Blurred Lines Trial - Transcript Exhibit K PDF

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 1 of 66 Page ID
#:10007
EXHIBITK

#:10008
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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3
THE HONORABLE JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE PRESIDING
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6
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Pharrell Williams, et al.,
Plaintiffs,
9
10
Case No.
vs.
cv 13-06004-JAK(AGRx)
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12
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Bridgeport Music, Inc., et al.,

Defendants.
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15
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REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS

Day 5 - P.M. Session
Los Angeles, California
Tuesday, March 3, 2015
21
22
23
24
25
Pamela A. Batalo, CSR, FCRR, RMR

Official Reporter
Roybal Federal Building
255 East Temple Street
Room 181-1
Los Angeles, California
90012
(213) 687-0446
United states District Court, Central District of California

#:10009
27
00:
note.
Q.
the
A.
that.
Q.
which
That's
one
of the earlier
chorus
sections
where
it's
00:
not
00:
same
note
Right.
-Well,
there
were
three
notes
that
were
the
same
in
00:
00:
And
now
let me play
is Exhibit
530,
(Whereupon,
the chorus
just
section
from
Love After War,
00:
at the beginning.
the audio
was played
00:
for the
00:
jury.)
00:
BY MR.
MILLER:
So in that
10
Q.
11
how
12
changing
13
from being
14
vocal
15
A.
in the
comparison
first
with
of those
recording,
each
vocal
a different
as you
note
two
recordings
testified,
the
can hear
chords
and
the
chords
change
before
00:
00:
are
in Love After War, apart
sung,
melody,
you
00:
00:
the
00:
comes
in; correct?
00:
Correct.
16
MR. MILLER:
I have
17
THE COURT:
18
Cross-examination,
19
MR.
All
BUSCH:
no further
00:
questions.
00:
right.
Yes,
Mr.
your
00:
Busch?
00:
Honor.
00:
CROSS-EXAMINATION
20
00:
21
BY MR.
22
Q.
BUSCH:
Good
23
attention
24
multiple
25
chord
afternoon,
to your
times,
had been
Ms.
Wilbur.
testimony,
upon
and
questioning
notated
I have
been
I believe
by Mr.
in the deposit
playing
I heard
Miller,
copy,
that
very
you
that
close
00
say
if the
it would
00:
look
00
00

#:10010
28
1
exactly as the notation they showed you from the recording of
00:
00:
Got To Give It Up.
00:
Do you recall that?
4
5
6
7
8
Not specifically, but go ahead.
Q.
Do you agree with me that it is your testimony that if the
00:
chord was notated in the lead sheet of Got To Give It Up, that
00:
it would look exactly as the notation that Mr. Miller showed you
00:
00:
as being in the recording of Got To Give It Up?

MR. MILLER:
9
10
00:
A.
Objection.
It misstates the testimony.
00:
The question is whether the piano part.

THE COURT:
11
Okay.
Restate the question.
00:
If you're
12
asking about a specific exhibit, why don't you display it,
13
please.
00:
00:
00:
THE WITNESS:
14
THE COURT:
15
00:
I'm confused --
00:
There's no question pending.
00:
16
17
BY MR. BUSCH:
Q.
Ms. Wilbur, you began your testimony today by saying that
18
when you are retained by someone to analyze two pieces of
19
work
20
A.
Right.
21
Q.
__
22
A.
I do.
Q.
And you said that you look at things objectively;
00:
00:
00:
00:
you approach it neutrally;
00
correct?
00
23
is that
00
00
24
right?
25
A.
00
That's correct.

#:10011
29
And
you
Q.
contending
the deposit
in order
know
that
in this
the notes
copy
needs
case,
the Thicke
in the deposit
to reflect
to be protected
that;
copy
notes,
in this
You understand
parties
need
certain
00:
are
to be -- or
specific
notes
A.
I do.
Q.
So in your
comparison
deposit
testimony,
of the notes
copy
00:
correct?
you went
that
and you've
you
compared
through
are
those
to a notation
That's
not
11
A.
No.
12
Q.
That's
13
A.
No.
not
at great
claim
To Give It Up; correct?
recording
length
in -- or not
in the
00:
00:
correct?
00:
Restate
-- next
question,
00:
please.
00:
BUSCH:
You,
in the
last
16
Q.
17
notes
18
you compared
19
It Up and how those
and how
four
elements
that
are
to,
No.
A.
22
the
23
Q.
24
recording
25
didn't
I compared
recording
Okay.
hours,
went
notes
through
transcribed
for example,
Did you not
20
00:
00:
correct.
THE COURT:
14
00:
00:
of the
21
00:
00:
case.
of Got
10
BY MR.
00:
00:
15
that
appear
in the deposit
the
recording
in Got
the
You didn't
do that?
copy
how
and
To Give
of Got
deposit
compare
00:
00:
00:
00:
To Give It Up.
00:
do that?
copy
of Got
of Blurred Lines, as I was
of Got
and compared
how
To Give It Up with
instructed
the notes
also
To Give It Up with the deposit
to do.
appear
copy?
in the
You
00:
00:
00:
00:
00:

#:10012
30
I certainly did do a transcription
A.
recording, yes.
earlier of the
00:
00:
Okay.
Q.
4
5
6
7
8
Now, isn't it true, Ms. Wilbur, that a lead sheet
just reflects a simplified,

pattern in a composition?
I think
A.
less fleshed-out version of a chord
00:
00:
Isn't that true?
you know, it's difficult to answer the question.
I mean, deposit copy and lead sheet and sheet music are all
different things.
00:
So can you just clarify for me what you mean
00:
00:
00:
00:
9
10
11
12
by a lead sheet?
What I want to know is isn't it true that you believe that
Q.
a lead sheet simply reflects a simplified, less fleshed-out

version of a chord pattern in a composition.
THE COURT:
13
14
THE WITNESS:
15
Yes.
16
BY MR. BUSCH:
Do you understand
Yes or no?
the question?
00:
00:
00:
00:
00:
I do.
00:
00:
17
18
Q.
And isn't it true, Ms. Wilbur, that a chord notation is
merely representational?
19
MR. MILLER:
20
THE COURT:
Isn't that true?
Objection.
Vague.
sustained.
00:
00:
00:
00:
00
21
22
23
24
25
BY MR. BUSCH:
Q.
Isn't it true that you've stated in the past that chord
notation is merely representational?

THE COURT:
THE WITNESS:
Do you understand the question?

Yes.
00
00
00
00

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31
THE COURT:
You may
THE WITNESS:
00:
answer.
00:
Yes.
00:
BY MR.
And
Q.
BUSCH:
isn't
reasonable
it true,
experts
Ms.
Wilbur,
can disagree
that
it is your
as to how
a chord
opinion
should
that
00:
00:
be
00:
notated?
Isn't
A.
That's
Q.
And
that
true?
00:
8
9
chords
correct.
isn't
it true,
can and
often
Ms.
Wilbur,
do sound
that
similar
differently
or even
00:
notated
identical?
Isn't
00:
00:
10
that
true?
11
A.
Often,
Q.
And
00:
12
13
14
yes.
isn't
transcribed
the
sound
it true,
the
Ms.
Wilbur,
that
in this
Got To Give It Up composition

of Got To Give It Up?
recording
case,
you
first
as it appears
Isn't
that
in
00:
00:
00:
right?
00:
15
16
17
A.
I did.
Q.
And
lead
sheet
isn't
it true,
deposit
Ms.
copy
that
Wilbur,
that
later
you received
you've
been
talking
about
the
here
00:
00:
00:
18
today?
19
A.
Isn't
that
true?
00:
Yes.
MR. MILLER:
20
21
question.
Objection
THE
22
COURT:
Objection
to the
All
form
right.
to lead sheet.
Form
of the
00
of the question.
You need
00:
to define
the term
00
00
23
you're
using.
00
24
25
BY MR.
Q.
BUSCH:
Isn't
it true,
Ms.
Wilbur,
that
later
after
initially
DC

#:10014
32
1
transcribing
recording, you transcribed
the -- that was deposited in the copyright office that we've
been talking about here today?
MR. MILLER:
THE COURT:
6
7
00:
the deposit copy lead sheet from
00:
00:
00:
Same objection to the form.

Why don't you identify it as Exhibit 248.
MR. BUSCH:
00:
Yes.
00:
Isn't it true that you later received Exhibit 248 and
Q.
00:
00:
Is that to which you're referring?
00:
the composition as it appears in the sound
10
compared that transcription
with your earlier transcription
11
the composition
12
Give It Up?
13
A.
I don't believe I ever did do that.
14
Q.
Isn't it true, Ms. Wilbur, that you did that and you
of
as embodied in the sound recording of Got To
00:
00:
00:
Isn't that true?
00:
00:
concluded that the two, the notation from the composition as
00:
15
embodied in the sound recording and the composition as embodied
00:
16
17
in Exhibit 248, were substantially
the same?
Isn't it true, Ms. Wilbur, that that happened?
18
A.
I could have said that, yeah.
20
Q.
It's not that you could have said that, Ms. Wilbur -THE COURT:
24
25
Don't argue with the witness.
What's your next question, please.
22
23
Excuse me.
You actually did say that, didn't you?

THE COURT:
00:
00:
00:
00:
BY MR. BUSCH:
Q.
00:
00:
19
21
00:
Sustained.
Sustained.
00:
00

#:10015
33
00:
BY MR. BUSCH:
Q.
THE COURT:
00:
sustained.
Mr. Busch, don't argue with the witness.
5
6
7
8
9
10
11
12
13
00:
In fact, you said that under oath, didn't you?
If you want
00:
to read from a deposition, do that, please.

MR. BUSCH:
Yes, your Honor.
I'd like to read from
00:
Which deposition?
MR. BUSCH:
Her August deposition.
THE COURT:
Just a moment, please.
of the transcript, please?
00:
Do you have a copy
Yes.
14
taken out of context.
15
explain what she's answering.
I would start it at page 70, line 4, to
Any objection to that?
17
MR. BUSCH:
I need to see page 70, line 4.
20
I don't
00:
00:
00:
Well
MR. MILLER:
00:
00:
believe it's being taken out of context.

THE COURT:
00:
00:
THE COURT:
19
00:
My objection is that it's being
16
18
00:
00:
Thank you.
Any objection to that being read?

MR. MILLER:
00:
00:
page 71, lines 3 through 18 of Ms. Wilbur's deposition.

MR. MILLER:
00:
I'm also not sure it's impeaching her
00:
00:
21
22
23
24
25
last answer.
Just read page 70, line
00
4, through page 71, line 18, excluding the objection on lines 12
00
THE COURT:
and 13 on page 71.

MR. BUSCH:
That's all right.
It's overruled.
Let's put it on the screen.
00
00

#:10016
34
Q.
00:
Beginning at page 70, line 4.

Q. Okay.
What transcriptions
did you choose to
00:
00:
include in the declaration?
A. There were transcriptions
4
5
6
7
melodies
side-by-side
of, you know, the
along with prior art examples to
illustrate points that I was trying to make.

were -- you know, basically
You know, there
comparing lead sheets with -- with
00:
00:
00:
00:
00:
chords, melodies,
lyrics.
00:
Q. What lead sheets?
A. In the declaration,
10
there were snippets that were
00:
00:
11
12
13
14
15
16
17
18
19
20
used.
00:
Q. Snippets of what?
A. Of the things and actually they were --
00:
Q. Of the things?
A.
in response to the Finell report.
Q. The things -- what do you mean by
'the things'?
00:
00:
00:
There were snippets of the things?

A. There were snippets of music that I compared.
00:
Q. Okay.
00:
What I want to know is:
Did you include transcriptions,
your transcriptions
21
from the recordings of 'Got To Give It Up' versus your
22
transcription
23
00:
of the recordings of 'Blurred Lines' or did you
include transcriptions
from the lead sheet that was deposited
24
with the copyright office of 'Got To Give It Up' in your
25
affidavit, declaration?
00:
00:
00
00
00
00

#:10017
35
00:
Q. Go ahead.
A. I used the ones that I had already created.
turns out that they were substantially
It
the same as the copyright
00:
00:
00:
deposits.
All right.
5
6
So I want to step back now, having gone
through that, Ms. Wilbur, and just get a little background
on
00:
00:
00:
you.
You have never been employed as a music transcriber,
00:
00:
have you?
10
A.
I actually have.
11
Q.
You have?
12
A.
Uh-huh.
13
Q.
Okay.
00:
00:
00:
00:
Your Honor, I would like to now read from Ms. Wilbur's
14
15
deposition,
sworn deposition
testimony, page 76, lines 4 through
00:
00:
00:
16
6.
THE COURT:
Is this the same date?
00:
17
MR. BUSCH:
Yes.
00:
18
19
First deposition, your Honor.
00:
August deposition.
00:
20
THE COURT:
21
MR. MILLER:
THE COURT:
You may read that.
00:
22
MR. BUSCH:
Thank you.
00
23
24
No, your Honor.
(Whereupon, the video was played for the jury.)
00:
00
00
25
BY MR. BUSCH:

#:10018
36
And you've never been employed as a copyist either, have
Q.
00:
00:
you?
A.
00:
No, I have not.

I have been hired as a transcriber .
.4
THE COURT:
00:
00:
00:
6
7
BY MR. BUSCH:
And I want to go back to your education that you have had,
Q.
00:
00:
your college and your Master's degree.
Isn't it true, Ms. Wilbur, that you took no courses
00:
00:
10
during your Master's work in popular music?

00:
11
12
13
A.
They weren't being offered.
Q.
So the answer to my question is no, you never took any
courses since they weren't being offered; correct?
00:
00:
00:
14
A.
That's correct.
THE COURT:
15
16
Could you speak into the microphone,
please, and, Mr. Busch, could you slow down, please.
00:
00:
00:
17
MR. BUSCH:
Yes.
18
THE COURT:
Thank you.
00:
19
Q.
And you did not take any classes in urban music either, did
00:
00:
20
21
22
you?
A.
No.
Unfortunately,
I was too early for those courses.
Q.
And you didn't take any courses in musical analysis of R&B
00
00
00
23
24
25
or soul; isn't that right?

A.
I've done a lot of that, but I did not take courses, no.
Q.
And your specialty, your thesis was in the Pawnee Indians
00
DC

#:10019
37
00:
in Oklahoma;
is that
A.
Correct.
Q.
Now,
right?
00:
as Mr. Miller
the advertising
5
6
7
8
A.
I have
Q.
And
listened
aired
done
it's
for Foote,
firm
you,
of Foote,
to all the music
in an effort
for
00:
& Belding.
that
while
a program
advertisements
litigation;
00:
00:
Cone
Ms. Wilbur,
in the
you worked
& Belding?
you designed
to avoid
it true
for Foote,
is it not,
& Belding,
isn't
Cone
a lot of work
true,
Cone
asked
doing
where
before
work
00:
00:
you
00:
they
00:
correct?
00:
10
A.
That's
11
Q.
And
Cone
& Belding,
12
13
correct.
you -- and while
working
you would
to unsuccessfully
license
often
-- doing
deal
a piece
with
work
an agency
of music
00:
for Foote,
that
and then
tried
00:
00:
create
00:
14
15
16
17
18
something
that
You
know,
A.
but
Q.
that
again,
certainly
Okay.
to try
sounded
And
like
you have
was
to be more
sometimes
you agree,
to create
it; correct?
something
specific
the case,
Ms. Wilbur,
like
than
00:
that,
00:
yes.
that
it would
an existing
piece
be foolish
00:
00:
of music
00:
19
without
permission;
isn't
20
MR. MILLER:
21
THE COURT:
that
right?
00:
Objection.
00
sustained.
00
22
23
24
25
BY MR.
Q.
BUSCH:
If an advertiser
I'm talking
might
use
now about
a temp
track
wanted
your
to recreate
work
at Foote,
as a reference
a song
Cone
track;
and this
& Belding
isn't
that
00
is
they
right?
00
00

#:10020
38
MR. MILLER:
THE COURT:
Objection.
THE WITNESS:
THE COURT:
THE WITNESS:
00:
00:
Overruled.
Do you understand
Relevance.
00:
the question?
00:
Yes.
00:
You may answer.
00:
Yes.
00:
BY MR. BUSCH:
8
9
10
Q.
And temp tracks are music tracks that are temporarily used
in a film or TV spot as a placeholder
for a similar piece of
music which will be used in the final version; isn't that
00:
00:
00:
00:
11
12
correct?
A.
It doesn't have to be a similar piece of music, but it is
00:
00:
13
14
15
16
used as a placeholder
Q.
Okay.
for sure.
And in your experience, you found temp tracks to be
problematic because you said that way too often, the client
falls in love with the temp track and then later has a problem
00:
00:
00:
00:
17
getting away from it; isn't that right?
18
A.
That's often true.
Q.
And if a piece of music took too much of the fabric of
00:
19
20
21
00:
another song where you could not separate copied elements from
00
original elements, you, in some cases, tell the advertiser to
00
00
22
23
start allover;
isn't that right?
MR. MILLER:
Objection.
403.
Going beyond
00
00
24
25
musicology.
THE COURT:
I understand.
Just a minute.
00

#:10021
39
1
You may answer this and then let's move.
00:
THE WITNESS:
00:
Can you ask the question, again.
00:
(Record Read.)
THE COURT:
THE WITNESS:
5
6
points specifically
00:

It's a little convoluted, but if it
to another piece, yes, I would say that they
00:
00:
00:
should start over.

00:
8
9
10
11
BY MR. BUSCH:
In fact, your criteria, wasn't it, Ms. Wilbur, that
Q.
00:
anything they could used could not point directly to an artist,
00:
a recording, a song, a group or an arrangement;
00:
isn't that
00:
12
right?
13
MR. MILLER:
14
THE COURT:
15
MR. MILLER:
THE COURT:
16
17
as stated.
Objection.
00:
403.
00:
Pardon?
00:
403.
Restate -- I don't understand
the question
The foundation for the question isn't established.
00:
00:
00:
18
19
20
21
BY MR. BUSCH:
Q.
In doing work for Foote, Cone & Belding, isn't it true that
00:
you told them your criteria was that anything that they used
00:
could not point to an artist, a recording, a song, a group or an
00
00
22
arrangement;
isn't that right?
23
A.
This is because
24
Q.
Yes
00
00
25
or no.
THE COURT:
Excuse me.
Don't interrupt the witness.
00

#:10022
40
1
And after you have answered, you may explain.

THE WITNESS:
Yes.
are extremely vulnerable
THE COURT:
Go ahead.
And that is because advertisers
Stop there.
Thank you.
00:
00:
Next question, please.
00:
00:
to legal action.
All right.
00:
00:
6
7
8
9
BY MR. BUSCH:
Now, Ms. Wilbur, when you were deposed in this case in
Q.
00:
August of 2014 and again in December of 2014, you were asked
00:
about the cases in which you have previously
00:
served as an
00:
10
expert; isn't that right?
11
A.
I was.
12
Q.
Isn't it true, Ms. Wilbur, that you failed to name two of
13
the cases on which you worked, Berlent --
00:
THE COURT:
14
Sustained, improper.
00:
00:
It's improper
00:
00:
15
impeachment.
00:
16
BY MR. BUSCH:
Q.
Did you identify all of the cases that you worked on?
00:
A.
There were three that I did not remember and they were not
00:
18
19
listed.
17
00:
20
Q.
And one of them was Berlent vs. Focus Features; isn't that
00:
00:
21
right?
22
A.
Correct.
23
Q.
And one of them was smithKline Beecham vs. Watson
24
Pharmaceuticals;
25
A.
00:
correct?
00:
00
00
Correct.

#:10023
41
And
in both
of those
Q.
party
bringing
their
property,
A.
The
-- the
literally
taken
the
-- the Nicorette
was
definitely
Q.
cases
Okay.
the
cases,
infringement
intellectual
first
on the
isn't
case
recorded
Beecham
one.
side
infringement
that
where
00:
of
right?
00:
they
00:
piece.
The
00:
of the
had
So that
other
one,
00:
was
yes,
00:
00:
side.
So in both
you were
on the
alleging
a sample
of the
Klein
on that
claim
property;
one was
30 seconds
you were
-- the
side
answer
is in both
00:
infringement;
00:
to my question
of the person
alleging
00:
10
correct?
11
A.
Correct.
12
Q.
Now,
00:
did
employed
you
13
you
14
the plaintiff
15
parties?
16
A.
Absolutely
17
Q.
Okay.
leave
those
a different
than
cases
off of your
methodology
you are doing
in those
here
resume
cases
on behalf
00:
because
on behalf
of
00:
00:
of the Thicke
00:
00:
not.
00:
18
19
THE COURT:
Excuse
Ms. Wilbur,
just
00:
me.
respond,
please,
without
00:
argument.
00:
20
Thank
you.
00:
21
BY MR.
BUSCH:
Because
22
Q.
23
depending
24
appropriate;
25
A.
you agree
on which
side
that
using
of the
a different
case
you're
00:
methodology
on would
00:
not be
00:
I give
right?
an opinion
based
on my
opinion.
It has
nothing
to
00

#:10024
42
00:
do with what side it is.
Okay.
Q.
be inappropriate
for you to use a different methodology
00:
when
you're on the side of the person bringing the infringement
00:
So the answer to my question is you agree it would
claim
00:
versus when you're on the side of the defendant; correct?
00:
00:
MR. MILLER:
Argumentive.
00:
THE COURT:
Overruled.
You may answer.
THE WITNESS:
00:
I use the same methodology
00:
no matter
00:
10
what the side is.

00:
11
BY MR. BUSCH:
00:
12
Q.
Would you please, ma'am -- my question is -THE COURT:
13
There has been a response to the question.
00:
00:
14
Please move on.
15
BY MR. BUSCH:
00:
16
17
Q.
00:
And so you never do employ a different methodology
00:
depending on what side of the case you're on; right?
00:
18
19
20
21
A.
Never.
Q.
Ms. Wilbur, isn't it true that you believe that it is
inappropriate
00:
00
to transcribe songs in a way that overemphasizes
minor performance
elements in the songs such as pauses or rests
00
00
22
23
24
25
to overstate differences?
A.
I didn't follow you.
Q.
Isn't it true that you believe that it is inappropriate
transcribe
00
Can you just ask that again.

to
songs in a way that overemphasizes minor performance
oc
oc

#:10025
43
elements in the songs, such as pauses, in order to overstate
00:
00:
differences?
THE COURT:
00:
Do you understand the --
00:
BY MR. BUSCH:
00:
Do you think it's wrong to do that?
Q.
THE COURT:
Do you understand that question?
00:
00:
THE WITNESS:
THE COURT:
Yeah.
You can answer the question.
THE WITNESS:
I think so.
I think I would agree with
00:
00:
9
00:
10
that.
00:
11
BY MR. BUSCH:
00:
12
Okay.
Q.
And would you also agree that you believe it is
13
14
inappropriate
to focus on less significant or immaterial
00:
00:
00:
15
differences between songs?

THE COURT:
16
THE WITNESS:
17

I generally don't focus on differences.
00:
00:
00:
18
I focus on the similarities.

00:
19
20
21
BY MR. BUSCH:
Q.
So the answer to my question is you believe it's
inappropriate
to focus on less significant or immaterial
00
01
01
22
23
differences between songs; correct?

A.
It really depends on the circumstance.
You know, each
01
01
24
25
situation is very, very different.

Q.
Okay.
In the Bourne case, you gave an affidavit, did you
OJ

#:10026
44
01:
not?
A.
I did.
Q.
And in that affidavit, did you criticize the opposing
01:
expert for focusing on less significant or immaterial
differences between the songs?
6
7
8
9
01:
01:
01:
That was a fair use case really, about satire and parody,
A.
01:
and it was a question of how much of the piece was supposed to
01:
be used, so I -- you know, you are taking it out of context.
01:
Q.
Did you criticize the opposing expert for doing that in
01:
01:
10
that case, yes or no?
11
A.
Yes.
Q.
And would you agree that it's inappropriate
01:
12
13
differences
in compositions
14
appear more different than they really are?
15
that's inappropriate?
16
A.
It depends on the circumstance.
17
Q.
Can you tell me what circumstance
to emphasize
01:
01:
in an effort to make the songs

Would you agree
01:
01:
18
emphasize differences
01:
01:
it would be okay to
in an effort to make the songs appear more
01:
01:
19
20
21
22
23
24
25
different than they are?

MR. MILLER:
THE COURT:
THE WITNESS:
Vague.
01:
Incomplete hypothetical.
01:

If you're referring to the Bourne
case
01:
and the fact that they put an entirely different piece in the
01:
middle of the song, that -- that would be -- then in that case,
01
I would say that's correct.
01

#:10027
45
01:
BY MR. BUSCH:
And you examined -- speaking of the Bourne
Q.
case, you
examined the number of chords the songs in Bourne
had in common;
01:
01:
01:
correct?
A.
I did.
Q.
And you believed that -- you concluded in that case that
01:
the two songs had 25 out of 65 chords or 38 percent in common;
01:
01:
01:
8
9
10
11
correct?
Were the same?
A.
If you say so.
I'd have to review my report.
Q.
And you found that the 25 out of 65 chords made them
extremely similar in Bourne;
isn't that right?
01:
01:
01:
01:
12
13
14
A.
If you say so.
Q.
And in Bourne,
is it true that you found that there were
similarity in chords where they shared three of the same chord
01:
01:
01:
15
16
17
tones?
A.
Isn't that right?
That is correct.
This was a fair use case and the question
is really in a case like that, how much can you actually take.
18
19
MR. BUSCH:
Move to strike, your Honor.
THE COURT:
Next question.
01:
01:
01:
01:
01:
20
21
22
23
BY MR. BUSCH:
Q.
And you also found, in connection with your finding that
the two pieces were extremely similar, that other chords shared
two of the same chord tones in common; isn't that right?
01
01
01
01
24
25
A.
Yes.
Q.
In this case, you have stated, agreed, that the hooks in
01

#:10028
46
Blurred Lines and Got To Give It Up share three out of the same
01:
four notes or tones in common; isn't that right?
2
3
A. .
Totally different
Q.
Can you answer the question, ma'am?

THE COURT:
you make it to me.
01:
and out of context.
Excuse me.
01:
If you have a motion to make,
Do not argue with the witness.
And I
MR. BUSCH:
01:
01:
01:
shouldn't have to remind you of this.
01:
I move to strike that as nonresponsive,
01:
01:
your Honor.
THE COURT:
10
All right.
Restate the question, please.
01:
01:
11
12
13
14
BY MR. BUSCH:
Isn't it true, Ms. Wilbur, that in this case, you have
Q.
agreed that the hook of Blurred Lines and Got To Give It Up have
THE COURT:
16
THE WITNESS:
17
THE COURT:
THE WITNESS:
18
19
and the placement
Do you understand
01:
01:
three out of four notes in common?
15
01:
the question?
01:
01:
I do.
01:
You may answer.

The tones are the same.
The durations
01:
01:
and the measures are not.
01:
20
21
22
BY MR. BUSCH:
Q.
And isn't it true that you agree that in the Bourne case,
the chords did not have to be identical for you to find the two
23
songs to be extremely similar?
24
A.
25
Excuse me, Ms. Wilbur.
01:
01
You know, you can't combine melodies and chords.

THE COURT:
01:
If you understand
01
01

#:10029
47
1
the question, please respond.
After -- after Mr. Busch has
finished, Mr. Miller can ask you other questions.
01:
(Record Read.)
THE COURT:
5
6
THE WITNESS:
THE COURT:
THE WITNESS:
Do you understand
01:
01:
Read the question, please.
01:
the question?
01:
01:
Yes.
01:
You may answer.

Yes, because the melodies were the same.
01:
01:
10
11
12
BY MR. BUSCH:
And you keep saying the Bourne case was a fair use case.
Q.
But isn't it true that fair use was being used as a defense to a
copyright infringement
THE COURT:
13
case in that Bourne matter?
01:
01:
01:
01:
sustained.
01:
14
BY MR. BUSCH:
Wasn't the allegation copyright infringement by the
15
Q.
16
plaintiff
17
A.
It probably was.
18
Q.
And in Bourne, you found that chords that only had three
01:
01:
19
in Bourne?
01:
common tones or notes in common were similar; isn't that right?
20
MR. MILLER:
21
THE COURT:
01:
01:
01:
Asked and answered.
01:
sustained.
01:
22
23
BY MR. BUSCH:
Q.
But you've made it a point, have you not, Ms. Wilbur, to
24
distinguish
those same types of similarities
25
Blurred Lines and Got To Give It Up?
of chords in
01
01
01

#:10030
48
I don't
A.
the
colors
chord
see how
it's
on my charts
are
related.
MR.
relevant.
very
clear.
One has
BUSCH:
Move
They're
four
using
The A7th
notes,
to strike
-- I've made
chord
one has
and the A
01:
01:
01:
three.
01:
as nonresponsive,
01:
your
Honor.
THE COURT:
relevant,
Wilbur,
and
10
three
chord
11
A.
You're
Q.
I'm talking
12
13
14
recording,
and
keyboard
tones
in common;
talking
the
about
about
keyboard
the
the
of it will
an A7 chord
isn't
the
rest
in Blurred Lines uses
Got To Give It Up uses
triad
the
I don't see how it's
to strike
they're using, and then
Ms.
Q.
I'm going
that
now;
an A7 chord
and those
have
which
01:
01:
01:
01:
01:
right?
as embodied
Got To Give It Up uses
an A major
right?
recording
composition
stand.
01:
an A major
have
01:
in the
three
triad
chord
01:
01:
01:
15
tones
in common?
MR. MILLER:
16
THE
17
COURT:
I'm going
Sustained
01:
to object.
01:
as framed.
01:
18
19
BY MR.
Q.
BUSCH:
Okay.
Is it true
that
the keyboard
01:
01:
20
an A major
21
A.
It's
Q.
In Blurred Lines, an A major
22
triad?
not part
of the
composition,
triad
01:
so, no.
is not part
of the
01:
01
23
24
composition?
A.
You're
asking
about
the
keyboard.
The
keyboard
is not part
01
01
25
of the
composition.

#:10031
49
Assume
Q.
Ms.
for purposes
-- we have
a dispute
about
01:
that,
01:
Wilbur.
What
I'm asking
Blurred Lines uses
A.
In the recording.
Q.
Okay.
an A7 chord?
you
is is it true
an A major
that
the
keyboard
in
01:
01:
triad?
01:
And
isn't
it true
in Got To Give It Up, there's
that
01:
01:
THE COURT:
8
9
Are
you -- be specific
as to what
01:
you're
01:
to as to Got To Give It Up.
referring
01:
10
11
BY MR.
BUSCH:
In Got To Give It Up, does
Q.
THE COURT:
12
13
something
else?
MR.
14
15
whether
it's
18
Restate
BUSCH:
there
ambiguous.
01:
--
referring
to the deposit
your
question,
please.
Honor,
we have
copy
or
a dispute
01:
about
01:
Well,
but
make
Please
01:
01:
or not.
You didn't
one or the other.
composition
you
Your
THE COURT:
16
17
Are
the
the question
clear
make
whether
that
you asked
you were
01:
was
referring
to
01:
01:
clear.
01:
19
BY MR.
BUSCH:
Got To Give It Up musical
20
Q.
The
21
does
it not?
22
A.
Yes,
Q.
Okay.
composition
uses
an A7 chord,
01:
01:
01:
23
24
chord
25
A.
it does.
tones
And
the A major
in common;
isn't
triad
that
and the A7 chord

right?
have
three
01:
01:
01
That's
correct.

#:10032
50
three
in the Bourne case,
Whereas
Q.
tones
in common
was
you
evidence
said
that
a chord
chord
tones
being
in common
THE COURT:
Okay.
showed
403,
differences,
it's
01:
in Blurred
of similarity,
Lines and Got To Give It Up, you said that those
01:
having
same
didn't
cumulative.
01:
three
01:
you?
Let's
01:
move
01:
on, please.
01:
BY MR.
BUSCH:
In Blurred Lines, the
Q.
three
note
triad
is A, C sharp,
01:
E;
01:
correct?
01:
10
A.
In the
recording.
11
Q.
Okay.
And
12
sharp,
in Got To Give It Up, the A7 chord
01:
is A, C
01:
E, G; correct?
MR. MILLER:
13
Objection.
Vague
as to what
01:
he's
01:
14
referring.
THE COURT:
15
01:
sustained.
01:
16
17
18
19
20
BY MR.
Q.
BUSCH:
In the
composition,
It Up, the A7 chord,

A.
That's
-- those
Q.
Okay.
And
21
7, is purely
22
A.
I wouldn't
Q.
Okay.
23
25
the eight
the notes
additional
call
Now,
Wilbur,
note
to move
you have
constellations,
of Got To Give
01:
in an A7 chord.
heard
01:
01:
E, G; correct?
in the A7 chord,
the
01:
01:
is it not?
it decorative,
I want
composition
are A, C sharp,
are the notes
decorative,
Ms.
24
the
the musical
01:
no.
on to something
reviewed
as she called
Ms.
Finell's
them,
01
else.
report
of similarities
and
01
01

#:10033
51
1
01:
that she finds between Got To Give It Up and Blurred Lines;
01:
correct?
Those constellations
A.
01:
-- I've reviewed her constellations
01:
but they refer to the recording.
MR. MILLER:
MR. BUSCH:
MR. MILLER:
THE COURT:
01:
I was going to object on that ground.
01:
Move to strike, your Honor, that comment.
01:
He's referring to
Excuse me.
Excuse me.
I'm not going
01:
am going to strike the question and answer because as framed,
01:
the question doesn't distinguish between the -- again, between
01:
the deposit copy and the commercial recording or the recording
01:
11
12
that's been made for this case.
10
01:
01:
13
MR. BUSCH:
Right.
14
THE COURT:
So you need to do that.
01:
01:
15
16
BY MR. BUSCH:
Ms. Finell has identified eight similarities
Q.
17
are in the constellation
18
stated in testimony those similarities
19
are in the deposit copy lead sheet; correct?

MR. MILLER:
20
of similarities
Objection.
that she says
for which she has
-- those constellations
Vague as to what chord he's
01:
01:
01:
01:
01:
01:
21
referring to.
THE COURT:
22
Yes, sustained.
01:
01:
23
BY MR. BUSCH:
24
Q.
You were here for Ms. Finell's testimony; correct?
25
A.
No, I was not.
01
01

#:10034
52
1
Q.
You read her testimony?
A.
I read part of it, yes.
Q.
You read the transcript?
01:
01:
That's what Mr. Miller asked you
01:
01:
during his direct examination.
A.
Yes.
Q.
And you heard Ms. Finell explain why each of those
01:
similarities that she's found is in the deposit copy of the lead
01:
01:
sheet filed in the copyright office.
01:
You read that; correct?
01:
01:
10
A.
I did.
11
Q.
Okay.
12
A.
1--
01:
Now, with respect to --
01:
THE COURT:
13
01:
01:
14
15
16
17
18
19
BY MR. BUSCH:
With respect to those constellation
Q.
those similarities,
-- with respect to
I should say, you have stated that they
01:
01:
reflect -- I want to get this right -- simply a few of the basic
01:
building blocks of musical composition that are present, if not
01:
inevitable, in many songs; isn't that right?
20
MR. MILLER:
21
THE COURT:
01:
Objection.
Sustained.
01:
sustained.
01:
01:
22
23
24
25
BY MR. BUSCH:
Do you believe that those similarities that she's pointed
01
out to represent a few of the basic building blocks of musical
01
compositions that are present,
01
Q.
if not inevitable, in many songs?

#:10035
53
THE
1
you're
COURT:
talking
sustained.
-- to what
your
You need
question
to identify
01:
what
01:
refers.
01:
BY MR.
BUSCH:
01:
Have
Q.
you
stated
THE
COURT:
Because
you need
01:
to be specific.
01:
6
7
8
9
10
BY MR.
BUSCH:
Have
Q.
case,
you
stated
Ms. Wilbur,
identified
are
in your
that
the
simply
musical
composition
songs?
Have
report
-- have
similarities
that
a few of the basic
that
are present,
you
stated
Ms.
Finell
building
if not
in this
blocks
inevitable,
01:
01:
has
01:
of
in many
01:
01:
11
12
you made
that
statement?
THE
COURT:
Just
a minute.
MR.
MILLER:
My objection
in trial
and not --
13
01:
is it should
be related
to
01:
01:
14
what
she said
THE
15
No.
THE WITNESS:
16
17
COURT:
eight
or whatever
01:
Overruled.
Can
number
you name
so that
the
I can
constellation,
respond
to each
the
one of
01:
01:
01:
18
them?
01:
19
BY MR.
BUSCH:
Q.
Do you believe
21
ones
of the
22
A.
Well,
20
there's
a different
answer
for different
01:
01:
constellation?
01
some
of them
THE COURT:
23
Why
24
don't
--
Excuse
you
me,
excuse
identify
these.
me,
excuse
It would
me.
just
01
01
01
25
streamline
this,
please.

#:10036
54
01:
BY MR. BUSCH:
Is the bass and keyboard a building block of musical
Q.
compositions
that are present, if not inevitable, in many songs?
01:
01:
01:
A.
No.
Q.
Okay.
being similar between Blurred Lines and Got To Give It Up part
01:
of a basic building block of musical composition that's present,
01:
if not inevitable,
01:
A.
They're simply different.
10
Q.
That's not my question.
Are the vocal melodies that Ms. Finell identifies as
in many songs?
01:
01:
01:
THE COURT:
I don't understand
12
MR. BUSCH:
01:
13
THE COURT:
01:
14
don't understand
--
01:
11
your question.
BY MR. BUSCH:
You know that Ms. Finell has identified that the signature
01:
01:
15
Q.
16
phrases between Got To Give It Up and Blurred Lines are very
17
similar; correct?
18
A.
That is her opinion.
19
Q.
Okay.
20
vocal melody that relates to the hooks of those songs are very
21
similar; correct?
22
A.
That is her opinion.
23
Q.
Okay.
24
those vocal melodies, basic building blocks of musical
01:
25
composition that are present, if not inevitable, in many songs?
01:
And you know that Ms. Finell has identified that the
with respect to those two items, are those melodies,
01:
01:
01:
01:
01:
01:
01:
01:

#:10037
55
1
MR. MILLER:
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
8
9
10
11
Objection.
It's vague, your Honor.
01:
the question?
01:
Do you understand
It's not comprehensible

Okay.
at all to me.
01:
01:
Building
01:
01:
BY MR. BUSCH:
When you said that in this case that the similarities
Q.
01:
01:
represent a few of the basic building blocks of musical
01:
composition
01:
that are present,
if not inevitable, in many songs,
were you referring to the vocal melodies
of the hook or the
01:
01:
12
signature phrase?
13
A.
No.
14
Q.
Okay.
15
A.
But they're different.
16
Q.
What similarity were you referring to?
17
A.
18
I would tell you.
19
Q.
20
and it wasn't the vocal melodies,
01:
01:
You'd have to give me the constellation
MR. MILLER:
22
THE COURT:
24
25
01:
of eight things and
Objection,
what was it?

argumentive.
Sustained.
BY MR. BUSCH:
Q.
01:
01:
Well, if it wasn't the bass line and it wasn't the keyboard
21
23
01:
Can you identify one of the similarities that you believe
represent a few of the basic building blocks of musical
01 :
01:
01:
01:
01
01
01

#:10038
56
composition
01:
if not inevitable, in many songs?
I don't know what it's referring to.
A.
that are present,
I'm sorry.
01:
I am just
01:
completely baffled.
01:
Have you dismissed in this case any similarity between Got
Q.
01:
To Give It Up and Blurred Lines that Ms. Finell has found as
01:
simply basic building blocks?
A.
Yes.
Q.
Isn't it true, though, Ms. Wilbur, that you believe -- let
01:
8
9
10
11
01:
me get this right -- excuse me.
That you believe it is
inappropriate
to reduce similar elements to
for a musicologist
01:
01:
common musical choices because all music contains common musical
01:
01:
12
choices?
13
A.
THE COURT:
14
01:
(Record Read.)
THE WITNESS:
16
It depends on what those choices are.
THE COURT:
Excuse me.
If you don't understand
THE WITNESS:
THE COURT:
21
01:
Okay.
Otherwise,
01:
01:
question, please let me know.
20
01:
01:
didn't really understand what you're asking.
18
19
01:
Read the question.
15
17
01:
SO your question is
it will -- thank you.
01:
01
22
23
BY MR. BUSCH:
Q.
I'm going to refer you now to your affidavit in the Berlent
01
01
24
25
case, Ms. wilbur.

THE COURT:
Is that an exhibit?
01

#:10039
57
1
2
3
Yes, it is.
THE COURT:
What is the exhibit, please?
01:
MR. BUSCH:
It is Exhibit Number 1721.
01:
MR. MILLER:
01:
MR. BUSCH:
Your Honor, I would object to it being
01:
01:
published.
THE COURT:
6
7
Don't publish it.
Not yet.
to review that, it is in the notebook No. 17.
If you wish
Volume 17.
01:
01:
01:
Volume 17.
THE WITNESS:
THE COURT:
10
THE WITNESS:
11
THE COURT:
12
01:
What number?
1721.
Do you have the book?
Yes.
01:
01:
I have it.
Would it be easier if we moved the
01:
01:
13
14
15
16
17
18
19
keyboard?
THE WITNESS:
THE COURT:
It would be easier, yes.

And Mr. Busch, when you get to a break
01:
01:
point, let me know, please.

MR. BUSCH:
Now is as good as any, your Honor.
01:
THE COURT:
Let's take our second break here, ladies
01:
and gentlemen.
We will resume in 20 minutes.
Thank you.
21
THE COURT:
22
You may step down, Ms. wilbur.
23
24
THE COURT:
01:
01:
(Jury Out.)
20
25
01:
01:
Please be seated.
01
(Recess taken.)
01
(Jury In)
01
Please be seated.
All eight jurors are
01

#:10040
58
1
01:
back.
And, Ms. Wilbur, would you please restate your name.
01:
THE WITNESS:
01:
THE COURT:
Sandra Wilbur.
And do you understand that you remain
01:
under oath?
01:
THE WITNESS:
THE COURT:
Please proceed, Mr. Busch.
01:
I do.
01:
Okay.
01:
01:
BY MR. BUSCH:
Ms. Wilbur, is it correct that in the deposit copy lead
01:
10
Q.
11
sheet for Got to Give it Up, there is a pattern relationship
01:
12
between the E7 chord and the A7 chord where they run together in
01:
13
the deposit copy?
14
MR. MILLER:
15
THE COURT:
16
THE WITNESS:
17
01:
Objection, vague.
01:
01:
No.
01:
BY MR. BUSCH:
Do you know whether in the deposit copy the E7 chord and
18
Q.
19
the A7 chord have a relationship
20
without any intervening chords throughout the deposit copy lead
21
sheet?
22
A.
in which they are together
01:
01:
01:
01:
Let me just think about that a second.

I don't believe that's true, but I'd have to look at
23
01:
24
the -- at the deposit copy again.
25
do that.
Maybe if you can just let me
01:
01:
01:
01:

#:10041
59
01:
Q.
Sure.
A.
Yes.
There is an E7 followed by an A7 in the eight chords
01:
01:
that are together.
Q.
Okay.
And in Blurred Lines, is the same true with respect
01:
to the A and E chords?
A.
There's a completely
Q.
Is -- please -- move to strike, your Honor.

THE COURT:
01:
01:
different pattern.
Well, I don't understand
-- restate the
01:
01:
01:
question, please.
01:
10
11
BY MR. BUSCH:
Q.
In Blurred Lines, are the two alternating
12
Lines A and E chords?
13
A.
Yes.
14
Q.
Okay.
chords of Blurred
01:
01:
01:
Now, Ms. Wilbur, before the break, we were looking
15
at Exhibit No. 1721, which is your affidavit in Berlent vs.
16
Focus Features.
01:
01:
01:
Do you have that in front of you?
17
01:
01:
18
A.
I do.
19
Q.
And that is your signature on the first page?
20
A.
It is.
21
Q.
So this is an affidavit that you gave under oath?
22
A.
Yes.
01:
01:
01:
01:
23
24
25
THE COURT:
THE WITNESS:
THE COURT:
It's a declaration.
It's -- I don't actually
Excuse me.
01
01
01

#:10042
60
1
THE WITNESS:
THE
01:
sorry.
01:
Go ahead.
COURT:
01:
BY MR.
Do you
Q.
BUSCH:
see where
it says
under penalty of perjury
above
your
signature
I declare
that the foregoing is true and correct?
01:
01:
01:
6
7
A.
I do.
Q.
Okay.
Would
you turn
to paragraph
5 of your
declaration,
01:
01:
please.
Do you
9
10
see where
at paragraph
5 in your
THE COURT:
Just
have
the witness
review
01:
01:
By looking at the musical elements --
declaration:
11
it states
this,
please,
01:
01:
12
and then
pose
your
13
BY MR.
BUSCH:
question.
01:
14
Q.
Okay.
Would
your
declaration.
you please
read
to yourself
paragraph
5 of
01:
01:
15
Yes,
16
you've
read
01:
it?
01:
17
18
19
20
A.
Yep.
Q.
Okay.
matter,
elements
And
you
would
criticized
as independent
MR. MILLER:
21
it be fair
your
to say that
opponent
for
and unrelated
Objection.
in the Berlent
looking
at musical
not
01:
01:
to one another?
It's
01:
01:
impeachment,
01
22
your
Honor.
23
THE COURT:
24
You may
01
Overruled.
01
25
answer.
THE WITNESS:
Yes.
But
the melody
notes
were
the
01

#:10043
61
01:
same.
The harmony was the same.

01:
BY MR. BUSCH:
And you also criticized the expert on the other side of,
Q.
quote, attempting to reduce these elements to common musical
01:
01:
01:
choices; is that right?
A.
I very well might have, yes.
Q.
Well, if you look at paragraph
01:
8
9
10
5 which I just asked you to
01:
01:
read to yourself, you in fact did do that?
01:
I did do that.
A.
Yes.
Q.
Because you said in your own words in this declaration
01:
01:
11
under oath, quote -THE COURT:
12
No.
Ask a question, please.
01:
01:
13
BY MR. BUSCH:
01:
14
Q.
All music
THE COURT:
15
Ask a question, please.
This declaration
01:
01:
16
is not an exhibit.
What's your question, please.
17
01:
01:
18
19
BY MR. BUSCH:
Q.
Is it true that it is your view that, quote, all music
01:
01:
20
contains common musical choices?
21
A.
Yes.
Q.
Okay.
01
22
23
24
25
And isn't it true, Ms. Wilbur, that you believe that
it is the combination of musical elements, some of which may be

common, that can make a musical composition unique?
MR. MILLER:
Objection.
Vague.
01
01
01
01

#:10044
62
1
THE COURT:
THE WITNESS:
THE COURT:
Do you understand
01:
the question?
01:
It's very vague.

All right.
01:
Restate it, please.
01:
BY MR. BUSCH:
Isn't it true, Ms. Wilbur, that you have stated that it is
01:
Q.
the combination
common, that can make a musical composition unique?
A.
melody, harmony, 3-4 time and very slow meter, so I did say
01:
10
that, yes.
01:
11
Q.
12
short phrase can be original; correct?
01:
13
A.
It depends on the situation.
01:
14
Q.
Isn't it true that you found ut-oh to be original
01:
15
expression?
16
A.
No.
17
Q.
It was the vocal melody and rhythm tied to the phrase
18
ut-oh; isn't that right?
Yes.
of musical elements, some of which that can be
and rhythmic similarities
in a
01:
01:
It was not just an ut-oh.
MR. MILLER:
20
THE COURT:
Objection.
01:
01:
Argumentive.
01:
01:
Sustained.
01:
BY MR. BUSCH:
Did you find in another matter that the manner in which the
22
Q.
23
word ut-oh appeared in a musical composition made it original,
24
ma'am?
25
01:
01:
19
21
01:
And I said here the combination of these elements,
And you agree that melodies
01:
01:
01:
01:
MR. MILLER:
Objection.
403, your Honor.
01:

#:10045
63
THE COURT:
No.
You may -- do you understand
2
3
THE WITNESS:
THE COURT:
01:
the question?
01:
Yes.
01:
You may answer.
THE WITNESS:
01:
Overruled.
repeating phrase ut-oh, ut-oh, ut-oh, ut-oh, ut-oh, ut-oh.
01:
It was a very specific rhythm of a

That
01:
01:
was what the phrase was.

01:
8
9
10
11
BY MR. BUSCH:
Q.
And in that matter, you found ut-oh to be original because
of how it was combined with the particular phrasing,

inflection,
rhythm,
and accented tone used in the song's hook; correct?
01:
01:
01:
01:
12
13
14
A.
Correct.
Q.
And in that matter, the other side submitted multiple other
examples of ut-oh being used in other songs; correct?
01:
01:
01:
15
16
17
A.
I don't recall.
Q.
And you dismissed all of those other examples because the
rhythm of the way ut-oh was stated was not the same in -- as in
01:
01:
01:
18
your song; correct?

MR. MILLER:
19
20
21
22
23
Q.
01:
Objection.
THE COURT:
sustained.
MR. BUSCH:
All right.
403.
Let's move on, please.
You agree that musical analysis must focus not only on
constituent elements but how those elements are combined;
01:
01:
01:
01
01
24
correct?
25
A.
01
Correct.

#:10046
64
And you believe that it is the unique combination
Q.
elements, some of which that can be common or generic, that
defines originality;
THE COURT:
THE WITNESS:
I think that's fair to say.
01:
Do you understand
01:
the question?
01:
Yes.
01:
01:
BY MR. BUSCH:
01:
Q.
That is fair to say?
A.
Yeah.
10
Q.
Okay.
11
correct?
12
A.
If you say so.
13
Q.
You don't know what's on your own website?
14
A.
I haven't memorized
01:
In fact, you wrote that statement on your website;
01:
01:
01:
it, no.
Sustained.
01:
sustained.
01:
BY MR. BUSCH:
Q.
01:
01 :
THE COURT:
15
17
01:
correct?
16
01:
of
01:
And isn't it true, Ms. Wilbur, that you believe it is
essential to recognize that musical originality often is borne
01:
18
of the combination of elements which, although individually
01:
19
20
new, combine in a unique fashion; isn't that right?
21
A.
That's correct.
22
Q.
And you also agree that composers and songwriters regularly
create highly original material by combining in new ways
01:
23
melodies, harmonies and rhythm that individually are common;
01:
24
25
correct?
not
01:
01:
01:
01:

#:10047
65
1
01:
A.
Or have been used before, yes.
Q.
And you also agree, Ms. Wilbur, that a thorough comparison
of two or more pieces of music must examine all pertinent music
problematic
01:
similarities between the works; correct?
That was designed specifically
A.
for advertising
01:
01:
and vocal elements in order to determine if there are
01:
agencies,
01:
01:
yes.
Q.
It's on your website; right?
A.
Probably, yeah.
Q.
And your website does not include any qualifications
01:
01:
10
or
01:
11
limitations on that statement, does it?
12
A.
I don't -- I don't recall.
Q.
It doesn't say this statement only applies to advertising
13
01:
01:
01:
01:
14
agencies; correct?
THE COURT:
15
sustained.
It's hearsay.
Next question,
01:
01:
16
please.
01:
17
18
19
20
21
22
BY MR. BUSCH:
Q.
So you agree that in order to do a full comparison,
not appropriate to do a microscopic
it is
examination but rather to
look at the entire work or the work in totality; correct?
01:
01:
01:
A.
I -- I generally go from the general down to the specific.
01
Q.
So the answer to my question is yes, you agree with that?
01
A.
Yes.
Q.
Okay.
01
23
24
25
And with respect to your examination
in this matter,
your examination of Got to Give it Up and Blurred Lines, you
01
01

#:10048
66
1
attempted to find prior art; correct?
A.
Yes.
Q.
Okay.
for prior art pieces.
01:
01:
And you actually engaged three other people to look
01:
That's not something you did on your own; isn't that
01:
01:
01:
right?
A.
THE COURT:
8
9
01:
I did it with help, yes.
microphone
Ms. Wilbur, could you speak into the
or just move it closer to you?
Thank you.
01:
01:
01:
10
11
BY MR. BUSCH:
And even with those resources, three people assisting you,
Q.
01:
you did not find any prior art that had all eight of the
01:
12
constellation
01:
13
14
that correct?
of similarities
identified by Ms. Fine11; isn't
01:
THE COURT:
15
sustained.
01:
sustained.
01:
16
17
18
BY MR. BUSCH:
And in doing your prior art, you said that you looked at
Q.
artists like Stevie Wonder and Curtis Mayfield;

MR. MILLER:
19
Objection, your Honor.
this is the prior --
21
THE COURT:
22
Just a minute.
23
All right.
25
Beyond the scope,
sustained.
Please proceed.
BY MR. BUSCH:
Q.
01:
01:
01:
20
24
correct?
01:
Now, Ms. Wilbur, we -- you have created and you've heard
01:
01:
01:
01:
01:

#:10049
67
some examples of other music that you played during Mr. Miller's
01:
01:
examination
of you; correct?
A.
Correct.
Q.
And you had created some mash-ups as part of your report in
01:
01:
01:
this case; correct?
MR. MILLER:
Objection, your Honor.
Objection, that
01:
01:
was --
THE COURT:
8
9
10
sustained.
As with the -- there was some
testimony concerning mash-ups and there was also some limited

testimony on prior art.
So focus your questions on those,
01:
01:
01:
01:
11
please, if you wish to pursue that.

01:
MR. BUSCH:
12
13
14
15
That's fine.
In this case, Ms. Wilbur, you have -- you know that there
Q.
were statements made by Mr. Thicke and Mr. Williams about the
creation of Blurred Lines outside of this case; correct?
16
A.
I learned that much later in the fact.
17
Q.
Okay.
A.
I certainly didn't know anything about that.
Q.
You never heard Mr. Thicke or Mr. Williams ever reference
01:
01:
01:
01:
01:
18
19
20
any song other than Got to Give it Up in any of those
01
01
01
01
21
statements; isn't that right?
22
MR. MILLER:
23
THE COURT:
Irrelevant.
01
0]
sustained.
0:
24
25
BY MR. BUSCH:
Q.
Is it relevant in your analysis what the songwriter was

#:10050
68
01:
trying to accomplish when creating their song?
Absolutely
A.
not.
understand music.
about.
Q.
6
7
01:
I found that a lot of people don't
They don't have any idea what they're talking
01:
01:
I let the music speak for itself.
01:
So you don't think it is relevant at all to your analysis
that Mr. Thicke stated multiple times that he told Mr. Williams
01:
to create a song like Got to Give it Up?
01:
That was not relevant
01:
at all?
THE COURT:
sustained.
Asked and answered.
01:
403.
01:
10
11
BY MR. BUSCH:
Did you review Mr. Williams' deposition
Q.
testimony as part
01:
01:
12
of your analysis?
13
A.
Not as part of my analysis, no.
Q.
So you do not know that Mr. Williams
14
15
16
01:
stated that he
understands when people say the bass lines between Got to Give
THE COURT:
sustained.
Let's move on.
01:
01:
it Up and Blurred Lines sound the same --
17
18
01:
The objection
01:
01:
will be stained to each question in this form.
01:
19
20
21
BY MR. BUSCH:
Q.
01:
Do you know who is credited on the Got to Give it Up
commercially-released
22
MR. MILLER:
23
THE COURT:
01:
album as playing the keyboards?
01
Relevance.
01
sustained.
01
24
25
BY MR. BUSCH:
Q.
Would you agree, Ms. Wilbur, that two similar melodies
can
01

#:10051
69
1
be recognized
in two compared works even if the works' overall
MR. MILLER:
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
8
9
10
11
12
01:
structures are different?
01:
Objection.
Do you understand
01:
01:
the question?
01:
Yes.
01:
You may answer.
01:
Yes.
01:
BY MR. BUSCH:
And would you agree that it is possible to recognize that a
01:
portion of a piece of music like the hook has been taken from an
01:
original song and then embedded into a second song, even if the
01:
hook used had a different rhythmic placement in the second song?
01:
Q.
MR. MILLER:
13
Objection.
It's not extrinsic testimony,
01:
01:
14
your Honor.
THE COURT:
15
Sustained.
01:
As framed.
01:
16
17
BY MR. BUSCH:
Q.
Do you believe it is still the use of -- the compositional
01:
use of an original song by a new song if the hook is taken but
01:
18
given a different rhythmic placement in the second song?
01:
19
20
THE COURT:
21
MR. MILLER:
22
23
24
25
THE COURT:
THE WITNESS:
01:
Do you understand?
01:
Same objection.
01:

It's very incredibly vague.
I mean, it
01:
really depends on the

THE COURT:
01:
Excuse me.
Excuse me.
If you don't
01

#:10052
70
1
understand,
Ms. Wilbur.
Thank you very much,
01:
01:
01:
Restate the question, please, Mr. Busch.
3
4
that's all I need to know.
01:
BY MR. BUSCH:
Okay.
Let me put it this way, Ms. Wilbur.
01:
If you're
Q.
comparing two songs and a certain melodic phrase appears in the
01:
verse in the first song and in the chorus of the second song,
01:
would you still consider that use similar?
01:
MR. MILLER:
10
THE COURT:
11
THE WITNESS:
01:
Vague, your Honor.
Yeah.
I mean, if they were the same, I
01:
MR. BUSCH:
Move to strike the second
01:
THE COURT:
Strike the response to the extent it says
01:
would consider them.
13
14
15
that in this case they are the same -- excuse me.
16
not the same.
19
That they're
opportunity
to ask you further questions.
01:
01:
Thank you.
01:
BY MR. BUSCH:
I want to talk to you about some of the similarities
20
Q.
21
this matter, Ms. Wilbur.
in
23
most important and vital parts of a song; correct?
24
A.
Yes.
25
Q.
And you would agree that while hooks are relatively
01:
02:
You would agree that the hook is generally one of the
22
01:
01:
Pardon me.
Again, Ms. Wilbur, Mr. Miller will have the
17
01:
In this case, they're not the same.
12
18
01:
02:
02:
02:
short
02:

#:10053
71
1
musical
phrases
the most
vital
when
and
taken
out
important
of their
element
musical
of the
context,
song
each
in which
is
02:
02:
it
02:
appears?
A.
Taken
out of its context?
Q.
Would
you agree
A.
I don't
Q.
Okay.
02:
with
know what
that
02:
statement?
you mean
02:
by that.
02:
Burrell case,
In the
you did
an affidavit;
02:
correct?
02:
10
11
12
13
A.
I believe
Q.
Okay.
you must
so.
And
did
emphasize
musical
phrases,
is the most
vital
you
that
when
and
say
in your
while
taken
both
affidavit
hooks
element
case
are relatively
out of their
important
in that
musical
of the
that
song
02:
short
context,
02:
each
in which
it
02:
02:
02:
14
appears?
THE COURT:
15
sustained.
sustain
02:
the objection.
02:
16
17
18
19
20
BY MR.
BUSCH:
In the Burrell case,
Q.
ut-oh, were
their
and
relatively
musical
important
context
elements
MR. MILLER:
21
THE COURT:
22
did you
short
but
musical
that
of the
Same
It's
find
each
songs
that
phrases
the hooks,
when
represented
in which
taken
out
the most
they
02:
the
of
vital
02:
02:
appeared?
02:
objection.
cumulative.
02:
This
has been
covered
02
02
23
already.
24
BY MR.
02
25
Q.
And
BUSCH:
do you agree
that
in Got to Give it Up, the hook
is
02

#:10054
72
02:
keep on dancin'?
A.
Yes.
Q.
Do you agree
A.
I would
Q.
And
02:
of Blurred Lines is take a good girl?
the hook
02:
02:
4
5
say the hook
do each
of these
is good girl.
hooks
appear
several
times
02:
within
02:
their
I don't
A.
respective
songs?
remember
in the deposit
11
how many
I could
certainly
notes
each
or the melisma
repetition
afterward,
and
it's
you
keep on dancin' is
times
look
Good girl is -- is -- if that's
9
10
copy.
exactly
the hook,
know,
on a different
it up and
it changes
chord
02:
see.
those
two
02:
02:
each
as well,
02:
if I am
02:
02:
12
13
not mistaken.
Q.
Isn't
it true
that
it's
take a good girl that's
actually
02:
02:
14
the hook
15
A.
of Blurred Lines?
02:
No.
MR.
16
17
could,
BUSCH:
Ms. Wilbur's
Your
Honor,
deposition
I would
testimony
like
to read,
at page
237,
if I
line
24 to
02:
02:
02:
18
page
238,
line
6.
MR. MILLER:
19
THE COURT:
Is this
Which
the August
date
-- which
02
27th?
transcript
-- to which
02
20
02
21
transcript
are
MR.
22
you referring?
BUSCH:
The
first
one.
The August
02
1st that
02
23
your
Honor
has.
MR. MILLER:
I'm
sorry.
You're
reading
through
what
24
0;
25
line?

#:10055
73
1
2
MR. BUSCH:
Page 237, line 24 to page 238, line 3.
02:
THE COURT:
02:
MR. MILLER:
02:
No objection.
02:
02:
5
6
7
8
BY MR. BUSCH:
Would you agree, Ms. Wilbur, that the -- that take a good
Q.
girl and keep on dancin' used an identical pitch A, scale degree

1, on B2?
11
02:
02:
Let me rephrase this.
Would you agree that those hooks use an identical
10
I'm sorry.
02:
02:
pitch A, scale degree 1 on beat 2, and in Give, it's on the
02:
second half of beat 2, and in Blurred Lines it's on the first
02:
02:
12
half of beat 2?
MR. MILLER:
13
THE COURT:
14
Objection.
Vague and compound.
02:
02:
sustained.
02:
15
BY MR. BUSCH:
Well, I'd like to read Ms. Wilbur's deposition
16
Q.
17
your Honor, at page 243, line 13 to 20.
testimony,
Your Honor, there is nothing to impeach.
02:
02:
02:
18
MR. MILLER:
19
THE COURT:
20
MR. MILLER:
MR. BUSCH:
Page 243, line 13 to line 20.
02:
21
THE COURT:
02:
22
23
MR. MILLER:
24
25
your Honor.
Just a minute.
What's the page?
It's
--
she is not a party witness,
It's not impeachment.
THE COURT:
You may read this.
02:
02:
02:
02
02

#:10056
74
MR. BUSCH:
02:
Thank you.
02:
02:
BY MR. BUSCH:
02:
Ms. Wilbur, do you agree that a backup hook can be
Q.
expressed in a unique way?
A.
asking a general question?
Q.
02:
I don't believe that's part of the deposit copy.
THE COURT:
10
02:
02:
02:
We have a dispute about that, Ms. Wilbur.

Move to strike that.
Are you
02:
Answer, your Honor
02:
02:
11
BY MR. BUSCH:
Do you believe that a backup hook can be expressed in a
12
Q.
13
unique way?
02:
02:
14
MR. MILLER:
15
THE COURT:
16
THE WITNESS:
17
18
02:
Objection, vague.
Do you understand
02:
the question?
Yes, I understand
the question.
It's
02:
relating to the recording.

THE COURT:
Excuse me.
02:
It's not tied to anything at
02:
02:
19
20
21
22
23
24
25
this point.
MR. BUSCH:
I move to strike, your Honor.
02:
THE COURT:
Do you understand
02:
the question?
Are you seeking to have this question -- is this

question supposed to do more than ask a general question -MR. BUSCH:
Yes.
THE COURT:
Excuse me -- - unrelated to any of the
02:
02
02
02

#:10057
75
1
02:
exhibits in the case at this moment?
2
3
MR. BUSCH:
This initial question, yes.
02:
THE COURT:
Okay.
02:
Read the question, please.
02:
(Record Read.)
THE COURT:
THE WITNESS:
6
7
8
9
unique way?
Do you understand
the question?
A backup hook can be expressed in a
02:
02:
Yes.
02:
BY MR. BUSCH:
And do you agree that the backup hook in Got to Give it Up
Q.
02:
10
are both expressed in a

and the backup hook in Blurred Lines
11
unique way?
02:
02:
02:
02:
Objection, vague.
12
MR. MILLER:
THE COURT:
Sustained.
02:
13
MR. BUSCH:
Your Honor, I would like to read page 244,
02:
14
15
02:
line 11 to 15.
02:
244, line 11?
16
MR. MILLER:
17
MR. BUSCH:
I'm sorry.
18
THE COURT:
It's not impeaching.
244, line 11, to 244, line 15.

And it's out of
02:
02:
02:
19
20
21
context.
BY MR. BUSCH:
Q.
Would you agree, Ms. Wilbur, that if an element like a
22
vocal backup is a common device, it can still be expressed in a
23
unique way?
24
A.
Yes.
25
Q.
And are the backup hooks in Got to Give it Up and Blurred
02:
02:
02:
02:
02
02

#:10058
76
02:
Lines both expressed in a unique way?
2
3
THE COURT:
To what are you referring?
02:
MR. BUSCH:
I'm referring to what is being called
02:
02:
Theme X in this case

THE COURT:
5
6
referring?
No.
No.
To what exhibit are you
Are you referring to sheet music?
Are you referring
02:
02:
02:
to a recording --
9
10
MR. BUSCH:
I'm referring to
THE COURT:
-- what exhibits are you referring?
02:
02:
02:
please restate your question.
02:
11
12
BY MR. BUSCH:
Q.
Do you agree that the backup hook as referenced in
13
Exhibit 248 and the backup hook in Blurred Lines are both
14
02:
02:
02:
15
A.
I don't have 248 in front of me so I don't know what you're
02:
02:
16
referring to.
THE COURT:
17
18
Exhibit 248 is the deposit copy of the
sheet music for -- excuse me.
The deposit copy for the --
19
THE WITNESS:
20
THE COURT:
21
Do you agree with that, Mr. Busch?
22
MR. BUSCH:
Yes.
23
THE COURT:
Thanks.
THE WITNESS:
24
For Got to Give it Up?

For Got to Give it Up.
There is no backup hook in the deposit
02:
02:
02:
02:
02:
02'
02
02
02
25
copy.

#:10059
77
02:
BY MR. BUSCH:
I understand, Ms. Wilbur, that that's your position.
Q.
You
know that Ms. Wilbur disagrees with that -- I mean, Ms. Fine11
02:
02:
02:
disagrees with that.
You know that; right?

02:
MR. MILLER:
Argument.
THE COURT:
sustained.
02:
02:
BY MR. BUSCH:
Would you agree that what Ms. Finell identifies as the
Q.
9
10
02:
02:
backup hook as it appears in the composition within the

recording of Got to Give it Up is expressed in a unique way?
02:
02:
THE COURT:
11
sustained.
02:
12
13
BY MR. BUSCH:
Q.
Have you reviewed the edited audio clips that have been
02:
02:
14
submitted in this case by Ms. Finell?
15
A.
I have heard some of them.
Q.
Okay.
02:
16
17
And you know the edited audio clips -- one of the
edited audio clips is for the backup hook of Got to Give it Up;
02:
02:
02:
18
19
correct?
A.
You'd have to play it for me so I understand what you're
02
02
20
talking about.
THE COURT:
21
24
Can you speak into the microphone,
THE WITNESS:
22
23
I'm not sure what
about.
Can you specify?
please.
I don't understand what you're speaking

The audio -- there are several audio
02
02
02
clips so I don't have any idea what you're talking about.

0:
25
BY MR. BUSCH:

#:10060
78
02:
You don't know that one of the audio clips that has been
Q.
02:
submitted, the edited audio clip, is the backup hook for Got to
02:
Give it Up?
02:
MR. MILLER:
Argumentive.
02:
THE COURT:
sustained.
02:
BY MR. BUSCH:
02:
putting on the screen Exhibit 376.
Q.
This is the backup hook
7
02:
for Got to Give it Up and the backup hook for Blurred Lines.
8
02:
Have you listened to these edited audio clips?

9
02:
I believe this is the one with the piano just playing the
A.
10
02:
11
dancin' lady; correct?

02:
Let's play -- let's go through each one.
Q.
Let's play the
12
02:
13
first audio clip for dancin' lady.

(Whereupon, the audio was played for the jury.)
02:
14
02:
MR. BUSCH:
And then from Blurred Lines.
15
02:
MR. MILLER:
Your Honor, there's no question.
16
MR. BUSCH:
I'm playing the backup hooks, your Honor.
THE COURT:
That's fine.
02
17
02
18
02
19
Oi
MR. BUSCH:
And the second and third one.
20
0:

21
0:
22
BY MR. BUSCH:
Q.
23
24
Are those three audio clips -- are those three clips

MR. MILLER:
25
Objection.
Vague, compound.

#:10061
79
02:
THE COURT:
02:
THE WITNESS:
I don't know what you mean by unique
02:
way.
I mean -02:
THE COURT:
stop there.
02:
Next question, please.
02:
BY MR. BUSCH:
02:
Let's go to the next slide.
Q.
02:
Now I'm going to play the MIDI synthesizer of the

8
02:
backup.
Play them one after the other, please.
First one is
02:
from Got to Give it Up.
10
played for the jury. )

(Whereupon, the audio was
11
Now play from Blurred Lines.
12
MR. BUSCH:
13
played for the jury. )

(Whereupon, the audio was
last of Blurred Lines.
MR. BUSCH: Now, the
14
02:
02:
02:
02:
02:

15
16
17
02
~~--//~
BY MR. BUSCH:
Do you agree that the first fQur notes are u~e same i~--==--===I
'---------
Q.
---- --'0
18
those edited audio clips?

02
First of all, dancin' lady isn't in the deposit copy at

19
A.
20
all.
0;
THE COURT:
Excuse me.
Excuse me.
Do you understand
21
22
23
the question?
THE WITNESS:
THE COURT:
o
Yes.
Would you read the question, please.
24
(Record Read.)
25
0:

#:10062
80
02:
MR. BUSCH:
Yes or no, ma'am.
THE COURT:
That's -- Mr. Busch, I don't think I need
02:
02:
to tell you this again.
Ask questions.
If you have an issue,
02:
talk to me about it.
Thank you.
02:
Do you have the question in mind?
02:
THE WITNESS:
Yes.
02:
THE COURT:
THE WITNESS:
You may answer.

The four notes are not the same because
02:
02:
they do not appear on the same beats in the measure.
They're
02:
taken out of context without any harmonic context, without any

10
02:
11
12
rhythmic context so, no, they're not the same.

02:
BY MR. BUSCH:
02:
13
Q.
The first few
14
A.
Q.
02:
02:
Okay.
Let's go to the next.
15
Can you play -- this is from Got to Give it Up and
16
02
Blurred Lines, vocal lines on the individual track.
Play Got to
17
18
02:
02
Give it Up first.
02

19
0,
MR. BUSCH:
20
Play it again, please.

0;

21
0:
MR. BUSCH:
22
Now play --

23
24
25
o
o
BY MR. BUSCH:
c
Q.
Are those tones from the melody the same?

#:10063
81
02:
The tones are the same, but it's completely out of context
A.
02:
and on the wrong stress points.
02:
Okay.
Q.
02:
Next.
Now we are going to play from the MIDI
02:
synthesizer the notes that we just heard again.
02:

6
02:
MR. BUSCH:
And from Blurred Lines.
02:

8
02:
MR. BUSCH:
Got to Give it Up one more time again,
02:
please.
10
02:
THE COURT:
This is cumulative.
Next question,
11
02:
please.
12
02:
13
14
BY MR. BUSCH:
02:
Are those tones the same
Q.
02
THE COURT:
This is cumulative.
Next question,
15
02
please.
Let's move on.
This has been asked five times.
16
17
02
BY MR. BUSCH:
0<
Q.
Do you know how often dancin' lady appears throughout the
18
19
0:
musical composition of Got to Give it Up?

0:
MR. MILLER:
Objection.
Mischaracterizes
her
20
21
22
23
o
testimony.
a
THE COURT:
No.
Overruled.
You may answer.

THE WITNESS:
It's -- I don't know how many times it
24
25
occurs, but it's only in the recording.

#:10064
82
02:
MR. BUSCH:
I move to strike that last as
02:
nonresponsive.
MR. MILLER:
02:
Your Honor, her testimony is not in the
02:
deposit copy.
THE COURT:
02:
Just a minute.
By musical composition,
to
02:
what are you referring?
02:
MR. BUSCH:
The musical composition -- let's start
02:
with the phrase --
02:
THE COURT:
Well, restate your question.
02:
BY MR. BUSCH:
10
02:
Do you know how many times the phrase and that's why I'm
Q.
11
02:
appears in Blurred Lines?
12
02:
THE COURT:
To what are you referring?
MR. BUSCH:
I'm referring to the musical composition,
13
02:
14
02
Blurred Lines, and I would like to know how many times and
15
02
that's why I'm, that lyrical phrase appears in Blurred Lines?

16
02
THE WITNESS:
I think it's twice.
17
0;
MR. BUSCH:
18
Okay.
0:
Q.
Do you know how many times the lyrical phrase but you are
19
20
21
o
an animal appears in Blurred Lines?
a
A.
I think twice.
Q.
Do you know how many times okay, noW he was close appears
22
23
in Blurred Lines?
24
A.
I think twice.
Q.
And do you know how many times the -- let's talk about the
25

#:10065
83
02:
descending bass melody,
if we could.
02:
Would you agree that both the descending bass melody

2
02:
in Got to Give it Up and the descending bass melody in Blurred

3
02:
Lines end on the same pitches in their descending bass melody?

4
Objection.
MR. MILLER:
THE COURT:
THE COURT:
02:
question?
Do you understand the
THE WITNESS:
02:
Vague, your Honor.
02:
Yes.
02:
You may answer.
end on the tonic -I think they both

THE WITNESS:
please.
speak into a microphone,
Would
you
THE COURT:
1.
they both end on the toni cal
think
I
THE WITNESS:
10
11
BY MR. BUSCH:
12
Q.
14
notes?
02:
02:
Are those descending

02:
02
MR. MILLER:
Objection.
15
02
THE COURT:
sustained.
sustained as framed.
16
17
02:
02:
Are the notes D, C, G descending?

13
02:
02
BY MR. BUSCH:
0;
Do those notes descend, D, C, G, Ms. Wilbur?

18
19
20
21
22
23
24
25
Q.
specific
asking again as to a
THE COURT: Are you
question?
you asking a general
are
or
case
issue in this
question.
I'm asking a general
MR. BUSCH:
you understand the question?
THE COURT: Do
a C to
ascending from a D to
could
be
It
THE WITNESS:
a G in different octaves.
no.
So it's not -- it's hypothetical
and,
0:

#:10066
84
02:
BY MR. BUSCH:
Okay.
Q.
02:
Does D, C, A -- are those descending?
02:
MR. MILLER:
02:
THE COURT:
sustained.
02:
BY MR. BUSCH:
Q.
In Blurred Lines and Got to Give it Up, are the notes D, C,
5
6
02:
02:
G in the descending bass line descending?

7
02:
MR. MILLER:
Mischaracterizes
the document.
02:
THE COURT:
Ask it
ask it one at a time with
02:
respect __ and identify that to which you're referring when you

10
02:
ask about these three notes.
11
02:
BY MR. BUSCH:
Q.
In the Got to Give it Up deposit copy, Exhibit 248, does
12
13
02
02
the descending basS line descend with notes D, C, G?

o.
14
They do.
And in the deposit copy sheet music, Exhibit 248, does the
A.
15
Q.
0:
16
descending bass line descend at all with notes D, C, A?
17
18
A.
Q.
They do.
Okay. Are those the notes that appear in the bass lines
19
bars 4 and 7 in the deposit copy of Got to Give it Up?
20
A.
I don't believe so.
You have a C natural and you have a G
21
natural, and neither of those, if I'm not mistaken
-- I don't
22
23
think either one of those is.

Oh, maybe __ it starts with E, upper E, D, upper D, C
24
sharp, upper C sharp, B, upper B, and then A.
25
That's the

#:10067
85
02:
descending
pattern.
It's
not
the
same.
02:
MR.
BUSCH:
Your
Honor,
I would
like
to read
02:
Ms. Wilbur's
testimony
from
her
deposition.
This
is the
second
02:
deposition
of Ms. Wilbur,
page
476.
02:
THE COURT:
I don't
have
this.
02:
Page
476 to line
what?
02:
BUSCH:
MR.
MR. MILLER:
THE COURT:
10
14 to page
Any
objection
line
3.
to that
being
read?
02:
No,
your
Honor.
02:
You may
read
that.
02:
I'll
just
read
it myself.
Page
476,
line
BUSCH:
MR.
11
477,
02:
THE COURT:
Line
02:
14.
12
02
MR. MILLER:
13
Objection
to it being
published.
02
It doesn't
need
to be published.
Just
THE COURT:
14
read
15
it, please.
MR.
16
This
17
02
BUSCH:
begins
Okay.
Fine.
0:
at page
476,
line
14:
Q.
o
Q. Can you then again read bar
4 and 7 in part 1 of
18
19
Got to Give it Up starting
with
the D?
20
A. D, C, Band
21
Q. Is that B that you mentioned,
22
A. I'm sorry.
Q. You said B.
D, C, A.
Did you mean G?
23
A. I'm sorry.
G.
I'm sorry.
24
Q. Can you read it for me again?
25
not a G?

#:10068
86
A. Dr C
G, and Dr C, A.
Of courser one is in the key
02:
02:
of A and one is in the key of G.
02:
Ms. Wilbur, in -- one second.

3
02:
In Blurred Lines at the descending bass line, are the

4
02:
notes D, C, B, A, G?
02:
In __ in you mean the key of G?
The original key?
A.
02:
I'm just asking you if the notes are D, C, B, A, G in the

Q.
02:
descending bass line of Blurred Lines.
02:
THE COURT:
Are you referring to the sheet music?
To
02:
what are you referring?
10
02:
MR. BUSCH:
I'm referring to the Blurred Lines sheet
11
02:
music, Exhibit 91-B.
12
02:
THE COURT:
Do you have that?
MR. BUSCH:
I'm sorry.
13
02:
Exhibit -- what is it?
14
15
16
17
18
19
My mistake, your Honor.
Exhibit 48.
Objection.
MR. MILLER:
02
Exhibit 48.
Vague.
It depends on what
02
key this is.

THE COURT:
0;
48?
Do you have Exhibit
0:
THE WITNESS:
THE COURT:
No.
I have 47-A2.
o
Could you please publish Exhibit 48 for
20
21
the witness.
THE WITNESS:
That's in the key of G.
Not the same
22
23
key as the key of A in the other piece.

MR. BUSCH:
THE COURT:
Well, restate the question.
24
25
02

#:10069
87
02:
BY MR. BUSCH:
Q.
In Blurred
02:
Lines'
descending bass line, are the notes D, C,
02:
B, A, G?
A.
Can you move it up so I can see?
02:
Keep going.
There you
02:
go.
02:
D, C, B, A, G.
Yes, they are.
02:
Okay.
Q.
Thank you.
All right. Would you agree, Ms. Wilbur, that it would
02:
02:
be inappropriate
to dismiss melodic rhythm as a performance
02:
element?
A.
Can you -- can you ask that a different way?
10
02:
Dismiss--
11
02:
Would you agree that it would be inappropriate to dismiss
Q.
12
02
melodic rhythm as a performance
13
element?
02
As a performance
A.
14
element?
02
Yes.
Q.
15
THE COURT:
16
0:
THE WITNESS:
17
THE COURT:
No.
Restate the question.

c
18
19
BY MR. BUSCH:
Q.
Did you give an affidavit where you criticized another
20
expert for dismissing melodic rhythm as a performance
element?
21
A.
I don't know what you're referring to.
It's out of
22
context.
I have no idea what you're talking about.
23
Q.
All right.
I'll see if I can refresh your recollection.
24
25
Exhibit 507 I'm going to show you.

#:10070
88
02:
In the Bourne case -- I'd like you to get in front of

1
02:
you, if you would, Ms. Wilbur, Exhibit 507.
02:
THE COURT:
It's in volume 15.

02:
THE WITNESS:
Okay.
02:
BY MR. BUSCH:
02:
I want to direct your attention to paragraph 82 of your
Q.
02:
declaration,
which is page 25 of your declaration.

02:
And do you see, Ms. Wilbur, where you write:
02:
believe
that Professor Ferrar's insistence
that performance
02:
elements are the same thing as melodic rhythm is simply another

10
02:
way to try to make -- and this is your words -- quote/unquote,

11
02:
Jew appear less similar to star than it really is?
You said
12
02:
13
that; correct?
14
A.
02:
Yes.
I obviously did.
02
THE COURT:
Excuse me.
But the context is that
15
02
paragraph
1 refers to a song I Need a Jew which is at issue and
16
17
02
it's been abbreviated to be Jew; correct?

02
MR. BUSCH:
Correct.
That's how Ms. Wilbur
18
19
0;
abbreviated
it.
0:
THE COURT:
But it's referring to a song.
MR. BUSCH:
Yes.
20
21
o
Q.
Now, Ms. Wilbur, would you agree that in bars 1 to 2 of
22
23
Blurred Lines, the keyboard plays on the offbeat?
24
A.
In the recording?
25
Q.
Yes.

#:10071
89
1
A.
In the recording, it plays on some of the offbeats.
02:
Q.
Okay.
02:
audio clips that have been submitted by Ms. Finel1, that other
02:
than in beats 1 of bars 1 and 2, the keyboard also plays on the
02:
offbeat?
02:
A.
We're referring to the recording, correct?
02:
Q.
We're referring to the audio clips that were submitted that
02:
were taken from the recording.
A.
And would you agree that in the Got to Give it Up
Can you just tell me what specifically?
confused.
11
Q.
12
that were submitted in this case?
13
A.
15
I'm sorry.
I'm
02:
02:
10
14
02:
Did you listen to Ms. Finell's audio clips of the keyboard
The most recent ones

THE COURT:
02:
02:
02:
I mean
If you have a question about a clip, why
02:
02:
don't you play it, please.
16
MR. BUSCH:
Okay.
02:
17
THE COURT:
And what are you playing, please?
02:
18
MR. BUSCH:
We are playing the audio clips -- it's on
02:
This is Exhibit No. 376, page 19.
the board, your Honor.
20
first audio clip will be Got to Give it Up keyboard, followed by
02:
21
Blurred Lines keyboard.
02:
22
23
MR. BUSCH:
24
25
And now Blurred Lines keyboard.

BY MR. BUSCH:
The
02:
19
02:
02:
02:
02:

#:10072
90
All right.
Ms. Wilbur, do you agree that the Blurred Lines
02:
Q.
keyboard plays on the offbeat that you just heard?
A.
Yes.
02:
Q.
Do you believe -- do you agree that other than beats 1 of
02:
bars 1 and 2, the keyboard from Got to Give it Up also plays on
02:
the offbeat?
02:
A.
offbeats.
pattern but it does play on several of the offbeats.
02:
In the recording, the keyboard plays on some of the

It has -- it's definitely different from the other
THE COURT:
10
11
02:
02:
02:
Mr. Busch, let me know when you get to a
02:
02:
breaking point, please.
12
MR. BUSCH:
This is fine, your Honor.
02:
13
THE COURT:
All right.
02:
14
the day, ladies and gentlemen.
15
also plan to go tomorrow until 3:30 and I think I asked you this
02:
16
morning and I didn't hear anyone say he or she couldn't do that.
02:
17
Is that still good?
02:
18
tomorrow?
19
talk to you about that tomorrow.
We will be starting later on Thursday.
I will
02:
02:
02:
Please do not discuss the case.
02:
02:
02:
(Jury Out)
THE COURT:
23
25
We
Thank you.
22
24
See you tomorrow at 8:30.
Does anybody have any issues about 3:30
Have a nice evening.
20
21
Okay.
We are going to break here for
You may step down, Ms. Wilbur.
Watch your
02:
02:
head.
Please be seated.
02:

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Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 1 of 66 Page ID

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 2 of 66 Page ID

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

THE HONORABLE JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE PRESIDING

Pharrell Williams, et al.,

Bridgeport Music, Inc., et al.,

REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS

Pamela A. Batalo, CSR, FCRR, RMR

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 3 of 66 Page ID

Love After War,

in Love After War, apart

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 4 of 66 Page ID

exactly as the notation they showed you from the recording of

Got To Give It Up.

Do you recall that?

Not specifically, but go ahead.

Do you agree with me that it is your testimony that if the

as being in the recording of Got To Give It Up?

It misstates the testimony.

The question is whether the piano part.

Restate the question.

asking about a specific exhibit, why don't you display it,

There's no question pending.

Ms. Wilbur, you began your testimony today by saying that

when you are retained by someone to analyze two pieces of

And you said that you look at things objectively;

you approach it neutrally;

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 5 of 66 Page ID

To Give It Up; correct?

It Up and how those

Did you not

of Blurred Lines, as I was

To Give It Up with the deposit

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 6 of 66 Page ID

Now, isn't it true, Ms. Wilbur, that a lead sheet

just reflects a simplified,

less fleshed-out version of a chord

Isn't that true?

you know, it's difficult to answer the question.

So can you just clarify for me what you mean

a lead sheet simply reflects a simplified, less fleshed-out

And isn't it true, Ms. Wilbur, that a chord notation is

Isn't that true?

Isn't it true that you've stated in the past that chord

notation is merely representational?

Do you understand the question?

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 7 of 66 Page ID

Got To Give It Up composition

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 8 of 66 Page ID

recording, you transcribed

the -- that was deposited in the copyright office that we've

been talking about here today?

the deposit copy lead sheet from

Same objection to the form.

Isn't it true that you later received Exhibit 248 and

Is that to which you're referring?

the composition as it appears in the sound

compared that transcription

with your earlier transcription

I don't believe I ever did do that.

as embodied in the sound recording of Got To