Académique Documents
Professionnel Documents
Culture Documents
14
15 PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
16 individual; and CLIFFORD HARRIS,
JR., an individual,
17
Plaintiffs,
18
vs.
19
BRIDGEPORT MUSIC, INC., a
20 Michigan corporation; FRANKIE
CHRISTIAN GAYE, an individual;
21 MARVIN GAYE III, an individual;
NONA MARVISA GAYE, an
22 individual; and DOES 1 through 10,
inclusive,
23
Defendants.
24
25 AND RELATED COUNTERCLAIMS.
26
27 / / /
28 / / /
4112.060/851747.1
TABLE OF CONTENTS
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I. INTRODUCTION .................................................................................................... 1
II. THE MOTION FOR RECONSIDERATION SHOULD BE DENIED ................. 3
A.
B.
C.
D.
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14 V. CONCLUSION ..................................................................................................... 24
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TABLE OF AUTHORITIES
Page
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CASES
Dan Kasoff, Inc. v. Novelty Jewelry Co.,
309 F.2d 745 (2d Cir. 1962) .............................................................................. 6
4112.060/851747.1
ii
1 OTHER AUTHORITIES
2 M. Nimmer & D. Nimmer, 1 Nimmer on Copyright 2.05 ..................................... 11
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iii
I.
INTRODUCTION
Defendants ex parte application (Application) is desperate to avoid a trial
5 becauseas the evidence will showthe songs at issue here are not the same.1
There is no basis for the Application. Not only are there no new facts or
7 lawindeed, the Court has now ruled on these issues twicebut the Courts ruling
8 on the copyright issue is correct and fully consistent with the clear language of
9 Section 9 of the 1909 Act. There is no manifest error, no basis for reconsideration,
10 and no reason for interlocutory appeal. Under the 1909 Act, copyright is secured
11 by publication with notice. The only material published with notice here is the
12 deposit copy. That is the only copyright that was secured here.
Defendants do not and cannot explain how they, as heirs of Marvin Gaye,
13
19 publisher, Jobete, owned the copyright. The copyright notice at the bottom of each
20 deposit copy states: [year] Jobete Music Company, Inc. The copyright only
21 descended to his heirs after his death because the renewal rights vested in his heirs
22 as a matter of law when Marvin Gaye died. It was never Marvin Gayes song.
23 / / /
24
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27
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Hopefully, the Application was not filed as part of a plan to try this case in the
press. Defendants filed their Application at 3:02 p.m. At 3:15 p.m., The
Hollywood Reporter published a lengthy article about the Application. [Declaration
of Seth Miller (Miller Decl), Exhs. A, B.] Clearly, Defendants sent the
Application to the press before they filed it with the Court. Jury selection is less
than two weeks away.
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Whatever Marvin Gaye allegedly did in the recording studio to create other
2 musical elements, and for which there is no evidence, anyway, has no bearing on the
3 scope of any copyright under the 1909 Act, and certainly not on Jobetes copyright.
4
The 1909 Act is what it is. There is nothing unfair or unjust about it. There is
5 no reason for the Court to change its rulings because Defendants do not like them,
6 think they are unfair, or make hyperbolic claims about the supposed impact on the
7 music industry. The simple fact is that, prior to 1978 (and after), compositions for
8 popular music were considered to be the melody, harmony, and lyricsi.e., the
9 song. No songwriter considered a hi-hat part, vocal woo, falsetto vocal style,
10 omission of a guitar, keyboard part, or other element of a sound recording of the
11 song to be the song itself. And if they did, they included that element in the written
12 composition they published with noticejust as Jobete did hear with a bass intro
13 in Got to Give It Up. Defendants now are facing a jury trial and wish that they
14 owned something other than the published composition that is nothing like Blurred
15 Lines. Their desire to distract and mislead the jury is not basis for reconsideration.
16
Finally, the notion that Defendants need more time to prepare for trial should
17 be rejected out of hand. Plaintiffs filed their summary judgment motion in July
18 2014 [Document 89], raising all these same issues regarding the deposit copy. The
19 Court ruled on the summary judgment on October 30, 2014 and made clear that
20 copyright is determined under the 1909 Act by publication or deposit of an
21 unpublished copy [Document 139, 8-9 (The general rule under the 1909 Act was
22 that the publication of a work with proper notice was necessary to obtain statutory
23 copyright protection (citing Stewart v. Abend, 495 U.S. 207, 233 (1991))] .
24 Defendants musicologists have had months to prepare any demonstratives based on
25 the Deposit Copy. Plaintiffs have cleared their busy schedules for the February 10,
26 2015, trial and are eager to prove that they did not copy Marvin Gayes songs.
27 Plaintiffs should not be deprived of their day in Court merely because Defendants
28 are unable to prove their claims. The Application should be denied in its entirety.
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II.
3
4
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9 L.R. 7-18.
Defendants flagrantly violate the Local Rule. There is no material difference
10
11 in fact or law from the Courts rulings earlier this weekand certainly not one that
12 in the exercise of reasonable diligence could not have been known to the Gayes
13 earlier this week. L.R. 7-18. There has been no emergence of new material facts
14 or a change of law since Monday of this week. Id. There is no manifest showing
15 of a failure to consider material facts presented to the Court before it ruled earlier
16 this week. Id. The Application repeats all of the arguments the Gayes made in the
17 prior motions in limine, including at the oral argument on January 26, 2015. Id.
The Gayes acknowledge that a motion for reconsideration must be based on:
18
19 (1) newly discovered evidence; (2) intervening change in law; or (3) clear error by
20 the district court or a manifestly unjust ruling. [App. Memo, 5-6 (citing Sch. Dist.
21 No. 1J v. ACandS, Inc., 5 F.3d 11255, 1263 (9th Cir. 1999)).] As set forth below,
22 none of these factors apply here. The Gayes motion for reconsideration is just an
23 unwarranted attempt to reargue points that they lost. The motion should be denied.
24 A.
25
Defendants contend that the Court took a leap of logic that is not supported
26 by the law [App. Memo (Document 232-1), 1:18] in ruling that the composition
27 embodied on the sound recording is not protected under the 1909 Copyright Act.
28 [Id., 1:21-22.] Defendants are incorrect. The Court ruled that copyright under the
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1 1909 Act could be secured only by: (a) publishing with notice; or (2) depositing
2 unpublished copies with the Copyright Office. [Minute Order re Plaintiffs Motion
3 for Summary Judgment Or, In the Alternative, Summary Adjudication (Document
4 139)(10/30/14 Order), filed 10/30/14, p. 9.] The Court further explained that
5 publication of a composition under the 1909 Act meant publication of a manuscript
6 copy, citing numerous authorities. [10/30/14 Order, 8-10.] The Court found that
7 Defendants offer no evidence that prior to registration of the copyrights, Got to
8 Give It Up or After the Dance was published or reduced to a manuscript form that
9 was more complete than what is included in the lead sheets. [10/30/14 Order, 9.]
10
11 the 1909 Act provides that any person may secure copyright for his work by
12 publication thereof with the notice of copyright required by this Act. Act of
13 March 4, 1909 (1909 Act), ch. 320 9, 35 Stat. 1075, 1078. Defendants
14 copyright registrations state that the compositions were published. [Miller Decl,
15 Exhs. C, D.] A sound recording is not a publication of the underlying composition
16 under the 1909 Act. 17 U.S.C. 303(b); see also 10/30/14 Order, 10. Hence, the
17 only composition that was published with notice is the composition in the deposit
18 copy. The Court has consistently ruled as much. Its ruling is correct based on the
19 law and facts here.
20
21 by this Court both in the summary judgment motion and in the motions in limine.
22
23 offer nothing new beyond wildly exaggerated rhetoric about the impact on the music
24 industry of the Courts correct interpretation of the law under the 1909 Act.
25
26 was secured in material contained only in the sound recordings. Such material was
27 not published with notice. 1909 Act, 9; Stewart v. Abend, 495 U.S. 207, 233
28 (1991). The composition in the sound recording also was not deposited in written
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1 form (or at all) unpublished, 1909 Act, 11, nor is that even a possibility here since
2 the copyright registrations for Got to Give It Up (GIVE) and After the Dance
3 (DANCE) state that the works were published works. [Miller Decl, Exhs. C, D.]
4
Defendants argue (for yet a third time) that the deposit copy does not limit the
8 scope of the copyrighted work. But that is not the issue here. The Deposit Copies
9 of GIVE and DANCE are the only published copies in evidence. The Deposit
10 Copies are the copyrighted composition not because there are what was deposited
11 but rather because they are the only copies published with notice affixed so as to
12 secure a copyright. Tellingly, despite moving for reconsideration, interlocutory
13 appeal, and to continue trial, Defendants cite no authority for their unfounded
14 assertion that a composition that was never published with notice affixed is subject
15 to copyright under the 1909 Acti.e., which would be contrary to the plain terms of
16 the Act. 1909 Act, 9 (any person may secure copyright for his work by
17 publication thereof with the notice of copyright required by this Act)(emphasis
18 added). Defendants also cite no authority for their claim that material contained not
19 in the written Deposit Copy but in an entirely separate sound recordinga recording
20 that also has nothing to with the copyright claimant (Jobete, see below)somehow
21 obtains copyright registration because the lead sheet Deposit Copy was published.
22
23 were addressed in prior motions in this case and are only briefly addressed below:
24
Scentsy, Inc. v. B.R. Chase, LLC, 942 F.Supp.2d 1045 (D. Idaho 2013)
25
was decided under the 1976 Act and concerns whether the scope of the
26
copyright is limited by the deposit copy and turns on the special rules
27
28
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Scentsy, Inc. v. Harmony Brands, LLC, 585 Fed.Appx. 621 (9th Cir.
Ninth Circuit Rule 36-3, is decided under the 1976 Act, and does not
trial courts application of the extrinsic and intrinsic tests for copying;
Knowledgeplex, Inc., 942 F.Supp.2d 1045 (D. Idaho 2013) was decided
under the 1976 Act and concerns whether the court had jurisdiction
10
over claims relating to material not contained in the deposit copy and
11
12
13
that the Gayes lack a copyright because the deposit was incomplete but
14
rather because the only published copy is the deposit copy lead sheet;
15
Milliken & Co. v. Shaw Indus., Inc., 978 F.Supp. 1155, 1158 (N.D. Ga.
16
1997) was decided under the 1976 Act and concerns whether the court
17
had jurisdiction over the copyright claim when the deposit copy of the
18
19
20
Dan Kasoff, Inc. v. Novelty Jewelry Co., 309 F.2d 745 (2d Cir. 1962)
21
22
23
24
National Comics Pub., v. Fawcett Pubs., 191 F.2d 594, 603 (2d Cir.
25
26
used the name of the proprietors affiliated corporation rather than the
27
28
Company name on the Deposit Copy notice is not the true owner.
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The cases cited by Defendants are inapposite. And then there is Three Boys.
2 Yet again. The Court has repeatedly ruled that Three Boys is inapposite because it is
3 a jurisdictional case. The Court is correct. Below is the entire relevant text:
4
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The appellants argue that the district court did not have jurisdiction
over this case because the Isley Brothers failed to register a complete
copy of the song upon which the lawsuit was based. Although the
1909 Copyright Act requires the owner to deposit a complete copy
of the work with the copyright office, our definition of a complete
copy is broad and deferential: Absent intent to defraud and
prejudice, inaccuracies in copyright registrations do not bar actions
for infringement. .
Bolton and Goldmark argue that in 1964 the Isley Brothers deposited
sheet music (deposit copy) of Love is a Wonderful Thing that
differed from the recorded version of the song. Furthermore, they
claimed that the deposit copy does not include the majority of the
musical elements that were part of the infringement claim. At trial,
the Isley Brothers expert, Dr. Eskelin, testified that the deposit copy
included all of the songs essential elements such as the title hook,
chorus, and pitches. Dr. Eskelin even played the deposit copy for the
jury on the keyboard. We refuse to disturb the jurys finding that the
Isley Brothers deposited a complete copy because (1) there was no
intent to defraud and prejudice and (2) any inaccuracies *in the
deposit copy were minor and do not bar the infringement action.
15 Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486-87 (9th Cir. 2000)(emphasis
16 added)(citation omitted).
17
The only issue in Three Boys was jurisdiction. The jury finding that the court
18 upheld was only whether a complete copy was deposited for purposes of complying
19 with the registration requirement of submitting a deposit copy so as to obtain the
20 right to sue for infringement. See id. It was a jurisdictional issue, pure and simple.
21
There is no dicta (let alone any holding) in Three Boysor any language in
Defendants argue that Three Boys upheld the jurys finding of substantial
25 similarity, but the entire relevant text of that portion of the opinion is as follows:
26
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unprotectible elements: (1) the title hook phrase (including the lyric,
rhythm, and pitch); (2) the shifted cadence; (3) the instrumental
figures; (4) the verse/chorus relationship; and (5) the fade ending.
Although the appellants presented testimony from their own expert
musicologist, Anthony Ricigliano, he conceded that there were
similarities between the two songs and that he had not found the
combination of unprotectible elements in the Isley Brothers song
anywhere in the prior art. The jury heard testimony from both of
these experts and found infringement based on a unique
compilation of those elements. We refuse to interfere with the
jurys credibility determination, nor do we find that the jurys
finding of substantial similarity was clearly erroneous.
7
8 Three Boys, 212 F.3d at 485-86.
9
There is not a shred of indication in the foregoing passage that it ever crossed
10 the Ninth Circuits collective mind that the lead sheet deposit copy may have
11 contained elements that were not subject to the plaintiffs copyright, whether
12 because they were not found in the deposit copy or for any other reason. At a
13 minimum, it is crystal clear that the defendant never raised that issue in the case.
14
Defendants submission of trial transcripts from the Three Boys case also is
15 unavailing. The precedential authority of Three Boys is limited to the four corners
16 of the Ninth Circuit opinion. Defendants cite no authority for the implicit assertion
17 that this Court can or should look under the hood of the Ninth Circuit opinion or
18 analyze its legislative history (so to speak) to find a new meaning in the published
19 opinion beyond what the Ninth Circuit justices wrote in plain English. This is a
20 rather astonishing suggestion and flies in the face of established judicial procedure.
21
Even were the Court to consider the trial transcriptsand it should notthey
22 demonstrate nothing other than that recordings of the plaintiffs song were played to
23 the jury but possibly may have contained material not found in the deposit copy lead
24 sheet. Whether the recording in fact did contain material not found in the lead sheet
25 is unknowable based on the trial transcript excerpts. First, it may be that there was a
26 published copy of the sheet music that in fact secured the copyright in the song and
27 that did contain the potentially omitted material. Second, any omitted material was
28 contained in an introduction, coda, and instrumental figure. [Declaration of Richard
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1 S. Busch, Exh. B (trial tr.), 760:24-761:15.] But the actual melody or other musical
2 elements claimed to be similar and contained in the introduction, coda section, or
3 instrumental figure in the sound recording also may have been in the deposit copy.
4 There is no way to know from the transcript. Third, the defendant did not raise the
5 issue of whether any material in the sound recording but not in the deposit copy was
6 subject to the plaintiffs copyright (perhaps for one of the reasons stated above).
In short, Three Boys does not address in any way, shape, or form whether
8 material not found in the deposit copy was subject to copyright. A case is not legal
9 authority for an issue it does not decide. Even had Three Boys addressed that issue,
10 it would still be a different issue from the issue here, namely: whether material not
11 contained in the published copies of GIVE and DANCE is (somehow, for some
12 unstated reason) subject to copyright. The 1909 Act says otherwise: copyright is
13 secured by publication with notice. 1909 Act, 9. Defendants are the moving
14 party here. They bear the burden. The provide no authority for their assertions that
15 the composition in the Marvin Gaye recording falls within their statutory copyright.
Finally, Shoptalk, Ltd. v. Concorde New Horizon Corp., 168 F.3d 586 (2d Cir.
16
17 1999) is inapposite and concerns whether, under the 1909 Act, a previously
18 unpublished work is published (i.e., and hence becomes public domain) if a
19 derivative work is published. The plaintiff in Shoptalk argued that the copyright in
20 the defendants screenplay was published when the motion picture based on the
21 screenplay was published, and thus copyright was secured in the screenplay, but
22 when the copyright in the motion picture expired, so did the copyright in the
23 underlying screenplay. The court held that only those portions of the unpublished
24 screenplay that were contained in the motion picture had been published:
We conclude in the present case, based on the statute and the
principles underlying the scope of copyright protection, that if a
previously unpublished screenplay is embodied in a motion picture,
so much of the screenplay as is disclosed in the motion picture is
published when the motion picture is published.
25
26
27
28 / / /
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1 Shoptalk, 168 F.3d at 592 (emphasis added). Here, at most, only so much of the
2 GIVE composition embodied in the sound recording as is disclosed in the
3 published Deposit Copy arguably was published by publication of the Deposit Copy.
4 Id. But then the reverse is also true: any compositional material in the recording that
5 is not contained in the Deposit Copy was not published. Id. Under Shoptalk, the
6 copyright here clearly is limited to only the material published in the Deposit Copy.
7
Shoptalk thus fully supports the Courts ruling. Shoptalk holds that the
Contrary to the Gayes blunt assertion, the 1909 Act provides that copyright is
Defendants fail to recognize the radical distinction between the 1976 Act and
26 the 1909 Act as it pertains to copyright in musical compositions. Under the 1976
27 Act, it is possible to copyright a musical composition merely by recording it, but
28 as Nimmer point out, [t]his represents a sweeping departure from the 1909 Act
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1 and constitutes an intentional overruling of [the prior Supreme Court doctrine] that
2 in order to constitute a copy within the meaning of the then extant copyright law
3 [1909 Act], there must be a written or printed record in intelligible notation.
4 M. Nimmer & D. Nimmer, 1 Nimmer on Copyright 2.05[A] (emphasis added).
This case arises under the 1909 Act. A written copy, published with notice
17
Defendants argument that GIVE was written through the recording process
18 and that the version of the composition included on Marvin Gayes original
19 commercially released recording was a complete version of the composition that
20 existed prior to registration [App. Memo (Document 232-1, 7:2-4] is immaterial.
21
22 version of the composition is meaningless. Nothing in the 1909 Act requires the
23 proprietor to copyright the complete versionor any versionof a composition.
24 Whatever the proprietor publishes with notice affixed secures a copyright. In this
25 case, that version is the Deposit Copy. Any material embodied in the sound
26 recording that is not found in the Deposit Copy is not subject to copyright.
27
The original owner of the GIVE and DANCE copyrights is not Marvin Gaye.
28 Marvin Gaye was the author, but the claimant (owner) of the copyright was his
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11
9 sound recording, let alone which portions at issue he supposedly created. Janis
10 GayeMarvin Gayes ex-wifetestifies only that she was present when Got to
11 Give It Up was recorded. [Declaration of Janis Gaye (Gaye Decl), 5.] This
12 testimony is immaterial and does not evidence whether any elements in the sound
13 recording were created by Marvin Gaye To the contrary, Janis Gaye testified that
14 she did was not present on all days when GIVE was recordedand that she does not
15 know if Marvin Gaye wrote sheet music or who created the Deposit Copy. [Miller
16 Decl, Exh. G.] Her testimony now in support of this Application that Marvin Gaye
17 did not write sheet music and that the lead sheet that became the deposit copy was
18 created after the song was recorded [Gaye Decl, 7-8] is not credible. If, in fact,
19 Marvin Gaye did write the lead sheet, or if it was written before he recorded the
20 song, then the Deposit Copy arguably is the complete version of the composition.
None of the above matters, of course, since the compositional elements found
21
22 in the sound recording but not in the Deposit Copy were never published. Absent
23 publication, no copyright was secured in same under the Act. 1909 Act, 9.
24 C.
25
Infringement
26
Defendants argue that the Courts ruling would have a devastating impact on
4112.060/851747.1
12
1 of the works or within the deposit copies themselves and thus would create
2 dangerous and potentially devastating precedent to the owners of such intellectual
3 property. [App. Memo (Document 232-1), 1.]
Defendants dire warnings about the demise of the United States copyright
5 law as a result of this Courts pretrial rulings are greatly exaggerated. Defendants
6 argue that if pre-1978 copyrights are limited to the published compositions that were
7 copyrighted, then anyone can copy composition al material in any pre-1978 sound
8 recordings that was not copyrighted. Defendants are absolutely correct. That is
9 how copyright works.
To obtain a copyright under the 1909 Act, the proprietor must publish with
10
20
21 clever infringer can take with impunity material embodied in sound recordings
22 by the Beatles, The Rolling Stones, Elvis Presley, oryeseven Marvin Gaye
23 because it was not contained in the published sheet music. [App. Memo, 2:1-5.]
24 This is wild-eyed speculation, since the Gayes have no idea what published sheet
25 music secured the copyrights in Elvis Presley, Beatles, or other artists songs, and
26 what compositional elements of the sound recordings are not copyrighted in same.
27 / / /
28 / / /
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13
More importantly, Defendants simply miss the musical point that the
8 Newton v. Diamond, 204 F.Supp.2d 1244, 1249 (C.D.Cal. 2002), affd 388 F.3d
9 1189 (9th Cir. 2003)(citing A. Dustin Mets, Did Congress Protect the Recording
10 Industry Into Competition? The Irony of the Digital Performance Right in Sound
11 Recordings Act, 22 U. DAYTON L. REV. 371, 372-373 (1997)(emphasis added).
12
13 composition (which in the case of GIVE includes vocal woos, hand claps, open
14 hi-hat, falsetto, party noise, omission of a guitar, etc.). This is not the case and was
15 not so during the era of the 1909 Act, e.g., Tin Pan Alley, Brill Building, etc.
16 Rather, [c]omposers in the 1970s notated the vocal melody, lyrics, and notes in
17 lead sheet fashion because that was considered the composition of the song (i.e.,
18 not how it was performed on any particular recording). [Miller Decl, Exh. H, 10,
19 30 (emphasis added).] Indeed, sound recordings themselves were not subject to
20 copyright under the 1909 Act prior to 1972. Elvis Presleys famous sound
21 recordings from the 1950s and 1960s are not subject to statutory copyright. There is
22 nothing unfair or wrong about that. Congress provided the protection it provided.
23
Defendants argue that the Courts ruling would create a situation where the
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9 Defendants [App. Memo, 11:4-6] held that sales of phonorecords do not constitute
10 publication of the underlying composition under the 1909 Act. Id. at 1158-1159.
11 That holding fully supports Plaintiffs position here. Footnote 13 of the Jones, cited
12 by Defendants, merely refers in dicta to the problems that might arise if each
13 recording of an unpublished song constituted publication under the 1909 Act and
14 thus would require the compositions owner to register a revised composition each
15 time or else forfeit ownership. Jones has no bearing on the scope of copyright in a
16 published copy of a composition. The scope clearly is only the published copy.
The Courts ruling will not essentially legalize wholesale copyright
17
23
Defendants argue that, due to this Courts ruling, this would be the only case
24 in history that the Gayes counsel can locate where two complete commercial
25 recordings at issue in a music copyright infringement action were not allowed to be
26 played to compare the expression of the compositional elements embodied in those
27 recordings. [App. Memo 2:15-18 (emphasis added).]
28 / / /
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15
Again, Defendants hyperbole defies common sense. The Gayes cite no case
2 where the sound recording contained elements claimed to be similar but that were
3 not subject to copyright. In each case cited [App. Memo, 14-15], there was no issue
4 that the sound recording differed from the copyrighted work. That is the significant
5 difference here and is the reason why the Courts ruling to exclude the GIVE and
6 DANCE sound recordings is correct. In other cases, the issue was not raised,
7 perhaps either because there were no meaningful differences between the
8 composition and the sound recording or because any additional material only found
9 in the sound recording was not claimed to similar. The cases do not address this
10 issue and are not precedent on it for that reason. To draw any conclusions from
11 these cases that do not involve claimed similarities in the sound recording but not in
12 the composition would be sheer speculation. Defendants cite no apposite authority.
13
14 and misleading the jury by playing Marvin Gaye sound recordings that contain
15 numerous elements not found in the Deposit Copy yet claimed by Defendants to
16 be substantially similar to Blurred Lines (BLURRED). The sound
17 recording of GIVE contains numerous elements, including drums, keyboard, bass,
18 cowbell, backup vocals, additional vocal melodies, and other musical elements that
19 Defendants contend are similar to BLURRED, and that are not found in the GIVE
20 Deposit Copy. The sound recording of DANCE similarly contains certain numerous
21 elements, including all of its instrumental parts, including the bass, and all backup
22 vocals, that are not found in WAR. [Miller Decl, Exh. H, 2-10, 6-28.]
23
24 than an eight bar bass intro that is not found on the GIVE sound recording). The
25 DANCE Deposit Copy contains no instrumental parts whatsoever. Neither Deposit
26 Copy contains backup (harmony) vocals. Any interpretative, performance, or
27 arrangement aspects of how the songs are played on the sound recordings also are
28 not reflected in the Deposit Copies. [Miller Decl, Exh. H, 2-10, 6-28.]
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16
The vast majority of alleged similarities between BLURRED and GIVE exist
2 only in the GIVE sound recording. [Miller Decl, Exh. H, 3-5, 8(a)-(aa).] Clearly,
3 it would be unfair and prejudicial to have the jury hear all of these musical elements
4 on the GIVE sound recording that allegedly are similar but are not at issue here.
Defendants musicologist, Judith Finell, testified that the only similarities
6 between GIVE and BLURRED that are obvious enough that a lay listener would
7 hear them easily and without guidance from an expert like Ms. Finell, are the
8 bass line, cowbell, and keyboard parts. [Miller Decl, Exh. I, 84:22-86:13.] In other
9 words, the only similarities a lay juror might hear are not found in the Deposit Copy.
It is patently obvious why Defendants want to play the sound recording: they
10
11 do not own the music, but it is the only music they believe is similar to BLURRED.
12
Defendants want the jury to base its copying decision on the wrong song.
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17
Defendants own the melodies, lyrics, and bass intro in the Deposit Copy.
2 Those three elements can easily be played for the jury on a newly made recording
3 that only contains the elements in the Deposit Copy and that does not contain any
4 additional elements of the GIVE sound recording not found in the Deposit Copy.
5 There is no reason to include any elements of the GIVE sound recording to do so. A
6 neutral recording can be made by the musicologistswithout Marvin Gayes
7 signature voice or any elements of his sound recordingthat fairly represents just
8 those compositional elements in the GIVE Deposit Copy claimed to be similar. A
9 similar neutral recording can be fashioned for After the Dance (DANCE).
10
Plaintiffs are in the process of creating such recordings now pursuant to the
11 Courts rulings and will timely submit them on the schedule the Court has set. With
12 modern digital recording techniques, it is a simple and inexpensive process to create
13 a neutral rendition of the two Marvin Gaye songs that fairly represents all of the
14 material in the Deposit Copy and nothing more, let alone anything more that might
15 unfairly and prejudicially cause a jury to unknowingly hear similarities that are not
16 found in the Deposit Copy yet attribute them to Defendants limited composition.
17
There is no need to play the Marvin Gaye recordings or any portions of them
18 to the jury. They are not relevant to the intrinsic test. The Marvin Gaye sound
19 recordings simply are not Defendants copyrighted compositions. The total
20 concept and feel of the Marvin Gaye sound recordings is not the total concept and
21 feel of the compositions in the Deposit Copiesit is something very different.
22
23 Defendants argue that the compositions as embodied in the sound recordings are
24 the compositions at issue in this action. [App. Memo, 13:6-7.] That simply is not
25 the case, as discussed above. The GIVE and DANCE sound recordings contain
26 numerous musical elementsincluding all instrumental and backup vocal parts
27 that are not contained in the Deposit Copies. [Miller Decl, Exh. H, 2-10, 6-28.]
28 The compositions in the sound recordings are not the compositions Defendants own.
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/851747.1
18
2 found in the Deposit Copy somehow shows copying of other, unrelated elements
3 that are contained in the Deposit Copy lacks merit. Even assuming arguendo that
4 Plaintiffs copied sound recording elements not found in the Deposit Copy, that does
5 not tend to show that any elements in the Deposit Copy are substantially similar.
6 This is particularly true where, as here, Plaintiffs concede access to the Marvin Gaye
7 songs. Thicke and Williams admire Marvin Gaye and knew his two songs here.
On the other hand, the risk of prejudice, confusion, waste of time, and
18
19 Court has suggested, a recording of just those elements in the Deposit Copy can be
20 constructed without using Marvin Gayes voice or elements of his recordings.
That Marvin Gaye was Defendants father or Janis Gayes his ex-husband is
21
4112.060/851747.1
19
The jury can hear the total concept and feel of the Deposit Copy
2 compositions in a sound recording that only contains that composition and no other
3 elements. The Marvin Gaye sound recordings are not the best evidence of the total
4 concept and feel of the Deposit Copies because they contain numerous elements
5 that are: (a) not in the Deposit Copies; and (b) likely to mislead or confuse the jury
6 because of alleged similarity to Plaintiffs songs of those unprotected sound
7 recording elements. Defendants cannot justify why a recording that contains
8 numerous irrelevant evidence is more fair than one based only on the Deposit Copy.
Defendants argue that the sound recording is necessary to show the alleged
10 combination of unprotectable elements that they claim were copied. That begs the
11 questionif those unprotectable elements are only found in the sound recording and
12 not in the Deposit Copy, then those elements are not subject to the Gayes copyright.
There is no need to have a hearing with musicologists (all of whom live on
13
14 the East Coast, Ms. Finell and Ms. Wilbur in New York, and Ms. Monson in
15 Boston) so that Defendants can have their experts plead for the use of a sound
16 recording that has very little bearing to the Deposit Copy compositions at issue.
17 Rather than waste their time attempting to explain why they based their opinions
18 predominantly, if not entirely on elements not found in the Deposit Copy, Ms. Finell
19 and Ms. Monson should set to work creating whatever demonstratives they need.
Any musicologist can easily can create (or hire musicians to create) a
20
21 recording of the song that: (a) only contains the elements in the Deposit Copy and
22 (b) does not contain any elements of the Marvin Gaye sound recordings that are not
23 found in the Deposit Copy. The recording would have melody, lyrics, harmony, and
24 the bass into found in the GIVE Deposit Copy and the melody, lyrics, and
25 harmony found in the DANCE Deposit Copy. The jury will hear what the actual
26 composition that Defendants own sounds like and can compare it to Plaintiffs work.
27 / / /
28 / / /
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/851747.1
20
Plaintiffs will have a proposed version of the Marvin Gaye songs ready for
2 the jury to hear and will timely exchange same with Defendants, per the Courts
3 Order. That approach is the fairest to all parties and insures a fair result at trial.
4
III.
10 produced reports and have been deposed. They cannot change their opinions now.
The only alleged issue is retooling alleged demonstratives for trial. This is
11
17
The notion that it will take voluminous amounts of time to prepare new
4112.060/851747.1
21
Furthermore, the Courts ruling on summary judgment and its rulings on the
2 motions in limine have been clear. There is no reason for confusion, nor are
3 Defendants confused in any manner that would prevent them from preparing any
4 demonstrative exhibits. Defendants just refuse to accept the Courts rulings. Rather
5 than adjust their trial planning to the Courts Orders, Defendants balk and reargue.
6
Defendants seek almost $42 million in damages. They have multiple lawyers
7 and experts working round the clock on this case. Plaintiffs are busy, in-demand
8 musical artists who have cleared their schedules for the February 10, 2015, trial.
9 Plaintiffs want their day in Court to prove to the world that they did not infringe.
10
If Defendants are not ready for trial, they only have themselves to blame.
11
12 helped. But there is no reason to continue the trial because Defendants are not
13 ready. The Courts rulings, after all, are not carte blanche for Defendants experts
14 to come up with new opinions not contained in their reports and on which they have
15 not been deposed. The issue, at most, is demonstrative evidencecharts, etc.to
16 illustrate the opinions that the experts have already been deposed on. There is no
17 reason why such demonstratives cannot be prepared on the schedule the Court set.
18
IV.
22
23
4112.060/851747.1
22
1 statutory copyright under the 1909 Act in a composition found only in a sound
2 recording and never published in manuscript form or registered as such.
The interlocutory appeal also will not materially advance the ultimate
4 termination of the litigation. 28 U.S.C. 1292(b). The case will go to trial, now o
5 after the interlocutory appeal. The appeal undoubtedly will fail, in which case it will
6 just delay the process. Even if the appeal succeeds, the case will still go to trial.
7 The interlocutory appeal does not materially advance termination of the litigation.
8 The ordinary process should be followed here. The Court has made its pretrial
9 rulings. The case will go to trial. After the judgment, either party can appeal. The
10 Gayes fail to show any reason why this case is different from any other case in
11 which the trial courts rulings on evidentiary or other issues affect the scope of trial.
Finally, the Gayes alleged costs, potential liability for legal fees, or supposed
12
13 inability to post an appeal bond have no bearing on the issue of interlocutory appeal.
14 Given that the Gayes seek almost $42 million from Plaintiffsan outrageous
15 sumit is hardly a basis for an interlocutory appeal that they are incurring litigation
16 costs.
17
Plaintiffs want their day in Court. They did not copy Defendants songs.
18
19 / / /
20 / / /
21 / / /
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/851747.1
23
v.
CONCLUSION
For the foregoing reasons, the Court should deny the Application and should
4 grant such other and further relief as the Court deems just and proper.
5
6 DATED: January 30, 2015
8
By:
HowARD E. KING
10
S ETH MILLER
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
K tNG , H OLMES,
P ATERNO &
B ERLINER , L LP
4112060/851747 1
24
1
2
1.
The facts set forth below are true of my personal knowledge unless
4 otherwise indicated. If called upon to testify, I could and would testify competently
5 thereto.
6
2.
7 partner with King, Holmes, Paterno & Berliner, LLP, attorneys of record for
8 Plaintiffs and Counter-Defendants PHARRELL WILLIAMS, ROBIN THICKE and
9 CLIFFORD HARRIS, JR. and Counter-Defendants MORE WATER FROM
10 NAZARETH PUBLISHING, INC., PAULA MAXINE PATTON individually and
11 d/b/a HADDINGTON MUSIC, STAR TRAK ENTERTAINMENT, GEFFEN
12 RECORDS, INTERSCOPE RECORDS, UMG RECORDINGS, INC., and
13 UNIVERSAL MUSIC DISTRIBUTION (collectively, Plaintiffs).
14
3.
4.
5.
22 copies of copyright registrations for Got to Give It Up and After the Dance that
23 were previously filed with the Court in Document 91-2, filed 7/22/2014, as exhibits
24 to the Declaration of Donna Stockett (Stockett Decl) filed in support of Plaintiffs
25 Motion for Summary Judgment Or, In the Alternative, Partial Summary Judgment.
26
6.
27 copies of the deposit copies for Got to Give It Up and After the Dance that also
28 were filed with the Court in the Stockett Decl (Document 91-2, filed 7/22/2014).
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/851747.1
25
7.
2 Attached hereto as Exhibit G is a true and correct copy of relevant excerpts from
3 the transcript of the deposition ofMs. Gaye.
8.
9.
8 Attached hereto as Exhibit I is a true and correct copy of relevant excerpts from the
9 transcript of the deposition of Ms. Fin ell.
10
I declare under penalty of perjury under the laws of the United States of
~fuM~~~s
13
14
Seth Miller
15
16
17
18
19
20
21
22
23
24
25
26
27
28
K ING , H OLMES ,
P ATERNO &
B ERLINER , LLP
26
1
2
CERTIFICATE OF SERVICE
I hereby certify that on January 30, 2015, I electronically filed the foregoing
10 CM/ECF system.
~ A~Mtt
11
12
.TOes:
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
K ING, H OLMES,
PATERNO &
B ERLINER, LLP
ssett
EXHIBIT A
Seth Miller
From:
cacd_ecfmail@cacd.uscourts.gov
Thursday, January 29, 2015 3:03 PM
ecfnef@cacd.uscourts.gov
Activity in Case 2:13-cv-06004-JAK-AGR Pharrell Williams et al v. Bridgeport Music Inc et
al Ex Parte Application to Continue
Sent:
To:
Subject:
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to
this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not
apply.
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA
Notice of Electronic Filing
The following transaction was entered by Duvall, Paul on l/29/2015 at 3:02PM PST and filed on 1/29/2015'-J
Case Name:
Pharrell Williams et al v. Bridgeport Music Inc et al
:_)
Case Number:
2:13-cv-06004-JAK-AGR
Filer:
Frankie Christian Gaye
Marvin Gaye, III
Nona Marvisa Gaye
Document Number: 232
Docket Text:
EX PARTE APPLICATION to Continue Trial from February 10, 2015 to Date to be Determined
by Judge Kronstadt , EX PARTE APPLICATION for Reconsideration of Document 231 and
Document 226, EX PARTE APPLICATION to Certify Question for Interlocutory Appeal filed by
Defendants and Counter-Claimants Frankie Christian Gaye, Marvin Gaye, lll(an individual),
Nona Marvisa Gaye. (Attachments:# (1) Memorandum of Points and Authorities in Support of
Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting
Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (2) Declaration
of Richard S. Busch in Support of Counter-Claimants' Ex Parte Application for Continuance of
Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of Question for
Interlocutory Appeal,# (3) Declaration of Judith Finell in Support of Counter-Claimants' Ex
Parte Application for Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3
and Certification of Question for Interlocutory Appeal,# (4) Declaration of Ingrid Monson in
Support of Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration
of Granting Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (5)
Declaration of Ron Aston in Support of Counter-Claimants' Ex Parte Application for
Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of
Question for Interlocutory Appeal,# (6) Declaration of Thomas Court in Support of CounterClaimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting Motions
1
EXHIBITB
Caser:JIIIIn
2:13-cv-06004-JAK-AGR
Document 233-2 Filed 01/30/15 Page 2 of 4 Page ID
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#:7002
11LIIte
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Comments
In an bid to delay the trial. the judge is told his interpretation of the law would
"essentially legalize wholesale copyright infringement" of Beatles songs, plus
disadvantage those who can't read music.
SUNDANCE 2015
Sundance: Jeson Sudeikis! Winona Ryder Pick
Their " Last Meals"
\\lith just two weeks to go before a scheduled trial owr whether Robin Thicke's "Blurred
Lines'' is a copyright infringement of 1\Ianiu Gaye's "Got to Giw It Up," the dispute has
gone nuclear in the past 24 hours with a judge's abrupt change-of-mind on a key issue and
then an attempt to delay the trial for an appeal. In new papers, the Gaye family asserts the
judge is misreading cop)Tight law to the extent. that it could ha\e "drastic and devastating
(Photos)
consequences for intellectual property" and "allow infringers to steal classic portions of the
songs by Marvin Gaye: the Beatles, the Rolling Stones~ Ehis Presley, and every other
iconic artist whose works were created before 1978...
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1"\ll:tl~ll
nny , -.1121..1\
Ull21..1\
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recording to compare to "~ Blurred Lines, .. even though that's what most people do when
trying to figure out whether the two songs are similar. The 1ay obsezver's opinion is
important under \\hat's known as the "'intrinsic test." and the Gaye family argues that the
rom position and sound recording were created simultaneously and that the entire
composition is embodied and e),:pressed by the recording. Richard Busch. attorney for
the Gayes. told The Holly wood Reporter earlier in the week that if the ruling stands, he
does not believe that a fair trial can take place.
Then~
on \Vednesday afternoon. Judge Kronstadt came out with a remarkable new order-
one that indicates that the judge took some time to think about this issue and came to a
new conclusion.
While sticking with his belief that the introduction of the original Gaye recording at trial
would unfairly prejudice \Villiams and Thicke, he said there was "merit" to the Gaye
family's contention ''that it could be difficult for them to present their e\-idence of intrinsic
similarity if the sound recordings are inadmissible in their entirety."
Ha\i.ng the musicologists play the sheet music on keyboards - a proposal made the
\Villiams side- might not do the trick. And so, the judge offered up his own suggestion:
The Gaye family could create a new \er.sion of "Got to GiYe It Up," one that's stripped of
non-protected elements. Mar\'iD Ga.ye singing would still be in this new version and would
be addressed \\ith instructions to the jury. The judge e\en nodded to the fact that the Gaye
family had created special mash-ups to prme their case.
''Two of the 'mash-up' tracks submitted by Defendants as potential trial exhibits. which
consisted of Ga.ye's Yocals from 'Got to Give It Up' laid m;er instrumentals from 'Blurred
Lines,' sho\". that Defendants possess the technical capabilitie.s to isolate protected from
unprotected elements of the recordings of their compositions," \\TOte the judge.
Despite the judge's new inclination to allow at least some form of sound recording for the
jUIJ-to hear, the Gaye family isn't satisfied. Far from it with their lawyer telling the judge it
"would be the only case in history'' where something like that happened. They add that as
"much as forty percent of the similarites found by the experts" haYe been excluded and that
the order would require them to ''re-tool their testimony and the. demonstrative exhibits
they have spent months developing." On Thursday, an application for continuance of the
trial and certification for an interlocutory appeal was filed.
Read ntore Sony, Google~ Apple Hit "\Vith Lawsuits OYer Pre-1972 Music
_.\ccording to the latest filing, "The law is clear that a plaintiff suing for copyright
infringement under the 1909 Copyright Act need only produce a cop}Tight registration
identifying a work as published. As long as the work is properly registered, the registration
rovers not only the composition as reflected by the deposit copy, but also other versions of
the composition that existed at the time of registration."
The Gaye family faults the judge for taking the position that the \ersion of the composition
embodied on a sound recording isn't protected. ''Not only is there no support for this
proposition in the case law: but adopting such a position would create dangerous and
potentially devastating precedent to the owners of such intellectual property," states the
fUing.
ln a bid to get the judge to either reconsider once again or send the case up on appeal
before a trial takes place, Busch argues that if the judge's limiting position is adopted,
clever infringers would be able to compare sheet music with \\-orks by artists such as Eh-is
Presley, and then legally steal the. non-compositional elements. So sampling Presley's
voice? Maybe permissible. Busch also argues that it would ha\"e a "particularly harsh effect
on indiv-iduals who may be great composers of songs 1 but do not read or write music" since
those who didn't have access to music education and couldn't properly annotate their sheet
music would get less legal protection.
"It would create a situation where the compositions in the recordings are derivati\e works
incapable of copyright protection because, as pre-1978 works. the recordings could not be
submitted as the musical compositions:" continues the filing. ''That is not and cannot be
the law. Instead. the Cop}Tight Act required publication and registration. but once these
statutory formalities are met, all ,ersions of the composition fairly identified by the deposit
Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner
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EXHIBIT C
1\ppliratiott
00
F.U
usfca1 composition the author of wh1ch Is a citizen or ilomlciliary
in ~h~ Unfted states of America or which was first published in the
of d states of America
.
Un 1te tl ns Make sure that all applicable spaces have been
Mail all pages of the application to the ~egistcr of Copy
tnstr~c
rr
Name ------ - ---- -------- - -- ---- ------- ------- - ..... - ............... - - -- -- ---- ------------ --------------------
Addrou -- --. ----.. -------- --- ---- ----- --- ---------- - --------------------- .. -- ----- .. .. ------ ---- -- ----------- - - ----
~hould
be stated as U.S.A.
N1me ______
(Givo !<gal name followed b)' pseudonym if Iauer appears on the
~ -j
_;
,.
1-
'
'
Domiciled in U.S.A.
COPIO>)
Yes....
No .
Yes ....
No---
Yes....
Nu ----
Domiciled in U.S.A.
Nime -------------- --- .......... ------- ------- . ..... ...... --------------- (Give tcg:~t name followed by p-scudOn)m if llncr ;~ppcus on 'he copies)
OOtnidled in U.S. A.
~-
.....
Citizenship : U.S.II.. .
(Check if U.S. citi><n)
Olh<r ....................... .
<Nm of country)
Address --------------------- ------------------------ Author of --------- ------------------<Sr:ue which: words, mu$ic, arrangement, etc.)
~ NOTE: L~ave all spaces of line 4 blank unlus your work has bun PUBLISHED. J ~
4. Ia) Oat~ of Publication: Give the dare when copies of rhis
formed or recorded, should not be confused with the date of
particular version of the work wert: first placed on sale, 3old,
publication. NOTE: The full date {month, day, and year) must
or publicly distriburcd. Th e da1e when wpics were made, , be given.
primed, or reproduced , or the date when the work was per
.;.. __________ ------...... ---- -- ------ ----------- ____ _J _____ . ------ .. .J.Q ...... ____ _[_{______ ___________ ... -------. -------------.--. -<D>y )
(~!onth)
--
----------- --- . --- .......... .. --- ....... ... ------------.--. -- --~ NOTE:
CO\lntr)'
(Yc>r)
in which this particular version of the work was ftrst pub!i 5 hccl.
s;
Pre~ious Registration or Publication: If a claim to copyrtgl_lt m any sub.>rall!ial pur of this work was previously
registered in the U.S. Copyright Office in unpublished form,
w;;]
rc.:gi.uc r~d?
Yes-----
No -----
Yeo .....
No -----
Rc~iSiralion
Wu work previously
number--------- - -----------
h there any subs.rantial NEW MATTER in this version? Yes ... ..... . No . ........ If your Jnswcr is "Yes," give a brief general
s~atemcde':u of the nature of the NEW MATTER in this version. (New matter mar consist of compilation, arrangement, ada pta
non,
ltorial revision, and the like, as well as additional words and music.)
...
~ - .-
. .'
..
IICIIIIC
of ac:c:ount:
(Type or
print
name and
address)
Nam.c:
----------------------------------------~
JOBETE MUSIC COMPANY, INC.
. ___ _, __--------------------- ............. ---------.-- ........... -------------- .. ----- ... __ .,...., _________ -------
Add reS!
--
90028
CALIFORNIA
HOLLYWOOD,
=-. _._
--- -- ---- .- -.
,-;::-::====.-~-:
.-:::-=.-=-=-==---==:=.= _;-=-.:::::-:::::-::-.---:-.. - ~:~-== ==::-: :..::=. = ~ - ~
I CERTIFY that the sratemcnts made by me in this application are correct to the best of my
knowledge.
9. Certification:
...,.. -~
- ---------~-------------------------------- -
(Application not
acceptable
unless signed)
L____ _
- -- ------- --
--
Application Forms
Copies of the following forms will be supplied b}' the Copyright Office withour charge upon request:
Class A Form A-Published book manufactured in the United States of America.
Form A-D Foreign-Book or periodic.a.l manufactured outside the United States of America (except works subject to
Oass A
the ad interim provisions of the copyright law).
or D { Form A-B Ad Interim-Book or periodical in the English language manufactured and first published outside the
United States of America.
..
.
Form B-Pet'iodical manufactured in the United States of America.
Oass B { Form DB-Contribution to a periodical manu'factured in the United Srates of America.
Cllw C Form C-Lecture or similar production prepared for oral delivery.
Class D Form D-Dramatic or dramatico-musical composition.
.
{Form E~Musical composition the author of whic;h is a citizen or domiciliary of the United States of America or
'
which was first published in the United States of America.
Class E Form E Foreign-Musical composition the author of which is not a citizen or domiciliary of the United States of
America and which WllS not first published in the United States of America.
Oass F Form F-Map.
Class G Form G-Work of art or a model or design for a work of art.
01us H Form H-Reproduction of a work of art.
CJ.a.ss I Form I-Drawing or plllStic work of a sdentilic or te<:hnical character.
ClllSs J Form }-Photograph.
L}F
Oass
or M
Ous N
. plCtW'e.
.
orm L-M- M
. otion
'
Application received
'.
'
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'
Fe e received
Ronowol
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- . .
..
I
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.I
Page 2
EXHIBITD
FORM E
#:7009
~ppliratintt
REGISTRATION NO.
CLASS
t~ [op~ri~ht
./
~J.o..be.t..e_.l1.us ic.._.CQ. ________ ............. ------------------------------------ 7--- --- -- ----------------- ----- -- ----------_6.4.6~-..S uns.el: . .Bl:v..d....... Jlull.)rwo.od?" . .C a- __ .9.DD2a. --- ____ .. -------. __ . _...
----------- ---- --- ------ ..... -.... -............. ------- .. ---- ... ---------- . ..... --- ..... ---- . ------------------ .. --- ... --------- ----------------------- ----------- ............ --- ------ ------------ --- ------- ..... --- .............. ----------------- .. --- .... . -------------------------------------------------Tltl : .AJ'.t.er..Th.e . .D.an c.e... ........ --------- ... ft-9.322 _______ ... _______ _:_____ ______________________ --------------------------. . ._ .
" .,
<Give
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::.
Address
U . ~. A .... .;<..
!Chock if U.S. cicixcn)
Citizenship:
in
-------------------- . ---- - .... --- .. ---- ------ ..... --- ___ _--. -- ..... _ Citizenship: U.S.A. __ --(GiTe lt.g>l name followed by pseudonym ill>trcr l PP<'>n on the wpico)
<Check if U.S. citizen)
No ----
(St~tc
~ NOTE:
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Date of Publlc:atlon: Give the date when copies of this
.,.,., .~..... ,,.,.,u \'ersion of the work were first placed on sale, sold,
distributed. The date when f opies were made,
or reproduced, or the date when the wo rk wa~ per-
1tZ:i------------------------------------------------
Plate of Publication: Give the n:une of the country in whkh chis particular ve r;ion of the work was first published.
~ NOTE:
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tn the U.S. Copyright Office io unpublished form,
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any substantial NEW MATTER in this version? Yes .. . ... .. . No ......... If your answer is " Yes," give a brief general
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7. Name ahd address of penon or organixation to whom correspondence or refund, If any, should be sent:
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Application Forms
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Class A Form A-Published book manufactured in the United States of America.
Form A-D Foreign-Book or periodical mnnufacrured outside the UniH.'t.l States of America (except worb subject to
Oass A
the nd inter.im provisions of the copyright Jaw).
or B { Form A-B Ad Interim-Book or periodical in the English language manufncturcd and first published outside the
U nired Swucs of America.
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EXHIBIT G
--------------------------x
4
PHARRELL WILLIAMS, an
individual;
Plaintiff,
6
vs.
10
11
12
13
BRIDGEPORT MUSIC,
a Michigan corporation;
FRANKIE CHRISTIAN GAYE,
an individual; MARVIN
GAYE III, an individual;
NONA MARVISA GAYE, an
individual; and DOES 1
through 10, inclusive,
Defendants.
--------------------------x
14
15
16
17
18
19
20
21
22
23
24
25
Reported By:
SUSAN A. SULLIVAN, CSR #3522, RPR, CRR
Job No. 82589
TSG Reporting- Worldwide
(877) 702-9580
Page 7
1
Good.
To Give It Up"?
No.
Did
--
step back.
10
11
12
13
14
15
16
said,
17
we'll be fine."
"Why not.
Okay.
19
To a point.
20
21
sometimes four.
23
Okay.
And
18
22
evenlng or --
24
No.
25
'
[i
~==~======~~==~~~==~==
~.~-==----==
~------~
- ~====~~~===============-~!'
TSG Reporting- Worldwide
(877) 702-9580
Page 8
1
Absolutely.
Where 1s that?
6553 Sunset.
Okay.
12
.J
personal studio.
11
II
li
13
There were
14
15
16
17
Okay.
18
19
20
21
studio.
22
23
24
It was
10
25
On certain days.
---
. 11
I don't
I'm not.
8
9
10
I-i.
11
12
Was he a musician?
13
Yes.
14
15
there?
16
17
18
A saxophone player.
Describe to me how
19
20
supposed to do.
21
22
23
24
25
If it sounded not
Page 10
1
music to follow?
No.
No.
To a point.
He
10
11
12
13
14
15
Okay.
sheet music?
16
I don't.
17
18
19
children's depositions?
20
I have no idea.
21
22
23
copy
--
24
No.
25
--
---
li
Okay.
I was.
Okay, good.
9
10
11
12
13
14
Okay.
15
recorded.
16
Yes.
17
Okay.
18
19
20
MR. BUSCH:
Object to form.
It assumes facts
21
22
23
It Up.
24
25
II
MR. KING:
the form.
MR. BUSCH:
3
4
MR. KING:
THE WITNESS:
MR. KING:
10
MR. BUSCH:
11
THE WITNESS:
12
Object to form.
Are you talking about the deposit
13
14
MR. BUSCH:
15
16
BY MR. KING:
17
18
19
20
No.
21
22
23
24
25
MR. BUSCH:
EXHIBITH
13
14
15 PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
16 individual; and CLIFFORD HARRIS,
JR., an inaividual,
17
Plaintiffs,
18
vs.
24
25 AND RELATED COUNTERCLAIMS.
26
27 Ill
28 Ill
4112 060/836839.1
DECLARATION OF SANDY
WILBUR IN SUPPORT OF
PLAINTIFFS' MOTIONS IN
LIMINE
Final Pretrial Conference:
19
23
1.
I am over the age of 18 and not a party to this action. I have personal
4 knowledge of the facts set forth herein, which are known by me to be true and
5 correct, and if called as a witness, I could and would competently testify thereto.
6
A.
2.
3.
I have reviewed the notated music for the Marvin Gaye compositions
10 "Got to Give It Up" (Parts 1 and 2) ("GIVE") and "After the Dance"
11 ("DANCE")( co-written by Leon Ware) that I understand was obtained from the
12 Library of Congress, and which I refer to herein as the "Deposit Copy" for GIVE
13 and DANCE, respectively. In order to easily find elements of the composition
14 contained in the Deposit Copies, I have added typewritten measure numbers to the
15 Deposit Copies of GIVE (parts 1 and 2), and DANCE, true and correct copies of
16 which are attached hereto as Exhibits A and B.
4.
17
18 recordings of GIVE and DANCE and commercially released Robin Thicke sound
19 recordings of"Blurred Lines" ("BLURRED") and "Love After War" ("WAR") that
20 came from the following albums and that were downloaded from iTunes:
21
22
23
2013;
24
b. "Got To Give It Up" from the Marvin Gaye album "Every Great
25
26
c. "After the Dance (Vocal Version)" from the 1976 Marvin Gaye
27
28 Ill
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/836839.1
d. "Love After War" from the 2011 Robin Thicke album entitled "Love
5.
I have reviewed the expert reports of Judith Finell and Ingrid Monson
4 in this case, each of their prior declarations in this case, Ms. Fin ell's preliminary
5 report dated October 17,2013, and the transcript ofMs. Finell's April18, 2014,
6 deposition in this case. I also attended the December 3, 2014, deposition ofMs.
7 Monson. I also have reviewed the declarations of Ron Aston and Thomas Court.
8
B.
6.
10 consists of six pages (i.e., six pages of musical notation, copied on four printed
11 pages) that show, on each of the continuous single staves, the lead vocal melody of
12 GIVE as a sequence of notes and rests with the lyrics written below the staff and the
7.
Apart from the lead vocal melody, lyrics, and chord symbols, the only
15 other compositional elements notated in the GIVE Copyright Deposit are as follows:
a.
16
17 GIVE Part 1, which ends with the word "bass simile" written under the staff ("bass
18 simile" means that the bass is to continue playing the same bass phrase throughout);
b.
19
20 consisting of an eighth note and two quarter notes, starting on the offbeat of beat
21 two, and notated in the first measure ofthe third staff on page 3 of GIVE Part 1
22
(measure 63);
c.
23
The notation "sax ad lib over vocal" under the first staff on
d.
26
27 what it's all about," which is set to a rhythm of eighth, quarter, and sixteenth notes,
28
KING, HOLMES,
PATERNO &
BERLINER, LLP
4 I 12.060/836839. I
1 notated in the last two measure of the last staff on page 2 of GIVE Part 2
2 (measures 91-92);
e.
4 phrase rhythm in the last two measure of the last staff on page 2 of GIVE Part 2
5 (measures 91-92);
f.
The notation "ad lib - long fade" at the end of the last staff on
8.
10 Ms. Monson are not notated or found in the GIVE Deposit Copy:
11
a.
12 10/17113 Preliminary Report (referred to as the GIVE hook with backup vocals; it is
13 only the backup vocals (harmony part) to the "hook" that are not contained in the
14 Deposit Copy);
15
b.
16 page 12, ofthe Finell10/ 17/ 13 Preliminary Report (referred to as the GIVE "Theme
17 X" or the phrase "Dancing ladies" -Examples 4A and SA are the identical melody,
18 transcribed twice).
c.
19
20 1011 7113 Preliminary Report, referred to as the GIVE bass line bars 1-4 (a similar
21 four bar phrase does appear in the Deposit Copy, but one note is missing and the
22 duration of six of the notes is different in the Deposit Copy);
d.
23
24 10/ 17/ 13 Preliminary Report (referred to as the GIVE descending bass melody);
e.
25
26 10/ 17113 Preliminary Report (referred to as the GIVE keyboard bars 1-2);
f.
27
28 10/31/14 Report (GIVE sound recording bass parts, as transcribed by Ms. Finell,
KI NG, HOLMES,
PATERNO &
BERLINER , LLP
4112 060/836839. 1
1 where in Example 2 five of the notes do not have the same duration as in the
2 Deposit Copy, and Examples 3 and 4 are not in the Deposit Copy at all);
g.
h.
1.
10
J.
k.
11 Report);
12
13 Report (referred to as "doo wop" vocals; also discussed and transcribed at Monson
14 10/31114 report, Musical Example 11);
15
1.
16 Report (a similar four bar phrase does appear in the Deposit Copy, but the duration
17 of the notes is different in the Deposit Copy);
m.
18
20
~53,
of the Finelll0/31 / 14
22
24
The "doo wop" vocal lyrics, e.g.. "hop, fop, fop, doo, wop,"
25 "bop, bop, du wop, bop, bop, bop, du wop," (discussed at page 26, ~ 61, of the
26 Finelll0/31114 Report; see also Monson 10/31/14 report, Musical Example 11);
27
q.
4112.060/836839. 1
r.
s.
t.
6 Example 6; see also Musical Example 12, page 21, ,-r 53, ofFinell 10/31114 Report);
u.
v.
10 Preliminary Report) ;
11
w.
13
x.
14
y.
Falsetto vocal (discussed at page 17, ,-r 37 of the Fin ell 10/17/13
15 Preliminary Repmi);
16
z.
17
aa.
18 indicate a tempo in the upper left corner of the notated music, the GIVE Copyright
19 Deposit has no tempo indication.
20
9.
The GIVE Deposit Copy contains an eight measure "bass intra" in the
21 first two staves on page 1 of GIVE Part 1. Musical Examples 6A and 6C (pp. 13-14,
22 ,-r,-r 29-30, of the Finell 10/17/13 Preliminary Report), which Ms. Finell refers to as
23 the GIVE bass line bars 1-4 and GIVE descending bass melody, are only found in
24 the GIVE sound recording (the Fin ell 10/17113 Preliminary Report indicates below
25 each transcription the number of seconds [":05" I ":08"] into the GIVE sound
26 recording where Musical Examples 6A and 6C appear). The "bass intra" in the
27 Deposit Copy is not the same sequence of notes (pitch/duration/placement) as
28 Musical Examples 6A and 6C.
KING , HOLMES,
PATERNO &
BERLINER, LLP
4112 060/836839 I
10.
2 Report also are bass parts that only appear in the GIVE sound recording. Musical
3 Examples 2-4 do not appear in the Deposit Copy. The GIVE Deposit Copy only
4 contains the bass notes set forth in the eight measure "bass intra."
5
11.
The four-note melody that is sung to the words "darrein' lady" in GIVE,
6 and identified as Finell's Musical Example 4A, is transcribed at page 10, ,-r,-r 25-27,
7 ofthe Finell 10/17113 Preliminary Report (referred to as the GIVE "Theme X").
8 This GIVE "Theme X" does not appear in the GIVE Deposit Copy. "Theme X" has
9 the scale degree sequence 3-3-2#-3 set to the rhythm of four eighth notes in a row.
10
12.
The sung phrase "fancy lady" appears on page 2 of GIVE Part 2 in the
11 Deposit Copy (See Exhibit A measures 49-62). "Fancy lady" in the Deposit Copy
12 is not the same melody as "Theme X" ("darrein' lady") in Ms. Finell's Preliminary
13 Report. "Fancy lady" uses the scale degrees 5-5-6-5 set to the rhythm of two eighth
14 notes, quarter note, quarter note. "Theme X" has chromatic movement; "fancy
15 lady" does not. They are not similar.
16
13.
17 within GIVE. There are no "outgrowths" that form part of the GIVE composition
18 contained in the Deposit Copy other than what is notated in the Deposit Copy.
19
14.
The keyboard part in the GIVE sound recording is not notated in the
20 GIVE Deposit Copy. The lower left hand part of the keyboard part in the GIVE
21 sound recording (transcribed at page 12, ,-r 34, Musical Example 5, of the Finell
22 10/31/14 Report) does not appear in the Deposit Copy, including that the left hand
23 (lower staff) of Musical Example 5 does not appear in the GIVE Deposit Copy.
24
15.
The GIVE Deposit Copy contains certain chord symbols, e.g., "A7."
25 The chord symbols do not indicate that any particular instrument, including electric
26 piano or keyboards, is part of the composition. There is a virtually infinite number
27 of ways for a pianist, guitarist, or other accompanist to play an A 7 chord under the
28 vocal melody of GIVE. The GIVE Deposit Copy does not indicate which, if any,
KING, HOLMES,
PATERNO&
BERLINER, LLP
4112.060/836839.1
1 instrument should play the chords notated in the Deposit Copy. The GIVE Deposit
2 Copy does not notate or indicate in any fashion the specific voicing (choice of notes
3 on the keyboard) that is used for the chords played on the electric piano (keyboard)
4 in the GIVE sound recording. The Deposit Copy does not indicate the specific
5 rhythm of the chords played on the electric piano (keyboard) in GIVE. The GIVE
6 Deposit Copy contains no keyboard indications whatsoever. It does not contain the
7 specific offbeat keyboard chords that Ms. Finell claims are similar to BLURRED.
8
16.
The chord symbols in the Deposit Copy indicate the harmony (chords)
9 for the melodies in the Deposit Copy. It is up to the performer or arranger to decide
10 what notes to play on any instrument that may be used to accompany the vocal
11 melody in any performance of the song. The specific chords and rhythms of the
12 electric piano part in the GIVE sound recording (see Finell 10/17/13 Preliminary
13 Report, Musical Example 7(a), page 15) are not notated in the GIVE Copyright
14 Deposit.
15
17.
16 GIVE Deposit Copy. Ms. Finell opines that there are "many parallels" for the hi-hat
17 rhythm in the Deposit Copy (page 41, ,-r 106.e, ofthe Finell10/31/14 Report). The
18 rhythm of the hi-hat in GIVE is a series of constant eighth notes (i.e., eight per
19 measure) in every measure, mostly on closed hi-hat cymbals (a "hi-hat"), but
20 occasionally on an open hi-hat. There is no vocal melody in GIVE that has constant
21 eighth notes. Ms. Finell opines that playing an open hi-hat on the second half of
22 beat four is a similarity found in GIVE. There is no vocal melody in GIVE that
23 contains a note sung only on the second half of beat four. Even if a vocal melody in
24 the Deposit Copy had such a rhythm (there is none), it would not be a hi-hat part or
25 indicate a hi-hat.
26
18.
Ms. Finell opines that certain vocal melodies in the Deposit Copy have
27 a note played on the second half of beat four of the measure, e.g., at the lyric "par-"
28 in measure 8, or at the lyric "ner-"in measure 12 of the GIVE Deposit Copy (see
KING, HOLMES,
PATERNO &
BERLINER,LLP
4112.060/836839.1
1 page 42, ,-r 107.e.ii of the Finell10/31/14 Report). In each case, the rest of the vocal
2 melodic phrase has a very different rhythm from the hi-hat rhythm in the GIVE
3 sound recording, which plays eight eighth notes per measure. It is not correct that
4 any of these partial vocal melodies somehow indicate a hi-hat part; they do not.
5
19.
6 side of the staff to indicate the instrument that is to be played and by denoting the
7 specific rhythm of the hi-hat in ordinary musical notation and using "x's" and "o's"
8 to denote closed or open hi-hat, respectively. If Marvin Gaye had wanted to include
9 a hi-hat as part of the GIVE composition, it could have been very easily notated.
10
20.
The GIVE Deposit Copy does not "omit" a guitar. It contains a vocal
11 melody and chord symbols. It neither includes nor excludes the possibility of the
12 song being played with a guitar. There is a two-bar guitar melody in GIVE Part 2
13 (starting in measure 91).
14
21.
22.
The Copyright Deposit contains two spoken vocal phrases ("We heard
21 that," and "Let's dance, let's shout, getting funky's what it's all about"). In each
22 case, specific rhythms (duration and placement in the measure) are notated for each
23 of the spoken phrases (the "notes" are indicated by an "x" instead of an oval note
24 head). These spoken phrases are entirely different from the continuous party noise
25 that plays in the background over the entirety of the four minute GIVE recording.
26 (See Exhibit A GIVE Part 1, measure 63, and GIVE Part 2, measures 91-92).
27
23.
4112.060/836839.1
1 not appear in the GIVE Deposit Copy. There are two measures (measures 4 and 7)
2 in the eight measure "bass intro" notated at the beginning of the GIVE Deposit Copy
3 that Ms. Finell opines contain a descending bass melody, but the pitches, durations,
4 and placement of the notes in measures 4 and 7 are not the same as in Musical
5 Example 6C.
6
24.
The words "bass simile" in the GIVE Deposit Copy at the end of the
7 eight measure bass intro indicate that the bass part notated in measures one through
8 eight should continue in the same manner throughout the song. The word "simile"
9 does not indicate any specific new or different notes for the bass to play. The word
10 "simile" is an instruction to the performer; it has no compositional content beyond
11 that. The bass player on the GIVE sound recording improvises a variety of bass
12 melodies over the course of the song, none of which are found in the GIVE Deposit
13 Copy. Those improvised phrases are part of the bass player's performance. The
14 only bass notes contained in the Deposit Copy are notated in the "bass intro" itself.
15
25.
16 of GIVE (Parts 1 and 2) that contains the same bass pattern as is notated in the eight
17 measure "bass intro" in the Deposit Copy. In fact, there appear to be no two eight18 measure sections in the GIVE sound recordings that have the identical bass pattern.
19 The bass part on the GIVE sound recordings appears to be through-composed
20 (played from beginning to end in one take) and improvised throughout. The eight
21 measure bass patterns that are found in the GIVE sound recording are not the same
22 eight measure pattern as the eight measure "bass intro" in the Deposit Copy.
23
C.
24
26.
25 three pages (i.e., three pages of musical notation, but copied on two printed pages)
26 that show, on each of the continuous single staves, the lead vocal melody of
27 DANCE as a sequence of notes and rests with the lyrics written below the staff and
28 the chord symbols (e.g., "C#m") written above the staff. (See Exhibit B.)
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/836839.1
27.
Apart from the lead vocal melody, lyrics, and chord symbols, there are
3 there are no instrumental parts and no backup vocal parts in the Deposit Copy:
28.
5 elements found in the Marvin Gaye sound recording of DANCE that they opine are
6 substantially similar to musical elements of WAR. The following elements
9 sung in the chorus of the DANCE sound recording, which lower register vocal
10 contains the scale degree sequences 4-5-3 and 5-4-5-3 (discussed at page 27,
11
~~
12
13 recording (discussed at page 11 of the Ingrid Monson 10/31/14 Report and at its
14 attached Musical Example 17).
NO LIMITATION TO MUSICAL ELEMENTS THAT CAN BE
15
D.
16
17
29.
18 above that do not appear in the Deposit Copies easily could have been notated in a
19 written score and submitted as a deposit copy had Marvin Gaye chosen to do so.
20
30.
The notion that the common use of lead sheets somehow precluded a
21 composer in the 1970s from submitting a score indicating all instrumental or vocal
22 elements in which the composer claimed a copyright is without foundation.
23 Anything that can be played can be notated. Composers in the 1970s notated the
24 vocal melody, lyrics, and notes in lead sheet fashion because that was considered the
25 composition of the song (i.e., not how it was performed on any particular recording).
26
E.
27
31 .
28
KING , H OLMES,
PATERNO &
B ERLINER, llP
4 112.060/836839. 1
10
4 not show at all or make it more likely than not that any extrinsic expression (as
5 opposed to generalized phrasing, structure, and harmonic content) in one song is
6 similar to expression found in the other song over which it has been "mashed up."
7
45.
The vocal track of GIVE can be played over any number of songs.
8 That it fits over the above songs for which I created mashups does not indicate that
46.
F.
21
4 7.
22 compositions contained in the GIVE and DANCE Deposit Copies sound like (i.e.,
23 without any interpretative performance or arrangement aspects added to the
24 composition itself), the most accurate and objective way to do so would be to play
25 the Deposit Copy melodies on a keyboard (or sing them) while playing the chords in
26 root position on a keyboard on the first beat of each measure. That way, the
27 melodies and harmonies as notated in the Deposit Copy can be heard with the least
28 amount of subjective performance or arrangement interpretation added to them. The
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112 060/8368391
15
1 spoken phrases similarly can be spoken in the rhythms notated in the Deposit Copy.
2 This is common practice for forensic musicologists in a trial setting. The GIVE bass
3
5 musical elements (including instrumental parts and certain vocal parts, as discussed
6 above) that are not found in the GIVE and DANCE Deposit Copies, including many
__
8 the Marvin Gaye sound recordings and not part of the underlying compositions.
G.
10
49.
For the last 25 years, I have been a testifying expert in several trials and
11
16 chatis and exhibits, have done public domain and prior art searches, and copyright
17 valuation research and have consulted on a wide range of musical issues for law
18 firms , advertising agencies, film , television, and record companies, music publishing
19 and production companies. In 201 2 alone, the last time I counted, I cleared
25 Additionally, I did 8 prior art research reports and determined the public domain
26
status of 29 songs. Over the last several years, I have been consulted on an average
27 of 10- 15 potential litigation matters per year, about three of which are ongoing at
PATERNO &
BERLINER, LLP
4 11 2 060/836839 I
16
55.
56.
I have received creative awards from ASCAP, CLIO, The New York
9 International Film Festival and The American Song Festival, among others. I am or
10 have been a member of ASCAP, SAG, AFTRA, AFM, Women in Music (previous
11 board member), and the Songwriters Guild of America (previous board member),
12 Copyright Society of the USA, among others. My complete resume and
13 qualifications are attached hereto as Exhibits E and F, respectively.
14
I declare under penalty of perjury under the laws of the United States of
17
18
19
Sandy Wilbur
20
21
22
23
24
25
26
27
28
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/836839.1
19
EXHIBIT I
Page 1
1
Plaintiffs,
vs.
7
)
CV13-06004-JAK
)
9
10
11
Defendants.
12
13
---------------------------------)
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Reported by:
Philip Rizzuti
Job No. 72812
25
TSG Reporting - Worldwide
877-702-9580
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-- ,
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them.
877-702-9580
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ofthe question.
A. I think you meant is it my
opinion that "Blurred Lines" copied "Got
to Give It Up", not the other way around.
Q. That is correct.
A. Thank you. So -MR. BUSCH: I object however to
the extent that you have
misrepresented her report, a more
basic level by suggesting she doesn't
suggest that there is copying when
she does. Go ahead.
A. Could you please repeat the
question.
Q. Sure. The word copying does
not appear in your report, so what I am
asking is is it your opinion that "Blurred
Lines" copied elements of "Got to Give It
Up"?
MR. BUSCH: And my objection is
you are completely mischaracterizing
the report by suggesting that.
A. As I understand the role of a
musicologist in this kind ofproceeding,
it is to give objective analysis and
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877-702-9580
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