*0--).*!/#/2*)*/+$-.$)>0-0.?




*''*4:#1*'('*4$)>/$-24?/#/$.+'*1-/#./$*).$.
.$($'-/*/#('*4!*0)$)/#/-''!./!!*!/#>0-0.?+*.$/*+4'.#/:
)
 7/#$.('*472#$#./'$.#./#.0%/ (//-*!/#.*)")*)/$)./#2*-.
>./$-24/*#1)7?$.-"0'4/#(*./ $(+*-/)/1*'/#($)>/$-24:?

Taurus
ABC A E
Stairway
A B C CA B (Theres a lady whos sure)


#('*4*! $..//*/#-+#-../#/'$(.0..$1'4/*/#-#$"#-+$/#.977
):#('*4$)>0-0.?'.* 2*-&.$/.240+2-/#-*0"#/#..(+$/#.:

PX: -(*)4:#0)-'4$)"#-(*)$./-0/0-*)/$)..)$)"#-*(/$..
'$):#$'-'/./-0/0-#.'*)"#$./*-4$)./-)(0.$E.*(/$(.-!--/*.

EXHIBIT 1
11

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 14 of 129 Page ID


#:5804
10
/#> ()/?"-*0)..F7()4*(+*.-./#-*0"#/#".#1!*0)*-$"$)')
-/$124./*0./#$.!*0)/$*)'+//-):#.//$)"*!/#+.."$)$.3(+'-*!
.0#-/$1$/4)*)/$).*-$"$)'(0.$'3+-..$*):424*!*(+-$.*)
2*0')*/.
*)3(+'/#/()4/#*0.).*!.*)".#1).//*/2'1A-'0.:0./)/$')
*-$"$)'3+-..$*)*)/$)/#-$)-($).+-*//'.+$//#$.*((*)'$/4:.2$''
.)$)(4)'4.$.'*27*/#>0-0.?) +-/!-*(/#/-$/$*)'.,0)$)
.$($'-).$")$!$)/24.:

QO:##-*(/$1-.$*)*!/#/-$/$*)'.,0)(*1./#-*0"#.$3+$/#.!-*(
/#/*)$E*F/*/#$(+*-/)/#-(*)$"*'*)/#!$!/#"-*!/#.'E.*'F:
))
0)0.0'1-$/$*)7*/#) 1*$-#$)"/#$.$(+*-/)/"*'*)/#'./+$/#*!/#
.,0)E/#!$!/#"-*-F:
)$/$*)/*)*/$)*-+*-/$)"/#)/$-.$3A+$/#.,0)
ELLF7*/#) 0./#!$-./!$1+$/#.$)3/'4/#.(24:./#..
'$).).#-*(/$''4!-*(/*L7#+$/#$.#'!*-/2*/.0-/$*)!*-
'$)"-$)"*)!*-!*0-/.$)/#/#$-(.0-:
)*/#.*)"./#(*1()//*/#!$)'
+$/#*!/#.,0)7/#!$!/#"-*!/#.'7$.)*/--$1/$-/'4)$.*)'4
.0""./)-/#)*!/#!*0-/#(.0-:


QP:#!*''*2$)"$.#-(*)$)'4.$.*!/#/2*+.."..*)/#+*.$/*+4
'.#/*!>0-0.:?#$'/#--.'$"#/$!!-).$)/#/$'.7-:---)
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E-:---=.)'4.$.$)//#()/*!#$.*-$"$)'-+*-/F:*-3(+'7#)'45./#
!*0-/##*-.L#'!$($)$.#:#$.#*-*0''.*.-$.V@L:V

 

($) ($)@LELOF
($) ($)@LELOF

($)@E@F V@L
($)@E@F @L 

TW 
(%V 

TT


.).)7/##-(*)$.-'(*./$)/$'0)/$'/#!$)'(.0-:*(+-$.*)*!/#
).2$''!*0)'/-$)/#$.-+*-/:

+&% &$" &


#4/#(:#.)$)"#-*(/$'$).-$ *1$..//*$)/$'
-#4/#()(/-$+'()/B1-4/2*/.0)/$'--$1$)"*)$)(.0-R2#$#$.#'
!*-!*0-/.$)*/#2*-&.:*./$(+*-/)/7*/#+..".-/-/2$/#)-'4
*)/$)0*0.$"#/#A)*/!$"0-/$*).:0-$)"/#-$/$'!$-.//2*(.0-./#-$../4!'*2
*!$"#/#)*/.$)*/#/#+*.$/*+4*!>0-0.?)$)>/$-24:?


V@L$.!-,0)/'40...0./$/0/!*-LV#'!$($)$.#:*-3(+'7/#./(
%55()/*-7--4 --$..0""././#/./0)/.'24./#$)&*!LV#'!$($)$.#.V@L:
W
#/-$''7*--+$'/-)/$*)/2)/2*)*/.7$)(.0-R*!/#+*.$/*+4.0""./.
/#//#+$/#E/#!$!/#F*1-/#$)/#..$.,0''4+-.)/!*-''$)/)/.)+0-+*..
./#/#-*0"#*0//#$.(.0-:
V

EXHIBIT 1
12

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 15 of 129 Page ID


#:5805
11
QR:/#--/:
)#$.*-$"$)'-+*-/7-:---*!!-.3(+'.*!.*A''+-$*--/
E.*(*!2#$#2-+0'$.# >0-0.?F/#/#($)/$).*)/$)()4*!/#
.$($'-$/$.!*0)$)>0-0.?)>/$-24:?
-0///#.'$(.$)(4+-1$*0.-+*-/)7
-/#-/#)-+/$/#-7
#1$)'0(0#*!/#$.(/-$''*2$)/$*)

:4
$.0..$*)#-2$''!*0.3'0.$1'4*)/#)'4.$.*!/#+*.$/*+4'.#/)$/.
-$)"*)/#*(+-$.*).2$/#-:---)-:/#.=3(+'.*!*/#--/:.
#1
+*$)/*0/*17.$)#$")*-.*)*!/#/2*./1.$)/#+*.$/*+4E/#)/$-/-'
'!./!!F#$.*(+-$.*)$.($..$)"++-*3$(/'4TT[*!/#)*/.$)/#+*.$/*+4:
!#
#$)'0/#.)*/.#*0')*/#1*)'0/#//#.>-/$1)((*-'?
)*/+$-.-)*/!*0)$)>0-0.:?
/(0./)*//#/ ! !&*"%!%!2
"$!$$&"$!(+$.$$$! & &%&$2 !&"$%.

QS:*-*1-7)*)*!/#3(+'.$/4-:---*)/$)3/'4/#+$/#.(
*''/$*).$)/#$-!$-.//2*(.0-..*>0-0.?)>/$-24:?

QT:! '%! %$& . $($/$)"(4*(+-$.*)))'4.$.*!/#.2*-&./*/#
+*.$/*+4'.#/*!>0-0.?)/#.#/(0.$)/-).-$+/$*).*!>/$-24?#.
*)'4*)!$-()./-)"/#)(4+-$*-2*-&-"-$)".0./)/$'.$($'-$/4:#.
.$($'-$/$.*(+-$./#('*$)#-(*)$./-0/0-'*)"2$/#2#/!))/.=3+-/
#..-$.>/#(*./-/$1)((*-'+-/$)/#-+/$)"/#-A(.0-.?B
/#/#-+$-.*!)*/./*7/*7)/*L:2**!/#.+$-.*!)*/.-(/-$''4
+'3/'4/#.($)*/#*(+*.$/$*).:0-/#-7/#+$/#*''/$*).$)/#.+..".
(/#3/'4B*0/*!SR)*/.)*/.$)"'$!!-)/+$/#$.#-$)/#!$-.//2*(.0-.:
#-'/$1*0--).*!/#.+$/#.-'.*1-4.$($'-:#-#4/#(.)(/-$
+'()/-/#.(9/#!$-.//2*(.0-.-'.*.//*/#.(-"0'-'4!'*2$)"
./-(*!.$3/).0..$1$"#/#)*/.:$)''47-:---=.)(4)'4..*!/#
#-(*)$.*!/#./2*+..".-..)/$''4/#.(:
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*/#.*)".*/#,0)/$//$1'4),0'$//$1'4:#+..".--+/!*0-/$(.$)
>0-0.?).$3/$(.$)>/$-24?)++-//#"$))$)"*!*/#2*-&.:4.//$)"
/#(./#!$-./(0.$'.*0)./#'$./)-#-.7/#4(&)$(($/)'./$)"
$(+-..$*):$)''47>0-0.?)>/$-24?-(0#(*-.$($'-/*#*/#-/#)$/#-$.
/*/#)0(-*0.3(+'.*!.*A''+-$*--/$/4!))/.=3+-/.:












EXHIBIT 1
13

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 16 of 129 Page ID


#:5806
12



 
!"$%! !&!"!%&! %!/'$'%0 /&$)+0%! 
!$ % 1!$& '%



QU:..//*17/$*)

*!/#$.-+*-/*(+-.>0-0.?)>/$-24?4
!*0.$)"*)*(+*.$/$*)''()/.(*$$)/#-*-$)".*!>0-0.:?)4'()//#/
*0'*).$-+-/*!/#+-!*-()$.!$'/-*0/:


QV:
)$/$*)/*/#.0./)/$'.$($'-$/$.$.0..*17/#*(+*.$/$*)(*$$)
-*-$)".*!>0-0.?!/0-.+-*($))/"0$/-('*4$)/$*)/#/$.*)'4+-/$''4
-+-.)/$)/#>0-0.?+*.$/*+4'.#/)*)/$).-/$)*1$*0..$($'-$/$./*
/#"0$/-('*4#-$)/$*)*!>/$-24:?#$.$..*(2#//4+$'*!'.#/.7)

)4*(+/)/+-!*-(-($"#/3+//*!$''$)($..$)"+-/.:
)/#$..E).$.
*((*)'4/-0F7/#>($..$)"?)*/.-)*/-''4($..$)")).$'4-!-)$)/#
)0(-*0.-*-$)".*!:#!*''*2$)"/'"-+#$''4+-.)/./#.!*0- (.0-.)
+$/./#./4$"#/#A)*/!$"0-/$*).#-$)/#*0./$"0$/- $)/#.+..".:$)
*/#.*)".-$)/#.(&47/#/0'+$/#.) .$'4*(+-2$/#*0/
/-).+*.$/$*):.$)/#/'$)3(+'T#(.0-*!/#!*0-A(.0-+.."*)/$).
!*0-/.)#*!/#. !*0-/.$..0$1$$)/2*:0.$$)./4+$''4*0)//#$.
+//-).>! A)A&)!A)A&$A)A!'$A)?2$/##)0(-$)$/$)"/)/#
2*->)?.$")$!4$)"/#$"#/#A)*/.0$1$.$*)#'!24$)/2)#/:'$)"/#.
)*/.$)"-$$.$)/)/*!$'$//*(+-$.*).+$''4!*-/#'4+-.*)2#*(4)*/
-(0.$')*//$*):*-/#.&*!'-$/47/##-/$)$/./#(*./$(+*-/)/
$)!*-(/$*)B/#+$/#)2#-#)*/$.+'-#4/#($''4)(/-$''4B0/)*/
)..-$'4#*2'*)"#)*/$..0./$)E2#$#1-$.*-$)"/*#*2'*)"/#+-!*-(-
'/./#./-$)".-$)"F:#.+..".-''.*0./$"0$/-+.."..*''42$/#/#
$)/)/$*)*!"$1$)"/#(.-$+/$1$)/$!$-:*'$($.(./*/#$.3+-..$*)$)"
+-*//'.$(+'40.$/$..*0)*)/#.($)./-0()/:#('*$.$($'-$/$.
2*0'1$)/-"-'..*!/#$)./-0()/.*)2#$#/#42-+-!*-(:


3(+'W:
*0./$"0$/-/#(.$)>0-0.?)>/$-24/* 1)?



P

Q


P \ Q \ R \ S \ P \ Q \ R \ S \
 
   
  

   
  
  
 L  
L   
 L  
L

A



 





         L   L
L  

  

L  





EXHIBIT 1
14

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 17 of 129 Page ID


#:5807
13





R

S


P \ Q \ R \ S \ P \ Q
 
 
 

 
  
  
 
 
  


A
    
     
  
 
 

  


\


R

\

S

\




  









  

QW:*./*!/#.$($'-$/$.*0-0-$)"/#!$-./PW)*/.:#!$-./(.0-$.
'(*./$)/$'7/#.*)(.0-*)/$).*)'4/2*$!!-)/+$/#.7)/# !$-.//2*
.'*/.*!/#/#$-(.0-*)/$)/#.(+$/#.:$/#/2*.'$"#/-A*--$)".7.2++$)"
!*-7PS*!/#!$-./PW$"#/#A)*/+*.$/$*).*-.'*/. EVW[F*)/$)/#.(+$/#.:$)
/#.+$/#.7)7-*/#+-.)/$) E*)/#.*))!*0-/#/.F7)/#4-
#*-/*).$)($)*-/#4- 1$-/0''4$)/-#)"'E($)*-]77F:#$'/#--
/2*=.$)/#!$-./ (.0-*!*/#.*)".7/#/2*=.$) -#-$)/#/*++-/:#
.*)$)  (*1./*@*)/#!$-.//*!/#.*)(.0-:0-$)"/#!$-./PW
)*/.7/#)/#7.$('*$.,0)$.1$-/0''4/#.(:

QX:#!$)').*!/#.+..".'.**)/$)$(+*-/)/.$($'-$/$.:#
-.*'0/$*)*! *(.//#"$))$)"*!/#!*0-/#(.0-2#$'$)/#-.*'0/$*)
")-''4'.**(.$)/#!*0-/#(.0-70/*)/#/#$-/:# )$) 
E..)/$''4(%*-/*($)*-F*)/$)./#!*''*2$)"+$/#.E.).)$)(.0-QS*!
/# .#/(0.$F:
Stairway
D E
B C
G A
B A


#)$)")-''4-.*'1./**)/#/#$-/*!/#!*0-/#(.0-: '*$''47
/#.((*1()/!-*(/**0-.//#)*!/#(.0-'$)" $)/*/#)3/
./$*):
Taurus
D A (GA)
D E
A A
A B
D A


EXHIBIT 1
15

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 18 of 129 Page ID


#:5808
14
Example 9 provides a transcription of this cadence from T at 1:47. 9
Example 9.

Taurus cadence (1:47)

RO:
#$'/#--$!!-)./2)/#./2*).7*/#./$*).-/0-)
/* /#/*)$$)/#!*0-/#(.0-:*./$(+*-/)/7/#('*$(*1()/!-*(!'/AV/*PE
/*F$.3/'4/#.($)*/#.*)".7'/#*0"#$)>0-0.?$/#++).//#)*!(.0-
!*0--/#-/#)//#"$))$)"*!/#(.0-:
RP:*/#2*-&.'.*!/0-.0./$))*/.7*->+.?/#/*0'/##-*(/$
.)$)"..'$).).)'*2:
)*/#*(+*.$/$*)./#.+-/.-$)/-*0!/-
/#!$-./$/-/$*)*!/$*):

Example 10. Pads in Taurus and Stairway to Heaven


#!*0-/#(.0-*!/#>0-0.?/$*)*)/$)..'$"#/1-$/$*).:4)'4.$.2$''!*0.
*)/#/#$-$/-/$*)EP9RVF*!/#./$*).-+-.)//$1:

EXHIBIT 1
16

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 19 of 129 Page ID


#:5809
15

RQ:/-0/0-@*-(:#./-0/0-*!/#./0$*1-.$*)*!>0-0.?$...)/$''4/#
.(.$)/#+*.$/*+4'.#/$.0..$)+-"-+#T*13+/!*-)
/(*.+#-$$)/-*0/$*)+'4$)(*-*-'..!-/$(E-0/*F: $&/#'.#/7/#'$1
1-.$*).*)*/*)/$)/#$.$)/-*0/$*):
)/-./$)"'47(*./*!/#'$11-.$*).*!>0-0.?
3/)/#!*-(4-+/$)"/#!*-()$/$*)'/$(.$):

RR:#!*-(*!()4*!/#'$11-.$*).$./#-!*-1)(*-.$($'-/*/#!*-(*!
-/
*!>/$-24?$)/#/&+%!&'$%*&$&! %!&! :

*-(B $11-.$*).>0-0.?/V@PO@UV7V@RP@UV7)W@W@UV:
0-0.

/$-24


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$(+*-/)/(0.$'3+-..$*)$)*/#.*)".:
)>0-0.?/#."()/.*(+-$./#)/-'
(0.$'/#(.#-$)/#2*-&:'/#*0"#$)/#./0$*1-.$*)*!'*)"$)/-*0/$*)$.
#-7$)'$11-.$*).7/#-2.)*$)/-*0/$*))/#.*)"") 2$/#/#($)/#(
#-$)/#*0./$"0$/-:$($'-'47$) /#+..".*+) /#.*)"7)#1,0$-
$*)$.//0.:
)./)/'4-*")$5'7*0)/'...+$-$)" "0$/-$./.)*/#-$)./-0()/'$./.
#1'-)/#.+-/.$)/#$--'4+-*"-(.*!./04:





 
 
).0((-47$(+*-/)/(0.$'3+-..$*)$)0-0.)-/

*! $..0./)/$''4.$($'-:#..$($'-$/$..#*0'*1$*0./*/#1-"'$./)- )


*(3+'$$/0)-(0.$*'*"$')'4.$.:#-$.)**0//#//# -/*-.*!>/$-24/*
1)?-20+*)/#(0.$'3+-..$*))/-'/* >0-0.:?#. .$($'-$/$.$)'0/#
.$")/0-/#(.*!*/#.*)".7$)+-/$0'-/#*0./$ "0$/-+..".
#1''./$*)
>:?-'4WO[*!/#+$/#.*!/#!$-./ $"#/))*/.(/#7'*)"2$/#/#$--#4/#(.)
(/-$+'()/:#.+..".'.**)/$)2#/!))/=.3+-/#..-$.>/#(*./
-/$1)((*-'+-/$)/#-+/$)"/#-A(.0-.?B/#-+$-.*!)*/.$)/#
('*47/2**!2#$##1.$($'-+'()/-#4/#($''4)(/-$''4:# #-(*)$.//$)"
*!/#../$*).!/0-/#.(#*-.0-$)"/#!$-.//#-(.0-.))0)0.0'
1-$/$*)*)/#/-$/$*)'#-*(/$.)$)"..'$)$)/#!*0-/#(.0-:#$'/#
)$.'4.'$"#/'4$)7#+..").4(*1$)"!-*(!'/AV/*PE/*F:
*-*1-7/#.+..".$)/$*)-.0++*-/4 .$($'->+.?*-&"-*0)'$)./#/
-$)/-*0!/-/#!$-./$/-/$*)*!/$*):#+..".-*1-'4-41*'
('*$.$) ) +-*($))/&4*-+-/.$)/#/"$)/#.(24:
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+-*!..$*)'*+$)$*)7/#..$($'-$/$.7*/#$)$1$0''4)$)/#""-"/7+-'0/#
+*..$$'$/4*!*$)$)*-$)+))/-/$*):







EXHIBIT 1
17

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 20 of 129 Page ID


#:5810
16






 
%"! %%&!$$$  &%

RU:4*-$"$)'-+*-/.///#/2#$'*/#-2*-&.0..$($'-.)$)"($)*-
#-(*)$+//-).7*/#>0-0.?)>/$-24?2-0)0.0'$)/#$-1*$)*!/#/4+$'
!$)'+$/#*!/#$..,0)7/#!$!/#*-$)/#&4*!($)*-:
)7(*./*!/#3(+'.
+-*1$4---7$)'0$)"/#0-''7/##*+$)7/#''$)"/*)7E$.0'3#$$/.77)
F8>#$(#$(#-A?E0.$'3(+'SF7>'&$)=44& *(?E0.$'3(+'
UF7>+-$)"
.-?E0.$'3(+'XF7>-4$1-?E0.$'3(+'PRF7>$#''?
E0.$'3(+'PSAPTF7''--$1//#!$!/#"-*!/#.':*(7.0#.>#/-*0
*$)"/#./*!*0- $!?E$.0'3#$$/ F7!/-.'$"#//*0-7-#.0./$)!$!/#
!*--/0-)$)"/*/#"$))$)"*!/#.,0):

RV:>./*! *)4?E0.$'3(+'PQF7>0.$/*/#$-'.4?E0.$'
3(+'.PUAPVF)>*-?E$.0'3#$$/)0.$'3(+'VF)1-1)--$1//#
!'/U)*)'4*)/$)/#!$-./!*0-)*/.*!/#.)$)".,0):

RW:*(*!#$.3(+'.7.0#.> *2
).).$/$1?E0.$'3(+'TF7>$"#/)
47?)>)*/(7?E$.0'3#$$/.7
:7) -.+/$1'4F)!/0-*)'4
#-*(/$..'$))/##*-.*-#-(*)$.*1/#(-1-4$!!-)/!-*(/#*.
!*0)$)>0-0.?)>/$-24:?

RX:0$/!2E:":7>*-?)>0((-$)?F'.*-$)(%*-&4.)7.-:
---+*$)/.*0/-+-.)//(+*--4></*)$$5/$*)=E$::7(*()/-4#)"*!/#</*)$=*-
&4/*)F*!($)*-&4?E+:RP7+-"-+#QUF:

SO:)4*!---=.3(+'.E:":70-''7$.0'3#$$/)>)$)"*!/#
'0.7?0.$'3(+'RF'.*#11-4$!!-)/0-/$*).)#-(*)$-#4/#(.!*-/#
+-*"-..$*):

SP:-:---+-*1$.3(+'.*!2#/#'$(.->('*$.$($'-$/$.?/2)
/#"0$/-+-/.$)./$*)*!>0-0.?)>/$-24?)/#"0$/-+-/.*!.1-'*/#-
.*)"./#/+-/>0-0.:?)"$)$/$...)/$'/*)*//#/7.$)#$.)*/0.$)"
*(+'/)0-//-).-$+/$*)*!/#"0$/-+-/$)>0-0.?E.-*")$54
!))/=.*/#-3+-//#.F7/#.*(+-$.*).-!0)()/''4!'2:/$''7*)
"$)>0-0.?)>/$-24?-(0#(*-.$($'-/*#*/#-/#)$/#-$./*)4*!
/#.3(+'.:0.$'3(+'PPE)--)"()/!*- *#))4/#$.*!>40))4
')/$)?F$.1-4$!!-)/-#4/#($''4)$)0-/$*).)$)/#"0$/-+-/*)/$).)*
+$/#.3+/-+""$/#*-/*).:#/'.1-.$*)*!>./*! *)4?E0.$'
3(+'PQF)14-#(=.-*-$)"*!>-4$1-?E0.$'3(+'PRF-'.*

EXHIBIT 1
18

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 21 of 129 Page ID


#:5811
17
$!!-)/-#4/#($''4)('*$''4E*)/$)$)"/-$+'/-+""$*.F:
/$.'.*$(+*-/)//*)*/
/#//#-*-$)"*!>0((-$)?E0.$'3(+'.PW)PXF+*.//..1-'*!/#'$1
1-.$*).*!>0-0.?)(*-+-*+-'4'*)".2$/#/#.*)".$)/#)3/./$*)*!-:
----=.-+*-//#/$.0....*)".-'.!/->0-0.:?

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*!)2+$/#./*/#.,0):








EXHIBIT 1
19

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 22 of 129 Page ID


#:5812
18

 

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3(+'.$/4-:---++-*#/#$.'1'*!.$($'-$/4:

EXHIBIT 1
20

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 23 of 129 Page ID


#:5813
19
TQ:
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$.0..$*)*)/$)$)#$.+-1$*0.-+*-/:

EXHIBIT 1
21

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 24 of 129 Page ID


#:5814
20
TV: (&%($+%  &&&$.$$$$%&&&$$%$&% 
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./-0/0-'++-).:
























EXHIBIT 1
22

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 25 of 129 Page ID


#:5815
21
 

$!&(%$&%-%'%%! !"$"$ &%


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EXHIBIT 1
23

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 26 of 129 Page ID


#:5816
22
$*'$)*)-/*7/:F:#$'$/$./-0/#//#.*(+*.$/$*).2*0'-/$)/#$-$)/$/41)$!
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#//+.9@@):2$&$+$:*-"@2$&$@#(-D(0.$

EXHIBIT 1
24

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 27 of 129 Page ID


#:5817
23
3(+'PO:/-$)")-*--+-/.$)>0-0.?)>/$-24/* 1)?


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>0-0.:?






EXHIBIT 1
25

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 28 of 129 Page ID


#:5818
24
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EXHIBIT 1
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#:5819

EXHIBIT 2

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#:5820

MASTER MUSICIAN LISTEN, ANALYZE AND PERFORM STAIRWAY TO


HEAVEN AND TAURUS
PART A: ANALYSIS PERTAINING TO A COMPARISON OF THE DEPOSIT COPY
OF TAURUS AND THE COMPOSITION STAIRWAY TO HEAVEN AS EMBODIED IN
THE SOUND RECORDING
I was retained as an expert in this case to listen to and analyze Taurus and Stairway to
Heaven, to perform both pieces as a master musician and faithfully replicate the original
recordings for the purpose of creating multitrack facsimiles. I also created a full transcription
of Taurus and incorporated by reference the corresponding audio for both Taurus and
Stairway to Heaven, for use to the extent the court allows. I also participated in recording
the deposit copy of Taurus.
To be clear, I include references to the composition Taurus as embodied in the sound
recordings should they be allowed to be introduced for whatever reason; however, the
focus of PART A of my report centers on a comparison of the deposit copy of Taurus
and the composition of Stairway to Heaven as it is embodied in the sound recording.
I am proficient on the following instruments (years of experience in parentheses):
x
x
x
x
x
x

Drums/percussion (40 years)


Electric Bass (35 years)
Guitar (35 years)
Piano/keyboards (30 years)
Voice (40 years)
Saxophone (35+ years)

I was engaged to play the following instruments on the Taurus and Stairway to Heaven rerecordings:
x
x
x
x
x

Drums
Electric Bass
Electric Piano
Other Keyboards
Percussion

I was also asked to then analyze both pieces of work, Stairway to Heaven and Taurus, from a
performance and compositional perspective and to provide a complete transcription of Taurus
which is attached.
It is my understanding that I will also testify and perform at time of trial.

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QUALIFICATIONS
University Professor
x I have also been a professor of music on the University level for 17 years, beginning
in 1999, the year that I graduated Summa Cum Laude from Temple Universitys
esteemed Esther Boyer College of Music. I have taught music theory, ear training,
styles and analysis, improvisation, pedagogy, private lessons and have coached large
and small ensembles in multiple genres. I am currently an Adjunct Assistant
Professor on the faculty of The University of the Arts where I have been teaching
since 2006. Please see my attached CV for further clarification.
Master Musician/Session Musician.
x As a master musician/session musician I am required to perform, create, analyze and
address all aspects of music creation at the highest level. My services are in demand
as a result of years of cultivating a discriminating musical ear and the ability to
execute musical ideas in innumerable genres on a variety of instruments. I have
recorded, performed and toured with world-renowned musicians in the genres
of jazz, classical, pop, rock and other styles. My credits include releases on
Interscope Records, Blue Note, Argo/Decca, Sony Publishing, and performances on
television including Late Night with Conan OBrien. I also have extensive
experience as a musician, recording engineer and producer at premier studios in
Philadelphia, New York and Los Angeles. Please see my attached CV for further
clarification.

I was retained as an expert in this case to listen to and analyze Taurus and Stairway to Heaven,
to perform both pieces as a master musician and faithfully replicate the original recordings for
the purpose of creating multitrack facsimiles. I also created a full transcription of Taurus and
incorporated by reference the corresponding audio for both Taurus and Stairway to Heaven. I
submitted an Expert Report in this case along with an Expert Declaration which contained
rebuttal of defendants reports (Ferrara and Mathes). I then submitted a Supplemental
Declaration produced to answer dispute regarding the deposit copy in Taurus and if after
further consideration of defendants expert reports, rebuttals, and declarations if my conclusions
or opinions in my reports or declarations change. I had stated with conviction that they did not.
I now submit this Amended Report as required by the Court.
I note at the outset that all experts in this caseexcept Ferraraanalyzed both the deposit
copy and the recordings to render a full and complete analysis and opinion. This means that 5
of the six experts involved in this case (on both sides plaintiff and defendant) used the same
method where as one defense expert Ferrara used a different method. It should be noted that
even defendants experts conflict each other on the proper analysis. The difference between the
methodology used by Dr. Ferrara in coming to his musicological opinions as compared to mine
and the other experts in this case, is that Dr. Ferrara had taken a narrowfishbowl approach
of solely considering the deposit copy of Taurus as compared to the sound recording of
Stairway to Heaven. My analysis (and that of the other experts), had taken a holistic approach
in considering both the recordings of Taurus along with the deposit copy.
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Moreover, there is no dispute among the experts that the intro of Stairway to Heaven is
qualitatively one of the most memorable parts of the composition. Furthermore, Dr. Ferrara in
his Expert Report affirms that it is similar to Taurus.
Some parts in a musical composition can be more qualitatively valuable
than other music in the same composition. For example, if the music in
Stairway that is similar to Taurus includes one or more of the most
memorable parts of Stairway
(Ferrara Report; Attachment F Value Assessment; Paragraph 12)
Additionally, Mathes in his Rebuttal Report confirms that I am correct:
Johnson is correct that the initial guitar part in Stairway is very significant,
but he is incorrect that it is the most important single element of Stairway
to Heaven.
(Mathes Rebuttal Report; Paragraph 14)
The audio attached by Mathes in his Report further indicate that his analysis and
comparison of Taurus to Stairway was consistent with Plaintiffs Experts analysis.
(Mathes Report; Paragraph 25. Mathes Audio Exhibits to his Report)
Mathes Rebuttal further states that Stewart says that 80% of the pitches are the same.
With the same underlying line clich, this would be expected. However, it should be
noted that the descending melodic line encompasses only a portion of what is
substantially similar. The harpsichord part of Taurus (as represented in the deposit
copy) contains six notes that correspond exactly to the melody of Stairway to Heaven.
This fact doesnt address the striking similarity of the guitar parts on the recordings.
Furthermore, the bass clef part on the deposit copy of Taurus strongly suggests the
guitar part which although is not fully represented, is present represented and defined in
the deposit copy.
Composition Is The Part Of The Song Which Remains The Same From Performance To
Performance
"A musical composition's copyright protects the generic sound that would necessarily result
from any performance of the piece," Newton v. Diamond, 204 F. Supp. 2d 1244, 1259 (C.D.
Cal. 2002). In other words, the composition is that part of the song that remains constant from
performance to performance to performance. Here, there is no dispute among any
musicological expert that the compositional element that remains unchanged from each and
every performance of Taurus is the compositional elements embodied in the performance of the
guitar.
The compositional elements embodied in the guitar in Taurus are the compositional elements
of the song which remain constant from performance to performance to performance.
Please note that I am not suggesting that performance elements are protectable. Rather, what I
am sayingand what is undisputedis that the composition is that part of the song which
remains unchanged from each and every performance of Taurus. And, the part of the song
which remains unchanged from each and every performance of Taurusfrom performance to
performance to performance is the composition embodied in the guitar.

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Why do we know this? Because we have recordings of Taurus which span roughly 30 years. In
each and every performance of Taurus, the compositional element which remains unchanged
are the compositional elements embodied in the guitar part.
Here is a list of every recording of Taurus that was produced in discovery and from what I am
told known to exist. The list is in chronological form, except that the Taurus Album Recording
is listed first:
a.
Taurus Album Recording (11/10/1967): Audio Exhibit 32
b.
Taurus Live at the Ash Grove (7/10/1967): Audio Exhibit 33
c.
Taurus Live at the Ash Grove (7/31/1967): Audio Exhibit 34
d.
Taurus Live at the Ash Grove (8/8/1967): Audio Exhibit 35
e.
Taurus Demo Recording (8/1967):
Audio Exhibit 36
f.
Taurus Live at Kaleidoscope (4/5/1968): Audio Exhibit 37
g.
Taurus Live at The Time Coast (1992):
Audio Exhibit 38
h.
Taurus Live Acoustic (7/30/1996):
Audio Exhibit 39
In each of the above 8 recordings of Taurus, the composition which remains unchanged
regardless of performanceis the guitar part and the composition embodied therein. This
cannot be disputed.
This is true regardless if one listens to the very first recording of Taurus (7/10/1967)(Audio
Exhibit 33) or the very last recording of Taurus (1996)(Audio Exhibit 39).
Individual Performances And Instrumentation Are Not Protectable Compositional
Elements Of A Song
Nothing in my musicological analysis considered or factored the individual performances of
Taurus or the instrumentation as these aspects of music are not protectable. For this reason,
those aspects were discarded in rendering my opinions.
For example, the Taurus Album Recording (Audio Exhibit 32) contains individual performance
aspects and instrumentation that are notand never werepart of the composition or
compositional elements of Taurus.
These separate instruments that make up the Taurus Album Recording (Audio Exhibit 32),
which were re-recorded for purposes of this case are as follows:
a.
Acoustic Guitar
(Audio Exhibit 22)
b.
Cello 1
(Audio Exhibit 23)
c.
Cello 2
(Audio Exhibit 24)
d.
Cymbal
(Audio Exhibit 25)
e.
Flute
(Audio Exhibit 26)
f.
Harpshichord/Piano
(Audio Exhibit 27)
g.
String Bass
(Audio Exhibit 28)
h.
Viola
(Audio Exhibit 29)
i.
Violins
(Audio Exhibit 30)
Many of these instruments are only heard in the Taurus Album Recording (Audio Exhibit 32).
For example: Cello 1; Cello 2, Flute; Viola; and Violins.
These instruments and the parts that they are playing are performance elements not
compositional elements of the song Taurus. These performance and instrumentation
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#:5824

aspects of Taurus are really nothing more than an orchestral introduction to Taurus and
accompaniment for purposes of the Album Recording, which are not protectable.
Moreover, the performance and instrumentation aspects of the Taurus Album Recording
and the other recordings of Taurus which are not protectable compositional elements of Taurus
are identified below (by striking them out):
a.
Acoustic Guitar
(Audio Exhibit 22)
b.
Cello 1
(Audio Exhibit 23)
c.
Cello 2
(Audio Exhibit 24)
d.
Cymbal
(Audio Exhibit 25)
e.
Flute
(Audio Exhibit 26)
f.
Harpshichord/Piano
(Audio Exhibit 27)
g.
String Bass
(Audio Exhibit 28)
h.
Viola
(Audio Exhibit 29)
i.
Violins
(Audio Exhibit 30)
The only time this orchestral introduction and accompaniment appear is on the Taurus Album
Recording. It is not part of the composition of Taurus that must remain unchanged from
performance to performance. For that reason, those performance and instrumentation elements
must be discarded in coming to a musicological opinion. (I note that I took the liberty to also
strike the Cymbal from my analysis even though this can be heard in other performances of
Taurus because it too should not be considered part of the composition).
This leaves the protectable composition elements of Taurus which are embodied in the:
a.
Acoustic Guitar
(Audio Exhibit 22)
b.
Harpshicord/Piano (Audio Exhibit 27)
c.
String Bass
(Audio Exhibit 28)
Regardless if one listens to the Taurus - Album Recording (1968)(Audio Exhibit 32), or the last
known performance of Taurus, Taurus Live Acoustic (7/30/1996), it is the composition of the
guitar which is the salient feature, which is represented in the deposit copy.

STAIRWAY TO HEAVEN
Familiarity with Led Zeppelin and Stairway to Heaven
x I obtained my first copy of Led Zeppelin IV, the album that contains Stairway to
Heaven at the age of 10. Since then I have listened to the album countless times.
Stairway to Heaven was an unavoidable staple on FM radio and my turntable
throughout my formative years. Despite my lifelong admiration for Led Zeppelin
I must admit that the revelations of their unattributed borrowing of lyrics and
music from prior artists is disappointing and alarming. Whole Lotta Love, Dazed
and Confused and Babe Im Gonna Leave You are just a few of the well-known
examples of this unfortunate practice. However, to this musician, the most
egregious of these violations is the lifting of substantial musical information
contained in the deposit copy of Taurus and its repurposing in the most iconic
portions of Stairway to Heaven.
Analysis
x Stairway to Heaven begins with one of the most iconic musical introductions in
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#:5825

the history of popular music. The arpeggiated guitar chord sequence in the
introduction, which also underlies parts of the verses, is arguably the primary
defining musical element of the entire recording and composition, even when
considered in the context of the extended and complex form of the entire song. As
the song progresses the musical elements begin to stray from the initial statement,
eventually abandoning the distinct arpeggiated guitar. Despite this fact the initial
guitar arpeggios are certainly the Name That Tune part of the recording, surest
to lead to a positive identification of the song.
Recording Process
x In the reconstruction of Stairway to Heaven I was tasked with identifying and recreating the exact electric bass, drum set and electric piano parts as played on the
original recording. I recorded each instrument individually, faithfully re- creating
each instruments parts. Great care was taken to capture tones, articulations, dynamics
and overall performances that mimicked those contained on the original recording.
Performances were executed while listening to the original Stairway to Heaven
recording for reference.

Comparative Analysis of Original


Stairway to Heaven to Re-Recorded Stairway to Heaven
In my opinion, the performances on the reconstruction of Stairway to Heaven are
virtually identical to the original. Every nuance was considered and analyzed in an
effort to impart not only the pure musical information but also the je ne sais quoi that
gives Stairway to Heaven its particular character and mood. If the re- creation and the
original are synchronized, a simple A-B comparison will confirm these assertions.
Furthermore, I incorporate by reference the audio files which constitute the rerecording of Taurus and Stairway to Heaven, both of which I was heavily involved in
creating. Even the most discriminating listener will agree that these are faithful recreations, held to the highest level of professional musical certainty.

TAURUS
Familiarity with Spirit and Taurus
x As a performing and recording musician for nearly 40 years I have had occasion to
listen to a staggering amount of music. Over the course of my career I have become
somewhat familiar with the music of Spirit, especially the selection Taurus,
largely due to its undeniable similarity to Stairway to Heaven. I am now especially
familiar with every detail of the recording, having transcribed it note for note.
Analysis
x The deposit copy of Taurus contains two basic elements: a melodic line in the treble
clef and a partially arpeggiated sequence of notes in the bass clef. Chords and
accompaniment that are not, strictly speaking, completely revealed in the deposit
copy are easily inferred by any musician charged with interpreting the printed music.
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Recording Process
x I was responsible for recording an acoustic guitar performing only the notes
contained in the deposit copy of Taurus, as well as what I consider to be reasonable,
conservative interpretations of the deposit copy, using musical elements contained
therein.
x I was also, in terms of the re-creation on the recording of Taurus, responsible for recreating the harpsichord, strings and percussion. We took great care to listen to the
original recording through various monitoring sources to obtain the clearest possible
audio image of the recorded content. We then proceeded to perform the individual
parts, one at a time, while listening to the original recording for reference.
Comparative Analysis of Original Taurus to Re-Recorded Taurus
x The re-creation of Taurus is virtually identical to the original. Production values,
instrumentation and performances were identified and analyzed, allowing for a
faithful reproduction of the original recording.

COMPARATIVE STUDY OF TAURUS AND STAIRWAY TO HEAVEN


The first three pitches of the vocal melody of Stairway to Heaven that correspond to
the lyric Theres a la[dy]are identical to the first three notes of the deposit copy of
Taurus, despite being offset rhythmically by one beat. As the melody of Stairway to
Heaven progresses other striking similarities emerge:

The words all that glitt[ers] in Stairway to Heaven are melodically


identical to the deposit copy of Taurus during the equivalent part of the phrase
in Taurus.
Equivalent similarities are found during the remainder of Part I in both A and
B vocal parts (words and portions of words in bold italics indicate melodies
from Stairway to Heaven that correspond to the deposit copy of Taurus):

There's a lady who's sure all that glitters is gold And she's buying a
stairway to heaven.
When she gets there she knows, if the stores are all closed
With a word she can get what she came for.
Ooh, ooh, and she's buying a stairway to heaven.

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There's a sign on the wall but she wants to be sure 'Cause you know
sometimes words have two meanings. In a tree by the brook, there's a
songbird who sings, Sometimes all of our thoughts are misgiven.
Ooh, it makes me wonder, Ooh,
it makes me wonder.
There's a feeling I get when I look to the west, And my spirit is
crying for leaving.
In my thoughts I have seen rings of smoke through the trees,
And the voices of those who stand looking.
Ooh, it makes me wonder, Ooh, it
really makes me wonder.
And it's whispered that soon, if we all call the tune, Then the piper will
lead us to reason.
And a new day will dawn for those who stand long,
And the forests will echo with laughter.
x

Significant portions of the melodic content of Stairway to Heaven correspond almost


exactly and, at times, exactly, with the deposit copy of Taurus, calling into question
the originality of Stairway to Heaven.
The guitar introduction of Stairway to Heaven is substantially similar to the deposit
copy of Taurus. Nearly all the pitches contained in one are contained in the other. The
rhythms are substantially similar. In my opinion, this opening guitar part for Stairway
to Heaven is its calling card and most distinctive compositional element and it
corresponds closely with many parts of the deposit copy of Taurus. If even the slightest
reasonable interpretative liberties are taken when reading the deposit copy one can
easily arrive at a piece of music that even further calls to mind the compositional
elements found in the guitar part of Stairway to Heaven as embodied in the sound
recording.

Of the musical parts I was asked to replicate from Stairway to Heaven, none were
recognized as far as songwriting credit is concerned. The electric bass and keyboard
parts, created and performed by John Paul Jones, were not, insofar as I am aware,
included in the songwriting credit. The same is true for the drum set part, created and
performed by John Bonham.

If Stairway to Heaven is stripped down to the bare elements that received


songwriting credit, the listener is left with two parts:
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#:5828

o an arpeggiated guitar part, the signature element, which bears substantial


similarity to the deposit copy of Taurus. and
o a vocal melody that bears significant resemblance to the treble clef in the
deposit copy of Taurus, followed by a series of riffs, chord progressions and
solos.
x

The most essential, elemental portion of Stairway to Heaven exhibits substantial


similarity to the equivalent portion of the deposit copy of Taurus. Furthermore,
crucial melodies found in Stairway to Heaven appear to be directly mined from
music that is found in the deposit copy of Taurus.

When analyzing the deposit copy of TAURUS it becomes clear that many of the
harmonies and actual pitches present in the compositional elements as played on
acoustic guitar (and embodied in the sound recording) are contained therein. The
deposit copy lead sheet clearly contains compositional elements embodied within the
recording.
The deposit copy of TAURUS contains ample musical information to lead directly to
the signature acoustic guitar part as found on the sound recording.

PART B: ANALYSIS PERTAINING TO A COMPARISON OF THE COMPOSITIONAL


ELEMENTS EMBODIED IN THE SOUND RECORDING OF TAURUS AND
THE COMPOSITION STAIRWAY TO HEAVEN AS EMBODIED IN THE SOUND
RECORDING AND RESPONSES TO FERRARA AND MATHES
.
The guitar introduction of Stairway to Heaven is, in mood, tempo and specific pitch information,
strikingly similar, and in many ways, identical to the arpeggiated guitar part in Taurus. In my
opinion, this opening guitar part for Stairway to Heaven is its calling card. The same is true for the
arpeggiated guitar in Taurus. Therefore, in my opinion, the primary identifying element for
Stairway to Heaven is, in every relevant manner, a near replica of the arpeggiated guitar in
Taurus, also its primary musical element.
Having completed reviewing the expert reports of Ferrara and Mathes I am compelled to respond
to a number of issues, some methodological, some factual and some simple matters of
interpretation. Some of the assertions, especially in the case of Lawrence Ferrara, are not only
factually inaccurate but disingenuous in their presentation. I will address the objectionable
statements and claims below.
REBUTTAL TO LAWRENCE FERRARAS EXPERT REPORT

As a trained musician and educator I can say without reservation that, having listened to and
analyzed sound recordings of both Taurus and Stairway to Heaven, any claim of a lack of access to
or awareness of Taurus in its recorded form is simply impossible to believe. Based on the
information contained in the deposit copy alone I am highly suspicious. But when the
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compositional elements as embodied in the sound recordings of both selections are compared I find
it impossible that Led Zeppelin had no knowledge or exposure to Taurus. The common elements
defy explanation through coincidence or prior art, period.
Many of Ferraras claims about the supposed lack of similarity between Taurus and Stairway
employ comparisons of the deposit copy of Taurus with transcriptions of the recording of
Stairway from Led Zeppelin IV. This is a simple apples to oranges fallacy of comparison.
When the pure musical data is considered in context of its compositional musical elements (apples
to apples) the introduction of Taurus is not only strikingly similar to Stairway but, for the
purposes of this discussion, nearly identical for three crucial measures and strikingly similar for
six of eight of the initial measures, which are iterated numerous times.
These opening statements are more than mere introductions. They are crucial, indispensable
calling cards for each of the pieces. I would argue that if the first eight measures of both Taurus
and Stairway are not only strikingly similar but essential to the identification of each piece one
must at least submit that these portions bear not only structural but essential similarity.
Analogously, if two homes are built with identical foyers and great rooms on the first floor, one
would likely describe them as bearing significant structural similarities, even if the upstairs
bed/bath configurations are vastly different.
Furthermore, the first, second, third, and seventh, eighth and ninth pitches of the melody of
Stairway correspond exactly to the harpsichord part in both the deposit copy and the recording of
Taurus, although the first three notes of the melody of Stairway occur one beat earlier, a minor
point in the overall context of this comparison. The similarities between the compositional
elements (disregarding performance elements) of Taurus and Stairway to Heaven are significant
and at times striking.
Moreover, I strongly object to the idea that extrinsic evidence is somehow limited to this kind of
pseudo-mathematical reduction. In the case of comparing Taurus and Stairway it is imperative to
consider the combination of all of the features of the contested musical territory, including the
following obvious commonalities between the two compositions and recordings, specifically the
crucial name that tune 8 bar initial musical statement:
x
x
x
x
x
x
x
x

Many common pitches


Same key
Strikingly similar rhythm
Nearly identical articulation
Strikingly similar stylistic qualities
Nearly identical tempo
Identical primary instrumentation (both crucial parts played on acoustic guitar)
Identical phrase length of crucial initial eight-bar statements

Ferrara oversimplifies the commonalities between Taurus and Stairway by attributing any
similarities to the mutual use of the minor line clich, words used to describe a particular musical
device found in music for centuries. While both Taurus and Stairway exhibit features that can
partially be described in this fashion, this common element represents only a small portion of the
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elements that Stairway borrows (steals) from Taurus. I will provide further clarification below.
Ferrara also claims that no significant structural similarities exist between Taurus and Stairway.
While this might be true when considering the entirety of each composition, the initial eightmeasure statements as compositional elements bear something beyond striking similarities to each
other.
Ferrara also asserts that no significant harmonic similarities exist between Taurus and Stairway, yet
the lions share of his arguments are based upon a harmonic similarity, the minor line clich. If
no significant harmonic similarities exist then why present a panoply of visual and audio evidence
of examples of harmonic information that is common to the crucial, disputed portions of Taurus
and Stairway? This writer finds it baffling. Ferrara asserts that arpeggios and minor line clichs are
simply commonplace musical devices, freely available to all with no strings attached and without
preferential usage rights. This is preposterous in the context Ive presented above and will continue
to present below.
Ferrara claims that no significant rhythmic similarities exist between Taurus and Stairway. He cites
the deposit copy of Taurus and the fact that he was required to halve the note values to properly
compare the two pieces. It is at this point that I detect a hint of disingenuousness. This is what he,
in other parts of his report, cites as standard musicological practice. Ferrara cites the transcription
of the recording of Stairway numerous times throughout his report but seems only to acknowledge
the deposit copy of Taurus while ignoring the recording. If we are seeking a true comparison of
facts it is only fair to compare like items, i.e. the recording to recording or deposit copy to deposit
copy. I will proceed on this basis in the event that the court should see fit to introduce the
compositional elements of Taurus as embodied in the sound recording.
Despite the supposed notational issue (lacking in completeness) of the Taurus deposit copy (a
niggling objection) a simple side-by-side analysis of the musical composition elements done be
listening and analyzing of both these selections exposes Ferraras argument for what it is:
obfuscation through minutia. It must be noted that defendants nor their experts are not confused as
to the proper comparison of the musical elements to compare, consider, and analyze. It is the
acoustic guitar musical composition that must be compared in the two works. It should be noted
that defendants expert (Mathes) took the time to play and compare the seminal parts to both works
and produced them as audio exhibits in his initial reports (Mathes Audio Excerpt 1 Stairway Guitar
Parts Contrast). They are nearly identical rhythmically in much the same way that an English
yard is equal to 0.9144 meters. It is a difference of nomenclature, not substanceor confusion of
what is being compared.
Ferrara states that on the basis of a quantitative analysis, 2.23% of the music in Stairway
embodies music that is similar, although not meaningfully similar, to Taurus. I have already
partially explained why, in my opinion, Ferrara grossly underestimates the degree and significance
of similarity between Taurus and Stairway. From the perspective of qualitative analysis he submits
that there are grounds for increasing the 2.23% qualitative value of the descending line of notes in
Stairway that is similar to Taurus. He then proceeds to explain that the lyrical composition is
not quantified here, etc., thereby skewing, presumably in favor of his argument, the data.
In attachment F. 2., paragraph 7., Ferrara explains that his quantitative analysis was easily
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accomplished by analyzing the score that he created with Sibelius, a music notation program.
The result of this analysis is the mystifying 2.23% similarity metric which, according to my
calculation, equals 9.5667 seconds of music. Ferraras grossly undersized percentage still yields an
impressive nearly 10 seconds of what even he would describe as similar material. Furthermore,
Ferrara states in attachment F. 1., paragraph 2 that 18 measures in Stairway out of 166 contain
similarities to Taurus, which is equivalent to 10.8% of the composition. While Ferrara does also
point out that these measures also contain differences, he consistently underestimates and
downplays the obvious similarities between the two pieces throughout his report.
As far as I understand, Sibelius does not offer the ability to quantify all of the elements listed
above. As a result I find the mathematical reduction supplied by Mr. Ferrara to be of little or no
value or relevance.
In the section of his report that follows, Ferrara digs into the qualitative aspect of his analysis and
states the following:
Some parts in a musical composition can be more qualitatively valuable than other music
in the same composition. For example, if the music in Stairway that is similar to
Taurus includes one or more of the most memorable parts of Stairway, such a
qualitative finding would increase the purely 2.23% quantitative value.
The first eight measures of Stairway constitute eight of the most recognizable measures of rock
music ever written or recorded. I believe this fact helps to meet Mr. Ferraras burden of if as
stated above. To refer to these crucial eight measures as merely introductory material ignores not
only obvious, but subjective, perception, but also testable extrinsic qualities as presented musically
in the aggregate.
Ferrara states at least eight different times that the fifth bar of Taurus contains only the pitch of f
which is untrue by either of his arbitrarily cited benchmarks, the deposit copy or the recording.
Since the Stairway transcription is so frequently cited by Mr. Ferrara it is fair, in this context, to use
the recording of Taurus for comparison. With that in mind, Ferraras assessment of the fifth bar of
Taurus is incorrect.
As stated above, Ferrara consistently compares the deposit copy of Taurus to the transcription of
Stairway. It is important to note that the deposit copy of Stairway bears little resemblance to any
transcriptions published after the fact. For example, MUSICAL EXAMPLE 8 from ATTACHMENT
B compares the deposit copy of Taurus in a staff directly above a transcription of Stairway. This is
not only unacceptable but deceiving.
Here are a few more examples of spurious comparisons and assertions:
x How Insensitive (Audio Exhibit 1, Track 05) contains a descending bass line but
markedly different chords
x Michelle, Music to Watch Girls Go By and Summer Rain(Audio Exhibit 1,
Tracks 12, 13 and 14, respectively) contain a minor line clich but no other
similarities
x In ATTACHMENT E. 3., paragraph 5, Ferrara refers to memorable guitar
fanfares that occur during the bridge and guitar solo of Stairway. Surely he must
recognize that the opening eight measures of Stairway constitute the most
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memorable guitar part of the entire composition and that it is this portion that bears
striking similarity to Taurus.

REBUTTAL TO ROBERT MATHES EXPERT REPORT


Mathes states in his report that in preparing for his report he carefully listened to and studied the
recording of Taurus He also submitted an audio example of him performing Taurus. While he
may have mostly abided by a literal interpretation of the deposit copy of the written music he
obviously ignored the recording he so carefully studied. The performance barely halfway
corresponds to the recording of Taurus. The rhythm is incorrect as compared to the recording.
Furthermore, Mathes performs a transcription of the recording of Stairway, so a fair comparison
must include not a performance of the deposit copy of Taurus but a rendering of the guitar part as
performed on the recording. There is absolutely no dispute as to what is being referred and what
musical compositional elements need to be compared given that defendants expert Mathes has
already performed the relevant parts in his initial report. (Mathes Audio Excerpt 1 Stairway Guitar
Parts Contrast). For Mathes to submit a different audio recording for purposes of the Summary
Judgment motion is telling.
(I will not address the minor line clich in my assessment of Mathes report as I have adequately
addressed said issues in my comments on the report above submitted by Mr. Ferrara.)
Mathes makes a point of distinguishing the guitar part in Taurus by referring to a cluster of notes
that isnt present in Stairway. While this might be partially true, he ignores the obvious and
numerous striking similarities that exist in favor of hyper-focusing on one small musical element.
Furthermore, his highlighting of this signature guitar part strongly implies that it is not only a
significant compositional element but one that bears significant similarity to the equivalent portion
of Stairway to Heaven. If notable dissimilarities existed between the two compositions as
embodied in the recordings he wouldnt be forced to magnify a cluster of pitches to make his
point.
In summary, Mr. Mathes clearly expresses his admiration for Led Zeppelin but does not make a
compelling argument in support of his opinions.

PART C: PROBATIVE FACTS AND ISSUES OF ACCESS & COPYING


Musical elements are present in the composition of Taurus as embodied in the sound recording that
are certainly germane to any discussion regarding Stairway to Heaven relating to access. As I
understand it the members of Led Zeppelin involved in this case deny having had any exposure to
Taurus, whether sound recording or live performance. If this be the case this writer finds the
existence of significant fundamental similarities between Taurus and Stairway to Heaven to defy
explanation.
In classical music, instrumentation is, more often than not, an essential compositional element. To
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suggest that instrumentation in the case of Taurus and Stairway to Heaven simply represents a
performance element is, in my opinion, incorrect. Furthermore, since the instrumentation employed
in both selections imparts a renaissance flavor I would assert that the mood that emerges as a result
of the instrumentation qualifies as a compositional element.
It must be noted that the mood in the A and B sections of both Taurus and Stairway to Heaven
is nearly identical. Taurus uses stringed instruments to create a sustained harmonic background
while Stairway to Heaven uses recorders, but notable similarities of texture and mood can be
perceived without much effort.
The tempo of the two selections is nearly identical as is the rhythmic pulse.
Most significantly, acoustic guitar is the instrument of choice for the most crucial passage of both
Taurus and Stairway to Heaven. The most crucial compositional elements, as embodied in the sound
recordings of both selections, are strikingly similar and, at times, nearly identical, and are
orchestrated the same way.
Copying seems the only logical explanation for the similarities between Taurus and Stairway to
Heaven. Comparisons between the deposit copy and compositional elements as embodied in the
sound recording of Taurus and the compositional elements of Stairway to Heaven reveal, in the
aggregate, a panoply of notable, significant and at times, striking similarities that, although not
always rising to the level of copyright infringement individually, certainly indicate a large measure
of familiarity and copying on the part of Led Zeppelin.

/s/ Erik Johnson


Erik Johnson
May 2, 2016

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EXHIBIT 3

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MASTER MUSICIAN LISTEN, ANALYZE AND PERFORM TAURUS AND STAIRWAY TO HEAVEN
I, Kevin Hanson, have been retained as an expert in this case to analyze Taurus and Stairway to
Heaven, to perform both pieces as a master musician and execute the pieces. I performed both
the deposit copy lead sheet of Taurus and the composition as embodied in the sound recording
of Taurus, in the event that the court should allow such information to be presented at trial. I
also performed, on the guitar, the compositional elements embodied in the sound recording of
Stairway to Heaven.
I am an accomplished musician, proficient on electric and acoustic guitars, bass, drums,
keyboards and vocals. I was engaged to play the following instruments on the Taurus and
Stairway to Heaven re-recordings:
x
x
x

Electric 6 and 12 string guitars


Acoustic guitars
Recorder parts via MIDI.

I was also asked to analyze both Taurus and Stairway to Heaven from compositional,
performance and production perspectives.
It is my understanding that I will also perform at time of trial.
QUALIFICATIONS
Master Musician/Session Musician
I am a guitarist, songwriter, producer, teacher, and university professor with 35 years of playing
experience and 25 years of teaching experience. I have performed and recorded extensively
with both major label and independent bands, toured throughout the US and internationally,
and have both studied and taught the guitar on a focused, in-depth level. I have played on
hundreds of both major label and independent recordings for 20 years, in genres including rock,
jazz, blues, gospel, hip hop, R+B and classical. I teach university courses on songwriting and on
the form and structure of songs. This requires a profound understanding of song composition,
arrangement, instrumentation, production and performance.
STAIRWAY TO HEAVEN
Familiarity with Led Zeppelin and Stairway to Heaven
I have heard Stairway to Heaven my entire life. The song was still hugely popular in 1972, the
year of my birth. Led Zeppelins music, in particular Led Zeppelin IV, was a significant part of
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my musical upbringing. It was played on the radio, on our home stereo system and at many
social functions. I began learning Led Zeppelins guitar riffs when I began playing guitar at age
10 and
still use the guitar parts from Stairway to Heaven as teaching tools and songwriting topics in my
current teaching positions.

Comparative Analysis of Original Stairway to Heaven to Re-Recorded Stairway to Heaven


The re-recorded version of Stairway to Heaven was performed and recorded to sound identical
to the original. All of the guitar parts were emulated with great specificity in terms of
instrumentation, sound, performance feel and energy. The main theme and all of the riffs,
chords, guitar solo, and other solo lines are all played note-for-note in the re-recorded version,
performed to a high level of musical accuracy.

TAURUS
Familiarity with Spirit and Taurus
I first heard of the band Spirit through an article discussing the similarities of the song Taurus
and Stairway to Heaven. When I first heard Taurus, I was shocked at the similarities. I am
deeply acquainted with the music of Led Zeppelin and, regrettably, with the multiple
accusations levied at the band for their habit of borrowing the music of others without
properly crediting the original artists. These stories are common knowledge in the music
industry, with the example of Stairway to Heaven and its remarkable similarity to Taurus being
the most notable.

COMPARATIVE ANALYSIS OF COMPOSITIONAL ELEMENTS AS EMBODIED IN THE DEPOSIT COPY


LEAD SHEET OF TAURUS AND THE SOUND RECORDINGS OF TAURUS AND STAIRWAY TO HEAVEN
(Please note: I have included below analysis of compositional elements embodied in the sound
recordings of both pieces. Furthermore, when considering the protectable elements in the Taurus
sound recording, such as the harmony and pitches, it is evident to me that these elements are based
on and represented in Taurus deposit copy.)

The deposit copy lead sheet of Taurus contains a significant portion of the pitch
and rhythm information that is found in the compositional elements that are
played on acoustic guitar and embodied in the sound recording(s) of Taurus.
Most of the pitches that are played on the acoustic guitar are contained in the
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deposit copy lead sheet.

Significant similarities exist between the deposit copy lead sheet of Taurus and
the composition of Stairway to Heaven as embodied in the sound recording.
Additionally, many of the compositional elements of the initial guitar figure of
Taurus as embodied in the sound recording are virtually identical to those found
in Stairway to Heaven: the key, the tempo, the feel, the chord progression, the
pitches and duration of the melody and the instrumentation are strikingly
similar and much of the two pieces are identical.

Addressing the issue of access and probative evidence, it is my opinion that the
similarities of the main themes, as performed on acoustic guitar, cannot be
explained away through mere coincidence.

Taurus was performed in a ballad-like tempo on a steel string acoustic guitar in


the key of A minor, as was Stairway to Heaven.
Taurus begins with an arpeggiated A minor figure in 8th notes on the notes A, C, and
E, as does Stairway to Heaven. The rhythm of the figures is identical up until the last
measure.
The bass notes of the guitar figure of Taurus descend chromatically from the tonic
down to the b6 degree, as does Stairway to Heaven.

Taurus opening figure begins on the 4th string at the 7th fret with the third finger and
on the 3rd string at the 5th fret with the first finger, as does Stairway to Heaven.

Both selections are performed at virtually the same tempo with the same feel,
articulation and style.

The chord progression is virtually identical for the first 5 chord changes

The phrasing of the two figures is virtually identical. Groups of four 8th notes
descending over five chords that finally resolve to the tonic

When the audio tracks of the two figures are isolated and matched at the same
tempo, they are almost indistinguishable. I incorporate by reference the audio
exhibits.

Taurus and Stairway to Heaven are similar both from a listening standpoint and from a
compositional standpoint. From a listening standpoint, the main guitar themes of both
songs are strikingly similar in tempo, key, melody, melodic shape, rhythm, phrasing,
instrumentation, and mood.
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From a performance standpoint, Taurus and Stairway to Heaven are played at a nearly
identical position on the guitar fretboard. Both figures begin on the same strings in the
same position with the same fingerings.

For a reasonably skilled guitarist there are many ways to play one chord. For an A
minor triad, there are at least 20 different inversions that are common and easily
accessible. When the instruments range beyond one octave is taken into
consideration, this number is increased substantially. In comparing the video exhibits
Taurus - left hand and Stairway to Heaven - left hand, one can see that the triads
in both examples begin in the same position in the same octave. I incorporate by
reference the four video exhibits of Taurus and Stairway to Heaven.

The chord progression for the main theme of STH is not uncommon. It has been used
in many jazz standards, show tunes, and orchestral works. The following elements
from Stairway to Heaven and Taurus are almost completely in common:
o Actual melodic material;
o Rhythmic placement of many of the notes of the deposit copy as well as
the guitar part;
o Nearly identical performance, in tempo, style and articulation.

This sets Stairway to Heaven apart from a song like Chim Chim Cher-ee, which does feature a
chromatically descending bass line, but functions simply to move the harmony beneath an
entirely different melody. It is also a medium-fast waltz. Stairway to Heavens similarities to
Taurus are in the actual guitar part itself, not just a harmonic device. Stairway to Heaven also
differs from what many mistakenly consider to be the same chromatic descending line. A song
such as Ice Cream Dream by The Cartoones does not follow this chromatic bass line. The first
interval is a whole step, which by definition is not chromatic. To compare the main guitar
theme of Stairway to Heaven to a song like Davey Grahams version of Cry Me a River is also
not a proper comparison. Though the chromatic bass movement is intact for a brief moment,
Grahams usage of it is a loose interpretation of the original vocal melody. The brief section in
question is also performed in a different time signature, 12/8, which gives it a completely
different feel from Taurus or Stairway to Heaven.
-

To further illustrate, some common jazz standards, My Funny Valentine (Rodgers


and Hart), It Dont Mean a Thing If It Aint Got That Swing (Duke Ellington) and In
Walked Bud (Thelonius Monk) all feature a chromatically descending bass line
underneath a minor chord. The aforementioned songs differ greatly from Taurus
and Stairway to Heaven because the melodies of Taurus and Stairway to Heaven are
intimately linked to the composition and performance of the main guitar theme. It
is my opinion that Taurus was the single greatest influence on the composition of
Stairway to Heaven.
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I have additionally provided video of me playing the acoustic guitar part of Taurus and
Stairway to Heaven:
Video Exhibit 1:
Video Exhibit 2:
Video Exhibit 3:
Video Exhibit 4:

TaurusLeft Hand
TaurusRight Hand
Stairway to HeavenLeft Hand
Stairway to HeavenRight Hand

I offer these opinions to a reasonable degree of professional and musical certainty. I am being
compensated at $175 per hour for this report and $350 for trial testimony.
Executed this 2nd day of May, 2016, at Philadelphia, Pennsylvania
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
/s/ Kevin Hanson
Kevin Hanson

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EXHIBIT 4

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#:5841
Brian Bricklin
147 Hilldale Rd.
Lansdowne, PA 19050
Brian Bricklin - Expert Report
Music Producer, Audio Engineer, Songwriter, Band Member
SUBMITTED TO;
FRANCISALEXANDER MALOFIY
FOR THE LAW FIRM FRANCIS ALEXANDER,
LLC 280 N. PROVIDENCE RD.
MEDIA, PA 9063
T: (215) 500-1000 F: (215) 500-1005
E: francis@francisalexander.com
Re: Taurus vs. Stairway To Heaven
INTRODUCTION
I, Brian Bricklin, having expert knowledge regarding the matters described, herein, declare as
follows: I am a music producer, audio engineer, performing arts school and studio owner, college
instructor, musician, band member, song writer and live sound engineer. I am over the age of 18 and
competent to testify as to the matters stated herein. I am submitting this amended report in
consideration of the Courts April 25, 2016 order.
I have been retained by Plaintiff in this action to render my opinion and expertise regarding the
following items:

1.

Recreating the Taurus and Stairway to Heaven sound recordings.

2.

Creating combinations of recordings of the deposit copies of Taurus (T) and


Stairway to Heaven (STH).

3.

Compare and contrast the compositions of T written by Randy California and STH
by Robert Plant and Jimmy Page.

4.

Render my opinion as to whether Led Zeppelin employed a songwriting process


and what that consisted of.

5.

Identify the individual components of each individual recorded version of each


song and if there are similarities in their studio production that preclude
independent creation.
MATERIALS REVIEWED

Led Zeppelins Discovery Production D0001-0606


Taurus Audio
Stairway to Heaven Audio
Deposition of James Patrick Page and exhibits
Deposition of John Paul Jones and exhibits
Deposition of Robert Anthony Plant and exhibits
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The case docket and filings


ANALYSIS

Part 1 Creation of Stairway to Heaven and Taurus Sound Re-Recordings


I was initially presented two audio files by the plaintiffs attorney, 1. Stairway to Heaven by Led
Zeppelin and 2. Taurus by Spirit. I supervised the recreation of multi-track recordings of these
two songs so that the individual instrument stems can be isolated for presentation at trial to
help in comparing the compositions of Taurus and Stairway to Heaven. In this section I describe
how I completed those tasks.
I am aware of the Courts order that performance based elements of the song may not be
considered in my analysis. The Court said in its order: Plaintiffs experts naturally relied on the
Taurus sound recording to determine the melody, rhythm and other protected elements of the
musical composition as played on the guitar. In doing so, however, Plaintiffs experts
impermissibly analyzed unprotected elements not embodied in the musical composition (e.g.,
flute, recorder, fretboard positioning). Therefore, Plaintiffs expert reports are inadmissible in
their present condition because they considered unprotected elements contained only in the
sound recording. If Plaintiff wishes to introduce expert testimony at trial, it must submit
reports completely purged of any reliance on the unprotected performance elements in the
sound recording.
To avoid confusion I want to make clear that the purpose of this section of my report describing
my recreation of the two T and STH sound recordings is to faithfully reproduce the sound
recordings so that the songs can be accurately compared, not to compare unprotected
elements. Accurate reproduction of the two sound recordings will facilitate the task of
comparing the protected compositional elements of the two songs by allowing those
unprotected elements to be easily identified and stripped away if necessary.
Stairway to Heaven vs. Taurus
On my initial comparison of T vs. STH, the very first thing that struck me was that both songs
feature a single acoustic guitar, picking identical arpeggios upon their entrance. Jimmy Page has
commented in interviews that initially he allegedly composed just the acoustic guitar
introduction to the song, and the song built from the introduction. The surrounding
instrumental accompaniment on both T, and STH, is initially sparse. T has a background of
orchestral strings, flute and then harpsichord (keyboard), STH, recorder(s) and then electric
piano (keyboard). Both songs feature similar production and in order to expand on how musical
accompaniment and the recording studio process can brand a recording, one must have an
understanding of how music is produced and captured in modern recording studios since
music has been distributed for profit.
When a song is recorded by an artist or band, there are usually two other key personnel:
1. Producer:
The producer is akin to a director in the motion picture industry, i.e., the vision
for the recording project is in the hands of the producer. The producer generally
makes all decisions as to what is recorded, which performances are kept or
deleted. The producer also works closely with the recording engineer as to how
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each instrument or vocal is recorded, which microphone or, other recording
equipment, is used to capture the performances. The producer often has final say
on the final blend of the instrumentation (mixing) and how the final recordings
fits in to a running order for an album, i.e. the song order.
2. The Recording Engineer:
The recording engineer is responsible for placing microphones to capture
acoustic instruments or vocals, routing direct signals to a recording console,
setting up and getting volume levels set for the performers to hear each other.
Setting volume levels and tone for the items being recorded. Maintaining the
equipment in the recording studio as well as anything technical the producer or
artist/band requests during the recording session.
It is important to note that all of Led Zeppelins recordings, including STH, were produced by
band member Jimmy Page. This means, as stated above, he alone was responsible for the final
say in regard to the final recorded product that Led Zeppelin commercially released. In addition
to producing STH, Jimmy Page, along with band member Robert Plant, are credited as the
alleged composers of the song.
The song T, by Spirit, was produced by Lou Adler with the band members of Spirit. Lou was not a
member of the band Spirit. Its important to note, in regards to the song T, I am told that the
surviving band members of Spirit, Jay Ferguson and Mark Andes, state that the band was not
happy with the introduction of the final version of the song. In its final commercial release, T
contains 45 seconds of orchestral music at the top of the song that the band members did not
like, including Randy California, Ts author. This introduction was added to the song by Lou Adler
and it was not a part of Randys original composition. In essence, to compare STH and T, it is
important to start 45 seconds into the commercially released version of T as this is how the
author intended it to be. In fact, all recorded live performances of the song T, by Spirit, did not
contain this additional orchestral introduction.
Both songs are presented, in their final commercially released versions, with very similar
production and mixing techniques. In recording studios, since the time when Les Paul invented
the technology behind multitrack recording, musicians record instrumentation, vocals and any
other elements, to individual tracks on a master multitrack recorder. (Since both these songs
were recorded before digital technology was the standard, these songs were recorded on
multitrack tape recorders.) Multitrack recorders allow each instrument, or element, to be
recorded on to individual tracks of a recorder. These tracks will play back individually, or
collectively, and can be blended at different volume levels and tone control after a live
performance has been captured. In addition, a performance can be played back while another
performance is captured over the existing one. This process is commonly referred to as
overdubbing.
In order to deconstruct each song at a musical organic level, since the multitrack tapes were
not available to me for comparison, I faithfully rerecorded each song. Utilizing a skill called
critical listening, I was able to discern and identify each musical instrument and component, and
recreate the multitrack recordings utilizing master studio musicians performing each part. I
recorded the songs using digital multitrack recording software called Avid Pro Tools, the audio
elements are illustrated on the next page in Images A and B. (Software Audacity for images
only)
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Image A: Recreated Multitrack recording of STH

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#:5845
Image B.: Recreated Multitrack recording of T
This process allowed me to isolate the components of both T and STH to further evaluate
individual musical performances of the compositions that make up each recording. The
following images show each songs discreet elements:

Image C: STH Recreated Isolated Audio Tracks

Image D: T Recreated Isolated Audio Tracks


After a song is recorded, mixing is the process where recording engineers, often, with
producers, adjust the individual volume level and tone of each recorded track after it has been
recorded to create a stereo master. This master is then duplicated for commercial release.
Additionally, effects such as reverb, which could be compared to the sound created as if the
musician was performing in a basketball gym, or arena, can be applied during the mixing
process. When using reverb, the resulting sound appears far away and the duration of the
sound is longer than if the musician was performing in a small room. Both T and STH feature
acoustic guitars bathed in reverb. The following audio exhibits demonstrate the use of reverb
to create a mystic, dreamlike quality. The resulting effect is like each note of the guitar has a
whispering tail.
Audio Exhibit 7: Stairway to Heaven (0 seconds 25 seconds)
Audio Exhibit 8: Taurus (45 seconds 1minute, 13 seconds)

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Its obvious to me the songs were both intended to inspire a haunting, melodramatic feel. From
the first guitar notes, verbatim guitar arpeggios lull the listener along Since both songs feature
a single guitar, playing a musical composition that in both cases are fingered virtually the same
on the guitar, the combined resulting effect, reverb with acoustic guitar, is identical.

Part 2 Combinations of Taurus and Stairway to Heaven

I also recreated the recordings of T and STH using the deposit copy of T and the deposit copy of
STH. Then I made multiple combinations, including the T deposit copy merged with the
protectable elements of the T sound recording, the STH deposit copy merged with the
protectable elements of the STH sound recording. Those combination versions were then
further combined against each other to illustrate the protectable similarities between T and
STH.
See new audio exhibits attached and/or submitted with this report.

Part 3 The Similarity of the Compositions of Taurus and Stairway to Heaven

As identified in the expert reports of Alexander Stewart, Erik Johnson, and Kevin Hanson, the
deposit copy lead sheet of T and sound recording of STH have many similarities which are
protectable. In the T sound recording the guitar, harpsichord/piano, and bass are the
instruments that embody the compositional elements of T represented in the deposit copy of T,
as explained the report of Erik Johnson. Other such instruments which are performance related
have been excluded from the analysis.
In addition to recreating the multitrack recordings of STH and T, I recorded exact replicas of
each songs first 8 measures at a consistent 78 beats per minute, as played by master guitarist
Kevin Hanson. These exhibits only compare the composition of T and STH and do not consider
unprotected elements unique to a sound recording such as flute, recorder, fretboard
positioning.
Audio Exhibit 9: 8 measures of STH from note 1 of the acoustic guitar, repeated
multiple times
Audio Exhibit 10: 8 measures of T from note 1 of the acoustic guitar, repeated multiple
times
Audio Exhibit 11: 8 measures of STH and T played together from note 1 of the acoustic
guitar, repeated multiple times
When listening to Audio Exhibit 11, and considering merely the underlying composition of the
songs that are represented in the deposit copy of T, it is clear that it appears as one piece of
music. The compositions of T and STH therein are beyond a reasonable doubt one in the same.
Both songs contain a musical composition that are almost identical. The four-measure piece
appears four times in T at 0:44, 0:58, 1:36, and 1:50. In STH the piece also appears four times, at
0:00; 0:12; 0:52, and 1:06. These sections are in the same key (A minor) and contain a
descending chromatic bass line, both feature a similar slow tempo and a single acoustic guitar.
6

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Again, I am not considering unprotected elements unique to the sound recording, but only the
underlying composition of T.
Part 4 - Songwriting Process
The following report contains my analysis and conclusions based on thorough review of
substantial material, music, interviews, critical listening as well as recording recreations of the
multitrack tape recordings of both the song T and STH.
As a songwriter I have had songs featured in major motion pictures like Bill and Teds Excellent
Adventure (Orion Pictures) and Election (MTV Paramount), many TV and radio commercials, as
well as signed two times to major labels (A&M, Hybrid/Sire).
There are multiple ways that a song can come to life. For instance, in some cases there are
people who write lyrics, melody and music as well teams where one person writes the music and
the other the lyrics. All of these scenarios can exist within a band too. There is also a process
known as jamming. This is where multiple musicians are creating things on the spot
in a live performance situation (with or without an audience). A simple musical phrase may be
introduced by one person which then inspires another person to expand on it. All of this
happening in real time. Many times, if a bona fide song is created from a jam session, credit is
given to all of the participating musicians. Other times one person might present a completed,
or almost completed song to the group and often only the person or persons who were
involved in the genesis of the song are credited. In addition, many songwriters will acknowledge
they were inspired by another artist, sometimes an older artist in a specific genre as the
inspiration for their NEW creation. In many cases the songwriter has only been inspired by a
previous work, but doesnt lift verbatim lyric, melody or music. Unfortunately, there are cases
where a previous work doesnt inspire and is instead used verbatim and put forth as a new
original creation. In almost all cases songwriters usually follow a process for their works that is
repeated as they hone their craft.
Led Zeppelins Songwriting Process
Based on my expert experience, listening to Led Zeppelins songs, listening to songs upon which
Led Zeppelin based their songs, and the deposition testimony of the individual defendants, I
conclude that Led Zeppelin utilized two primary songwriting methods. The first was where a
band member, usually Jimmy Page and/or Robert Plant, would present a song to the band. In
these cases, only Page and/or Plant would be credited. The second is where the band would jam
and the resulting creation would usually be credited to all members of the band and always at
least three members. It is my expert opinion that both songwriting processes heavily involved

EXHIBIT 4
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#:5848
the use of other artists work, especially in the first four Led Zeppelin albums. I am aware that the
Court has tentatively ruled that prior claims accusing Led Zeppelin of copying are not
admissible, however, my opinion is based upon Mr. Page and Mr. Plants own statements that
they relied upon prior art in creating their music and the musical similarities between the songs.
Take, for example, the song Dazed and Confused from Led Zeppelin I when contrasted with Jake
Holmes 1967 song titled similarly, Dazed and Confused.
Audio Exhibit 1: Dazed and Confused by Led Zeppelin
Audio Exhibit 2: Dazed and Confused by Jake Homes (1967)
It is obvious that Led Zeppelin made some additions to the song Dazed and Confused by Jake
Holmes, but by no means is it a new and unique creation. When originally released on Led
Zeppelin I, Dazed and Confused was credited to Jimmy Page alone and Jake Holmes wasnt
acknowledged at all. Its clear that they incorporated Jake Holmess original creation in their
version of the song. This is the start of a systematic process the band used for years while
creating their music and it became their core songwriting technique; incorporate existing
material by other writers verbatim, or add a slight modification or alteration, and then present it
as a unique and NEW creation.
Another song, from Led Zeppelin II, Whole Lotta of Love, further illustrates this type of
songwriting process, which in my opinion is pervasive in Led Zeppelins music. Led Zeppelins
version is derived from two other songs: You Need Love performed by Muddy Waters, and You
Need Loving by The Small Faces. Its apparent that parts of each of these songs (times listed next
to each audio exhibit marker) were incorporated into their recording of Whole Lotta Love.
However, the song was originally uncredited to any other songwriters other than the members
of Led Zeppelin.
Audio Exhibit 3: Whole Lotta Love by Led Zeppelin
Audio Exhibit 4: Muddy Waters You Need Love (1962) (10 seconds 28 seconds)
Audio Exhibit 5: The Small Faces You Need Loving (1966) (25 seconds 48 seconds)
After hearing testimony from Jimmy Page, John Paul Jones, and Robert Plant, in January of 2016,
it is evident to me that their songwriting process included using previous musical compositions
and incorporating them into their songs. In many cases they took sole credit for Led Zeppelins
songs and presented them as unique, NEW creations. There are many more examples of this
songwriting process used by Led Zeppelin, including Babe, Im Gonna Leave You (originally
written by Anne Bredon), Black Mountain Side (originally written by Bert Jansch), Bring It On
Home (originally written by Willie Dixon), and Since Ive Been Loving You (originally written by
Moby Grape). This is far from a complete list. This demonstrated songwriting process by Led
Zeppelin is unfortunately more akin to lifting verbatim sections of music and lyrics without
attribution and presenting it as a new, unique creation.
Both Jimmy Page and Robert Plant have admitted, in various publications and interviews, that
Led Zeppelin did indeed lift and copy the work of other artists to varying degrees without giving
creidt. Jimmy Page did so in an interview with Brad Tolinski for Guitar World in December 1993,
and Robert Plant did so in an NPR interview with Robert Plant on Fresh Air with Terry Gross in
2004.
8

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#:5849
Led Zeppelins Familiarity with Spirit
From listening to live recordings of Led Zeppelin from their first tour of America in 1968, reading
and listening to interviews with Jimmy Page, and from hearing first hand Jimmy Page talk about
playing a piece from Spirits song Fresh Garbage in their early live sets, its clear the band was
aware of and thought highly enough of Spirit to include Spirits music in their own live shows.
Audio Exhibit 6: Live performance of Led Zeppelin playing Fresh Garbage 1-10-1969
This recording is significant as it shows Led Zeppelin were aware, and held in high regard, Sprits
music. In addition, I have seen significant evidence and to my knowledge unrefuted evidence
that Spirit and Led Zeppelin played the same shows in the late 1960s and 1970s and I have also
been told that Mark Andes and Jay Ferguson testified that at least one festival Led Zeppelin
immediately followed Spirit on stage and that the band members interacted backstage. I also
heard Jimmy Page testify that he owns the eponymous Spirit album which contains the song
Taurus, although he claims he does not know when he acquired it.

Part 5 Stairway to Heaven Could Not Have Been Created Independently from Taurus
I also note based upon by my analysis in Part A, and by comparing the sound recordings and
sonic landscape, production techniques, and engineering methods, that there is no possibility
that STH was created independently from T.

I hold these opinions with a reasonable degree of professional and musical certainty. I
am being compensated at the rate $175 per hour for this report and $350 for trial. I have
testified previously in Marino v. Usher (11-cv-06811 E.D. Pa.).

/s/ Brian Bricklin


Brian Bricklin
May 2, 2016

EXHIBIT 4
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Following is a list of songs, originally, or as of yet, uncredited, to songwriters who created
unique music or lyrics, which were then incorporated into Led Zeppelins repertoire and albums.
All, either in part, or whole. Led Zeppelins version is followed by the original unique creations:
Black Mountain Side (1969) Led Zeppelin
Black Waterside (Bert Jansch, 1966)
How Many More Times (1969) Led Zeppelin
No Place to Go (a.k.a. How Many More Years)(Howlin' Wolf)(1959)
Rosie (Alexis Korner Blues Inc.)(1967)
Steal Away (Alexis Korner Blues Inc. & Robert Plant)(1968)
The Hunter (Albert King)(1967)
Babe Im Gonna Leave You (1969) Led Zeppelin
Babe I'm Gonna Leave You (Anne Bredon)(1962)
The Lemon Song (1969) Led Zeppelin
Killin' Floor (Howlin' Wolf)(1964)
Traveling Riverside Blues (Robert Johnson)(1937)
Bring it on Home (1969) Led Zeppelin
Traveling Riverside Blues (Robert Johnson)(1937)
Hats Off to (Roy) Harper (1970) Led Zeppelin
Em on Down (Bukka White)(1937)
Since Ive Been Loving You (1970) Led Zeppelin
Never (Moby Grape)(1968)
Bron-Y-Aur Stomp (1970) Led Zeppelin
The Waggoner's Lad (Bert Jansch)(1966)
When the Levee Breaks (1971) Led Zeppelin
When the Levee Breaks (Memphis Minnie & Kansas Joe McCoy)(1929)
Custard Pie (1975) Led Zeppelin
Drop Down Mama (Sleepy John Estes)(1935)
I Want Some of Your Pie (Blind Boy Fuller)(1940)
In My Time of Dying (1975) Led Zeppelin
Jesus Gonna Make Up my Dying Bed (a.k.a. In my Time of Dying) (Josh White)(1933)
Jesus Make up My Dying Bed (Blind Willie Johnson)(1927)
Boogie with Stu (1975) Led Zeppelin
Ooh, My Head (Ritchie Valens)(1957)
Nobodys Fault but Mine (1976) Led Zeppelin
Ooh, My Head (Ritchie Valens)(1957)
White Summer-Black Mountain Side (1969) Led Zeppelin
White Summer (Yardbirds)(1969)
She Moved Thro' the Fair (Davy Graham) (1963)
1

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#:5851
The Girl I Love She Got Long Black Wavy Hair (1969) Led Zeppelin
The Girl I Love She Got Long Curly Hair (Sleepy John Estes)(1927)
Watch Your Step (Bobby Parker)(1961)
Your Time Is Gonna Come Led Zeppelin
Dear Mr. Fantasy (Traffic) (1967)
Communication Breakdown (1969) Led Zeppelin
Nervous Breakdown (Eddie Cochran)

10

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#:5852
Professional Experience:
2/1/16 Present
Future Sonics Inc.
Director of Client Services
Oversee all client relation operations for the premier and leading ear monitor manufacturer.
12/1/2002 11/1/15
Music Training Centers, Inc.: Owner / Director
Engineer and produce original content for Live Performance programs including, fully staged
musical theater productions and original song masters.
4/1/2013 Present
Philadelphia Phillies: Game Day Audio Engineer
Oversee all broadcast audio elements for game day production. Duties include audio mixing
utilizing digital and analog equipment, including stadium audio software and RF components.
7/1/2003 Present
Philadelphia Eagles: Game Day Audio Engineer
Oversee all broadcast audio elements for game day production. Duties include audio mixing
utilizing digital and analog equipment, including stadium audio software and RF components.
3/1/2009 2011
Antoinette Westphal College of Media Arts and Design, Music Industry
Drexel University
Adjunct Faculty
Courses taught:
x Production Company Management
o Managing a freelance audio engineering career as a business
x Survey of Modern Production Technique
o Complete history of recording devices, audio engineering and production
techniques utilized from the advent of magnetic recording
2000 - 2002
Philadelphia Music Conference:
Executive Director
Oversaw all aspects of the annual International Music Conference. More than 25,000 people
attended this 3-day event that included panels, workshops, day and nighttime artist showcases,
as well as a daily trade show. Responsible for all budget, accounting, and administrative aspects
as well as sales, marketing, publicity, Internet, sponsorship and advertising operations of the
conference. Created content/text for all PMC brochures, conference directories and ad
campaigns in addition to overseeing, editing and approving all graphic artwork, recorded audio
and print media. The conference was the subject of a multi-part Comcast CN8 television special,
Studio C. (I created and co-produced these programs.)
1970 - Present
Musician
Multi-instrumentalist: guitar, bass, drums, and vocals. Professional guitarist since the age of 10
with performances all over the world including: USA (Madison Square Garden, Spectrum, Tower
Theatre, Mann Music Center), Canada, Holland, and Ireland as well as numerous album
credits. Featured in Guitar for the Practicing Musician. Expert level knowledge of
11

EXHIBIT 4
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#:5853
amplification, amp modelers, effects and all
forms of processing equipment for instruments and sound reinforcement.
1980 Present
Songwriter, Performer
Co-founding member of the band Bricklin that was signed to A&M records and recently of the
band Martins Dam, signed to Hybrid/Sire. Writer or co-writer of numerous songs in movies and
television advertisements including: Bill & Teds Excellent Adventure, MTV/Paramount movie
Election, ABC, NBC, CBS, FOX and ESPN, as well as internationally aired television commercials.
1985 - Present
Freelance recording engineer
Experienced with Avid Pro Tools, SSL, Neve, API, Mackie, Korg, Roland, Studer, Alesis, Otari,
Antares, etc.; all major brand software and recording equipment. Major and independent label
credits.
1990 - 1995
Freelance audio engineer for television
Partial credits include: NFL and College football, professional boxing (Mike Tyson, Bone
Crusher Smith, Michael Moore), MDA Jerry Lewis telethon (Aretha Franklin), Merv Griffin
game show Ruckus, numerous entertainment specials (PBS Ted Koppel, World without Walls,
Country Quest, Seriously Phil, starring Phil Collins).
1999 - 2002
Sonic Foundry:
Content developer
Created end user audio content (loop libraries) for a software product called Acid.
Partial list of studios worked in:
Power Station, Avatar, Effenel, Sony, Master Disc, Unique, New York, NY; Wisselloord Studios,
Amsterdam, Holland; Range Recording Studios, Studio 4; Sigma Sound; Indre, Meatlocker, Sonic;
The Warehouse; 3rd Story; The Dome, Kajem, (in and around) Philadelphia, PA; Rumbo, Skip
Saylor, A&M Studios, Los Angeles, CA; Gateway Mastering, Maine; Numerous Mobile Production
Trucks; Northwest Mobile;
Generic; EJ Stewart, Sheffield
Partial list of Producer/Engineers worked with:
Kevin Killen (Peter Gabriel, U2, Elvis Costello), 2 time Grammy winner; Neil Dorfsman (Sting,
Paul McCartney, Dire Straits), Bob Clearmountain (Brian Adams, Bruce Springsteen, Tears for
Fears), Bill Dresher (Rick Springfield, Bangles), Phil Nicolo (Dishwala, Sean Lennon, Anthrax),
Bob Ludwig, Rick Nowels, Bootsy Collins
Affiliations:
Member: ASCAP
National Academy of Recording Arts and Sciences:
Three times elected to the Board of Governors, National Academy of Recording Arts & Sciences
(Grammy Foundation)
Chairperson, MusiCares Committee
12

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#:5854
Chairperson, Special Event Committee
Three times appointed to the craft committee for the Grammy category: Best Engineered
Recording, Non-Classical

13

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#:5855

EXHIBIT 5

Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 66 of 129 Page ID


#:5856
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 1

UNITED STATES DISTRICT COURT


FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
-----------------------------MICHAEL SKIDMORE, etc.,
)
Plaintiff,
)
) CIVIL ACTION NO.
V.
) 2:15-cv-03462 RGK (AGRx)
)
LED ZEPPELIN, et al.,
)
Defendants.
)
-----------------------------VIDEOTAPED DEPOSITION
- of ALEXANDER STEWART, Ph.D.
taken on behalf of the Defendants on Tuesday,
May 17, 2016, at the offices of Court Reporters
Associates, 148 College Street, 2nd Floor,
Burlington, Vermont, commencing at 9:14 AM.
APPEARANCES:
ON BEHALF OF THE PLAINTIFF:
FRANCIS A. MALOFIY, ESQ.
Francis Alexander, LLC
280 North Providence Road, Suite 1
Media, PA 19063
(215) 500-1000 | francis@francisalexander.com
ON BEHALF OF THE DEFENDANTS:
PETER J. ANDERSON, ESQ.
Law Offices of Peter J. Anderson, P.C.
100 Wilshire Boulevard, Suite 2010
Santa Monica, CA 90401
(310) 260-6030 | pja@pjanderson.com
VIDEO TECHNICIAN: MARY DOUD
COURT REPORTER: JOHANNA MASS, RMR, CRR

Court Reporters Associates


802-862-4593 - cra@craofvt.com

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#:5857
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 6

09:16:19

MR. MALOFIY:

09:16:20

MR. ANDERSON:

09:16:22

09:16:23

09:16:25

09:16:25

MR. ANDERSON:

09:16:27

MR. MALOFIY:

09:16:29

09:16:30

09:16:31

10

09:16:31

11

ALEXANDER STEWART, Ph.D.,

09:16:31

12

having been first duly sworn, testified as follows:

09:16:42

13

EXAMINATION

09:16:42

14

09:16:42

15

09:16:44

16

Peter Anderson, and I represent the remaining

09:16:47

17

defendants in this action.

09:16:50

18

09:16:51

19

A.

Yes.

09:16:52

20

Q.

On how many occasions?

09:16:55

21

A.

Just an estimate, maybe half dozen, maybe

09:16:59

22

eight.

09:17:02

23

Q.

When was the last time you had a deposition?

09:17:05

24

A.

It was right here about -- you know, I don't

09:17:15

25

All right.
Just normal, like what we

always do, what we've done in every deposition.


MR. MALOFIY:

We usually say objections to

form are reserved.


No, we've never in this case.
Oh, all right.

I will agree to

disagree, but go ahead.


THE VIDEOGRAPHER:

The court reporter will now

swear in the witness, please.

BY MR. ANDERSON:
Q.

Good morning, Dr. Stewart.

My name, again, is

You've had your deposition taken before?

remember the date.

Six months ago, maybe, or -- within

Court Reporters Associates


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#:5858
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 125

11:59:09

I think the main fault, as you pointed out before, was

11:59:11

that the deposit copy had not been -- there was no

11:59:14

comparison with that.

11:59:16

11:59:22

the Taurus recording -- recordings has differences from

11:59:26

the composition as depicted in the Taurus deposit copy?

11:59:31

MR. MALOFIY:

11:59:35

Excuse me.

11:59:36

11:59:37

10

(The record was read as follows:

11:59:18

11

agree that the composition embodied in the

11:59:22

12

Taurus recordings has differences from the

11:59:28

13

composition as depicted in the Taurus deposit

11:59:30

14

copy?")

11:59:51

15

THE WITNESS:

Differences --

11:59:52

16

MR. MALOFIY:

Objection.

11:59:53

17

You may answer.

11:59:55

18

THE WITNESS:

12:00:08

19

12:00:08

20

12:00:12

21

12:00:14

22

A.

Correct.

12:00:15

23

Q.

And do you agree that the Taurus deposit copy

12:00:17

24

12:00:19

25

Q.

Do you agree that the composition embodied in

Objection.
Could you read that question back

one time?
"Do you

Vague and ambiguous.

Yes.

BY MR. ANDERSON:
Q.

And do you agree that the Taurus deposit copy

does not identify a tempo?


Yes.

does not identify instrumentation?


A.

Correct.

Court Reporters Associates


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#:5859
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 142

12:19:21

Q.

Anything else?

12:19:22

A.

Key.

12:19:26

Q.

Anything else?

12:19:27

A.

Meter.

12:19:36

Meter.

12:19:45

mind --

12:19:45

Q.

Okay.

12:19:46

A.

-- at the moment.

12:19:47

Q.

So just looking at Exhibit 2058, you can

12:19:50

10

discern, just from what comes to mind, the following

12:19:56

11

from -- of a musical composition:

12:20:00

12

rhythm, meter, and key; is that correct?

12:20:06

13

A.

That's -- yeah.

12:20:09

14

Q.

Is it correct there are no lyrics in Taurus?

12:20:12

15

A.

That is correct.

12:20:12

16

Q.

What methodology did you employ in doing the

12:20:21

17

first part of your new report, the part that deals with

12:20:24

18

the deposit copy?

12:20:25

19

12:20:33

20

didn't need to do transcription of Taurus because there

12:20:37

21

was already a notated example of the composition --

12:20:43

22

Q.

And --

12:20:43

23

A.

-- so --

12:20:44

24

Q.

Namely, Exhibit 2058?

12:20:46

25

A.

Correct.

A.

Key.

Key.

We've talked about melody.

Implied harmony.

That's what comes to

Nothing --

Melody, harmony,

Um-hum.

I used various methodologies.

Court Reporters Associates


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Of course, I

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#:5860
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 193

14:21:19

14:21:21

14:21:22

14:21:24

14:21:25

A.

That is related to instrumentation, yes.

14:21:26

Q.

Okay.

14:21:33

14:21:35

A.

Could you name them again?

14:21:37

Q.

Double-time finger picking, tempo, and

14:21:40

10

14:21:41

11

14:21:49

12

to come back to the details, but it's the details that

14:21:51

13

are really significant.

14:21:52

14

14:21:54

15

14:21:55

16

A.

All right.

14:21:55

17

Q.

Just trying to parse this out.

14:21:56

18

A.

I think that that's it, but there might be --

14:21:59

19

if I take the time to read all through this, I might

14:22:02

20

find that I also mention something else, but let's --

14:22:03

21

can we just assume that you're correct and proceed to

14:22:05

22

the details?

14:22:06

23

14:22:10

24

14:22:14

25

Q.

Is that a result of the instrumentation?


MR. MALOFIY:

If you need to refer to your

report and take a minute, please do so.


THE WITNESS:

Um-hum.

So anything else other than things that

are related to those three items that I've identified?

instrumentation.
A.

Q.

All right.

Well, you keep saying you're going

Trust me, I'm going to come back to the

details.

Q.

Thank you, sir.

Is there reverb in any of the

recordings of Taurus?
A.

I believe so.

Court Reporters Associates


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#:5861
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 194

14:22:16

14:22:21

14:22:21

14:22:24

14:22:25

14:22:29

14:22:30

14:22:32

Sometimes they had actual echo chambers in recording

14:22:35

studios.

14:22:35

10

14:22:40

11

in two different technical ways but the same thing, the

14:22:45

12

sense of depth?

14:22:45

13

A.

Yeah.

14:22:47

14

Q.

And is it correct that there's nothing in the

14:22:52

15

14:22:55

16

14:22:57

17

element that's not depicted in the Taurus deposit copy,

14:23:00

18

correct?

14:23:00

19

A.

Correct.

14:23:01

20

Q.

And tempo is a performance element that's not

14:23:06

21

14:23:07

22

A.

Correct.

14:23:08

23

Q.

And instrumentation is a performance element

14:23:12

24

14:23:14

25

Q.

Do you think reverb is -- is there reverb in

Stairway to Heaven?
A.

Probably.

I'm not an engineer, but I'd be

surprised if there weren't.


Q.

Reverb was common in the 1960s and '70s in

popular music?
A.

Q.

Or using echo in one way or another.

Right.

So basically you could accomplish it

Taurus -- well, strike that.


Double-time finger picking is a performance

depicted in the Taurus deposit copy, right?

not depicted in the Taurus deposit copy, right?


A.

That's correct.

Court Reporters Associates


802-862-4593 - cra@craofvt.com

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#:5862
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 200

14:30:09

so then I'm going to say -- okay.

14:30:12

that clarification.

14:30:13

Q.

Sir?

14:30:14

A.

I would have to get back to you with any

14:30:16

specific citations of sources, but, yes, I've read this

14:30:20

in scholarly works dealing with music copyright.

14:30:25

Q.

And you can't identify any of them?

14:30:27

A.

No.

14:30:28

14:30:28

10

14:30:30

11

14:30:30

12

14:30:35

13

14:30:37

14

commonplace way of playing acoustic guitar before

14:30:40

15

Taurus?

14:30:40

16

A.

Yes.

14:30:43

17

Q.

Do you agree that Jimmy Page finger-picked

14:30:49

18

14:30:51

19

A.

Yes.

14:30:51

20

Q.

Did you do any research to determine the

14:30:55

21

extent to which finger picking was commonplace prior to

14:30:59

22

Taurus?

14:30:59

23

A.

I don't think I need to.

14:31:03

24

Q.

You knew it?

14:31:03

25

A.

It was common.

Of course not.

MR. MALOFIY:
A.

Then I'm okay with

Objection.

There are many dozens of such works that I've

read.
MR. MALOFIY:
Q.

Vague and ambiguous.

Do you agree that finger picking is -- was a

acoustic guitars before Taurus?

It's --

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Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 201

14:31:04

Q.

Okay.

14:31:05

A.

Double-time means playing with the rhythmic

14:31:13

density twice as fast, so in this case it would be from

14:31:16

eighth notes to sixteenth notes.

14:31:19

14:31:22

14:31:23

A.

Oh, yes.

14:31:23

Q.

And do you agree that Jimmy Page played

14:31:27

14:31:33

10

14:31:35

11

14:31:38

12

14:31:41

13

qualifications, do you agree that Jimmy Page played

14:31:44

14

double-time finger-style acoustic guitar before Taurus?

14:31:47

15

A.

Most likely.

14:31:50

16

Q.

Did you do any research to determine the

14:31:53

17

extent to which double-time finger style was a

14:31:56

18

commonplace way of playing acoustic guitar before

14:31:59

19

Taurus?

14:31:59

20

A.

I don't think it's necessary.

14:32:02

21

Q.

And why?

14:32:02

22

A.

Because it is common and it's also in the

14:32:05

23

George Harrison case common to use grace notes, but the

14:32:08

24

grace note was in exactly the same place in the melody

14:32:11

25

of My Sweet Lord as in The Chiffons' song.

Q.

What is double-time?

Do you also agree that double-time was

commonplace before Taurus?

double-time finger-style acoustic guitar before Taurus?


A.

Did he do it in a situation exactly the same

like he did here?


Q.

I don't know.

Are you -- do you agree -- setting aside your

Court Reporters Associates


802-862-4593 - cra@craofvt.com

And what

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Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 205

14:35:55

14:35:57

Q.

Okay.

14:35:58

A.

The fact that it happens in the same place.

14:36:00

14:36:01

14:36:02

14:36:04

Is it correct that your theory of access by reference

14:36:08

to double-time finger picking isn't based on the

14:36:11

creators of Stairway to Heaven hearing the studio

14:36:15

10

14:36:17

11

A.

Okay.

14:36:18

12

Q.

Thank you.

14:36:27

13

tempo of 72 to 73 beats per minute is -- was

14:36:31

14

commonplace in music in the 1960s?

14:36:34

15

A.

Throughout musical eternity, really.

14:36:38

16

Q.

Do you agree that Jimmy Page performed songs

14:36:45

17

14:36:48

18

A.

I don't know, but probably.

14:36:52

19

Q.

Did you do any research to determine the

14:36:55

20

extent to which 72 to 73 beats per minute was a

14:36:58

21

commonplace tempo before Taurus?

14:37:00

22

14:37:04

23

the prevalence of this.

14:37:09

24

you have substantial musical similarity, most of which

14:37:11

25

we have not even discussed today, and then you have

they heard that, yeah.


That's --

MR. ANDERSON:

Yeah.

Move to strike as

nonresponsive.
Q.

That's fine, sir, but my question to you is,

recording of Taurus?
Yes.
On tempo, do you agree that a

that had 72 to 73 beats per minute before Taurus?

A.

Yeah.

My -- my conclusions are not based on


It's based on the fact that

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#:5865
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 207

14:38:26

14:38:27

14:38:27

MR. MALOFIY:

14:38:29

MR. ANDERSON:

14:38:30

14:38:30

14:38:31

protect the record.

14:38:33

answered fully.

14:38:36

with a yes or no.

14:38:38

10

nothing wrong or improper there.

14:38:41

11

answered.

14:38:42

12

the same question again and waste time, that's fine.

14:38:44

13

Ask him the same question again; you'll get the same

14:38:46

14

answer.

14:38:47

15

14:38:48

16

you do any research to determine the extent to which 72

14:38:51

17

to 73 beats per minute was a commonplace tempo before

14:38:54

18

Taurus?

14:38:55

19

14:38:56

20

14:38:57

21

14:39:00

22

14:39:03

23

14:39:08

24

works with tempos of 72 to 73 beats per minute were

14:39:11

25

commonplace before Taurus, right?

MR. ANDERSON:

He's not answering the

question.

Q.

He did, and then he elaborated.


Fine.

Go ahead.
MR. MALOFIY:

Q.

All right.

Hold on a second.

I have to

You asked him two times.

You want a yes or no.


He elaborated on it.

I have my objection.

He

He can't answer
There's

It's been asked and


If you want to ask him

Sir, can you answer the question, please?

MR. MALOFIY:

Objection.

Did

Asked and answered

now for the third time.


A.

This research would be ridiculous and un- --

irrelevant and unnecessary, and so no, I did not do it.


Q.

And it would be ridiculous because beat --

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#:5866
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 208

14:39:14

14:39:15

14:39:16

14:39:22

similarity of instrumentation notes the presence of a

14:39:25

harpsichord, flute, strings, and acoustic guitar in

14:39:28

Taurus recordings and acoustic guitar and recorder in

14:39:33

Stairway to Heaven, correct?

14:39:33

A.

Sounds right.

14:39:34

Q.

And it's correct that there's no harpsichord

14:39:37

10

14:39:39

11

A.

There's recorder, which is a type of flute.

14:39:42

12

Q.

Is a recorder a type of flute?

14:39:43

13

A.

Yes.

14:39:47

14

Q.

Do they have a different sound?

14:39:48

15

A.

Somewhat.

14:39:51

16

Q.

What's the difference?

14:39:56

17

A.

Well, they're -- since they're made of wood,

14:39:58

18

they have somewhat of a more woody timbre, but then

14:40:02

19

flutes sometimes are made -- side-blown flutes are

14:40:04

20

sometimes made of wood also.

14:40:06

21

14:40:09

22

14:40:10

23

A.

Not to my knowledge.

14:40:12

24

Q.

Is it correct there's no harpsichord in

14:40:15

25

A.

Of course.
MR. MALOFIY:

Q.

Thank you.

Objection.

Asked and answered.

And your opinion as to the

or flute in Stairway to Heaven?

Q.

It's an end-blown flute.

Is there a wood flute performed in recordings

of Taurus, to your knowledge?

Stairway to Heaven?

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Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 209

14:40:16

A.

I believe not, no.

14:40:22

Q.

And I believe you referred to a quasi

14:40:25

14:40:27

A.

Yes.

14:40:28

Q.

What did you mean by "quasi classical"?

14:40:30

A.

I mean that these are instruments that are

14:40:32

strongly suggestive of classical music, particularly

14:40:36

from the Baroque or Renaissance era.

14:40:39

14:40:42

10

14:40:43

11

A.

Occasionally.

14:40:44

12

Q.

What about flutes, strings, and acoustic

14:40:48

13

14:40:48

14

MR. MALOFIY:

14:40:49

15

If you need to, break it up.

14:40:50

16

14:40:53

17

these instruments evoked this style that is shared by

14:41:02

18

both of these works.

14:41:03

19

14:41:05

20

extent to which songs prior to Taurus had, as you refer

14:41:09

21

to it, a quasi classical feel?

14:41:10

22

14:41:12

23

14:41:15

24

Q.

Okay.

14:41:15

25

A.

I mean, when you have --

classical tone; am I correct?

Q.

In 1960s popular music, were harpsichords

used?

guitars?

A.

Q.

A.

Occasionally.

Objection.

Compound.

But the point here is that

Did you do any research to determine the

It would not be necessary to make the point

I'm making about a probative similarity.

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#:5868
Stewart, Ph.D., Alexander - 5/17/2016

Michael Skidmore, etc. v. Led Zeppelin, et al.


Page 364

C E R T I F I C A T E

I, Johanna Mass, Court Reporter and Notary


Public, do hereby certify that the foregoing pages,
numbered 4 through 362, inclusive, are a true and
accurate transcription of my stenographic notes of the
Deposition of Alexander Stewart, Ph.D., who was first
duly sworn by me, taken before me on Tuesday, May 17,
2016, commencing at 9:14 AM, in the matter of Michael
Skidmore, etc. v. Led Zeppelin, et al., Civil Action
No. 2:15-cv-03462 RGK (AGRx), as to which a transcript
was duly ordered.
I further certify that I am neither attorney
nor counsel for, nor related to or employed by any of
the parties to the action in which this transcript was
produced, and further that I am not a relative or
employee of any attorney or counsel employed in this
case, nor am I financially interested in this action.

_________________________________
JOHANNA MASS, RMR, CRR
Comm. expires: 2/10/19

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#:5869

EXHIBIT 6

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#:5870
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
1

1 IN THE UNITED STATES DISTRICT COURT


2 FOR THE CENTRAL DISTRICT OF CALIFORNIA
3 - - 4
5 MICHAEL SKIDMORE, etc. : CIVIL ACTION
6 : NO. 2:15-cv-03462
RGK (AGRx)
7 :
8 V. :
9 :
10 LED ZEPPELIN, et al. :
11
12
13 - - 14

15

16

17

18

Videotaped Deposition of ERIK JOHNSON,


taken pursuant to notice, at the offices of
Esquire Deposition Solutions, 1835 Market
Street, Suite 2600, Philadelphia,
Pennsylvania, commencing at approximately
9:45 a.m., on May 18, 2016, before Michelle
Palamarchuk, RPR, RMR and Notary Public in
and for the Commonwealth of Pennsylvania.

19 - - 20

21

22

ESQUIRE DEPOSITION SOLUTIONS


1835 Market Street, Suite 2600
Philadelphia, Pennsylvania 19103
(215) 988-9191

23
24

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#:5871
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
13

1 that.
2 EXAMINATION BY MR. ANDERSON:
3 Q. Mr. Johnson, have you ever had your
4 deposition taken before?
5 A. I have not.
6 Q. Again, my name is Peter Anderson.

7 represent the remaining defendants in this


8 case.
9 The woman down the table and to your
10 right is a certified shorthand reporter. She
11 will be taking down my questions, any
12 objections by Mr. Malofiy and your answers.
13 Because of this procedure that we're
14 following today, it's very important that you
15 answer audibly. It's difficult for the court
16 reporter to write down on her little machine
17 there shaking of the head, yes or no -18 A. I understand. Thank you.
19 Q. And that's the second thing. It's
20 also very important that you wait until I
21 finish and not talk at the same time that I'm
22 talking or the same time that Mr. Malofiy is
23 talking. It is extremely difficult for the
24 court reporter to take down what's happening

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#:5872
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
16

1 you to ask for a read and sign just


2 to confirm on the record that you
3 want to read and sign, read the
4 transcript and sign the transcript
5 before it's final.
6 THE WITNESS: Oh, okay.
7 MR. MALOFIY: Do you want to
8 state that?
9 THE WITNESS: I would like to
10 read and sign the transcript before
11 it's submitted.
12 MR. ANDERSON: I don't know what
13 the "submitted" means, but you do
14 have the right to elect to read and
15 sign the transcript, so that's been
16 noted on the record.
17 BY MR. ANDERSON:
18 Q. Have you ever testified at a trial?
19 A. I have not.
20 Q. Have you ever testified in an
21 arbitration?
22 A. I have not.
23 Q. Have you ever been designated as an
24 expert witness in any case other than in this

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#:5873
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
17

1 case?
2 A. Not before this case.
3 Q. Have you ever been -- have you been
4 designated as an expert witness after you
5 were designated in this case?
6 A. I have not.
7 Q. Are you producing any documents in
8 response to the subpoena directed to you?
9 A. I am not.
10 Q. Have you seen the subpoena before?
11 A. Yes, I have.
12 Q. When?
13 A. About a week ago, approximately,
14 within the last week.
15 MR. ANDERSON: Do you remember
16 the last exhibit number yesterday?
17 Was it 2203?
18 MR. MALOFIY: I can
19 double-check. I'm not sure.
20 MR. ANDERSON: Why don't we go
21 with 2220?
22 MR. MALOFIY: No. We had 22.
23 Remember?
24 MR. ANDERSON: Oh, she went to

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#:5874
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
34

1 Q. Have you authored any publications


2 within the preceding ten years?
3 A. I have not.
4 Q. And I take it you have not testified
5 in the previous four years in any case;
6 correct?
7 A. That's correct.
8 Q. Did you graduate high school?
9 A. Yes, I did.
10 Q. When?
11 A. 1988.
12 Q. Where?
13 A. Lower Merion.
14 Q. Is that here in Philadelphia?
15 A. Suburban Philadelphia, yes.
16 Q. And did you have a major?
17 A. In college?
18 Q. No, in high school.
19 A. A major?
20 Q. Yes, some high schools have majors.
21 A. My high school did not.
22 Q. Did you go to college?
23 A. Yes, I did.
24 Q. Where?

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#:5875
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
35

1 A. Temple University in Philadelphia.


2 Q. Did you graduate?
3 A. Yes, I did.
4 Q. When?
5 A. May of 1999.
6 Q. Did you have a major there?
7 A. Yes, I did.
8 Q. What was it?
9 A. Jazz performance.
10 Q. What's the degree, BFF or ...?
11 A. Bachelor of fine arts, BFA.
12 Q. Do you have any postgraduate study?
13 A. I do not.
14 Q. So you did not go to graduate school;
15 is that correct?
16 A. That's correct.
17 Q. Do you have any degrees other than
18 the BFA that you obtained from Temple?
19 A. I do not.
20 Q. Have you received any awards in the
21 music area?
22 A. No.
23 Q. And just to be thorough, is it
24 correct you do not have a master degree?

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#:5876
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
55

1 definition, wasn't a term of art he


2 used or liked to use. It's an
3 implication -4 MR. ANDERSON: Just state your
5 objection. No speeches, please.
6 MR. MALOFIY: If I have to cure
7 an issue, I have to cure an issue.
8 MR. ANDERSON: No, you don't.
9 That's a complete violation of the
10 federal rules. I don't know what you
11 can do in Pennsylvania, but you
12 cannot do that in the Central
13 District of California.
14 MR. MALOFIY: We can agree to
15 disagree. There was an issue that
16 had to be resolved.
17 BY MR. ANDERSON:
18 Q. Sir, so you agree then that there is
19 a minor line clich in the Taurus deposit
20 copy?
21 A. Yes.
22 Q. And do you agree that a descending
23 chromatic line is not original?
24 A. No, I would not agree with that

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#:5877
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
56

1 statement.
2 Everything in music is entirely
3 dependent upon context. Context can be in
4 terms of vertical implied harmony as two
5 pitches relate to each other, whether it's in
6 a linear sense or in a harmonic sense.
7 Context can be the use of the way
8 that something is used. I mean, one could
9 assert that a scale is not protectable, but
10 there are plenty of examples in music where a
11 scale is a crucial part of the melodic data.
12 So I don't think that there's really
13 one answer to that question.
14 Q. Do you believe a scale is
15 protectable?
16 A. In certain circumstances, yes.
17 Q. Do you believe a minor line clich is
18 protectable?
19 A. In certain circumstances, yes.
20 Q. The music in Stars and Stripes
21 Forever, do you agree that that music is
22 essential to that composition?
23 A. I'm sorry. Can you repeat the
24 question.

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#:5878
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
57

1 Q. Are you familiar with the musical


2 composition Stars and Stripes Forever?
3 A. I believe so.
4 Q. Do you believe that that musical
5 composition, that the music in that
6 composition is essential to that composition?
7 MR. MALOFIY: Before you go
8 further, was that produced in
9 discovery?
10 MR. ANDERSON: Stars and Stripes
11 Forever?
12 MR. MALOFIY: Yeah.
13 BY MR. ANDERSON:
14 Q. Let's use The Star-Spangled Banner.
15 Do you really need that produced? How about
16 America the Beautiful?
17 A. I'm more familiar with The
18 Star-Spangled Banner.
19 Q. Okay, let's go with The Star-Spangled
20 Banner. You're familiar with The
21 Star-Spangled Banner?
22 A. Yes.
23 Q. Can you play it?
24 A. Play it?

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#:5879
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
58

1 Q. Not here today, but are you able to


2 play that?
3 A. Yes.
4 Q. Okay. And do you believe that the
5 music in The Star-Spangled Banner is
6 essential to that composition?
7 MR. MALOFIY: Objection; vague
8 and ambiguous.
9 You may answer if you understand
10 the question.
11 THE WITNESS: I'm not sure that
12 I understand the question.
13 BY MR. ANDERSON:
14 Q. You previously referred to a
15 descending line clich or minor line clich
16 as being protectable if it's essential to the
17 composition; is that correct?
18 A. Obviously, yeah.
19 Q. Now I'm asking you if you believe the
20 music in The Star-Spangled Banner is
21 essential to that composition.
22 MR. MALOFIY: Objection; vague
23 and ambiguous.
24 You may answer.

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#:5880
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
59

1 THE WITNESS: The music is the


2 composition.
3 BY MR. ANDERSON:
4 Q. Right. So is it your position that
5 The Star-Spangled Banner is protectable and
6 original?
7 A. Yes.
8 Q. Okay. And do you as part of your
9 musicological analysis in this case, did you
10 analytically dissect the two compositions to
11 look for substantial similarity?
12 A. Yes.
13 Q. And when you dissected the Taurus
14 deposit copy, did you identify a descending
15 chromatic line?
16 A. Yes.
17 Q. And when you dissected Stairway to
18 Heaven, did you identify a descending
19 chromatic line?
20 A. It was one of the elements that I
21 identified, yes.
22 Q. And did you then disregard those
23 elements in determining whether there was
24 substantial similarity?

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#:5881
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
60

1 A. I did not.
2 Q. Why not?
3 A. For a couple of reasons. In my mind,
4 a descending chromatic line in two separate
5 compositions can have very different impact
6 on the music, different flavor, different
7 implication of the composer's intent for
8 mood, things of this nature.
9 And I also, the most, I think the
10 most important part of my analysis is what I
11 consider to be, in my mind, a reconstruction
12 of the granular elements to represent the
13 macro picture, and that's where the truth of
14 each composition emerges.
15 So isolating one element, for me, is
16 only useful as a part of the analytical
17 process. It doesn't end there.
18 Q. What did you say, "the truth of the
19 musical composition"?
20 A. Yes.
21 Q. What do you mean by "the truth of the
22 musical composition"?
23 A. Its essence, its je ne sais quoi.

24 mean, obviously, it's subjective, what it

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#:5882
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
61

1 means to me. That would be -- and in the


2 aggregate, if I were to break up the
3 aggregate, there are in any composition
4 multiple musical elements that conspire to
5 create this macro picture that I'm talking
6 about.
7 Q. And that macro picture, that
8 je ne sais quoi, is what you base your
9 opinions on in this case?
10 A. It's a part of it, yes.
11 Q. What else besides that?
12 MR. MALOFIY: Objection; asked
13 and answered earlier on. He went
14 through all those issues. But go
15 ahead.
16 THE WITNESS: Like I said, the
17 molecular, granular elements, which
18 are things like harmonic analysis,
19 melodic analysis, rhythmic analysis,
20 formal analysis, those are important
21 elements to understand the X's and
22 O's, the underlying structures of a
23 piece of music.
24 But at the end of the day, what

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#:5883
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
78

1 allowed. I'll just give him sort of


2 that lifeline in case he was unsure.
3 BY MR. ANDERSON:
4 Q. Mr. Johnson, when did you first hear
5 about potentially being involved in this
6 case?
7 A. That was late in the fall of last
8 year.
9 Q. The fall of 2015?
10 A. That's correct.
11 Q. And did someone contact you?
12 A. Yes, Francis, Mr. Malofiy.
13 Q. Was that by phone or by email or some
14 other fashion?
15 A. I don't recall.
16 Q. Did you already know Mr. Malofiy
17 before he contacted you about being involved
18 in this case?
19 A. Yes, I did.
20 Q. And when did you first meet him?
21 A. At least ten years ago. It could
22 have been longer, but at least ten years ago.
23 Q. And how did it come to be that you
24 met Mr. Malofiy at least ten years ago?

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#:5884
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
79

1 A. Well, we all kind of, some of us more


2 than others, but we all participate in a sort
3 of community of musicians. And I actually
4 knew Brian Bricklin, and Brian introduced me
5 to Francis, who was recording some music at
6 the time. And we played some music together,
7 and that must have been at least ten years
8 ago.
9 Q. When you say "we all were a part of
10 this community," who are you referring to
11 when you say "we all"?
12 A. Well, myself, Kevin Hanson, and Brian
13 and Francis. And there was another musician,
14 Jim, who's not involved in this process. But
15 I think, if I remember correctly, he might
16 have played bass.
17 Q. Do you have an understanding as to
18 why Jim isn't involved?
19 A. No.
20 Q. What's Jim's last name?
21 A. Stager.
22 Q. Are you still friends with him?
23 A. Yeah.
24 Q. And is it correct that before you

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#:5885
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
123

1 video record, 12:10 p.m.


2 BY MR. ANDERSON:
3 Q. Mr. Johnson, is it correct that when
4 you did your new report approximately two
5 weeks ago that you did an -- you did analyze
6 the Taurus deposit copy?
7 A. Yes, that's correct.
8 Q. And I'm sorry. I'm sure this is
9 obvious. I don't mean to insult you. But
10 you can read music; right?
11 A. Yes.
12 Q. And the Taurus deposit copy
13 transcribes a musical composition?
14 A. Yes.
15 Q. And that includes a musical
16 composition with melody?
17 A. There is a melody contained in it.
18 I'm not -- well, yes, there is.
19 Q. You can discern from the -- you can
20 see on -- I'm sorry.
21 Being able to read music, you can see
22 on Exhibit 2058 the melody of that musical
23 composition; correct?
24 A. Yes.

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#:5886
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
124

1 Q. And you can see on Exhibit 2058 the


2 harmony of that musical composition; correct?
3 A. I can infer it. It's not, strictly
4 speaking, notated in a way that you might see
5 it on a typical lead sheet with chord
6 symbols, but there is, there are plenty of
7 inferences to be drawn that suggest harmony,
8 yes.
9 Q. What you're referring to is, above
10 the staves it doesn't say, for example,
11 "A minor"?
12 A. That's right.
13 Q. It doesn't label the chords. But you
14 can see the chords that are in here; right?
15 A. Yes.
16 Q. And can you see the rhythm of this
17 musical composition?
18 A. Yes.
19 Q. Can you see the key of the musical
20 composition?
21 A. Yes.
22 Q. Is there anything else in terms of
23 compositional elements that you can see on
24 Exhibit 2058?

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#:5887
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
173

1 Q. Is there a tempo indicated on the


2 Taurus deposit copy?
3 A. No, there is not.
4 Q. Did you do any research to determine
5 whether musical compositions prior to Taurus
6 had the same or similar tempos to the tempos
7 that you've ascribed to Taurus and the tempo
8 of Stairway to Heaven?
9 A. Specifically, no.
10 Q. Do you agree that there are musical
11 compositions prior to Taurus that had similar
12 tempos?
13 A. I'm quite sure. I mean, to be fair,
14 there are compositions at many tempos, many
15 of which have the same tempo but they often
16 have very little else in common.
17 Q. You identified mood. What did you
18 mean by mood?
19 A. I suppose it's subjective. I guess
20 what I mean is because of the flavors of the
21 acoustic guitar performed the way it is in
22 both compositions and the other ancillary
23 instruments, the way that they coalesce as a
24 whole gives a certain, I guess it has a

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#:5888
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
174

1 pseudo-renaissance kind of flavor to it. Of


2 course, I mean that colloquially.
3 But there's just a certain kind of
4 mood and tone that emerges from it. And even
5 if I can't identify exactly what that mood
6 is, I know that they're both the same mood,
7 in my estimation.
8 Q. Did you do any research to determine
9 the extent to which compositions prior to,
10 and recordings prior to Taurus had a similar
11 mood?
12 A. No, I did not.
13 Q. Are you aware of any compositions
14 prior to Taurus that had a similar mood?
15 A. Off the top of my head, no.
16 Q. Would you say that Ruby Tuesday has a
17 similar mood?
18 A. Not in my estimation.
19 Q. Would you say that -- just a second.
20 Do you know the Beach Boys song God Only
21 Knows?
22 A. Yes, I do.
23 Q. Do you believe that has a similar
24 pseudo-renaissance feel?

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#:5889
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
190

1 just like their music. I always


2 have. Why? I'm not sure. I always
3 liked Led Zeppelin.
4 BY MR. ANDERSON:
5 Q. What is it about their music that you
6 admire?
7 A. The musicianship, riff writing, I
8 like the way the albums sound.
9 Q. Have you finished your answer?
10 A. Yes.
11 Q. Okay. Sorry. I didn't know.

12 didn't want to cut you off.


13 When you say "the way the album
14 sounds," you're talking about the production
15 values?
16 A. Yes, that's correct.
17 Q. And is it correct that there are no
18 instruments indicated on the Taurus deposit
19 copy?
20 A. Yes, that's correct.
21 Q. In that same paragraph you refer to
22 revelations of their unauthorized borrowing.
23 And, again, I'm not instructing you.
24 But just out of caution, I'm cautioning you

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#:5890
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
246

1 of the drums, that you would recognize it as


2 Stairway to Heaven?
3 A. That I would?
4 Q. Yes.
5 A. Most likely.
6 Q. And would you agree that any person
7 familiar with Stairway to Heaven who came
8 upon any portion of Stairway to Heaven, for
9 example by changing radio stations, would
10 recognize the song very quickly as Stairway
11 to Heaven?
12 MR. MALOFIY: Objection;
13 speculative. There's no way this man
14 can testify to what someone else
15 might think or might listen to or
16 hear.
17 THE WITNESS: I would be
18 speculating to answer that question.
19 BY MR. ANDERSON:
20 Q. You pointed out that you don't have a
21 doctorate in musicology?
22 A. That's right.
23 Q. Your degree is in jazz performance?
24 A. That's right.

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#:5891
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
247

1 Q. And you're not a musicologist;


2 correct?
3 MR. MALOFIY: Objection;
4 misstates his prior testimony. He
5 clarified that.
6 THE WITNESS: I do not have a
7 degree in musicology.
8 BY MR. ANDERSON:
9 Q. And you're not a musicologist; isn't
10 that true?
11 MR. MALOFIY: Objection. That's
12 not what he testified.
13 THE WITNESS: Strictly speaking,
14 no, I'm not a musicologist.
15 MR. ANDERSON: That's all the
16 questions I have. Thank you.
17 FURTHER EXAMINATION BY MR. MALOFIY: @@@
18 Q. Just to be clear, are you qualified
19 to render a musicological opinion?
20 MR. ANDERSON: Objection; lacks
21 foundation and it's leading.
22 THE WITNESS: Yes.
23 BY MR. MALOFIY:
24 Q. Have you done that in this case?

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#:5892
ERIK JOHNSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
249

1
2 C E R T I F I C A T I O N
3 - - 4
5 I, Michelle Palamarchuk, Registered
6 Professional Reporter and Notary Public, do
7 hereby certify that the foregoing transcript
8 is a true and accurate transcription of the
9 deposition proceedings, that the witness was
10 first sworn by me at the time, place and on
11 the date hereinbefore set forth.
12
13
14 Michelle Palamarchuk, RPR, RMR
15
16 (The foregoing certification of this
17 transcript does not apply to any reproduction
18 of the same by any means unless under the
19 direct control and/or supervision of the
20 certifying reporter)
21
22
23
24

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#:5893

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Case 2:15-cv-03462-RGK-AGR Document 223-1 Filed 06/07/16 Page 104 of 129 Page ID
#:5894
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
1

1
2 IN THE UNITED STATES DISTRICT COURT
3 FOR THE CENTRAL DISTRICT OF CALIFORNIA
4 - - 5
6 MICHAEL SKIDMORE, etc. : CIVIL ACTION
7 : NO. 2:15-cv-03462
RGK (AGRx)
8 :
9 V. :
10 :
11 LED ZEPPELIN, et al. :
12
13 - - 14

15

16

17

18

Videotaped Deposition of KEVIN HANSON,


taken pursuant to notice, at the offices of
Esquire Deposition Solutions, 1835 Market
Street, Suite 2600, Philadelphia,
Pennsylvania, commencing at approximately
3:20 p.m., on May 18, 2016, before Michelle
Palamarchuk, RPR, RMR and Notary Public in
and for the Commonwealth of Pennsylvania.

19 - - 20

21

22

ESQUIRE DEPOSITION SOLUTIONS


1835 Market Street, Suite 2600
Philadelphia, Pennsylvania 19103
(215) 988-9191

23
24

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#:5895
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
6

1 Alexander Malofiy for the law firm


2 Francis Alexander representing
3 plaintiff in this matter, Michael
4 Skidmore, as Trustee for the Randy
5 Craig Wolfe Trust.
6 THE VIDEOGRAPHER: Will the
7 court reporter swear the witness.
8 - - 9 KEVIN HANSON, after having first been
10 duly sworn, testified as follows:
11 - - 12 MR. MALOFIY: We are going to
13 request to read and sign.
14 EXAMINATION BY MR. ANDERSON:
15 Q. Good afternoon, Mr. Hanson.
16 A. Good afternoon.
17 Q. Again, my name is Peter Anderson.
18 And as you've heard, I represent some of the
19 defendants, the remaining defendants in this
20 action. Is it correct that you were present
21 today throughout the testimony of Erik
22 Johnson?
23 A. Yes.
24 Q. And did he say anything in the

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#:5896
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
9

1 Q. Have you ever testified in a trial or


2 arbitration?
3 A. I have not.
4 Q. Have you ever been retained as a
5 consulting witness?
6 A. No, sir.
7 Q. Have you ever been retained as a
8 testifying expert witness?
9 A. No.
10 Q. What did you do to prepare for your
11 deposition today?
12 A. Read over my expert report, made sure
13 I was familiar with both compositions.
14 Q. Anything else?
15 A. I just read as much -- I researched
16 as much of the reports as I could have.
17 Q. Well, you said you read your expert
18 report. Which expert report did you read in
19 preparation for your deposition today?
20 A. Mostly mine, my master musician
21 report.
22 Q. The one that was -- the new one that
23 was recently provided, or the one that was
24 provided back in February?

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#:5897
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
27

1 Washington state at Western Washington


2 University and then for a year at Temple
3 University in Philadelphia, at which point my
4 education was interrupted by a record deal
5 and a touring opportunity with my band. That
6 lasted a good ten years.
7 Q. So is it correct you never completed
8 college?
9 A. That's correct.
10 Q. Do you have any degree other than a
11 high school degree?
12 A. I am currently working on obtaining
13 that degree that I never finished.
14 MR. ANDERSON: Move to strike as
15 nonresponsive.
16 BY MR. ANDERSON:
17 Q. Do you have any degree other than a
18 high school degree?
19 A. No.
20 Q. And are you currently studying music?
21 A. I currently have been taking classes
22 with tuition remission at the university
23 where I teach, and it's a process that will
24 allow me to eventually obtain that degree.

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#:5898
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
28

1 Q. What degree are you seeking to


2 obtain?
3 A. A bachelor of fine arts in music.
4 Q. What do you mean by "tuition
5 remission."
6 A. As a faculty member, you are allowed
7 up to three credits per semester of tuition
8 remission to where you can take classes for
9 free. In addition to that, I've looked into
10 taking classes elsewhere perhaps online or at
11 other local colleges and universities.
12 Q. Are you taking any classes at the
13 university or just getting credit for
14 teaching?
15 A. No. I actually have taken classes in
16 the last, the last two years, up to three
17 credits per semester.
18 Q. What classes have you taken in the
19 last three years?
20 A. The most recent one was music history
21 from the classical era through 20th century
22 composition. I took a class. piano. And I
23 will took a songwriting class.
24 Q. Have you ever taken any musicology

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#:5899
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
34

1 Q. Are you a member of any musicological


2 society?
3 A. No.
4 Q. Are you a musicologist?
5 A. I am not a musicologist. I'm not a
6 degreed musicologist, but I can answer
7 questions as a musicologist could.
8 MR. ANDERSON: I will move to
9 strike as nonresponsive.
10 BY MR. ANDERSON:
11 Q. Sir, are you a musicologist by
12 profession?
13 A. By profession, no.
14 Q. As a university professor, are you a
15 musicologist?
16 A. Yes.
17 Q. In what way?
18 A. In terms of what a musicologist
19 studies, if I can give you an example, a
20 class that I designed that I call History of
21 American Song deals with the evolution of
22 American music from 1900 to the present day.
23 It studies the cultural changes that, say,
24 brought people from the backwoods of the

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#:5900
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
42

1 infringement?
2 A. Not formally, no.
3 Q. Informally, did you do that?
4 A. Informally, yeah, just by my own
5 comparative analysis.
6 Q. And Coldplay and Satriani, was that
7 filed?
8 A. I believe, yeah. Joe Satriani filed
9 that -- I don't want to speculate, but I
10 think around 2013 or '14.
11 Q. And did you do a musicological
12 analysis of that or any of the other ones?
13 A. Informal.
14 Q. And has your understanding of what
15 the methodology of a musicological analysis
16 is, has that changed at all?
17 A. It's become more specific.
18 Q. How has it become more specific?
19 A. In terms of what can be deemed
20 copyrightable, in terms of what components of
21 a song are shown to have substantial or
22 striking similarity.
23 Q. And what is your current
24 understanding on that?

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#:5901
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
43

1 A. My current understanding is that it's


2 all a very malleable, subjective process.
3 Q. And where did you get that
4 understanding from?
5 A. Well, from seeing these cases over
6 the years, somebody has an argument that, oh,
7 well, that's the exact melody of this song;
8 it's got the same notes; and then, you know,
9 the needing access to a song. That's shifted
10 my focus. I think in this case it's rather
11 pertinent to the case.
12 Q. Why is it pertinent to the case?
13 A. Well, in this case it's my belief,
14 it's my opinion that there was access to
15 Taurus by Led Zeppelin.
16 Q. What do you base that on?
17 A. Historical accounts of performances
18 together.
19 Q. What historical accounts?
20 A. Shows that were played by the two
21 bands together.
22 Q. What shows did they play together?
23 A. I'm forgetting the name of the
24 specific festivals in California in the late

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#:5902
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
56

1 musicological terms, if you can describe it


2 from a theoretical standpoint, from a
3 standpoint of how it ends up sounding, the
4 overall feel of it.
5 Q. Have you ever played Stairway to
6 Heaven before becoming involved in this case?
7 A. Oh, yes, since I was 11 years old.
8 Q. At any point did you ever play it
9 with the same fingering that you believe
10 Jimmy Page used?
11 A. I think we play the same -- I think I
12 play it like Jimmy Page plays it. I'm almost
13 certain.
14 Q. And that's the same fingering that
15 you believe Randy California played?
16 A. Yes; on the right hand in terms of
17 the notes that are similar that occur at the
18 same time.
19 Q. Are there features, elements, or
20 characteristics of a guitar that lend itself
21 to playing those notes with that fingering?
22 A. Yes, there are. It would probably be
23 the easiest place to play those, to play
24 those two wrists separately.

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#:5903
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
62

1 in Stairway to Heaven?
2 A. Yes.
3 Q. Is there a descending chromatic line
4 in the Taurus deposit copy?
5 A. Yes, there is.
6 Q. Is there a minor line clich in both
7 of the compositions?
8 A. I would hesitate to use that term,
9 especially in Taurus because, because of the
10 way that it's broken up -- well, let me
11 correct that.
12 In the, if you were to break up
13 Taurus, the guitar part, into treble and bass
14 clef, yes, you would have the descending
15 chromatic line.
16 Q. Does the Taurus deposit copy indicate
17 or identify any instruments to play the
18 composition?
19 A. It does not.
20 Q. Does it indicate tempo?
21 A. No, it doesn't.
22 Q. Does it indicate melody?
23 A. Yes -24 Q. Does it --

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#:5904
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
66

1 Q. And when you say that they are not


2 express in the Taurus deposit copy, do you
3 mean that no one has written above the chords
4 the, something like "A minor."
5 A. That's what I mean, yes.
6 Q. Okay. But you can tell by looking at
7 the Taurus deposit copy that there are two or
8 more different pitches sounding
9 simultaneously, thereby comprising a chord?
10 A. Correct.
11 Q. Okay. And is there rhythm in the, on
12 the Taurus transcription deposit copy?
13 A. Yes.
14 Q. Are there any other musical elements
15 of a composition on the Taurus deposit copy?
16 A. Other musical elements?
17 Q. Yes. Anything else that I'm missing?
18 MR. MALOFIY: Objection. Vague
19 and ambiguous.
20 You may answer.
21 THE WITNESS: Yeah. Could you
22 rephrase the question, please?
23 BY MR. ANDERSON:
24 Q. Yeah. Well, I believe you testified

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#:5905
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
67

1 that there's melody, there's harmony, and


2 there's rhythm reflected in the Taurus
3 deposit copy; correct?
4 A. Correct.
5 Q. And are there any other elements of a
6 musical composition -7 A. Oh, sure.
8 Q. -- that are on the Taurus deposit
9 copy?
10 A. Looking outward, there's an 8-bar
11 phrase that repeats.
12 Q. What do you mean by "looking
13 outwards"?
14 A. Getting, looking at the bigger
15 picture of the form of the song, not looking
16 at specific notes within a measure, but
17 looking at that entire A section, which is
18 8 bars long that does indeed repeat.
19 Q. Having 8 bars repeat in a song, is
20 that unusual?
21 A. No, it's not.
22 Q. Okay. And is there anything else,
23 any other musical elements of a musical
24 composition that you see on the Taurus

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#:5906
KEVIN HANSON
May 18, 2016
SKIDMORE vs. LED ZEPPELIN
69

1 by itself? Well, it is if you identify it as


2 such in context. For example, if we took In
3 the Mood, ba-ba-ba-ba -- that's a major
4 arpeggio.
5 Now, if somebody is practicing on a
6 piano and they go (witness demonstrating
7 vocally), you would say that's absurd that
8 you could, that you could consider that a
9 copyrightable component.
10 However, if you went (witness
11 demonstrating vocally), that is In the Mood.
12 And that has an identity because of its
13 rhythm and because of its context. So in
14 that case, a descending chromatic line could
15 be considered copyrightable.
16 Q. When you did your musicological
17 analysis, did you identify anything in the
18 Taurus deposit copy that is not original?
19 A. In the deposit copy? No, I did not.
20 Q. So you believe the entirety of the
21 deposit copy is original?
22 A. Yes.
23 Q. And what do you understand the word
24 "original" to mean in the context of a

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1 musicological analysis?
2 A. Created without direct influence of
3 exact placement of previously used
4 components.
5 Q. Where did you get that definition?
6 A. I, well, I just articulated what I
7 deem to be the answer to that question.
8 Q. So did you disregard, in your
9 musicological analysis, did you disregard any
10 portions of Taurus that are -- as not being
11 original?
12 A. No, I did not disregard any.
13 Q. And did you, in your musicological
14 analysis of Taurus, did you disregard any
15 material that is commonplace or trite?
16 A. In the copyright deposit? No, I did
17 not.
18 Q. Do you believe that Randy California
19 invented the descending bass line?
20 A. No, I do not.
21 Q. Do you believe that Randy California
22 invented a descending chromatic line?
23 A. I do not.
24 Q. Are those musical devices, a

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1 descending chromatic line, for example, you


2 agree that's common in music?
3 A. Yes, I do.
4 Q. Do you have any reason to believe -5 is it common in popular music prior to
6 Taurus?
7 A. It has occurred certainly, yes, in
8 many contexts.
9 Q. And is there a descending chromatic
10 line in the Beatles' Michelle, for example?
11 A. Yes, there is.
12 Q. Is there a descending chromatic line
13 in Cry Me a River by Davy Graham?
14 A. Yes, there is.
15 Q. Is there a descending chromatic line
16 in Summer Rain by Johnny Mathis?
17 A. I'm not familiar.
18 Q. Is there a descending chromatic line
19 in My Funny Valentine?
20 A. Yes.
21 Q. Is there a descending chromatic line
22 in A Taste of Honey?
23 A. Yes.
24 Q. Is there a descending chromatic

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1
2 C E R T I F I C A T I O N
3 - - 4
5 I, Michelle Palamarchuk, Registered
6 Professional Reporter and Notary Public, do
7 hereby certify that the foregoing transcript
8 is a true and accurate transcription of the
9 deposition proceedings, that the witness was
10 first sworn by me at the time, place and on
11 the date hereinbefore set forth.
12
13
14 Michelle Palamarchuk, RPR, RMR
15
16 (The foregoing certification of this
17 transcript does not apply to any reproduction
18 of the same by any means unless under the
19 direct control and/or supervision of the
20 certifying reporter)
21
22
23
24

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FORENSIC MUSICOLOGY- AN OVERVIEW


DURAND R. BEGAULT, HEATHER D. HEISE, AND CHRISTOPHER A. PELTIER3
1

Audio Forensic Center, Charles M. Salter Associates, Inc. San Francisco, CA, USA
Durand.Begault@cmsalter.com
2
University of Southern California Thornton School of Music, Los Angeles, CA, USA
heatherheise@alumnae.mills.edu
3
Cerami and Associates, New York, NY, USA
CPeltier@ceramiassociates.com

The current evolution of the music industry into digital means of recording and dissemination has increased the
necessary skill set required of experts by legal professionals. Expert testimony for forensic musicology supports a
broad spectrum of legal issues, including the authentication and differentiation of published compositions and musical
recordings, performance rights, and legal determinations regarding copyright infringement. While legal cases involving
music and performance infringement date back as far as the 19th century, the field of forensic musicology has no stated
methodology by which an objective forensic determination can be made. Expert opinions based merely on subjective
impression or from golden ear analysis are pseudo-scientific and not objectively based. This paper proposes scientific
methods and recommendations for analysis based on stated criteria, with the goal of controlling examiner bias.
Considerations include analyses of composition, performance, and acoustical features, and factors such as melody,
harmony, rhythm, and orchestration; pitch, tone, vibrato, and embellishment; metadata analysis; recording technologies;
and digital signal processing, including effects. By engaging in a series of structured categorizations, the forensic
expert can establish a consistent, replicable, and objectively verifiable means of determining whether or not a recorded
piece of music has been misappropriated.

INTRODUCTION
Forensic musicology refers to the application of
musicological analysis and scholarship to a legal matter.
A wide range of cases in the United States have
appeared involving questions of copyright, plagiarism,
misappropriation, and other forms of infringement since
at least the 19th century; an excellent resource available
on the worldwide web is provided by the University of
Southern Californias Gould School of Law Music
Copyright Infringement Resource [1]. Two essential
questions of interest to the legal community are (1) the
degree to which expert testimony in forensic
musicology can actually be deemed scientific, in the
spirit of recent attention to the National Research
Council (NRC) publication Strengthening the Forensic
Sciences [2], and (2) what means of evaluation are there
for the work of an expert by a legal professional who is
not an expert in music. Attorneys must inherently trust
the intellectual framework and specialized knowledge of
the expert brought to bear on the matter. Yet, even
amongst experts in forensic musicology, there are few
standards, papers or methodologies available in
comparison to other forensic science disciplines.
Complicating matters, the range of expertise demanded
of the forensic musicological expert has expanded due
to the complexities of recorded music and its
distribution as digital media. An expert may be called

upon to opine regarding not only traditional


musicological areas such as melody, harmony, and
rhythm, but also recording techniques, signal
processing, digital musical instruments, and computer
forensics, to expose an act of piracy or infringement.
For this reason, the expertise required for a particular
musicological forensic examination may be multifaceted and complex.
The purpose of the present paper is to offer an overview
of the field of forensic musicology and to propose
analysis criteria, based on a series of structured
categorizations. Application of these criteria may enable
both experts and the interested legal community to
determine if a particular forensic musicology expert has
used a consistent, replicable, and objectively verifiable
approach.
1

CAN
FORENSIC
MUSICOLOGY
CONSIDERED SCIENTIFIC?

BE

The word science appears in definitions of both


forensics and musicology, but there are distinctions
from other so-called hard sciences. The term forensic is
often defined as the application of scientific methods
and techniques to evidence used in a legal matter, and
musicology is often similarly defined as the application
of scientific methods and techniques to the investigation
of music. The scientific method includes the formation

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and testing of hypotheses via experiments that usually


include a replicable methodology for measurement. For
instance, psychoacoustic measurements of loudness that
are reported in peer-reviewed literature usually involve
replicable stimuli, apparatus, instrumentation, control of
bias, and statistical treatment. However, unlike so-called
hard sciences, musicological analysis can pursue levels
of detail that are sometimes difficult to objectively
analyze regarding a ground truth.
For example, two musicologists may agree regarding
the notation or harmonic analysis of a specific musical
work; but may arrive at different conclusions in
analyzing its nascent, underlying structure, the historical
influences for that music, or even the degree of
similarity between two melodic phrases. Their work
then becomes an argumentative discourse regarding the
optimal means of analysis and interpretation.
In fact, the problem for forensic musicology is common
to many types of the identification forensic sciences,
where an opinion is given by an expert on an
interpretation of the magnitude of similarity (match)
between two evidence exemplars. Unlike a normal
scientific study, where experimental replication can be
applied, the materials and context for each forensic case
analyzed by an expert are typically unique, and the
analytical methods used by two experts to approach the
same material can differ. With regards to uncertainties
and bias, the NRC publication states:
Few forensic science methods have developed
adequate measures of the accuracy of inferences
made by forensic scientists. All results for every
forensic science method should indicate the
uncertainty of the measurements madewith
that information, one could begin to develop
an understanding of how much similarity is
needed to attain a given level of confidence that
a match exists [2].
Notwithstanding the NRCs recommendation for
additional peer-reviewed research, many issues
addressed by the forensic musicologist lack a ground
truth for which particular results can be compared
statistically. Experts can be said to act scientifically,
using scientific methods, equipment, and procedures,
but an absence of experimental replication, confidence
intervals, and consequent peer review of studies in
published journals stand in contrast to some disciplines.
Each real-world forensic case presents unique factors
that hamper replication.
Addressing limitations of voice identification the
eminent phonetician Peter Ladefoged commented,
every court case is like an experiment in which there
are only one or two observations, made under unique
circumstances forensic phoneticians are like medical
doctors giving prognoses. They make many tests that
provide useful clues, but their opinions are inevitably
based on their own experiencethey have evidential
value, but they are not established scientific truth [3].

SUGGESTED STRUCTURAL ANALYSES

To strengthen the opinion of the forensic musicologist


from a scientific standpoint, we recommend an
approach where the analysis criteria for determining the
similarities and differences between disputed musical
works be documented in advance of the actual forensic
analysis, and then used to guide the report and
testimony to the trier of fact. In essence, the approach
includes the following maxims:
Establish and Document the Experimental Procedure
at the Outset. A forensic musicologist can provide
expertise in their ability to inventory both musical and
technological similarities and differences as a series of
points of comparison. The selection of comparisons
should be musically and technically inclusive as
possible; done in a manner that is appropriate to the type
of case; and fully replicable by another expert, with the
expectation of yielding a similar or identical result. The
comparisons typically would involve structured
categorizations for objective melodic, harmonic and
rhythmic analyses, applied to both foreground and
accompaniment elements.
In certain cases, the comparison may involve
technological analyses of the recording process, or
digital analyses of signatures, watermarks, or other nonaudio components. While there are practical limits to
the number of comparisons that can be made, inclusion
of multiple categories of comparison is a control for
selective bias, and reliability can be improved by testing
multiple exemplars from the works compared. In
addition to identifying the types of comparisons to be
made in advance, it is also recommended that the expert
explicitly establish decision criteria for a match or no
match for each individual point of comparison. The
results of two experts who adopt this methodology can
be evaluated in terms of the selective bias and decision
criteria adopted.
Avoid Disparaged Methods. In particular, experts
should avoid offering their personal subjective
impressions of similarity or dissimilarity in place of lay
opinion (the golden ear analysis); the use of recording
mash-ups as demonstrative examples of similarity
(except in rebuttal); the opinions of non-experts;
analytic exaggeration; and the intent or psychology of
the potential infringer. Further discussion of why these
methods are disparaged is given below. While it is fair
to offer opinions regarding the distribution or airplay of
a particular work, the expert cannot state, e.g., that a
particular musician or composer would have
subconsciously absorbed the work of another composer
as an influence.
Report Complete Resultsalong with Limitationsto
the Analytical Approach. The NRC publication
indicates several recommendations for methodology and
the reporting of results pertinent to forensic musicology.
Reports should indicate methods and materials,

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procedures, results and conclusions, and should


identify sources of uncertainty. The reported methods
should include the details of the structured analysis and
the decision criteria employed. Reports and testimony
must include clear characterizations of the limitations
of the analysestestimony should be given in lay terms
so that all trial participants can understand how to
weight and interpret the testimony. Finally, the reasons
for why a particular match or mismatch occurred for a
particular point of comparison should be given.
It is useful to discern between the forensic
musicologists report and legal claims of infringement
or plagiarism. A similar distinction exists for audio
recording authenticity analysis: authentication relates to
a judicial definition of authenticity, e.g., U.S. Federal
Rule of Evidence 901: evidence that the item is what
the proponent claims it is, whereas a forensic audio
expert can only offer opinions regarding technical
authentication [4]. Statements regarding infringement
or plagiarism are legal opinions that can be supported
not only by an expert, but also by lay opinion of the jury
(referred to as the extrinsic and intrinsic tests for the
legal definition of substantial similarity). The extrinsic
test requires a trial judge to dissect and perform detailed
analysis of the features of the two works in question
with the help of the expert. Under the intrinsic test, the
trier of fact should not consider expert testimony when
deciding whether a lay observer would perceive that the
copying was of protectable elements of the plaintiff's
work [5].
3 DISPARAGED METHODS
The following gives examples of expert testimony and
reports that characterize the disparaged methods
asserted above. Their uses clearly fall short of a
scientific approach, and are easily avoided.
A person with a golden ear is purported to have
special talents for listening not available to lay persons.
Although training can be used to increase the sensitivity
of listeners to small changes in such things as
loudspeaker frequency response (and their ability to
discriminate and report their sensitivity), there is no
scientific evidence that expert listeners are any better
than lay listeners for forensic challenges such as speech
intelligibility from noisy recordings [6], or presumably,
for determining whether or not there is a substantial
similarity between two recordings.
In the 2003 case Cottrill v. Spears, the plaintiffs expert
stated that the two works are strikingly similar,
although not identical, from a musical (as distinct from
a textual) standpoint, resulting in their sounding very
much the same to the average lay listener who perceives
them aurally rather than reading them from notation
(italics added) [5]. The expert also cited an idiosyncratic
method of melodic analysis. In this case, the judge ruled
against the plaintiff, largely on the basis that the

experts report was not extrinsic, i.e., based on factual


comparisons, and that it instead attempted to use expert
(extrinsic) analysis to characterize the subjective
impressions of lay listeners regarding copying.
The mash-up technique uses the simultaneous mixing of
two recordings (one song overlaid by another), usually
after one song is processed in pitch or tempo to match
the other. It is often used as a means to demonstrate
similarity. Novelty mash-ups of controversial whocopied-whom songs proliferate on websites. The mashup technique was used in Cottrill v. Spears by plaintiffs
to demonstrate similarity; the respondents used the same
technique but with other musical material to show that
perceived similarity results as a result of the technique,
and not the inherent similarity between the two music
examples in question. The judge wrote:
After listening to both Plaintiffs' and Defendants'
CDs, it is clear to the Court that the comparison
offered by Plaintiffs' CD is unhelpful under the
extrinsic test and only further demonstrates the
necessity to dissect the works in question in
order to discern the protectable similarities from
the similarities common to songs of this
particular genre [5].
Established psychoacoustic investigations of auditory
scene analysis demonstrate that the cognitive process of
listening includes forming meaningful patterns from
disparate signals; the similarity of many elements of
popular music particularly enables forming a common
gestalt pattern from two different musical sources [7]. In
other words, listeners are wired to form a single
coherent pattern from different sound sources that share
common attributes. What usually goes unstated is that
the mash-up creator must use music editing software to
shift the timeor pitchof one of the exemplars. The
aesthetic choices required to make the songs match are
far from objective. A mash-up is, inherently, a
subjectively created new form. Rather than breaking the
song down into recognizable and identifiable elements
as demanded by extrinsic analysis, a mash-up
compounds the material.
An intrinsic test follows an experts extrinsic analysis;
but lay opinion in itself is an insufficient source for
proving infringement on the basis of substantial
similarity, and can be prone to bias. Lay listeners on a
jury given the task of determining infringement under
the intrinsic test have been shown in one study to be
easily biased by the style of playing and instrumentation
of a performance in determining substantial
similarity. The tendency is for a lay listener is to focus
on the similarity of the recorded exemplars introduced
as evidence, as opposed to the underlying musical
material (melody, harmony and rhythm). Lund [8]
compared two sets of participants who evaluated the
similarity and differences between paired exemplars
from actual cases. Participants who heard the
comparison material performed in the same style

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(orchestration, timbre, key and style) would rate the


similarity between the exemplars higher than the same
exemplars played in a different style. Lund concluded
that an improved version of the intrinsic test would
mitigate prejudice through the use of expert testimony,
special verdict forms, or through the use of multiple
recorded versions of the same songs.
In the case of Samuel Steele v. Jon Bongiovi [Bon Jovi],
the plaintiff submitted affidavits from ordinary
listeners who claimed detection of similarity between
the songs at issue. The judge, in dismissing the case in
summary judgment, wrote that a court must engage in
dissection of the copyrighted work by separating its
original, protected expressive elements from those
aspects that are not copyrightableand overall
impression of similarity may not be enough if such and
impression flows from similarities that are not
themselves copyrightable. The ordinary listeners were
pointed out by the judge to be friends or
acquaintances of the plaintiff, that there was no
evidence that those ordinary listeners were correctly
applying the pertinent legal standards and were in any
event inadmissible lay opinion and not appropriate for
consideration. Other expert reports pointed to
purported similarities between the structure and rhyme
scheme of the Steele song and the Bon Jovi song but
did not prove that these were in fact not common rhyme
schemes, or a stereotypical building block [which lacks
originality] [9].
Analytic exaggeration refers to a type of extrinsic
analysis where the expert over reaches to a level of
complexity that clearly contradicts a more direct, simple
analysis, by attempting to use techniques that go beyond
normal or due proportions. Consider the case of
Johnson v. Gordon, where the plaintiffs expert asserted
the similarity of two melodies only after transforming
one of them using the compositional technique of
retrograde inversion (essentially, rewriting the melody
upside down and backwards). Rhythmic alteration was
also performed. The judge referred to the Herculean
effort of the expert and commented:
In comparing the retrograde variation of the
plaintiffs bars 16 and 17 to defendants bars 1
and 2, [the expert] again altered the rhythm to
match the defendants song and added an A flat
note. Yet, even with the benefit of these
emendations, differences persisted between the
retrograde version of the defendants two-bar
melody and its proposed counterpart. For
example, the third notes of the sequences do not
coincide [10].
The expert was also not familiar with many areas of
forensic expertise necessary for modern musicological
investigations.
[regarding sampling]the witness admitted that
he lacked a proper foundation on which to make
the assessment. For example, he had not

performed a technical analysis of the type used


by musicologists to detect samples in sound
recordings; he had not noted the existence of
sampling in his report; and he could not point to
the sheet music corresponding to the relevant
sound recordings to indicate where sampling
might have occurred [10].
4

TYPES OF MUSICOLOGICAL FORENSIC


INVESTIGATIONS

Forensic musicological investigations can be


categorized in three ways: (1) the composition, or, the
underlying musical work (composition analysis); (2) the
sound recording, including the provenance and
performers on a particular work, and the underlying
technologies involved (recording analysis); and/or (3)
the means of production or distribution of the physical
product (production analysis). Definitions and examples
of each type of investigation follow.
4.1 Composition Analysis
Composition analysis is necessary when copyright
issues involve a claim of plagiarism independent of the
recording media. Analysis of the underlying musical
structure is the concern of licensing organizations such
as the American Society of Composers, Authors and
Publishers [11]. Legally, a plaintiff must prove that: (1)
the defendant had previous access to a song and (2) the
song in controversy has substantial or striking
similarity in melody, rhythm and structure to an existing
work [12]. Finding out whether or not a song was
accessible might necessitate research along the lines of
tracing the history of radio playback, sales figures, or
presence of the song in mainstream media. Substantial
similarity leads to determination of whether or not
particular musical material is truly copyrightable as
unique, or something pervasive and obvious in music
generally.
Usually,
substantial
similarity
between
two
compositions is defined in terms of rhythm, melody and
harmony, i.e. those elements of music that can be
notated and reproduced in performance via sheet music.
Musical compositions first achieved copyright
protection in the United States in 1831, when sheet
music was the only means of establishing a musical
composition in fixed form; attempts to expand the
definition to include other factors such as orchestration,
phrasing and structure have not been successful, despite
the fact that music is often composed directly to the
recording with a complete absence of notation [8].
The 1976 case of George Harrisons My Sweet Lord
vs. The Chiffons Hes So Fine (Bright Tunes Music
v. Harrisongs Music) is an example of compositional
infringement, where focused analysis of the
compositional structure of the melody proved crucial to
the courts decision [13]. Regardless of differences in

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performance style, Harrison was found guilty of


subconsciously plagiarizing Hes So Fine due to his
use of two melodic motifs that were structured in a
particular way (the formal structure as A A A A, B B
B). Figure 1 (shows the kernels of Harrisons
composition, motifs A and B1. Figure 2 shows motifs A
and B of Hes So Fine, composed by Ronnie Mack
and copyrighted by Bright Tunes Music. These motifs
are not particularly original in and of themselves; what
was deemed original was the number of repetitions of
Motif A followed by the number of repetitions of Motif
B. Harrisons structure imitates the number of
repetitions in Hes So Fine.
Also, of particular interest in this case was the so-called
grace note sung by The Chiffons, which was performed
by Billy Preston in the earliest recording of the song.
The note in question, perhaps more correctly termed an
appoggiatura, is circled in Figure 3. The imitation of
that particular melodic variation convinced the Court
that Harrison, who would have had access to the
musical material (Hes So Fine topped the Billboard
charts in 1963) plagiarized the tune, whether
consciously or not. (Harrison later removed this note
from his performance; the sheet music for My Sweet
Lord does not contain the particular pitch in question,
either.)
Compositional analysis of popular music usually
requires a reductive approach to notation for forensic
analysis, since a literal transcription of a recording
conflates the underlying composition and its
performance. However, such notation is not completely
objective; Bennet has cautioned that reductive
transcription can be used to bias melodic or harmonic
content so as to suggest more or less similarity than
objectively evident [14]. The structural analysis of My
Sweet Lord and Hes So Fine presented here is
reductive in nature. By reducing the melody and
repetitive structure in the two pop songs to more basic
forms, the forensic analysis demonstrated a level of
similarity that was deemed significant by the court.
Although some degree of musical intuition made the
final judicial decision subjective, it was made
independently of aspects of performance style, cultural
context, or the composers tales of how they were
inspired to write the song. Rather, the plaintiffs expert
stripped away stylistic concerns and focused on the
melodic notes and formal structure of each song.
Although the initial notes of the B motif differed
literally, the number of similarities between the melody
and the structure were found to be substantial enough to
support the plaintiffs claim.

1
Figures appear at the end of this paper to accommodate
music notation.

4.2 Recording Analysis


In cases where the claim of infringement involves the
use of a specific recording in a given context, the
forensic musicologist employs the techniques of
recording analysis. Recording analysis represents an
increasingly predominant analysis focus for forensic
musicology. Unlike compositional analysis, which
necessarily establishes similarity by a reductive
approach, recording analysis typically involves
identification and differentiation between two
exemplars in terms of melody, harmony, and/or digital
signal analysis, in the exact form in which they were
recorded. Hence, the tools used for recording analysis
tend to include those from the domain of audio
engineering as much as from the domain of music
theory.
Intuitively, differences in melodic expression are an
obvious first place to test the similarity of two
recordings. The principles apply not only to
vocalizations of the principal melody, but also to
accompaniment, whether vocal or instrumental. A
melody is commonly defined as a time-ordered
sequence of pitches that the listener perceives as a
single entity. Different recordings of the same
composition by the same artist often include unique
forms of melismatic expression, that is, improvisatory
singing of a phoneme or a syllable across multiple
notes, beyond what is notated as the essential aspect of
the melody. Classical music composers, for example,
frequently employ melisma on the first syllable a of
amen, creating expressive, often virtuosic phrases out
of what is essentially a simple cadence. In classical
music, such prolongations of the text via melody are
typically fully notated (Figure 4).
In popular music, the melismatic style of singing is an
improvisatory technique; e.g., popular music lead sheets
might not always convey what a singer performs in the
moment. Figure 5 shows an approximation of the basic
melody of a popular song as it might be notated, while
Figures 6 and 7 show the literal notations for how a
performer might stylize (embellish) the melody during
two different recordings.
In forensic analysis, the compared examples under
controversy are usually much more subtle, but the basic
analysis of differences in melodic embellishment can
support a conclusion of differentiation. By contrast, in
compositional analysis, performed embellishments are
reduced to the underlying melody (e.g., comparing
Figure 5 to Figure 6), while two different performance
recordings rarely have the same exact form of
embellishment (e.g., comparing Figure 6 to Figure 7).
While differentiation can be established via melodic
analysis, other means can be more efficient for showing
that two recordings are based on the same original
source. Timing analysis can be very precise and allow
detailed comparison of exemplars at various points

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throughout the recordings, assuming that the sources


were both digitally recorded and no means of disguising
or altering timing were used. Noting subtle differences
in timing between performers such as accents can be
useful in comparing popular music recordings [15].
For comparison of live classical music recordings that
were otherwise differentiated in terms of spatial,
dynamic and timbral characteristics, DeFrancisco found
analysis of timing and incidental differences
(unexpected accidents) in the recordings to be most
salient [16]. The unexpected accidents in live
performance can include coughs, unexpected noises,
wrong notes, and similar extraneous sounds.
DeFrancisco also notes that details of intonation
fluctuations, ensemble precision at particular instants,
balances of voices and especially changes in the
dynamics of time of the musical performance, like
stretches and compressions of the musical tempo as
useful means for comparing exemplars.
In recording analysis, some forms of plagiarism are
overt such as a literal sampling of a section of a
recording, and can be established using the matching of
waveforms, spectral analysis, or other techniques,
allowing for a more precise and objective comparison
compared to using musical notation by the expert. To
avoid detection, specialized editing or signal processing
can be used to obscure or hide the original source of
material used in a questioned work. Digital editing can
allow for the seamless re-ordering, repetition, or
deletion of material from an original source into a new
variant that requires the expert to identify the means by
which the original version maps to its altered
equivalent. Such editing might be done to match music
to the narrative of a film or television commercial, or to
extract very small yet identifiable fragments to use as
the sampling resources of a subsequent work. Digital
editing allows specific sections to be faded or their
timbre adjusted; if access to the original multi-track
recording is possible, then entire vocal instrumental
stems can be removed and replaced by newly recorded
material.
Two increasingly popular types of signal processing for
disguising or purposely differentiating original material
from a copy are time compression/expansion and pitch
shifting. These algorithms are usually based on an
underlying signal processing technique originally
known as phase vocoding [17], and easy-to-use
implementations have been ubiquitous in desktop
computer editing software for some time. Essentially,
this allows a sound editor to take an original recording
and alter the pitch of the music upwards or downwards
without changing timing (rhythm or metronomic
tempo), or conversely, alter the timing without changing
the pitch. The technique is also sometimes employed in
making mash-up recordings. While with analog tape
recordings, the two processes are inextricably linked,
signal processing of digital recordings allows

independent manipulation of both factors. This allows a


recording engineer to take original material and make a
version that sounds familiar or identifiable as the
original composition, but that would not result in a
match if one were to do a comparison of the waveforms,
vocal quality, melody or timing. The expert must
attempt to undo the disguise before proceeding with an
analysis of similarities and differences.
Other signal processing techniques include the use of
vocal eliminators, popular in Karaoke performance.
These devices work by reducing the level of the signal
common to both channels, typically the lead vocal, and
leaving the signals unique to both channels, typically
the accompaniment, somewhat intact. This allows a
recording engineer to add a new vocal track or other
material to the extracted material. Other means of
obscuring an original recording include the addition of
reverberation, stereo synthesis, and a plethora of
techniques available on even the most inexpensive
desktop waveform editors.
Recording analysis is also used to compare the sources
or performers in a recording. Due to the density of
sound sources produced by modern music mixing
techniques, it is often impossible to extract a particular
background performer in a reliable manner. However,
filtering techniques can be used successfully to isolate
frequency information not predominant in other
instruments, e.g. bass and percussion. It can also be
useful to analyze timing in a popular music track to
determine if a click track, electronic drums or other
precise means of timing were used, or if the timing
contained the randomness associated with purely human
performance.
In one example, a group of vocalists singing a cappella
(unaccompanied) performed music that was recorded by
a client and then purportedly used in a later broadcast
without their permission. The respondent claimed that a
new vocal group was recorded for use in the broadcast,
and that the original vocal group recording was not used
at all. It was possible to eliminate the original recording
by analyzing the variation of pitch of the two vocal
groups against a reference. The original groups pitch
drifted downwards (i.e., flat) over the course of the
performance, while the later recordings group
maintained pitch, likely due to instrumental
accompaniment. The possibility that the original
groups pitch was corrected by a pitch correction
algorithm (similar to phase vocoding techniques
discussed above) required the expert to attempt this
modification, but was found to be unlikely due to
moment-to-moment pitch fluctuations (i.e., individuals
in the group being out of tune with one another). Timing
and melodic analysis also revealed differences.
Sometimes recording analysis requires examination or
analysis of recording hardware and software and
available effects. For example, familiarity with the
nuances of electronic reverberation development can

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effectively restrict a source recording to a particular era.


For instance, in one case, an individual respondent
claimed to have made a demo tape using only their
personal 4-track analog cassette tape recorder dating
from the 1980s. The plaintiff claimed that the demo tape
was made in their far more sophisticated recording
studio. Devices such as the 4-track analog cassette
machine allowed impressive imitations of more
complex recordings by the use of track bouncing
(successive mixing two tracks down to one, so as to
empty a track for additional material). However, each
successive track bounce adds noise to the overall mix,
and analysis of the signal-to-noise ratio of the recording
was among the methods used to eliminate the device as
the source of the demo tape. Additionally the use of a
particular delay effect in the demo recording was not a
feature of the native recording device, and no outboard
signal-processing device was claimed to have been
available or used.
4.3 Production Analysis
Production analysis focuses on the means of production
or distribution of the recording product once it has left
the studio. This area can be considered a specialized
aspect of recording analysis that focuses on bootlegged
and pirated versions of recordings, primarily by means
of computer forensic techniques [18]. Physical
examination of the media (e.g., compact discs and their
labeling) can also be involved. Examination of digital
metadata can reveal the source and the means of audio
compression used in a recording. A simple example of
determining whether or not a recording is a genuine
version is to not only examine recording analysis
features such as frequency response or overall duration,
but to also examine data features such as audio
compression, file size, and metadata tags. The expert
should note any differences in comparison to the
originally distributed version of the product.
With the introduction of digital media, rights
management has become more complex. Many digital
audio formats (e.g., AAC and WMA) utilize a Digital
Rights Management system to limit the number of
devices that a file is able to be played on, thus
attempting to limit the illegal distribution of the music.
Another technique is audio watermarking. Using audio
watermarking to protect copyright of a recording is a
complex topic that goes far beyond the current
discussion [19]. This involves the use of inaudible
signals that can be embedded within a digital audio
stream, designed either to not withstand a copying
process, or to identify an original source of a recording
despite copying. Testimony based on this type of
evidence may require either specialized expert
testimony to explain, e.g., watermark robustness, or
alternatively, a fact witnesses who would simply testify
that recognized computer software for watermark

detection indicated the absence or presence of a


watermark, and the contents of the watermark reported
by the software.
5 CONCLUSION
The field of musicological forensics continues to evolve
with the development of digital means of audio
production, transformation, distribution, and copyright
protection, and yet in most cases, it remains dependent
on basic elements of musicological investigation and
music theory. Although quantifiable error rates for
musicological interpretation may not be forthcoming for
some time, due in part to the wide variations in the
context of real-world cases, it is still possible for experts
to adopt scientifically-based procedures for establishing
an experimental procedure and reporting results while
avoiding those methods that can be proven to be
disparaged or pseudo-scientific. Dissemination of the
techniques used and reports given by experts in forensic
musicology can help establish standards that have a
factual basis; the authors encourage experts in the field
to publish their findings and case studies, and commend
efforts such as USCs Music Copyright Infringement
Resource for providing a useful repository of legal
opinions. Several recent techniques that include
computational analysis (e.g. [20]) and thematic database
searching (e.g., Stanford Universitys Center for
Computer Assisted Research in the Humanities
Themefinder software) have not been considered
here.
6

ACKNOWLEDGEMENTS

The authors acknowledge the forensic musicology and


audio forensic experts who read and commented on
earlier versions of this paper. The realization of this
work was supported by Charles M. Salter Associates,
San Francisco, CA. An earlier version of this paper
titled Analysis Criteria for Forensic Musicology was
presented at the ICA 2013 21st International Congress
on Acoustics/ 165th Meeting of the Acoustical Society
of America/ 52nd Meeting of the Canadian Acoustical
Association, Montral, Qubec, Canada, 2 7 June
2013. The current version has been revised and
expanded. Prior material has been used with permission.
REFERENCES
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Committee on Identifying the Needs of the


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Bennet, J., Constraint, Creativity, Copyright and


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Brixen, E., personal communication (2013).

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DeFrancisco, M. (chair), The Timeline Never


Lies: Audio Engineers Aiding Forensic
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Krasilovsky, M. W.
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Cvejic, N. and Seppnen, T. (eds.), Digital Audio


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LEXIS 8823 (E.D. Pa. May 22, 2003), retrieved
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FIGURES

Figure 1: (left) George Harrison, My Sweet Lord motif A and (right) motif B.

(a)

(b)

Figure 2: (left) Bright Tunes Music, Hes So Fine motif A and (right) motif B.

Figure 3: Bright Tunes Music, Hes So Fine so-called grace note (circled).

Figure 4: (left) Syllabic setting of amen and (right) melismatic setting of amen.

Figure 5: Simple notated melody of a popular song.

Figure 6: Transcription of a hypothetical performance of the melody of Figure 5.

Figure 7: Transcription of an alternate hypothetical performance of the melody of Figure 5.

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