1. Art and Diseño

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1 KING, HOLMES, PATERNO & BERLINER, LLP
HOWARD E. KING, ESQ., STATE BAR NO. 77012
2 STEPHEN D. ROTHSCHILD, ESQ., STATE BAR NO. 132514
[email protected]
3 SETH MILLER, ESQ., STATE BAR NO. 175130
[email protected]
TH
4 1900 AVENUE OF THE STARS, 25 FLOOR
LOS ANGELES, CALIFORNIA 90067-4506
5 TELEPHONE: (310) 282-8989
FACSIMILE: (310) 282-8903
6
Attorneys for Plaintiffs and Counter7 Defendants PHARRELL WILLIAMS,
ROBIN THICKE and CLIFFORD
8 HARRIS, JR. and Counter-Defendants
MORE WATER FROM NAZARETH
9 PUBLISHING, INC., PAULA MAXINE
PATTON individually and d/b/a
10 HADDINGTON MUSIC, STAR TRAK
ENTERTAINMENT, GEFFEN
11 RECORDS, INTERSCOPE RECORDS,
UMG RECORDINGS, INC., and
12 UNIVERSAL MUSIC DISTRIBUTION
13
UNITED STATES DISTRICT COURT
14
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
15 PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
16 individual; and CLIFFORD HARRIS,
JR., an individual,
17
Plaintiffs,
18
vs.
19
BRIDGEPORT MUSIC, INC., a
20 Michigan corporation; FRANKIE
CHRISTIAN GAYE, an individual;
21 MARVIN GAYE III, an individual;
NONA MARVISA GAYE, an
22 individual; and DOES 1 through 10,
inclusive,
23
Defendants.
24
25 AND RELATED COUNTERCLAIMS.
26
27 / / /
28 / / /
4112.060/851747.1
CASE NO. CV13-06004-JAK (AGRx)
Hon. John A. Kronstadt, Ctrm 750
PLAINTIFFS’ OPPOSITION TO
COUNTER-CLAIMANTS’ EX
PARTE APPLICATION FOR
CONTINUANCE OF TRIAL,
RECONSIDERATION OF
GRANTING MOTION IN LIMINE
NO. 1-3 AND CERTIFICATION OF
QUESTION FOR
INTERLOCUTORY APPEAL;
MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION
OF SETH MILLER
Action Commenced: August 15, 2013
Trial Date:
February 10, 2015
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TABLE OF CONTENTS
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I. INTRODUCTION .................................................................................................... 1 II. THE MOTION FOR RECONSIDERATION SHOULD BE DENIED ................. 3 A. THE COMPOSITION IS LIMITED TO THE DEPOSIT COPY
LEAD SHEET......................................................................................... 3 B. THE CREATION OF THE SOUND RECORDING HAS NO
RELEVANCE HERE ........................................................................... 11 C. THE COURT’S RULING WILL NOT “LEGALIZE
WHOLESALE COPYRIGHT INFRINGEMENT” ............................. 12 D. EXCLUDING THE GIVE AND DANCE SOUND
RECORDINGS IS PROPER HERE ..................................................... 15 6
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III. THE MOTION TO CONTINUE TRIAL SHOULD BE DENIED .................... 21 IV. THE MOTION FOR INTERLOCUTORY APPEAL SHOULD BE
DENIED .......................................................................................................... 22 14 V. CONCLUSION ..................................................................................................... 24 15
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TABLE OF AUTHORITIES
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Page
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CASES Dan Kasoff, Inc. v. Novelty Jewelry Co.,
309 F.2d 745 (2d Cir. 1962) .............................................................................. 6
Thomas Nelson, Inc.,
6 Harper House, Inc. v. th
889 F.2d 197 (9 Cir. 1989) ............................................................................ 17
7
Jones v. Virgin Records, Ltd.,
643 F.Supp. 1153 (S.D.N.Y. 1986) ................................................................. 15
8
9 Knowledgeplex, Inc.,
942 F.Supp.2d 1045 (D. Idaho 2013) ................................................................ 6
10
Milliken & Co. v. Shaw Indus., Inc.,
978 F.Supp. 1155 (N.D. Ga. 1997) ................................................................... 6
11
12 National Comics Pub., v. Fawcett Pubs.,
191 F.2d 594 (2d Cir. 1951) .............................................................................. 6
13
Newton v. Diamond,
204 F.Supp.2d 1244 (C.D.Cal. 2002)........................................................ 14, 19
14
15 Scentsy, Inc. v. B.R. Chase, LLC,
942 F.Supp.2d 1045 (D. Idaho 2013) ................................................................ 5
16
Scentsy, Inc. v. Harmony Brands,
LLC,
th
585
Fed.Appx.
621
(9
Cir. 2014) .................................................................... 6
17
Inc.,
18 Sch. Dist. No. 1J v. ACandS,
5 F.3d 11255 (9th Cir. 1999) .............................................................................. 3
19
Shoptalk, Ltd. v. Concorde New Horizon Corp.,
168 F.3d 586 (2d Cir. 1999) ........................................................................ 9, 10
20
21 Stewart v. Abend,
495 U.S. 207, 233 (1991) .............................................................................. 2, 4
22
Three Boys Music Corp.
v. Bolton,
th
212
F.3d
477
(9
Cir. 2000) ...................................................................... 7, 8, 9
23
24
25 STATUTES 26 17 U.S.C. § 303...................................................................................................... 4, 10
27 28 U.S.C. § 1292.................................................................................................. 22, 23
28 Copyright Act of March 4, 1909 ........................................................................ passim
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1 OTHER AUTHORITIES 2 M. Nimmer & D. Nimmer, 1 Nimmer on Copyright § 2.05 ..................................... 11
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MEMORANDUM OF POINTS AND AUTHORITIES
2
I.
3
INTRODUCTION
Defendants ex parte application (“Application”) is desperate to avoid a trial
4
5 because—as the evidence will show—the songs at issue here are not the same.1
There is no basis for the Application. Not only are there no new facts or
6
7 law—indeed, the Court has now ruled on these issues twice—but the Court’s ruling
8 on the copyright issue is correct and fully consistent with the clear language of
9 Section 9 of the 1909 Act. There is no manifest error, no basis for reconsideration,
10 and no reason for interlocutory appeal. Under the 1909 Act, copyright is “secured”
11 by publication with notice. The only material published with notice here is the
12 deposit copy. That is the only copyright that was “secured” here.
Defendants do not and cannot explain how they, as heirs of Marvin Gaye,
13
14 own a copyright in any other composition. Marvin Gaye’s performance of other
15 musical elements on a sound recording is not publication with notice. No
16 manuscript copy of the composition was published other than the deposit copy. No
17 copyright was “secured” in any composition other than the deposit copy lead sheet.
18
Marvin Gaye never owned a copyright in “Got to Give It Up.” His
19 publisher, Jobete, owned the copyright. The copyright notice at the bottom of each
20 deposit copy states: “© [year] Jobete Music Company, Inc.” The copyright only
21 descended to his heirs after his death because the renewal rights vested in his heirs
22 as a matter of law when Marvin Gaye died. It was never Marvin Gaye’s song.
23 / / /
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1
Hopefully, the Application was not filed as part of a plan to try this case in the
press. Defendants filed their Application at 3:02 p.m. At 3:15 p.m., The
Hollywood Reporter published a lengthy article about the Application. [Declaration
of Seth Miller (“Miller Decl”), Exhs. A, B.] Clearly, Defendants sent the
Application to the press before they filed it with the Court. Jury selection is less
than two weeks away.
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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 Jobete’s copyright.
4
The 1909 Act is what it is. There is nothing unfair or unjust about it. There is
5 no reason for the Court to change its rulings because Defendants do not like them,
6 think they are unfair, or make hyperbolic claims about the supposed impact on the
7 music industry. The simple fact is that, prior to 1978 (and after), compositions for
8 popular music were considered to be the melody, harmony, and lyrics—i.e., the
9 song. No songwriter considered a hi-hat part, vocal “woo,” falsetto vocal style,
10 omission of a guitar, keyboard part, or other element of a sound recording of the
11 song to be the song itself. And if they did, they included that element in the written
12 composition they published with notice—just as Jobete did hear with a “bass intro”
13 in “Got to Give It Up.” Defendants now are facing a jury trial and wish that they
14 owned something other than the published composition that is nothing like “Blurred
15 Lines.” Their desire to distract and mislead the jury is not basis for reconsideration.
16
Finally, the notion that Defendants need more time to prepare for trial should
17 be rejected out of hand. Plaintiffs filed their summary judgment motion in July
18 2014 [Document 89], raising all these same issues regarding the deposit copy. The
19 Court ruled on the summary judgment on October 30, 2014 and made clear that
20 copyright is determined under the 1909 Act by publication or deposit of an
21 unpublished copy [Document 139, 8-9 (“The general rule under the 1909 Act was
22 that the publication of a work with proper notice was necessary to obtain statutory
23 copyright protection” (citing Stewart v. Abend, 495 U.S. 207, 233 (1991))] .
24 Defendants’ musicologists have had months to prepare any demonstratives based on
25 the Deposit Copy. Plaintiffs have cleared their busy schedules for the February 10,
26 2015, trial and are eager to prove that they did not copy Marvin Gaye’s songs.
27 Plaintiffs should not be deprived of their day in Court merely because Defendants
28 are unable to prove their claims. The Application should be denied in its entirety.
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II.
2
THE MOTION FOR RECONSIDERATION SHOULD BE DENIED
A motion for reconsideration of the decision on any motion may be
made only on the grounds of (a) a material difference in fact or law
from that presented to the Court before such decision that in the
exercise of reasonable diligence could not have been known to the
party moving for reconsideration at the time of such decision, or (b)
the emergence of new material facts or a change of law occurring
after the time of such decision, or (c) a manifest showing of a failure
to consider material facts presented to the Court before such
decision. No motion for reconsideration shall in any manner repeat
any oral or written argument made in support of or in opposition to
the original motion.
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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 Court’s rulings earlier this week—and certainly not one that
12 in the exercise of reasonable diligence could not have been known to the Gayes
13 earlier this week. L.R. 7-18. There has been no “emergence of new material facts
14 or a change of law” since Monday of this week. Id. There is no “manifest showing
15 of a failure to consider material facts presented to the Court” before it ruled earlier
16 this week. Id. The Application repeats all of the arguments the Gayes made in the
17 prior motions in limine, including at the oral argument on January 26, 2015. Id.
The Gayes acknowledge that a motion for reconsideration must be based on:
18
19 (1) newly discovered evidence; (2) intervening change in law; or (3) clear error by
20 the district court or a manifestly unjust ruling. [App. Memo, 5-6 (citing Sch. Dist.
21 No. 1J v. ACandS, Inc., 5 F.3d 11255, 1263 (9th Cir. 1999)).] As set forth below,
22 none of these factors apply here. The Gayes’ motion for reconsideration is just an
23 unwarranted attempt to reargue points that they lost. The motion should be denied.
24 A.
The Composition Is Limited to the Deposit Copy Lead Sheet
25
Defendants contend that the Court took a “leap of logic that is not supported
26 by the law” [App. Memo (Document 232-1), 1:18] in ruling that “the composition
27 embodied on the sound recording is not protected under the 1909 Copyright Act.”
28 [Id., 1:21-22.] Defendants are incorrect. The Court ruled that copyright under the
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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
Defendants still have no evidence of any other manuscript copy. Section 9 of
11 the 1909 Act provides that “any person … may secure copyright for his work by
12 publication thereof with the notice of copyright required by this Act.” Act of
13 March 4, 1909 (“1909 Act”), ch. 320 § 9, 35 Stat. 1075, 1078. Defendants’
14 copyright registrations state that the compositions were published. [Miller Decl,
15 Exhs. C, D.] A sound recording is not a publication of the underlying composition
16 under the 1909 Act. 17 U.S.C. § 303(b); see also 10/30/14 Order, 10. Hence, the
17 only composition that was published with notice is the composition in the deposit
18 copy. The Court has consistently ruled as much. Its ruling is correct based on the
19 law and facts here.
20
Defendants arguments in the Application have been considered and rejected
21 by this Court both in the summary judgment motion and in the motions in limine.
22
Now, in their third attempt to make these identical arguments, Defendants
23 offer nothing new beyond wildly exaggerated rhetoric about the impact on the music
24 industry of the Court’s correct interpretation of the law under the 1909 Act.
25
Tellingly, Defendants offer no legal authority for how a copyright allegedly
26 was secured in material contained only in the sound recordings. Such material was
27 not published with notice. 1909 Act, § 9; Stewart v. Abend, 495 U.S. 207, 233
28 (1991). The composition in the sound recording also was not deposited in written
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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
So how was copyright “secured” in the composition embodied only in the
5 sound recording? Answer: it was not. It could only be secured by publication.
6
Defendants’ arguments to the contrary are disingenuous and incorrect.
7
Defendants argue (for yet a third time) that the deposit copy does not limit the
8 scope of the copyrighted work. But that is not the issue here. The Deposit Copies
9 of GIVE and DANCE are the only published copies in evidence. The Deposit
10 Copies are the copyrighted composition not because there are what was deposited
11 but rather because they are the only copies published with notice affixed so as to
12 secure a copyright. Tellingly, despite moving for reconsideration, interlocutory
13 appeal, and to continue trial, Defendants cite no authority for their unfounded
14 assertion that a composition that was never published with notice affixed is subject
15 to copyright under the 1909 Act—i.e., which would be contrary to the plain terms of
16 the Act. 1909 Act, § 9 (“any person … may secure copyright for his work by
17 publication thereof with the notice of copyright required by this Act”)(emphasis
18 added). Defendants also cite no authority for their claim that material contained not
19 in the written Deposit Copy but in an entirely separate sound recording—a recording
20 that also has nothing to with the copyright claimant (Jobete, see below)—somehow
21 obtains copyright registration because the lead sheet Deposit Copy was published.
22
Defendants’ authority is inapposite and incorrectly cited. Many of these cases
23 were addressed in prior motions in this case and are only briefly addressed below:
24
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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
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for deposit copies of sculptural works—here, the issue is whether the
28
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published copy of a musical composition that secured the copyright is
2
the extent of the copyrighted material under the 1909 Act;
3

Scentsy, Inc. v. Harmony Brands, LLC, 585 Fed.Appx. 621 (9th Cir.
4
2014) is an unpublished Ninth Circuit case that is not citable under
5
Ninth Circuit Rule 36-3, is decided under the 1976 Act, and does not
6
concern the scope of a copyright whatsoever but rather concerns the
7
trial court’s application of the extrinsic and intrinsic tests for copying;
8
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Knowledgeplex, Inc., 942 F.Supp.2d 1045 (D. Idaho 2013) was decided
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under the 1976 Act and concerns whether the court had jurisdiction
10
over claims relating to material not contained in the deposit copy and
11
turns on special rules for deposit copies of computer code—here, there
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is no jurisdictional issue, no computer code, and again, the issue is not
13
that the Gayes lack a copyright because the deposit was incomplete but
14
rather because the only published copy is the deposit copy lead sheet;
15
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Milliken & Co. v. Shaw Indus., Inc., 978 F.Supp. 1155, 1158 (N.D. Ga.
16
1997) was decided under the 1976 Act and concerns whether the court
17
had jurisdiction over the copyright claim when the deposit copy of the
18
copyrighted carpet swatch allegedly was an incomplete copy of the
19
work—here, there is no jurisdictional issue, and the 1909 Act governs;
20

Dan Kasoff, Inc. v. Novelty Jewelry Co., 309 F.2d 745 (2d Cir. 1962)
21
concerned whether the copyright notice was defective because it used
22
the plaintiff’s trademark rather than the plaintiff’s name—here, there is
23
no issue that the name on the Deposit Copy notice is wrong;
24

National Comics Pub., v. Fawcett Pubs., 191 F.2d 594, 603 (2d Cir.
25
1951) concerned whether the copyright notice was defective because it
26
used the name of the proprietor’s affiliated corporation rather than the
27
copyright proprietor’s—here, there is no issue that the “Jobete Music
28
Company” name on the Deposit Copy notice is not the true owner.
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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:
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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 song’s essential elements such as the title hook,
chorus, and pitches. Dr. Eskelin even played the deposit copy for the
jury on the keyboard. We refuse to disturb the jury’s finding that the
Isley Brothers deposited a “complete copy” because (1) there was no
intent to defraud and prejudice and (2) any inaccuracies *in the
deposit copy were minor and do not bar the infringement action.
15 Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486-87 (9th Cir. 2000)(emphasis
16 added)(citation omitted).
17
The only issue in Three Boys was jurisdiction. The jury finding that the court
18 upheld was only whether a complete copy was deposited for purposes of complying
19 with the registration requirement of submitting a deposit copy so as to obtain the
20 right to sue for infringement. See id. It was a jurisdictional issue, pure and simple.
21
There is no dicta (let alone any holding) in Three Boys—or any language in
22 the case whatsoever—that discusses whether a copyright secured by publishing the
23 work with notice affixed can include any material not found in the published copy.
24
Defendants argue that Three Boys upheld the jury’s finding of substantial
25 similarity, but the entire relevant text of that portion of the opinion is as follows:
26
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Bolton and Goldmark argue that there was insufficient evidence of
substantial similarity because the Isley Brothers’ expert
musicologist, Dr. Gerald Eskelin, failed to show that there was
copying of a combination of unprotectible elements. On the contrary,
Eskelin testified that the two songs shared a combination of five
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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
jury’s credibility determination, nor do we find that the jury’s
finding of substantial similarity was clearly erroneous.
7
8 Three Boys, 212 F.3d at 485-86.
9
There is not a shred of indication in the foregoing passage that it ever crossed
10 the Ninth Circuit’s collective mind that the lead sheet deposit copy may have
11 contained elements that were not subject to the plaintiff’s copyright, whether
12 because they were not found in the deposit copy or for any other reason. At a
13 minimum, it is crystal clear that the defendant never raised that issue in the case.
14
Defendants’ submission of trial transcripts from the Three Boys case also is
15 unavailing. The precedential authority of Three Boys is limited to the four corners
16 of the Ninth Circuit opinion. Defendants cite no authority for the implicit assertion
17 that this Court can or should look “under the hood” of the Ninth Circuit opinion or
18 analyze its “legislative history” (so to speak) to find a new meaning in the published
19 opinion beyond what the Ninth Circuit justices wrote in plain English. This is a
20 rather astonishing suggestion and flies in the face of established judicial procedure.
21
Even were the Court to consider the trial transcripts—and it should not—they
22 demonstrate nothing other than that recordings of the plaintiff’s song were played to
23 the jury but possibly may have contained material not found in the deposit copy lead
24 sheet. Whether the recording in fact did contain material not found in the lead sheet
25 is unknowable based on the trial transcript excerpts. First, it may be that there was a
26 published copy of the sheet music that in fact secured the copyright in the song and
27 that did contain the potentially omitted material. Second, any omitted material was
28 contained in an introduction, coda, and instrumental figure. [Declaration of Richard
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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 plaintiff’s copyright (perhaps for one of the reasons stated above).
In short, Three Boys does not address in any way, shape, or form whether
7
8 material not found in the deposit copy was subject to copyright. A case is not legal
9 authority for an issue it does not decide. Even had Three Boys addressed that issue,
10 it would still be a different issue from the issue here, namely: whether material not
11 contained in the published copies of GIVE and DANCE is (somehow, for some
12 unstated reason) subject to copyright. The 1909 Act says otherwise: copyright is
13 “secured” by publication with notice. 1909 Act, § 9. Defendants are the moving
14 party here. They bear the burden. The provide no authority for their assertions that
15 the composition in the Marvin Gaye recording falls within their statutory copyright.
Finally, Shoptalk, Ltd. v. Concorde New Horizon Corp., 168 F.3d 586 (2d Cir.
16
17 1999) is inapposite and concerns whether, under the 1909 Act, a previously
18 unpublished work is published (i.e., and hence becomes public domain) if a
19 derivative work is published. The plaintiff in Shoptalk argued that the copyright in
20 the defendant’s screenplay was published when the motion picture based on the
21 screenplay was published, and thus copyright was secured in the screenplay, but
22 when the copyright in the motion picture expired, so did the copyright in the
23 underlying screenplay. The court held that only those portions of the unpublished
24 screenplay that were contained in the motion picture had been published:
We conclude in the present case, based on the statute and the
principles underlying the scope of copyright protection, that if a
previously unpublished screenplay is embodied in a motion picture,
so much of the screenplay as is disclosed in the motion picture is
published when the motion picture is published.
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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 Court’s ruling. Shoptalk holds that the
8 publication of a derivative work (motion picture) publishes the underlying work
9 (screenplay) and thus secures a copyright in it only to the extent the published
10 derivative work embodies the unpublished work. In other words, under Shoptalk, it
11 is the published copy alone that limits and defines the scope of copyrighted material.
12
13
14
15
Defendants arguments are just stubborn insistence, unsupported by authority:
The Gayes are aware of no authority supporting the proposition that
the version of the composition protected must have been “published”
in the form of sheet music prior to registration, and the Court cited
no authority to support this conclusion. Instead, registration protects
all versions of the composition that existed prior to registration.
16 [App. Memo (Document 232-1), 6:24-28.]
17
Contrary to the Gaye’s blunt assertion, the 1909 Act provides that copyright is
18 secured by publication with notice (§ 9), followed by registration (§ 10 )and deposit
19 of “the best edition thereof then published” (§ 12). 1909 Act, §§ 9,10, 12. The
20 version to be protected clearly must be published, registered, and deposited. Id. A
21 sound recording is not publication of a composition. 17 U.S.C. § 303(b). The Court
22 has cited these (and other) authorities for this proposition in the past. The Gayes
23 either refuse to acknowledge the law or seek to defy it through force of will alone.
24 As shown above, the Gayes cite no authority for any other interpretation of the Act.
25
Defendants fail to recognize the radical distinction between the 1976 Act and
26 the 1909 Act as it pertains to copyright in musical compositions. Under the 1976
27 Act, it is “possible to copyright a musical composition merely by recording it,” but
28 as Nimmer point out, “[t]his represents a sweeping departure from the 1909 Act
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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
5
6 affixed, is required in order to secure copyright in a composition. The construction
7 of the law Defendants urge the Court to adopt would radically overturn the entire
8 logic of the 1909 Act. Under the 1909 Act, if sheet music was published without
9 copyright notice, or if the notice was even defective in some material respect, no
10 copyright was secured, and the work was injected into the public domain. It defies
11 common sense and legal precedent, not to mention the plain text of the 1909 Act, to
12 suggest that, while having a defectively worded “©” notice would work a forfeiture
13 of a copyright, publishing sheet music that omits substantial portions of an alleged
14 composition embodied only in a sound recording is nonetheless effective to secure a
15 copyright in a composition that has never been set forth in intelligible notation.
16 B.
The Creation of the Sound Recording Has No Relevance Here
17
Defendants’ argument that GIVE was “written through the recording process”
18 and “that the version of the composition included on Marvin Gaye’s original
19 commercially released recording was a complete version of the composition that
20 existed prior to registration” [App. Memo (Document 232-1, 7:2-4] is immaterial.
21
To argue that the composition in the sound recording is the “complete
22 version” of the composition is meaningless. Nothing in the 1909 Act requires the
23 proprietor to copyright the “complete” version—or any version—of a composition.
24 Whatever the proprietor publishes with notice affixed secures a copyright. In this
25 case, that version is the Deposit Copy. Any material embodied in the sound
26 recording that is not found in the Deposit Copy is not subject to copyright.
27
The original owner of the GIVE and DANCE copyrights is not Marvin Gaye.
28 Marvin Gaye was the author, but the claimant (owner) of the copyright was his
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1 publisher, Jobete. [Miller Decl, Exh. C, D p. 1, § 1 (listing Jobete as copyright
2 claimant); Exhs. E-F, p. 1 (stating “© [year] Jobete Music Company, Inc.”).] The
3 Gayes only obtained copyright ownership after Marvin Gaye died as his heirs due to
4 the reversion provisions in the 1976 Copyright Act. Jobete owned the Deposit Copy
5 compositions in GIVE and DANCE from the outset. Marvin Gaye’s creation of a
6 sound recording of GIVE or DANCE has no bearing on the Deposit Copy that
7 Jobete published with notice in order to secure its copyright for the composition.
Besides, there is no competent evidence of how Marvin Gaye created the
8
9 sound recording, let alone which portions at issue he supposedly created. Janis
10 Gaye—Marvin Gaye’s ex-wife—testifies only that she “was present when ‘Got to
11 Give It Up’ was recorded.” [Declaration of Janis Gaye (“Gaye Decl”), ¶ 5.] This
12 testimony is immaterial and does not evidence whether any elements in the sound
13 recording were created by Marvin Gaye To the contrary, Janis Gaye testified that
14 she did was not present on all days when GIVE was recorded—and that she does not
15 know if Marvin Gaye wrote sheet music or who created the Deposit Copy. [Miller
16 Decl, Exh. G.] Her testimony now in support of this Application that Marvin Gaye
17 did not write sheet music and that the lead sheet that became the deposit copy was
18 created after the song was recorded [Gaye Decl, ¶¶ 7-8] is not credible. If, in fact,
19 Marvin Gaye did write the lead sheet, or if it was written before he recorded the
20 song, then the Deposit Copy arguably is the “complete version” of the composition.
None of the above matters, of course, since the compositional elements found
21
22 in the sound recording but not in the Deposit Copy were never published. Absent
23 publication, no copyright was secured in same under the Act. 1909 Act, § 9.
24 C.
The Court’s Ruling Will Not “Legalize Wholesale Copyright
25
Infringement”
26
Defendants argue that “the Court’s ruling would have a devastating impact on
27 the rights of owners of pre-1978 musical compositions by allowing wholesale
28 copying of compositional elements not found in pre-registration published versions
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1 of the works or within the deposit copies themselves” and thus “would create
2 dangerous and potentially devastating precedent to the owners of such intellectual
3 property.” [App. Memo (Document 232-1), 1.]
Defendants’ dire warnings about the demise of the United States copyright
4
5 law as a result of this Court’s pretrial rulings are greatly exaggerated. Defendants
6 argue that if pre-1978 copyrights are limited to the published compositions that were
7 copyrighted, then anyone can copy composition al material in any pre-1978 sound
8 recordings that was not copyrighted. Defendants are absolutely correct. That is
9 how copyright works.
To obtain a copyright under the 1909 Act, the proprietor must publish with
10
11 notice a manuscript copy of the composition in which the proprietor claims a
12 copyright and must deposit “the best edition thereof then published” with the
13 Copyright Office. 1909 Act, §§ 9,10, 12. If the proprietor did not include certain
14 material in the published copy, then it is not subject to statutory copyright. If the
15 proprietor published without proper notice, the work is in the public domain, and
16 copyright is forfeited. The 1909 Act had specific requirements. Proprietors at the
17 time knew the rules and did what they did to obtain a copyright (or not). That a
18 proprietor failed to publish a complete copy of his composition does not alter the
19 meaning of the 1909 Act—it shows merely the proprietor’s failure to follow the Act.
Defendants (rather hysterically) argue that. “under this Court’s ruling,” a
20
21 “clever infringer” can “take with impunity” material embodied in sound recordings
22 by the Beatles, The Rolling Stones, Elvis Presley, or—yes—even Marvin Gaye
23 because it was not contained in the published sheet music. [App. Memo, 2:1-5.]
24 This is wild-eyed speculation, since the Gayes have no idea what published sheet
25 music secured the copyrights in Elvis Presley, Beatles, or other artists’ songs, and
26 what compositional elements of the sound recordings are not copyrighted in same.
27 / / /
28 / / /
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1
More importantly, Defendants simply miss the musical point that the
2 composition of a popular song is contained the melody, harmony, and lyrics—the
3 very elements that are set forth even in a bare bones lead sheet version of a song.
4
5
6
7
A musical composition consists of rhythm, harmony, and melody,
and it is from these elements that originality is to be determined.
3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 2.05[D]. A musical composition captures an artist’s music in
written form. … A musical composition’s copyright protects the
generic sound that would necessarily result from any performance
of the piece.
8 Newton v. Diamond, 204 F.Supp.2d 1244, 1249 (C.D.Cal. 2002), aff’d 388 F.3d
9 1189 (9th Cir. 2003)(citing A. Dustin Mets, Did Congress Protect the Recording
10 Industry Into Competition? The Irony of the Digital Performance Right in Sound
11 Recordings Act, 22 U. DAYTON L. REV. 371, 372-373 (1997)(emphasis added).
12
Defendants wrongly contend that every sound in a recording is part of the
13 “composition” (which in the case of GIVE includes vocal “woos,” hand claps, open
14 hi-hat, falsetto, party noise, omission of a guitar, etc.). This is not the case and was
15 not so during the era of the 1909 Act, e.g., Tin Pan Alley, Brill Building, etc.
16 Rather, “[c]omposers in the 1970s notated the vocal melody, lyrics, and notes in
17 lead sheet fashion because that was considered the composition of the song (i.e.,
18 not how it was performed on any particular recording).” [Miller Decl, Exh. H, 10,
19 ¶ 30 (emphasis added).] Indeed, sound recordings themselves were not subject to
20 copyright under the 1909 Act prior to 1972. Elvis Presley’s famous sound
21 recordings from the 1950s and 1960s are not subject to statutory copyright. There is
22 nothing unfair or wrong about that. Congress provided the protection it provided.
23
Defendants argue that the Court’s ruling “would create a situation where the
24 compositions in the recordings are derivative works incapable of copyright
25 protection because, as pre-1978 recordings, the recordings could not be submitted as
26 the musical compositions.” [App. Memo, 2:5-8.] This assertion is flat out wrong.
27 Compositions in the sound recordings could always be fully protected—all that was
28 required was to publish sheet music with notice affixed that embodied all the
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1 compositional elements in which copyright was claimed. Any vocal or instrumental
2 part can be notated. Lead sheets were common because songwriters generally did
3 not consider the performance elements (drums, bass, etc.) to be the composition: the
4 “song” was the melody, harmony, and lyrics. Defendants’ “notion that common
5 use of lead sheets somehow precluded a composer in the 1970s from submitting a
6 score indicating all instrumental or vocal elements in which the composter claimed a
7 copyright is without foundation.” [Miller Decl, Exh. H, 10, ¶ 29.]
Jones v. Virgin Records, Ltd., 643 F.Supp. 1153 (S.D.N.Y. 1986) cited by
8
9 Defendants [App. Memo, 11:4-6] held that sales of phonorecords do not constitute
10 publication of the underlying composition under the 1909 Act. Id. at 1158-1159.
11 That holding fully supports Plaintiffs’ position here. Footnote 13 of the Jones, cited
12 by Defendants, merely refers in dicta to the problems that might arise if each
13 recording of an unpublished song constituted publication under the 1909 Act and
14 thus would require the composition’s owner to register a revised composition each
15 time or else forfeit ownership. Jones has no bearing on the scope of copyright in a
16 published copy of a composition. The scope clearly is only the published copy.
The Court’s ruling will not “essentially legalize wholesale copyright
17
18 infringement of pre-1978 compositions.” [App. Memo, 11:13-14.] By definition,
19 all pre-1978 copyrights have already been created. The published works are what
20 they are, and anything that was not published is not copyrighted; that is the law.
21 The Court’s ruling merely follows the law—it does not change the law one iota.
22 D.
Excluding the GIVE and DANCE Sound Recordings Is Proper Here
23
Defendants argue that, due to this Court’s ruling, this “would be the only case
24 in history that the Gayes’ counsel can locate where two complete commercial
25 recordings at issue in a music copyright infringement action were not allowed to be
26 played to compare the expression of the compositional elements embodied in those
27 recordings.” [App. Memo 2:15-18 (emphasis added).]
28 / / /
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1
Again, Defendants’ hyperbole defies common sense. The Gayes cite no case
2 where the sound recording contained elements claimed to be similar but that were
3 not subject to copyright. In each case cited [App. Memo, 14-15], there was no issue
4 that the sound recording differed from the copyrighted work. That is the significant
5 difference here and is the reason why the Court’s ruling to exclude the GIVE and
6 DANCE sound recordings is correct. In other cases, the issue was not raised,
7 perhaps either because there were no meaningful differences between the
8 composition and the sound recording or because any additional material only found
9 in the sound recording was not claimed to similar. The cases do not address this
10 issue and are not precedent on it for that reason. To draw any conclusions from
11 these cases that do not involve claimed similarities in the sound recording but not in
12 the composition would be sheer speculation. Defendants cite no apposite authority.
13
To the contrary, there is significant danger of prejudice, confusing the issues,
14 and misleading the jury by playing Marvin Gaye sound recordings that contain
15 numerous elements not found in the Deposit Copy yet claimed by Defendants to
16 be substantially similar to “Blurred Lines” (“BLURRED”). The sound
17 recording of GIVE contains numerous elements, including drums, keyboard, bass,
18 cowbell, backup vocals, additional vocal melodies, and other musical elements that
19 Defendants contend are similar to BLURRED, and that are not found in the GIVE
20 Deposit Copy. The sound recording of DANCE similarly contains certain numerous
21 elements, including all of its instrumental parts, including the bass, and all backup
22 vocals, that are not found in WAR. [Miller Decl, Exh. H, 2-10, ¶¶ 6-28.]
23
The GIVE Deposit Copy contains no instrumental parts whatsoever (other
24 than an eight bar “bass intro” that is not found on the GIVE sound recording). The
25 DANCE Deposit Copy contains no instrumental parts whatsoever. Neither Deposit
26 Copy contains backup (harmony) vocals. Any interpretative, performance, or
27 arrangement aspects of how the songs are played on the sound recordings also are
28 not reflected in the Deposit Copies. [Miller Decl, Exh. H, 2-10, ¶¶ 6-28.]
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The vast majority of alleged similarities between BLURRED and GIVE exist
1
2 only in the GIVE sound recording. [Miller Decl, Exh. H, 3-5, ¶ 8(a)-(aa).] Clearly,
3 it would be unfair and prejudicial to have the jury hear all of these musical elements
4 on the GIVE sound recording that allegedly are similar but are not at issue here.
Defendants’ musicologist, Judith Finell, testified that the only similarities
5
6 between GIVE and BLURRED that “are obvious enough that a lay listener would
7 hear them easily” and “without guidance from an expert like” Ms. Finell, are the
8 bass line, cowbell, and keyboard parts. [Miller Decl, Exh. I, 84:22-86:13.] In other
9 words, the only similarities a lay juror might hear are not found in the Deposit Copy.
It is patently obvious why Defendants want to play the sound recording: they
10
11 do not own the music, but it is the only music they believe is similar to BLURRED.
12
Defendants want the jury to base its copying decision on the wrong song.
13 The vast majority—indeed, nearly all—of the similarities claimed by Defendants’
14 musicologists are based on the recording only and are not found in the Deposit
15 Copy. [Miller Decl, Exh. H, 3-5, ¶ 8(a)-(aa).] Defendants are desperate to have the
16 jury compare the sound recordings, but do so would invite error. Harper House,
17 Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 207 (9th Cir. 1989) (reversing where
18 erroneous jury instruction failed to distinguish protectable material and made it
19 possible for the jury to find copying based on unprotectable elements). To do so
20 would also plainly cause a significant danger of prejudice, confusion, misleading the
21 jury, and significant waste of time by having four of Defendants’ experts (Judith
22 Finell, Ingrid Monson, Thomas Court, Ron Aston) and Plaintiffs’ expert, Sandy
23 Wilbur, testify about numerous alleged similarities not found in the Deposit Copy.
24 This is the precise reason FRE 403 exists: to avoid prejudice, confusion, waste of
25 time, and to make sure the jury considers the correct evidence in reaching a verdict.
26 / / /
27 / / /
28 / / /
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1
Defendants own the melodies, lyrics, and “bass intro” in the Deposit Copy.
2 Those three elements can easily be played for the jury on a newly made recording
3 that only contains the elements in the Deposit Copy and that does not contain any
4 additional elements of the GIVE sound recording not found in the Deposit Copy.
5 There is no reason to include any elements of the GIVE sound recording to do so. A
6 neutral recording can be made by the musicologists—without Marvin Gaye’s
7 signature voice or any elements of his sound recording—that fairly represents just
8 those compositional elements in the GIVE Deposit Copy claimed to be similar. A
9 similar neutral recording can be fashioned for “After the Dance” (“DANCE”).
10
Plaintiffs are in the process of creating such recordings now pursuant to the
11 Court’s rulings and will timely submit them on the schedule the Court has set. With
12 modern digital recording techniques, it is a simple and inexpensive process to create
13 a neutral rendition of the two Marvin Gaye songs that fairly represents all of the
14 material in the Deposit Copy and nothing more, let alone anything more that might
15 unfairly and prejudicially cause a jury to unknowingly hear similarities that are not
16 found in the Deposit Copy yet attribute them to Defendants’ limited composition.
17
There is no need to play the Marvin Gaye recordings or any portions of them
18 to the jury. They are not relevant to the intrinsic test. The Marvin Gaye sound
19 recordings simply are not Defendants’ copyrighted compositions. The “total
20 concept and feel” of the Marvin Gaye sound recordings is not the “total concept and
21 feel” of the compositions in the Deposit Copies—it is something very different.
22
Defendants entire argument is misplaced and ignores the Court’s rulings.
23 Defendants argue that “the compositions as embodied in the sound recordings are
24 the compositions at issue in this action.” [App. Memo, 13:6-7.] That simply is not
25 the case, as discussed above. The GIVE and DANCE sound recordings contain
26 numerous musical elements—including all instrumental and backup vocal parts—
27 that are not contained in the Deposit Copies. [Miller Decl, Exh. H, 2-10, ¶¶ 6-28.]
28 The compositions in the sound recordings are not the compositions Defendants own.
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Defendants’ argument that alleged copying of sound recording elements not
1
2 found in the Deposit Copy somehow shows copying of other, unrelated elements
3 that are contained in the Deposit Copy lacks merit. Even assuming arguendo that
4 Plaintiffs copied sound recording elements not found in the Deposit Copy, that does
5 not tend to show that any elements in the Deposit Copy are substantially similar.
6 This is particularly true where, as here, Plaintiffs concede access to the Marvin Gaye
7 songs. Thicke and Williams admire Marvin Gaye and knew his two songs here.
On the other hand, the risk of prejudice, confusion, waste of time, and
8
9 misleading the jury by allowing evidence of elements in the recording that
10 Defendants do not own would be substantial. It is clear that Defendants want to
11 confuse the jury by having them think that alleged similarity of sound recording
12 elements not contained in the Deposit Copy—many of which are commonplace
13 stylistic or performance elements, such as use of a cowbell, keyboard, hi-hat,
14 falsetto voice. etc.—are somehow evidence that the melody of BLURRED is similar
15 to the melody of GIVE found in the Deposit Copy. The risk of confusing or
16 misleading the jury is substantial, and the logical inference does not follow that,
17 because unrelated elements allegedly are similar, the Deposit Copy was copied.
Furthermore, it is not necessary to use the Gaye sound recordings. As the
18
19 Court has suggested, a recording of just those elements in the Deposit Copy can be
20 constructed without using Marvin Gaye’s voice or elements of his recordings.
That Marvin Gaye was Defendants’ father or Janis Gaye’s his ex-husband is
21
22 irrelevant. The copyright is in a composition. Defendants have no more rights in
23 Marvin Gaye’s performance of the composition, and it is no better an example of the
24 composition, than any other rendition. To the contrary, it is misleading and
25 prejudicial and likely to confuse. Newton, 204 F.Supp.2d at 1249 (“A musical
26 composition’s copyright protects the generic sound that would necessarily result
27 from any performance of the piece”)(emphasis added).
28 / / /
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The jury can hear the “total concept and feel” of the Deposit Copy
1
2 compositions in a sound recording that only contains that composition and no other
3 elements. The Marvin Gaye sound recordings are not the best evidence of the “total
4 concept and feel” of the Deposit Copies because they contain numerous elements
5 that are: (a) not in the Deposit Copies; and (b) likely to mislead or confuse the jury
6 because of alleged similarity to Plaintiffs’ songs of those unprotected sound
7 recording elements. Defendants cannot justify why a recording that contains
8 numerous irrelevant evidence is more fair than one based only on the Deposit Copy.
Defendants argue that the sound recording is necessary to show the alleged
9
10 “combination of unprotectable elements” that they claim were copied. That begs the
11 question—if those unprotectable elements are only found in the sound recording and
12 not in the Deposit Copy, then those elements are not subject to the Gayes’ copyright.
There is no need to have a hearing with musicologists (all of whom live on
13
14 the East Coast, Ms. Finell and Ms. Wilbur in New York, and Ms. Monson in
15 Boston) so that Defendants can have their experts plead for the use of a sound
16 recording that has very little bearing to the Deposit Copy compositions at issue.
17 Rather than waste their time attempting to explain why they based their opinions
18 predominantly, if not entirely on elements not found in the Deposit Copy, Ms. Finell
19 and Ms. Monson should set to work creating whatever demonstratives they need.
Any musicologist can easily can create (or hire musicians to create) a
20
21 recording of the song that: (a) only contains the elements in the Deposit Copy and
22 (b) does not contain any elements of the Marvin Gaye sound recordings that are not
23 found in the Deposit Copy. The recording would have melody, lyrics, harmony, and
24 the “bass into” found in the GIVE Deposit Copy and the melody, lyrics, and
25 harmony found in the DANCE Deposit Copy. The jury will hear what the actual
26 composition that Defendants own sounds like and can compare it to Plaintiffs’ work.
27 / / /
28 / / /
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Plaintiffs will have a proposed version of the Marvin Gaye songs ready for
1
2 the jury to hear and will timely exchange same with Defendants, per the Court’s
3 Order. That approach is the fairest to all parties and insures a fair result at trial.
4
III.
5
THE MOTION TO CONTINUE TRIAL SHOULD BE DENIED
There is no reason to continue the trial. The only reason asserted by
6
7 Defendants is that their experts purportedly need more time to prepare
8 demonstrative exhibits for trial. This argument should be rejected out of hand.
Expert discovery is long since closed. Defendants’ musicologists have
9
10 produced reports and have been deposed. They cannot change their opinions now.
The only alleged issue is retooling alleged demonstratives for trial. This is
11
12 not an insoluble problem. Whatever charts or demonstratives that Defendants’
13 musicologists have prepared that are based on elements found only in the sound
14 recording cannot be used. Any charts or demonstratives based only on elements
15 found in the GIVE and DANCE deposit copies can be used at trial. It is simple.
16
To the extent some demonstratives need reworking, there is time to do so.
17
The notion that it will take voluminous amounts of time to prepare new
18 demonstrative sound recordings is hugely exaggerated. The Deposit Copies have
19 minimal elements—vocal melody, lyrics, harmony (chords), a “bass intro” in GIVE,
20 and vocal melody, lyrics, and harmony (chords) in DANCE. A musicologist can
21 prepare a recording of those elements in an afternoon using digital recording
22 technology. Defendants have had since July 2014, when Plaintiffs filed their
23 summary judgment motion and raised the Deposit Copy issue, and since October
24 2014 when the Court limited the motion to elements in the Deposit Copy to prepare.
25 What were Defendants doing all this time? Hoping that the Court’s ruling on the
26 summary judgment motion would go away at trial? Defendants knew that the
27 Deposit Copy limitation was an issue but chose—and still choose—to ignore it.
28 / / /
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1
Furthermore, the Court’s ruling on summary judgment and its rulings on the
2 motions in limine have been clear. There is no reason for confusion, nor are
3 Defendants confused in any manner that would prevent them from preparing any
4 demonstrative exhibits. Defendants just refuse to accept the Court’s rulings. Rather
5 than adjust their trial planning to the Court’s Orders, Defendants balk and reargue.
6
Defendants seek almost $42 million in damages. They have multiple lawyers
7 and experts working round the clock on this case. Plaintiffs are busy, in-demand
8 musical artists who have cleared their schedules for the February 10, 2015, trial.
9 Plaintiffs want their day in Court to prove to the world that they did not infringe.
10
If Defendants are not ready for trial, they only have themselves to blame.
11
If the Court’s criminal calendar prevents at a trial in February, that cannot be
12 helped. But there is no reason to continue the trial because Defendants are not
13 ready. The Court’s rulings, after all, are not carte blanche for Defendants’ experts
14 to come up with new opinions not contained in their reports and on which they have
15 not been deposed. The issue, at most, is demonstrative evidence—charts, etc.—to
16 illustrate the opinions that the experts have already been deposed on. There is no
17 reason why such demonstratives cannot be prepared on the schedule the Court set.
18
Indeed, Plaintiffs are prepared to exchange demonstratives based on the
19 Court’s ruling—including demonstrative sound recordings of the Deposit Copies,
20 per the Court’s rulings—in the timing that the Court has set in its recent Orders.
21
IV.
22
THE MOTION FOR INTERLOCUTORY APPEAL SHOULD BE DENIED
23
There is no basis for interlocutory appeal. There is no “controlling issue of
24 law as to which there is substantial ground for difference of opinion.” 28 U.S.C.
25 § 1292(b). There is no legal basis for the Gayes’ opinion that they have secured a
26 copyright in something other than the sheet music that was published with notice.
27 As discussed above, the Court’s ruling adheres to Section 9 of the 1909 Act.
28 Defendants are unable to cite any authority that supports their claim to own a
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1 statutory copyright under the 1909 Act in a composition found only in a sound
2 recording and never published in manuscript form or registered as such.
The interlocutory appeal also will not “materially advance the ultimate
3
4 termination of the litigation.” 28 U.S.C. § 1292(b). The case will go to trial, now o
5 after the interlocutory appeal. The appeal undoubtedly will fail, in which case it will
6 just delay the process. Even if the appeal succeeds, the case will still go to trial.
7 The interlocutory appeal does not “materially advance” termination of the litigation.
8 The ordinary process should be followed here. The Court has made its pretrial
9 rulings. The case will go to trial. After the judgment, either party can appeal. The
10 Gayes fail to show any reason why this case is different from any other case in
11 which the trial court’s rulings on evidentiary or other issues affect the scope of trial.
Finally, the Gayes’ alleged costs, potential liability for legal fees, or supposed
12
13 inability to post an appeal bond have no bearing on the issue of interlocutory appeal.
14 Given that the Gayes seek almost $42 million from Plaintiffs—an outrageous
15 sum—it is hardly a basis for an interlocutory appeal that they are incurring litigation
16 costs.
17
Plaintiffs want their day in Court. They did not copy Defendants’ songs.
18
The Court should deny the Application in its entirety.
19 / / /
20 / / /
21 / / /
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/851747.1
23
Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 28 of 31 Page ID
#:6995
1
v.
2
CONCLUSION
3
For the foregoing reasons, the Court should deny the Application and should
4 grant such other and further relief as the Court deems just and proper.
5
6 DATED: January 30, 2015
KING, HOLMES, PATERNO & BERLINER, LLP
(& 11~ ((.;-
7
8
By:
9
HowARD E. KING
10
S ETH MILLER
Attorneys for Plaintiffs and Counter-Defendants
PHARRELL WILLIAMS, et al.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
K tNG , H OLMES,
P ATERNO &
B ERLINER , L LP
4112060/851747 1
24
Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 29 of 31 Page ID
#:6996
DECLARATION OF SETH MILLER
1
2
I, Seth Miller, declare as follows:
3
1.
The facts set forth below are true of my personal knowledge unless
4 otherwise indicated. If called upon to testify, I could and would testify competently
5 thereto.
6
2.
I am an attorney duly admitted to practice before this Court. I am a
7 partner with King, Holmes, Paterno & Berliner, LLP, attorneys of record for
8 Plaintiffs and Counter-Defendants PHARRELL WILLIAMS, ROBIN THICKE and
9 CLIFFORD HARRIS, JR. and Counter-Defendants MORE WATER FROM
10 NAZARETH PUBLISHING, INC., PAULA MAXINE PATTON individually and
11 d/b/a HADDINGTON MUSIC, STAR TRAK ENTERTAINMENT, GEFFEN
12 RECORDS, INTERSCOPE RECORDS, UMG RECORDINGS, INC., and
13 UNIVERSAL MUSIC DISTRIBUTION (collectively, “Plaintiffs”).
14
3.
Attached hereto as Exhibit A is a true and correct copy of an email I
15 received from the Court ([email protected]) at 3:03 pm on January
16 29, 2015, that reflects that Defendants filed their Ex Parte Application at 3:02 p.m.
17
4.
Attached hereto as Exhibit B is a true and correct copy of an article
18 regarding Defendants’ Application posted online by The Hollywood Reporter at
19 3:15 p.m. on January 29, 2015, at: http://www.hollywoodreporter.com/thr20 esq/marvin-gaye-family-seeks-blurred-768223.
21
5.
Attached hereto as Exhibits C and D, respectively, are true and correct
22 copies of copyright registrations for “Got to Give It Up” and “After the Dance” that
23 were previously filed with the Court in Document 91-2, filed 7/22/2014, as exhibits
24 to the Declaration of Donna Stockett (“Stockett Decl”) filed in support of Plaintiffs’
25 Motion for Summary Judgment Or, In the Alternative, Partial Summary Judgment.
26
6.
Attached hereto as Exhibits E and F, respectively, are true and correct
27 copies of the deposit copies for “Got to Give It Up” and “After the Dance” that also
28 were filed with the Court in the Stockett Decl (Document 91-2, filed 7/22/2014).
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/851747.1
25
Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 30 of 31 Page ID
#:6997
1
7.
Plaintiffs took the deposition of Janis Gaye on August 29, 2014.
2 Attached hereto as Exhibit G is a true and correct copy of relevant excerpts from
3 the transcript of the deposition ofMs. Gaye.
4
8.
Attached hereto as Exhibit H is a true and correct copy of relevant
5 excerpts from the Declaration of Sandy Wilbur In Support of Plaintiffs' Motions In
6 Limine filed on January 6, 2015 (Document 173).
7
9.
Plaintiffs took the deposition of Judith Finell on April 18, 2014.
8 Attached hereto as Exhibit I is a true and correct copy of relevant excerpts from the
9 transcript of the deposition of Ms. Fin ell.
10
I declare under penalty of perjury under the laws of the United States of
11 America that the foregoing is true and correct.
12
Executed on January 30, 2015, at Los Angeles, California.
~fuM~~~s
13
14
Seth Miller
15
16
17
18
19
20
21
22
23
24
25
26
27
28
K ING , H OLMES ,
P ATERNO &
B ERLINER , LLP
4 112 060/85 1747 I
26
~
Case 2:13-cv-06004-JAK-AGR Document 233 Filed 01/30/15 Page 31 of 31 Page ID
#:6998
1
2
CERTIFICATE OF SERVICE
I hereby certify that on January 30, 2015, I electronically filed the foregoing
3 PLAINTIFFS' OPPOSITION TO COUNTER CLAIMANTS' EX PARTE
4 APPLICATION FOR CONTINUANCE OF TRIAL, RECONSIDERATION
5 OF GRANTING MOTION IN LIMINE NO.1 3 AND CERTIFICATION OF
6 QUESTION FOR INTERLOCUTORY APPEAL; MEMORANDUM OF
7 POINTS AND AUTHORITIES; DECLARATION OF SETH MILLER with the
8 Clerk of the Court by using the CM/ECF system. I certify that all participants in the
9 case are registered CM/ECF users and that service will be accomplished by the
10 CM/ECF system.
~ A~Mtt
11
12
.TOes:
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
K ING, H OLMES,
PATERNO &
B ERLINER, LLP
411 2 060/851 7471
ssett
Case 2:13-cv-06004-JAK-AGR Document 233-1 Filed 01/30/15 Page 1 of 2 Page ID
#:6999
EXHIBIT A
Case 2:13-cv-06004-JAK-AGR Document 233-1 Filed 01/30/15 Page 2 of 2 Page ID
#:7000
Seth Miller
From:
[email protected]
Thursday, January 29, 2015 3:03 PM
[email protected]
Activity in Case 2:13-cv-06004-JAK-AGR Pharrell Williams et al v. Bridgeport Music Inc et
al Ex Parte Application to Continue
Sent:
To:
Subject:
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to
this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not
apply.
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA
Notice of Electronic Filing
The following transaction was entered by Duvall, Paul on l/29/2015 at 3:02PM PST and filed on 1/29/2015'-J
Case Name:
Pharrell Williams et al v. Bridgeport Music Inc et al
:_)
Case Number:
2:13-cv-06004-JAK-AGR
Filer:
Frankie Christian Gaye
Marvin Gaye, III
Nona Marvisa Gaye
Document Number: 232
Docket Text:
EX PARTE APPLICATION to Continue Trial from February 10, 2015 to Date to be Determined
by Judge Kronstadt , EX PARTE APPLICATION for Reconsideration of Document 231 and
Document 226, EX PARTE APPLICATION to Certify Question for Interlocutory Appeal filed by
Defendants and Counter-Claimants Frankie Christian Gaye, Marvin Gaye, lll(an individual),
Nona Marvisa Gaye. (Attachments:# (1) Memorandum of Points and Authorities in Support of
Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting
Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (2) Declaration
of Richard S. Busch in Support of Counter-Claimants' Ex Parte Application for Continuance of
Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of Question for
Interlocutory Appeal,# (3) Declaration of Judith Finell in Support of Counter-Claimants' Ex
Parte Application for Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3
and Certification of Question for Interlocutory Appeal,# (4) Declaration of Ingrid Monson in
Support of Counter-Claimants' Ex Parte Application for Continuance of Trial, Reconsideration
of Granting Motions in Limine 1-3 and Certification of Question for Interlocutory Appeal,# (5)
Declaration of Ron Aston in Support of Counter-Claimants' Ex Parte Application for
Continuance of Trial, Reconsideration of Granting Motions in Limine 1-3 and Certification of
Question for Interlocutory Appeal,# (6) Declaration of Thomas Court in Support of CounterClaimants' Ex Parte Application for Continuance of Trial, Reconsideration of Granting Motions
1
~
Case 2:13-cv-06004-JAK-AGR Document 233-2 Filed 01/30/15 Page 1 of 4 Page ID
#:7001
EXHIBITB
Caser:JIIIIn
2:13-cv-06004-JAK-AGR
Document 233-2 Filed 01/30/15 Page 2 of 4 •Page ID
®
tml
#:7002
11LIIte
Newsletfefs
H0 IIywood, Esq.
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Marvin Gaye Family Seeks ·slurred Lines·
Appeal, Warns of .. Devastating Consequences..
of Key Ruling (Exclusive)
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In an bid to delay the trial. the judge is told his interpretation of the law would
"essentially legalize wholesale copyright infringement" of Beatles songs, plus
disadvantage those who can't read music.
SUNDANCE: ON THE SCENE
SUNDANCE 2015
Sundance: Jeson Sudeikis! Winona Ryder Pick
Their " Last Meals"
\\lith just two weeks to go before a scheduled trial owr whether Robin Thicke's "Blurred
Lines'' is a copyright infringement of 1\Ianiu Gaye's "Got to Giw It Up," the dispute has
gone nuclear in the past 24 hours with a judge's abrupt change-of-mind on a key issue and
then an attempt to delay the trial for an appeal. In new papers, the Gaye family asserts the
judge is misreading cop)Tight law to the extent. that it could ha\·e "drastic and devastating
The Scene at Sundance Film Festival2015
(Photos)
consequences for intellectual property" and "allow infringers to steal classic portions of the
songs by Marvin Gaye: the Beatles, the Rolling Stones~ Ehis Presley, and every other
iconic artist whose works were created before 1978...
To briefly recap, Pharrell \Villiams and Thicke
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sued first in an attempt to \\-in judicial relief that their
monster hit wasn't an infringement. Manin Gaye's
children then brought cross-claims saying otherwise.
Last October, \\'llliams and Thicke failed to win the
case on summary judgment. but got the judge to issue
Sundance: Kevin Bacon Reacts to 'Guardians of
the Galaxy's' Kevin Bacon Jokes
a key ruling that because the "Got to Giw It Up"
sound recording wasn't deposited \\;th the Copyright
Office in the 1970s, Gaye's copyrights on the song
were limited to elements expressed in the sheet music
compositions. As a result, \'·ohen it came time to
determining what evidence a jury could hear. U.S.
District Judge John Kronstadt precluded use ofGaye's sound recording so that the jury
wouldn't be prejudiced by hearing stuff like Gaye's ·mice. percussh-e choices and back-up
\'OCals.
Sundance: Kristen Wiig , Jack Black Revea l Who
'l;hnnlri <\rnrP <;nunritrl'lrk tn ThPir I ivP-: NiriPn\
Case 2:13-cv-06004-JAK-AGR Document 233-2 Filed 01/30/15
Page 3 of 4 Page ID
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l11at meant that prospective jurors won't be hearing the original "Got to Gi\·e It Up"
~UIIUI2111..~.
1"\ll:tl~ll
nny , -.1121..1\
Ull21..1\
1"\~'1'~121
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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 All-Female 'Ghostbusters' Cast Chosen
new conclusion.
While sticking with his belief that the introduction of the original Gaye recording at trial
would unfairly prejudice \Villiams and Thicke, he said there was "merit" to the Gaye
family's contention ''that it could be difficult for them to present their e\-idence of intrinsic
similarity if the sound recordings are inadmissible in their entirety."
Ha\i.ng the musicologists play the sheet music on keyboards - a proposal made the
\Villiams side- might not do the trick. And so, the judge offered up his own suggestion:
The Gaye family could create a new \·er.sion of "Got to GiYe It Up," one that's stripped of
non-protected elements. Mar\'iD Ga.ye singing would still be in this new version and would
be addressed \\ith instructions to the jury. The judge e\·en nodded to the fact that the Gaye
family had created special mash-ups to prm·e their case.
''Two of the 'mash-up' tracks submitted by Defendants as potential trial exhibits. which
consisted of Ga.ye's Yocals from 'Got to Give It Up' laid m;er instrumentals from 'Blurred
Lines,' sho\". that Defendants possess the technical capabilitie.s to isolate protected from
unprotected elements of the recordings of their compositions," \\TOte the judge.
Despite the judge's new inclination to allow at least some form of sound recording for the
jUIJ-to hear, the Gaye family isn't satisfied. Far from it with their lawyer telling the judge it
"would be the only case in history'' where something like that happened. They add that as
"much as forty percent of the similarites found by the experts" haYe been excluded and that
the order would require them to ''re-tool their testimony and the. demonstrative exhibits
Oscars: 'The Imitation Game' Finally Plays the
Gay Card
they have spent months developing." On Thursday, an application for continuance of the
trial and certification for an interlocutory appeal was filed.
Read ntore Sony, Google~ Apple Hit "\Vith Lawsuits OYer Pre-1972 Music
_.\ccording to the latest filing, "The law is clear that a plaintiff suing for copyright
infringement under the 1909 Copyright Act need only produce a cop}Tight registration
identifying a work as published. As long as the work is properly registered, the registration
rovers not only the composition as reflected by the deposit copy, but also other versions of
the composition that existed at the time of registration."
Julianne Moore Believes in Therapy, Not God
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The Gaye family faults the judge for taking the position that the \·ersion of the composition
embodied on a sound recording isn't protected. ''Not only is there no support for this
proposition in the case law: but adopting such a position would create dangerous and
potentially devastating precedent to the owners of such intellectual property," states the
fUing.
ln a bid to get the judg·e to either reconsider once again or send the case up on appeal
before a trial takes place, Busch argues that if the judge's limiting position is adopted,
clever infringers would be able to compare sheet music with \\-·orks by artists such as Eh-is
Presley, and then legally steal the. non-compositional elements. So sampling Presley's
voice? Maybe permissible. Busch also argues that it would ha\"e a "particularly harsh effect
on indiv-iduals who may be great composers of songs 1 but do not read or write music" since
those who didn't have access to music education and couldn't properly annotate their sheet
music would get less legal protection.
"It would create a situation where the compositions in the recordings are derivati\·e works
incapable of copyright protection because, as pre-1978 works. the recordings could not be
submitted as the musical compositions:" continues the filing. ''That is not and cannot be
the law. Instead. the Cop}Tight Act required publication and registration. but once these
statutory formalities are met, all ,·ersions of the composition fairly identified by the deposit
oopy were protected."
It's not often that judges certify interlocutory appeals- ones that come before claims are
resoh-ed at trial - but the Gaye f.unily says it would be "prohibitiYely expensi,·e" to ha\·e a
second trial if one proceeds next month and then a successful post-trial appeal requires a
do-over.
Stay tuned. The "Blurred Lines" case probably just gaw ewryone in the music industry a
stake.
Email: [email protected]
Twitter: @eriqgardner
Larry Wilmore Reveals Roots of Bill Cosby
Dislike: "Man, What an Asshole"
Case 2:13-cv-06004-JAK-AGR Document 233-2 Filed 01/30/15 Page 4 of 4 Page ID
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The Making of 'American Sniper': How an
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Screen
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Case 2:13-cv-06004-JAK-AGR Document 233-3 Filed 01/30/15 Page 1 of 3 Page ID
#:7005
EXHIBIT C
Case 2:13-cv-06004-JAK-AGR Document
Document 91-2
233-3 Filed
Filed07/22/14
01/30/15 Page
Page4 2ofof163 PageiD
Page ID
#:1131
#:7006
FORM E
Page _1
·.
REGISTRATION NO.
CLASS
1\ppliratiott
for }tegtstration of a Q:l.aim to Q:opMliyht
E
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·
db~forc you submit the form.
tnstr~c
The application .must
rights, Library of Congress, Washington, D.C. 20559, together
with:
(d) If unpublished , one complete copy of the work and the
registration fee of sr..
II\ ·· For further tnformaoon, see page .f.
.
.
.
..
da~
.... ,
(b) !f pub!tshed, two cop1es of the best edmon of the work
. d 2 should be typewritten or printed with pen and
P ~s 1 an ncl 4 should contain exact!}• the same information
and the registration fcc of S6.
ink ages 3 a
.
.
.
.
. : ge• and 2, and rnay be carbon coptcs.
Make your remittance paynblc to the Hcg1stcr of Copyrtghts.
as pa , 1
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.
. Co right Clalmant!sl and Ad_drus(~s): . Gtvc the nam~(s) and _addrcss(cs) of the copyr1ght owncr(s). The name( s) should
~rdinili1y be the sam~ us in 1he nouce of copynght on the cop1cs depomcd.
com~i~~ED at line 9. F.nr rublishcd works th~ npplica.t ion
~~auld not be ~ul.Hllll'uctjll"Hd" tfr l~lC date rubbcatltl AI~Cfl
,. line -i(a), ;md s _wu , st~te t 1c acts w 11<: 1 cx•stc< on t Jnt
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J 0 BETE MUS_! - ~---~-~~~~~-y,
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Address
----~~-?.?. ··?.~!'!~~}:---~-~ -~-~-~ ·· ········· .... ···· ·· ···-·· ·----··· ·-· ·· ··· ·---·--···--·· ···· ···· ·· ·······-----------·-· ··· ·
Name ------ ···- ---- • ·-------- ··- ·-- ---- ------- ·-·------ - ..... · · · - ............... ···-· · ····- ·-- -- ---- · ------------ ----------··--·-------- ·
Addrou --· --. •· • ----.. -------- ·--- ---- · ----- · --- ---------- ·- •• • • --------------------- .. -- • ----- .. • .. ------ • ·--·-- -·- ----------- · ·- ·- ---- ·
j?:~~~~~;:-~i-t~:~~-s~ ;~. -~~~-- d;~i~~i~.- -~~i~~:~ ;~~~-. ~~;;·-~~
give!!. Where a work was made l~r ~1re, the employer IS the
author. 111c citi1.cnship of orgamzauons formed under U.S.
Fedenll or Stare l:lw
~hould
------ ~~~~:;s··:~~-~d:- -c~~;~::·r:- -~f -~;~:i~: -;~~h~~:· ·;;·~~;d:~ ·,: ~:
rangers, com~!lers, etc:. If .the cop}:nght da1m IS based on new
matter (see-lme 5) g1ve 1nformauon about the author of the
new maHer.
be stated as U.S.A.
f:t~-~-Y.!.~--- ~AXf_ ------··· ·--------------------------.------
N1me ______
(Givo !<gal name followed b)' pseudonym if Iauer appears on the
~ -j
_;
•• • ,.
1-
•
' ••
'
.
Domiciled in U.S.A.
COPIO>)
X
Yes....
No •.••
6255 SUNSET BLVD.
Yes ....
No-·--
Yes....
Nu ----
I
words & mus lc
Citizenship: U.S.A. -----(Check if U.S. citizen)
Ocher ------------------- --{Nilme of counrry)
Address ----------------·-------········---------------- Autbor of ---------------------------(Sc.ate which: words, music, arn:ngemc::nt, etc.)
Name --------·-·-·· ......... . ... _••.. ·----- · -···· ............ ... .............
(Give lcg>l r~amc lullowcd by pscudonrm if 1>11« •ppc.ts on the mpies)
Domiciled in U.S.A.
Other ----------------------(Name of country)
Address --··-----------·--···--··-----------------------, Authpr of ---------.------------------(St.aco wh•ch: wnttht mus1c, arrangemtn t. c:t<.)
Nime -------------- · --- .......... ------- ---·----· . ..... ...... --------------- (Give tcg:~t name followed by p-scudOn)·m if llncr ;~ppcus on 'he copies)
OOtnidled in U.S. A.
~-
Cidzeosbi(?: U.S.A. --(Check .r U.S. dtizon)
.....
Citizenship : U.S.II.. .••• ••
(Check if U.S. citi><n)
Olh<r ....................... .
<N•m• 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)
lbl Plac~< of Publication: Give the n:tme of 1hc
--
----------·- --- . -·-- .......... .. --- ....... ... ------------.--. -- --~ NOTE:
LLeave all spaces of
CO\lntr)'
~
(Yc>r)
in which this particular version of the work was ftrst pub!i 5 hccl.
--------US A------------------ ............. ---- ----- ------------------------------ --~---
lin~ ·s:-blank unless .!~e Instructions below apply to your
s;
Pre~ious Registration or Publication: If a claim to copyrtgl_lt m any sub.>rall!ial pur of this work was previously
registered in the U.S. Copyright Office in unpublished form,
w;;£]
~
if any subslantial part of the work was previously published
anywhere, give re<JUestcd information.
or
rc.:gi.uc r~d?
Yes-----
No -----
() ;uc of rC'gistra(ion ----------------------
Hl·Kistrarion number---- -- ---------------·
Was work previously published?
Yeo .....
No -----
Oarc of publication -------·-------· ......
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.)
...
~ - .-
--- .- -.. ----. .
. .'
..
Case 2:13-cv-06004-JAK-AGR Document 233-3 Filed 01/30/15 Page 3 of 3 Page ID
#:7007
6. If rcslltratlon fu Is to be charged to a deposit account •stabllshed In the Copyright Oflicc, slve
IICIIIIC
of ac:c:ount:
JOBETE MUS 1C COMPANY, INC.
7.--H~;;·~-n"d- cifd",;~;-~t P•~-;-~~-~;;-;;~i;~;i~~--;~·;i,-;;-;;;;;;;-;;~d~-;~~--~;-~~t:~'d:-i1--;~~~--,"h~~~d-b~-;;.;t~-----------Name __
_-!_~-~-~-!,~---~~~-~--~---~-~J:!-~-~-~-Y..!••• J.~~ .:....-
AddrciS --- ___
.§_?_?_?___ ?_~_!'{ ~-~J: --~-~-~-Q- !------------------
8. Sand certlfic:ate to:
(Type or
print
name and
address)
Nam.c:
----------------------------------------~
JOBETE MUSIC COMPANY, INC.
. ___ _, __--------------------- ............. ---------.-- ........... -------------- .. ----- ... __ .,...., _________ -------
Add reS!
--------------- •. ··---------· ------ ----(N~;:;;i;;; ;-;,·.i ~;;.~~)- - - .. -------------- -·- ----------------
--
6255 SUNSET BLVD.
90028
CALIFORNIA
HOLLYWOOD,
----- --------·-<-cit);>"----------------------- ·<s,~"t;;-·· ·--- --- --·-· ·· ·- ----(iii>-c.>d;>·-----------·
=-. _._
--- -- ---·- .- -.
,-;::-::====.-~-:
.-:::-=.-=-=-==---==:=.= _;-=-.:::::-:::::-::-.---:-.. - ~:·~-== ==::-: :..::=. =· ~ - ~
I CERTIFY that the sratemcnts made by me in this application are correct to the best of my
knowledge.
9. Certification:
...,.. -~
- ---------~-------------------------------- -
(Application not
acceptable
unless signed)
isnature of copyriRh< doim>nt or duly au<horited agen<)
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.
·
.{Form K-Print or pictorial illustration.
Class K Form KK-Print or label U:Sed for an article of merchandise.
L}F
Oass
or M
Ous N
•
•
. plCtW'e.
.
orm L-M- M
. otion
Form N-Sound recordin~.
Form R-Renewal copyright.
Form U-Notice of usc of copyrighted music on mechanical iostrumcnts.
• ¥ - •-
· ·-
-
'
FOR COPYRIGHT OFFICE UU: ONLY
Application received
'.
'
I i
I
\
One copy recelvod
Two copies rc colved
'
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.•
i
Fe e received
I
Ronowol
((~
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Page 2
Case 2:13-cv-06004-JAK-AGR Document 233-4 Filed 01/30/15 Page 1 of 3 Page ID
#:7008
EXHIBITD
Case 2:13-cv-06004-JAK-AGR Document 91-2 Filed 07/22/14 Page 7 of 16
Case 2:13-cv-06004-JAK-AGR Document
233-4 Filed 01/30/15 Page 2 of 3 Page ID
#:1134
for }trgistratfon of a ~t.aim
FORM E
#:7009
~ppliratintt
REGISTRATION NO.
CLASS
t~ [op~ri~ht
E
··
uslcal composition the author of which Is a Citizen or domiciliary
.Jn ahrn United States of America or which was first published In the
of I e states of America
····-
./
• Make sure that all applicable spaces have been
Mail all pages of the application to the Register of Copy·
b~fore you submit the f<~rm. The appl icatinl_l m.ust
rights, Libr:Jry of Congress, \Vashington, D.C. 20559, together
ED at line 9.
F.o r publtshed works th~ ap_rllca.twn
with:
not be submitted untt! after the date of publtcaoon gtvcn
(<~) If un published, one complete mpy of the work and the
sl_lOuld sta. te the facts which existed on that
f
4 (a)' ood
~
registration cc of 56.
For further tnformanon, sec page 4.
and
·z
should
be
typewriuen
or
printed
with
J>en
and
(b)
If
published,
two copies of the best edition of the work
1
and the registration fee of S6.
3 ancf4 should contain exactly the same information
1 and 2, and may be carbon copies.
Make your remittance payable to the Register of Copyright5.
right Cfaimantes.l and Ad.drus(esl:. Give the nam~(s) and .addrcss(es) of the copyright owncr(s). The narne(s) should
be the same as m the nonce of copynght on the copte~ deposttc<l.
~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
the title of the music• I composition as it >ppeort on the ropiu)
.•. --··------- ---------------------- --· -- --------- - ------- -- -- --- .••. ---.-.-- ·- ---.--------- .• - ----· -------.-------------------- --·
Authors include comf>Osers of music, authors of words, ar·
'citizenship and domicile information must be
rangers, compilers, etc. If the copyright claim is based on new
a work was made for hire, the employer is the
matter (sec line 5) give information about the author of the
The citizenship of organizations formed under U.S.
nc'v tnaucr .
or Stntc law should be stawd as U.S.A.
llf:'-~-~-~-.,.:
.in
u.s.A. Yes .X.. No- - --
• ::.
Address
6464--.S.un..seti --lH.:t,rd-.--llo.l-l)tWOOd:~..: (?alth~r of .IJ.C\.rds--.and--Mus-ie{.)U.te wlucb: woidS: ffiusJc, arrnngemffit', etc.)
U . ~. A .... .;<..
!Chock if U.S. cicixcn)
Citizenship:
in
Ocher -------- -- - - - - ----- ---(Name of country)
U.S.A. y., -X.- No---- Addreu 6464-.Sun.set.--gl.:t,rd,- - ~io-l-1y~d-- Authpr of .WA.:~;ds---and---Mus-i<!-­
(St2U: whJch: woidS: rnu.s1c, art-angemcnr. etc. )
--------------------· •. • ·---- - .... --- .. ---- ------ ..... --- ___ _--·. -- ..... _ 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 ----
Address -------- - ---- ·--- --- - - .•• • ----------------- •.••••
Other _•.• ·- -- ___ --- --------- _
(N>me of country)
Author of --·· ------- _______ • •.• ---- -'""'hich: wordJ, muJicy .unngemcnt, etc.)
(St~tc
I
~ NOTE:
L~av~ all spac:u of line 4 blank
Date of Publlc:atlon: Give the date when copies of this
.,.,., .~..... ,,.,.,u \'ersion of the work were first placed on sale, sold,
distributed. The date when f opies were made,
or reproduced, or the date when the wo rk wa~ per-
unless your work has been PUBLISHED. / ~
formed or recorded, should not be confused with the date of
publication. NOTE : The full d:11c (month, day, and year) must
be given.
1tZ:i·------------------------·------------------------
&;~:,;:~----------------- ------ -------------------- ~if"M~t- ----- ··i.r:li><,----- ---1
(b}
Plate of Publication: Give the n:une of the country in whkh chis particular ve r;ion of the work was first published.
11);-;:-·<---·-···-··-···----------------- ·-- ·· -- -· ------------------·· -----· .W-r~.A-.----- · ·· · ··- -·· ·---· · •· ··• · ·· ·-------- ·· · · ----- ·-· ---· ---· . --
,
_
~ NOTE:
I Leave all spaces
of line 5 blank unleu tha Instructions b~law apply to your
"':'lous Registration or Public:atlon: If a claim to cop}'. t.n a~y substantial part of this work was previously
tn the U.S. Copyright Office io unpublished form,
worl(
Pr<viously rc gtstere
·
d>•
...~ --
y es -----
~N o
W<lrk pre•iously pub!' h d>
.
u e .
Y
N
cs -----
o
::
_ _,___
"
-;.c--
or if any substantLi..l part of the work wa.s previousl y published
anrwhcrc, give re<:jue~ted information.
D ate o 1 rcHututton
•·
· ______ ,. _______ .,. __ ___ ~ 0
are o
I
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n C"gntr::ltton
·
·
num b tt
'
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·
HegtstrJtiOn number------ ... ---------------
any substantial NEW MATTER in this version? Yes .. . ... .. . No ......... If your answer is " Yes," give a brief general
of the n_a~ re of rhe NEW MATTER in this version. (New maner may con si.s r of compilation, arrangement, ada ptareviSion, and the like, as well as additional words ond music. )
~------··------ ----- ----c;;;,;pr;;;-;,iTdFfii<~hi;-;pa;-.,- -o;;-~-;;;-p~g;------------- ------------------ ~I'
rI
Case 2:13-cv-06004-JAK-AGR Document 233-4 Filed 01/30/15 Page 3 of 3 Page ID
#:7010
6. If registration 1u Is to bot charged to a dcposlt account cstablishcd In thc Copyright Officc , give nom" of occoalt:
Jo.
lte.t~
11.!-l ~J-~- _r,g -~---. _________________ __________________________ _____ ___________ _______ ________ ____________________ _
7. Name ahd address of penon or organixation to whom correspondence or refund, If any, should be sent:
NiUDt
J.ob.et..e..HLUJ.i!::. __CQ ..__ ---------------------- -- --------
------- ... ....
~
Belo-v:
Addrc» -------------- • .• •. • . - - - -- --- --- •.•• --- - -- - ------- - --------
8. Send cc:rtlfic:atc to:
(Type or
N.:t m.c
print
name nod
address) Add ross
-J obete--Husi:c--eo-i
- ---- - ---------------------- - - - - -- - ---- - -- - - -- --------- - - -- · · · - ---
- 64~4- -&unnet··B lvd ~-- - -- - - ~~~nWTr ;-;;s~;;;<·, ) - · ----------- --- ---- ----------·--- ----Ho-1-lywoo~~).) Gtt; ---- -4002-8----·-cs,;;;;- ---- --- ·---- -· -- ·-----(zii> ~~ ci; )- · -- · -------
I.
e in this applicntion arc co;rcct to the best of my
9. Certification:
(Application not
acceptahlc
unless signed)
~
-----·-···- --__ j
Application Forms
Copies of the following forms will be supplied b)' the Copyright Office without charge upon requ est:
Class A Form A-Published book manufactured in the United States of America.
Form A-D Foreign-Book or periodical mnnufacrured outside the UniH.'t.l States of America (except worb subject to
Oass A
the nd inter.im provisions of the copyright Jaw).
or B { Form A-B Ad Interim-Book or periodical in the English language manufncturcd and first published outside the
U nired Swucs of America.
.
Form B-Pcriodical manufact-ured in the United States of America.
Class B { Form BB--Conrribution to a periodic-al manufactured in the United States of America.
Class C
Form C-Lecture or similar production prepared for oral dcli\'ery.
Onss D Forrn D--Drn.m atic or dramatico-musical composidon.
Class
Class
Class
Class
Class
Class
Class
Form E-Musicul composition the author of which is a citizen or dom iciliHy of the Unircd S!Jltes of America or
which was first published in the United States of America.
E Form E Foreign-Musical composition the author of which is not a citizen or do~iciliury of the United States of
{
.America nud which was not first published in the United Sta res of .America.
F Form F-Z..fap.
G Form G-W ork of art or n model or design for a w ork of art.
H Form H-Rcproduction of u work of art.
I Form I-Drnwing or plastic work of a scien;ific or technical chnracwr.
J Form ]-Photograph.
Form K-Print or pictorial illustration.
K { Form KK-Print or lubcl used for un article of merchandise.
L} Form L-M-Motion picture.
Chss
~r M
Class N
•
•
Form N-Sound recording.
Form R-Renewul copyright.
Form U-Nocice of ..usc
music on mechanical instrum ents.
_ of copyrighted
-·
-- --··
- -·- -FOR COPYRIGHT OfFICE USE ONLY
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#:7016
EXHIBITF
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Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 1 of 8 Page ID
#:7019
EXHIBIT G
Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 2 of 8 Page ID
#:7020
Page 1
1
2
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
3
--------------------------x
4
PHARRELL WILLIAMS, an
individual;
5
Plaintiff,
6
vs.
)No. CV13-06004-JAK (AGRx)
7
8
9
10
11
12
13
)
BRIDGEPORT MUSIC,
a Michigan corporation;
FRANKIE CHRISTIAN GAYE,
an individual; MARVIN
GAYE III, an individual;
NONA MARVISA GAYE, an
individual; and DOES 1
through 10, inclusive,
)
)
Defendants.
--------------------------x
14
15
16
17
18
DEPOSITION OF JANIS GAYE
Los Angeles, California
Friday, August 29, 2014
19
20
21
22
23
24
25
Reported By:
SUSAN A. SULLIVAN, CSR #3522, RPR, CRR
Job No. 82589
TSG Reporting- Worldwide
(877) 702-9580
Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 3 of 8 Page ID
#:7021
Page 7
1
Q
I've heard of the song.
2
A
Good.
3
Q
Did you participate ln the writing of "Got
4
To Give It Up"?
5
A
No.
6
Q
Did
how did it come about that you knew
--
7
what to slng on "Got To Give It Up" or maybe let me
8
step back.
In your own words tell me how it came about
9
10
that you performed on "Got To Give It Up."
11
A
Well, it wasn't easy but I had asked Marvin
12
if he would let me sing on something, anything.
13
he had a brother Frankie who has since passed away.
14
Frankie and I went to him and said could we sing
15
background and he hesitated for a moment and then he
16
said,
17
we'll be fine."
"Why not.
j
Q
Okay.
19
A
To a point.
And is that what happened?
He added his vocal to it as
20
well so it was sometimes three-part harmony,
21
sometimes four.
23
Q
Okay.
And
Just sing what I tell you to sing,
18
22
I
And was this all recorded ln one
evenlng or --
24
A
No.
25
Q
Over what period of time was it recorded?
'
[i
~==~======~~==~~~==~==
~.~-==----==
~------~
- ~====~~~===============-~!'
TSG Reporting- Worldwide
(877) 702-9580
Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 4 of 8 Page ID
#:7022
Page 8
1
A
I don't recall the length of time.
not months, it was I would say -- I don't know.
3
Honestly I don't remember how long it took.
4
Q
Do you remember where it was recorded?
5
A
Absolutely.
6
Q
Where 1s that?
7
A
6553 Sunset.
8
Q
Okay.
9
A
It didn't have a name.
12
.J
What was the name of the studio?
It was Marvin's
personal studio.
11
Q
II
li
Who else was present while you were there
~
I
performing your portion of the song?
13
A
Oh, Marvin's sister Zeola.
There were
14
different people on any given day because there were
15
different parts being done on different days so it
16
was never one set group of people.
17
Q
Okay.
18
A
But definitely his sister, his brother,
-
19
friends, people that were in the area that just
20
wanted to drop by and see what was going on in the
21
studio.
22
party put on tape so --
23
24
I
It was
2
10
1
Q
It was a party song and it was literally a
Other than Marvin, were there other
musicians there playing li ve while you performed?
25
A
-
On certain days.
I wasn't there every day
-
---
TSG Reporting- Worldwide
(877) 702-9580
•. 11
Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 5 of 8 Page ID
#:7023
Page 9
1
of the production but his drummer was there one day,
2
I specifically remember during the latter part of
3
the recording Johnny McGee being there.
4
know if you are familiar with him or not.
I don't
5
Q
I'm not.
6
A
He was -- I believe he is still living, the
7
guitarist for LTD.
And another gentleman, David Ii.
8
9
Q
How do you spell Ii?
10
A
I-i.
11
Q
Never would have guessed, okay.
12
Was he a musician?
13
A
Yes.
14
Q
Was Mr. Ashford there at all while you were
15
there?
16
A
17
18
A saxophone player.
I never saw Mr. Ashford that I recall but
that doesn't mean that he wasn't there.
Q
So I'm not a musician.
Describe to me how
19
Marvin instructed you and Frankie what you were
20
supposed to do.
21
A
Very simple process.
He would sing what he
22
wanted us to sing, we would repeat it, they would do
23
a take, see what it sounded like.
24
that great he would say, "Okay, we're going to do it
25
again," if he wanted to change something he would,
TSG Reporting- Worldwide
(877) 702-9580
If it sounded not
j
Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 6 of 8 Page ID
#:7024
I!
Page 10
1
and we just followed his lead.
2
3
Q
Were you furnished with any sort of sheet
music to follow?
4
A
No.
5
Q
Do you read sheet music?
6
A
No.
7
I used to as a child when I played
piano but those are along ago memories.
8
Q
Did Marvin read sheet music?
9
A
To a point.
-
I never was really sure.
He
10
would look at it and the music would come out.
11
don't believe that he read traditional sheet music
12
but he knew his notes and he knew how to write them
13
down and how to convey it to his musicians.
14
15
Q
Okay.
I
Do you know if he knew how to write
sheet music?
16
A
I don't.
17
Q
You don't have any idea, do you, who created
18
the deposit copy that I think you saw in one of your
19
children's depositions?
20
A
I have no idea.
21
Q
Have you ever seen the deposit -- prior to
22
this litigation had you ever seen the deposit
23
copy
--
24
A
No.
25
Q
-- for "Got To Give It Up"?
--
---
-
TSG Reporting- Worldwide
(877) 702-9580
-
li
Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 7 of 8 Page ID
#:7025
Page 14
1
Q
Okay.
2
A
I was.
3
Q
Okay, good.
4
A
Very much so.
5
Q
And as far as "Got To Give It Up," were you
It sounds like you were there.
6
there for the entire creation of the song or just
7
when you participated in your vocals?
8
9
10
I was not there every single day that there
A
was something being recorded, no.
Q
How about being -- well, do you know if the
11
song was written by Marvin as it was being recorded
12
or had been written before it was recorded?
13
A
It was a work in progress.
14
Q
Okay.
15
So it was developed as it was
recorded.
16
A
Yes.
17
Q
Okay.
But you don't know who ultimately
18
wrote down what notes and other musical elements
19
were embodied in "Got To Give It Up," right?
20
MR. BUSCH:
Object to form.
It assumes facts
21
not in evidence that somebody wrote something down
22
that was an attempt to be embodied in "Got To Give
23
It Up.
24
25
II
MR. KING:
Richard, all day Wednesday you told
me not to do speaking objections; you said object to
TSG Reporting- Worldwide
(877) 702-9580
-
Case 2:13-cv-06004-JAK-AGR Document 233-7 Filed 01/30/15 Page 8 of 8 Page ID
#:7026
Page 15
1
2
the form.
MR. BUSCH:
You didn't listen to me.
Read back the question.
3
4
MR. KING:
5
THE WITNESS:
6
MR. KING:
8
Q
No, I will ask a different one.
Do you have any idea how any written record
of what comprises "Got To Give It Up" was created?
10
MR. BUSCH:
11
THE WITNESS:
12
Object to form.
Are you talking about the deposit
copy that you showed me -- showed us in New York?
BY MR. KING:
13
Q
14
MR. BUSCH:
15
16
You can read it back or ask a
different one, that's fine.
7
9
I will just ask a different question.
Let's start with that.
It has been asked and answered.
You can answer the question.
Q
BY MR. KING:
So let's start with that.
Do you have any idea, do you have any
17
18
knowledge whatsoever as to how the deposit copy for
19
"Got To Give It Up" was created?
-
20
A
No.
21
Q
Do you have any knowledge whatsoever as to
22
how any written documentation of the song "Got To
23
Give It Up" was created?
24
25
MR. BUSCH:
Object to form, assumes facts not in
evidence that there was any other written document
TSG Reporting- Worldwide
(877) 702-9580
Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 1 of 15 Page ID
#:7027
EXHIBITH
Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 2 of 15 Page ID
#:7028
Case 2: 3-cv-06004-JAK-AGR Document 173
Filed 01/06/15 Page 1 of 21 Page ID #:4364
1 KING, HOLMES, PATERNO & BERLINER, LLP
HOWARD E. KING, ESQ., STATE BAR No. 77012
2 STEPHEN D. ROTHSCHILD, ESQ., STATE BAR No. 132514
ROTHSCHILD@KHPBLA W.COM
3 SETH MILLER, ESQ., STATE BAR No. 175130
MILLER@KHPBLA W.COM
4 1900 A VENUE OF THE STARS, 25TH FLOOR
LOS ANGELES, CALIFORNIA 90067-4506
5 TELEPHONE: (31 0) 282-8989
FACSIMILE: (31 0) 282-8903
6
Attorneys for Plaintiffs and Counter7 Defendants PHARRELL WILLIAMS,
ROBIN THICKE and CLIFFORD
8 HARRIS, JR. and Counter-Defendants
MORE WATERFROMNAZARETH
9 PUBLISHING, INC., PAULA MAXINE
PATTON individually and d/b/a
10 HADDINGTON MUSIC, STAR TRAK
ENTERTAINMENT, GEFFEN
11 RECORDS, INTERSCOPE RECORDS,
UMG RECORDINGS, INC., and
12 UNIVERSAL MUSIC DISTRIBUTION
13
UNITED STATES DISTRICT COURT
14
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
15 PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
16 individual; and CLIFFORD HARRIS,
JR., an inaividual,
17
Plaintiffs,
18
vs.
BRIDGEPORT MUSIC, INC., a
20 Michigan corporation; FRANKIE
CHRISTIAN GAYE, an individual;
21 MARVIN GA YE III, an individual;
NONA MARVISA GA YE, an
22 individual; and DOES 1 through 10,
inclusive,
Defendants.
24
25 AND RELATED COUNTERCLAIMS.
26
27 Ill
28 Ill
4112 060/836839.1
DECLARATION OF SANDY
WILBUR IN SUPPORT OF
PLAINTIFFS' MOTIONS IN
LIMINE
Final Pretrial Conference:
19
23
CASE NO. CV13-06004-JAK (AGRx)
Hon. John A. Kronstadt, Ctrm 750
D.ate: January 26, 2015
T1me: 3:00 p.m.
Ctrm.: 750
Action Commenced: August 15, 2013
Trial Date:
Feoruary 10, 2015
Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 3 of 15 Page ID
#:7029
Case 2: 3-cv-06004-JAK-AGR Document 173
Filed 01/06/15 Page 2 of 21 Page ID #:4365
1
DECLARATION OF SANDY WILBUR
2
I, Sandy Wilbur, declare as follows:
3
1.
I am over the age of 18 and not a party to this action. I have personal
4 knowledge of the facts set forth herein, which are known by me to be true and
5 correct, and if called as a witness, I could and would competently testify thereto.
6
A.
SUMMARY OF MY WORK IN THIS CASE
7
2.
I have worked extensively as a forensic musicologist for over 25 years.
8 My background and qualifications are discussed in more detail below.
3.
9
I have reviewed the notated music for the Marvin Gaye compositions
10 "Got to Give It Up" (Parts 1 and 2) ("GIVE") and "After the Dance"
11 ("DANCE")( co-written by Leon Ware) that I understand was obtained from the
12 Library of Congress, and which I refer to herein as the "Deposit Copy" for GIVE
13 and DANCE, respectively. In order to easily find elements of the composition
14 contained in the Deposit Copies, I have added typewritten measure numbers to the
15 Deposit Copies of GIVE (parts 1 and 2), and DANCE, true and correct copies of
16 which are attached hereto as Exhibits A and B.
4.
17
I have reviewed the commercially released Marvin Gaye sound
18 recordings of GIVE and DANCE and commercially released Robin Thicke sound
19 recordings of"Blurred Lines" ("BLURRED") and "Love After War" ("WAR") that
20 came from the following albums and that were downloaded from iTunes:
21
a. "Blurred Lines" by Robin Thicke (featuring T.I & Pharrell) on the
22
Robin Thicke album "Blurred Lines (Deluxe Edition)" released in
23
2013;
24
b. "Got To Give It Up" from the Marvin Gaye album "Every Great
25
Motown Hit of Marvin Gaye" released by Motown in 1977;
26
c. "After the Dance (Vocal Version)" from the 1976 Marvin Gaye
27
album "I Want You;" and
28 Ill
KING, HOLMES,
PATERNO &
BERLINER, LLP
4112.060/836839.1
1
Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 4 of 15 Page ID
#:7030
Case 2: 3-cv-06004-JAK-AGR Document 173
Filed 01/06/15 Page 3 of 21 Page ID #:4366
1
d. "Love After War" from the 2011 Robin Thicke album entitled "Love
2
After War (Deluxe Edition).
3
5.
I have reviewed the expert reports of Judith Finell and Ingrid Monson
4 in this case, each of their prior declarations in this case, Ms. Fin ell's preliminary
5 report dated October 17,2013, and the transcript ofMs. Finell's April18, 2014,
6 deposition in this case. I also attended the December 3, 2014, deposition ofMs.
7 Monson. I also have reviewed the declarations of Ron Aston and Thomas Court.
8
B.
THE GIVE COPYRIGHT DEPOSIT
9
6.
The GIVE Copyright Deposit (Parts 1 and 2; see Exhibit A hereto)
10 consists of six pages (i.e., six pages of musical notation, copied on four printed
11 pages) that show, on each of the continuous single staves, the lead vocal melody of
12 GIVE as a sequence of notes and rests with the lyrics written below the staff and the
13 chord symbols (e.g.. "A7'') written above the staff.
14
7.
Apart from the lead vocal melody, lyrics, and chord symbols, the only
15 other compositional elements notated in the GIVE Copyright Deposit are as follows:
a.
16
An eight-measure "bass intra" in the first eight measures of
17 GIVE Part 1, which ends with the word "bass simile" written under the staff ("bass
18 simile" means that the bass is to continue playing the same bass phrase throughout);
b.
19
The spoken phrase "we heard that," which is set to a rhythm
20 consisting of an eighth note and two quarter notes, starting on the offbeat of beat
21 two, and notated in the first measure ofthe third staff on page 3 of GIVE Part 1
22
(measure 63);
c.
23
The notation "sax ad lib over vocal" under the first staff on
24 page 1 of GIVE Part 2 (starting in measure 1), which indicates an improvised
25 (unscored) saxophone melody;
d.
26
The spoken phrase "Let's dance, let's shout, getting' funky's
27 what it's all about," which is set to a rhythm of eighth, quarter, and sixteenth notes,
28
KING, HOLMES,
PATERNO &
BERLINER, LLP
4 I 12.060/836839. I
2
Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 5 of 15 Page ID
Case 2: 3-cv-06004-JAK-AGR Document #:7031
173 Filed 01/06/15 Page 4 of 21 Page ID #:4367
1 notated in the last two measure of the last staff on page 2 of GIVE Part 2
2 (measures 91-92);
3
e.
A two measure guitar melody in a rhythm similar to the spoken
4 phrase rhythm in the last two measure of the last staff on page 2 of GIVE Part 2
5 (measures 91-92);
f.
6
The notation "ad lib - long fade" at the end of the last staff on
7 page 2 of GIVE Part 2 (starting in measure 92), indicating an improvised repeat of
8 the ending measures.
9
8.
The following musical or lyrical elements discussed by Ms. Finell and
10 Ms. Monson are not notated or found in the GIVE Deposit Copy:
11
a.
Musical Example 3A, transcribed at page 8,
~
20, of the Finell
12 10/17113 Preliminary Report (referred to as the GIVE hook with backup vocals; it is
13 only the backup vocals (harmony part) to the "hook" that are not contained in the
14 Deposit Copy);
15
b.
Musical Examples 4A and SA, transcribed on page 10, and on
16 page 12, ofthe Finell10/ 17/ 13 Preliminary Report (referred to as the GIVE "Theme
17 X" or the phrase "Dancing ladies" -Examples 4A and SA are the identical melody,
18 transcribed twice).
c.
19
Musical Example 6A, transcribed at page 13, ~ 29, of the Finell
20 1011 7113 Preliminary Report, referred to as the GIVE bass line bars 1-4 (a similar
21 four bar phrase does appear in the Deposit Copy, but one note is missing and the
22 duration of six of the notes is different in the Deposit Copy);
d.
23
Musical Example 6C, transcribed at page 14,
~
31, of the Finell
24 10/ 17/ 13 Preliminary Report (referred to as the GIVE descending bass melody);
e.
25
Musical Example 7A, transcribed at page 1S, ~ 32, of the Finell
26 10/ 17113 Preliminary Report (referred to as the GIVE keyboard bars 1-2);
f.
27
Musical Examples 2-4 at page 11, ~~ 28-30, of the Finell
28 10/31/14 Report (GIVE sound recording bass parts, as transcribed by Ms. Finell,
KI NG, HOLMES,
PATERNO &
BERLINER , LLP
4112 060/836839. 1
3
Case 2:13-cv-06004-JAK-AGR Document 233-8 Filed 01/30/15 Page 6 of 15 Page ID
#:7032
Case 2: 3-cv-06004-JAK-AGR Document 173
Filed 01/06/15 Page 5 of 21 Page ID #:4368
1 where in Example 2 five of the notes do not have the same duration as in the
2 Deposit Copy, and Examples 3 and 4 are not in the Deposit Copy at all);
g.
3
Musical Example 5 at page 12,
~
34, of the Finell 10/31114
4 Report (GIVE sound recording keyboard part, as transcribed by Ms. Finell);
h.
5
Musical Example 7 at page 13, ~ 34, of the Finell 10/31114
6 Report (GIVE sound recording keyboard part. as transcribed; a similar transcription
7 is discussed at Monson 10/31 / 14 report, attached Musical Example 13);
8
1.
The nonsense syllable "woo" spoken several times in the GIVE
9 sound recording (discussed at page 14, ~~ 37-40, of the Finelll0/31/14 Report);
10
J.
Hand claps (transcribed at page 16, ~ 41, ofthe Finelll0/31114
k.
Musical Example 9 at page 17,
11 Report);
12
~
44, of the Finell 10/31 / 14
13 Report (referred to as "doo wop" vocals; also discussed and transcribed at Monson
14 10/31114 report, Musical Example 11);
15
1.
Musical Example 10 at page 19, ~50, of the Finell10/31114
16 Report (a similar four bar phrase does appear in the Deposit Copy, but the duration
17 of the notes is different in the Deposit Copy);
m.
18
The words "hey," "hey, hey," or "hey Clayton" found in the
19 GIVE sound recording (page 20 , ~51, ofthe Finelll0/31/14 Report);
n.
20
Musical Example 12 at page 21,
~53,
of the Finelll0/31 / 14
21 Report (tom-tom drum part in GIVE sound recording);
o.
22
The timing in the GIVE sound recording of the so-called
23 "parlando" section (discussed at page 22,
p.
24
~
57, of the Fin ell 10/31114 Report);
The "doo wop" vocal lyrics, e.g.. "hop, fop, fop, doo, wop,"
25 "bop, bop, du wop, bop, bop, bop, du wop," (discussed at page 26, ~ 61, of the
26 Finelll0/31114 Report; see also Monson 10/31/14 report, Musical Example 11);
27
q.
Cowbell (discussed at pages 15-16, ~ 33 .a of the Finell 10/ 17/13
28 Preliminary Report, and at Monson 10/31/14 report, Musical Example 1);
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1
r.
Hi-hat (discussed at page 16, ,-r 33.b of the Finell10/17/13
2 Preliminary Report, and at Monson 10/31/14 report, Musical Example 8);
s.
3
Bass parts from GIVE sound recording (transcribed at Monson
4 10/31114 report, Musical Example 6);
5
t.
Tom-tom (discussed at Monson 10/31114 report, Musical
6 Example 6; see also Musical Example 12, page 21, ,-r 53, ofFinell 10/31114 Report);
7
u.
Drums or percussion of any kind (discussed and transcribed at
8 Monson 10/31/14 report, Musical Examples 1, 6-8);
v.
9
Party noises (discussed at page 17, ,-r 39 of the Finell 10/17/13
10 Preliminary Report) ;
11
w.
Instrumental score "omitting a guitar" [discussed at page 17,
12 ,-r 38, of the Finell 10117113 Preliminary Report]
13
x.
Keyboards of any kind;
14
y.
Falsetto vocal (discussed at page 17, ,-r 37 of the Fin ell 10/17/13
15 Preliminary Repmi);
16
z.
Any explicit instruction for "parlando" singing style.
17
aa.
Any tempo indication; while composers can and often do
18 indicate a tempo in the upper left corner of the notated music, the GIVE Copyright
19 Deposit has no tempo indication.
20
9.
The GIVE Deposit Copy contains an eight measure "bass intra" in the
21 first two staves on page 1 of GIVE Part 1. Musical Examples 6A and 6C (pp. 13-14,
22 ,-r,-r 29-30, of the Finell 10/17/13 Preliminary Report), which Ms. Finell refers to as
23 the GIVE bass line bars 1-4 and GIVE descending bass melody, are only found in
24 the GIVE sound recording (the Fin ell 10/17113 Preliminary Report indicates below
25 each transcription the number of seconds [":05" I ":08"] into the GIVE sound
26 recording where Musical Examples 6A and 6C appear). The "bass intra" in the
27 Deposit Copy is not the same sequence of notes (pitch/duration/placement) as
28 Musical Examples 6A and 6C.
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1
10.
Musical Examples 2-4 at page 11, ,-r,-r 28-29, of the Finell10/31/14
2 Report also are bass parts that only appear in the GIVE sound recording. Musical
3 Examples 2-4 do not appear in the Deposit Copy. The GIVE Deposit Copy only
4 contains the bass notes set forth in the eight measure "bass intra."
5
11.
The four-note melody that is sung to the words "darrein' lady" in GIVE,
6 and identified as Finell's Musical Example 4A, is transcribed at page 10, ,-r,-r 25-27,
7 ofthe Finell 10/17113 Preliminary Report (referred to as the GIVE "Theme X").
8 This GIVE "Theme X" does not appear in the GIVE Deposit Copy. "Theme X" has
9 the scale degree sequence 3-3-2#-3 set to the rhythm of four eighth notes in a row.
10
12.
The sung phrase "fancy lady" appears on page 2 of GIVE Part 2 in the
11 Deposit Copy (See Exhibit A measures 49-62). "Fancy lady" in the Deposit Copy
12 is not the same melody as "Theme X" ("darrein' lady") in Ms. Finell's Preliminary
13 Report. "Fancy lady" uses the scale degrees 5-5-6-5 set to the rhythm of two eighth
14 notes, quarter note, quarter note. "Theme X" has chromatic movement; "fancy
15 lady" does not. They are not similar.
16
13.
Ms. Fin ell refers in her report to "outgrowths" of melodic material
17 within GIVE. There are no "outgrowths" that form part of the GIVE composition
18 contained in the Deposit Copy other than what is notated in the Deposit Copy.
19
14.
The keyboard part in the GIVE sound recording is not notated in the
20 GIVE Deposit Copy. The lower left hand part of the keyboard part in the GIVE
21 sound recording (transcribed at page 12, ,-r 34, Musical Example 5, of the Finell
22 10/31/14 Report) does not appear in the Deposit Copy, including that the left hand
23 (lower staff) of Musical Example 5 does not appear in the GIVE Deposit Copy.
24
15.
The GIVE Deposit Copy contains certain chord symbols, e.g., "A7."
25 The chord symbols do not indicate that any particular instrument, including electric
26 piano or keyboards, is part of the composition. There is a virtually infinite number
27 of ways for a pianist, guitarist, or other accompanist to play an A 7 chord under the
28 vocal melody of GIVE. The GIVE Deposit Copy does not indicate which, if any,
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1 instrument should play the chords notated in the Deposit Copy. The GIVE Deposit
2 Copy does not notate or indicate in any fashion the specific voicing (choice of notes
3 on the keyboard) that is used for the chords played on the electric piano (keyboard)
4 in the GIVE sound recording. The Deposit Copy does not indicate the specific
5 rhythm of the chords played on the electric piano (keyboard) in GIVE. The GIVE
6 Deposit Copy contains no keyboard indications whatsoever. It does not contain the
7 specific offbeat keyboard chords that Ms. Finell claims are similar to BLURRED.
8
16.
The chord symbols in the Deposit Copy indicate the harmony (chords)
9 for the melodies in the Deposit Copy. It is up to the performer or arranger to decide
10 what notes to play on any instrument that may be used to accompany the vocal
11 melody in any performance of the song. The specific chords and rhythms of the
12 electric piano part in the GIVE sound recording (see Finell 10/17/13 Preliminary
13 Report, Musical Example 7(a), page 15) are not notated in the GIVE Copyright
14 Deposit.
15
17.
There are no drum, hi-hat, cowbell, or other percussion parts in the
16 GIVE Deposit Copy. Ms. Finell opines that there are "many parallels" for the hi-hat
17 rhythm in the Deposit Copy (page 41, ,-r 106.e, ofthe Finell10/31/14 Report). The
18 rhythm of the hi-hat in GIVE is a series of constant eighth notes (i.e., eight per
19 measure) in every measure, mostly on closed hi-hat cymbals (a "hi-hat"), but
20 occasionally on an open hi-hat. There is no vocal melody in GIVE that has constant
21 eighth notes. Ms. Finell opines that playing an open hi-hat on the second half of
22 beat four is a similarity found in GIVE. There is no vocal melody in GIVE that
23 contains a note sung only on the second half of beat four. Even if a vocal melody in
24 the Deposit Copy had such a rhythm (there is none), it would not be a hi-hat part or
25 indicate a hi-hat.
26
18.
Ms. Finell opines that certain vocal melodies in the Deposit Copy have
27 a note played on the second half of beat four of the measure, e.g., at the lyric "par-"
28 in measure 8, or at the lyric "ner-"in measure 12 of the GIVE Deposit Copy (see
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1 page 42, ,-r 107.e.ii of the Finell10/31/14 Report). In each case, the rest of the vocal
2 melodic phrase has a very different rhythm from the hi-hat rhythm in the GIVE
3 sound recording, which plays eight eighth notes per measure. It is not correct that
4 any of these partial vocal melodies somehow indicate a hi-hat part; they do not.
5
19.
A composer notates a hi-hat part by writing the word "hi-hat" at the
6 side of the staff to indicate the instrument that is to be played and by denoting the
7 specific rhythm of the hi-hat in ordinary musical notation and using "x's" and "o's"
8 to denote closed or open hi-hat, respectively. If Marvin Gaye had wanted to include
9 a hi-hat as part of the GIVE composition, it could have been very easily notated.
10
20.
The GIVE Deposit Copy does not "omit" a guitar. It contains a vocal
11 melody and chord symbols. It neither includes nor excludes the possibility of the
12 song being played with a guitar. There is a two-bar guitar melody in GIVE Part 2
13 (starting in measure 91).
14
21.
The "party noise" on the GIVE sound recording consists of a sound
15 recording of people chattering, mostly indistinctly, background noise, and other
16 sounds intended to evoke a party. This recorded "party noise" appears over the
17 entire four minute recording of GAYE. The Copyright Deposit has no indication of
18 any "party noise," nor is "party noise" a compositional (or even musical) element.
19 The party noise is an element only of the GIVE sound recording.
20
22.
The Copyright Deposit contains two spoken vocal phrases ("We heard
21 that," and "Let's dance, let's shout, getting funky's what it's all about"). In each
22 case, specific rhythms (duration and placement in the measure) are notated for each
23 of the spoken phrases (the "notes" are indicated by an "x" instead of an oval note
24 head). These spoken phrases are entirely different from the continuous party noise
25 that plays in the background over the entirety of the four minute GIVE recording.
26 (See Exhibit A GIVE Part 1, measure 63, and GIVE Part 2, measures 91-92).
27
23.
Musical Example 6C in the Finell Report (dated 10-17-13, page 14) is
28 described by Ms. Finell as a descending bass melody. Musical Example 6C does
KING, HOLMES,
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1 not appear in the GIVE Deposit Copy. There are two measures (measures 4 and 7)
2 in the eight measure "bass intro" notated at the beginning of the GIVE Deposit Copy
3 that Ms. Finell opines contain a descending bass melody, but the pitches, durations,
4 and placement of the notes in measures 4 and 7 are not the same as in Musical
5 Example 6C.
6
24.
The words "bass simile" in the GIVE Deposit Copy at the end of the
7 eight measure bass intro indicate that the bass part notated in measures one through
8 eight should continue in the same manner throughout the song. The word "simile"
9 does not indicate any specific new or different notes for the bass to play. The word
10 "simile" is an instruction to the performer; it has no compositional content beyond
11 that. The bass player on the GIVE sound recording improvises a variety of bass
12 melodies over the course of the song, none of which are found in the GIVE Deposit
13 Copy. Those improvised phrases are part of the bass player's performance. The
14 only bass notes contained in the Deposit Copy are notated in the "bass intro" itself.
15
25.
There is no eight-measure section in the Marvin Gaye sound recording
16 of GIVE (Parts 1 and 2) that contains the same bass pattern as is notated in the eight
17 measure "bass intro" in the Deposit Copy. In fact, there appear to be no two eight18 measure sections in the GIVE sound recordings that have the identical bass pattern.
19 The bass part on the GIVE sound recordings appears to be through-composed
20 (played from beginning to end in one take) and improvised throughout. The eight
21 measure bass patterns that are found in the GIVE sound recording are not the same
22 eight measure pattern as the eight measure "bass intro" in the Deposit Copy.
23
C.
THE DANCE COPYRIGHT DEPOSIT
24
26.
The The DANCE Copyright Deposit (Exhibit B hereto) consists of
25 three pages (i.e., three pages of musical notation, but copied on two printed pages)
26 that show, on each of the continuous single staves, the lead vocal melody of
27 DANCE as a sequence of notes and rests with the lyrics written below the staff and
28 the chord symbols (e.g., "C#m") written above the staff. (See Exhibit B.)
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27.
1
Apart from the lead vocal melody, lyrics, and chord symbols, there are
2 no compositional elements notated in the DANCE Copyright Deposit, including that
3 there are no instrumental parts and no backup vocal parts in the Deposit Copy:
28.
4
Ms. Finell's and Ms . Monson's reports discuss several musical
5 elements found in the Marvin Gaye sound recording of DANCE that they opine are
6 substantially similar to musical elements of WAR. The following elements
7 discussed in their reports do not appear in the DANCE Copyright Deposit:
a.
8
The lower register (backup vocal) to the vocal melody that is
9 sung in the chorus of the DANCE sound recording, which lower register vocal
10 contains the scale degree sequences 4-5-3 and 5-4-5-3 (discussed at page 27,
11
~~
64-65 , ofthe Finell 10/31 / 14 Report) ;
b.
12
The bass line played in the chorus of the DANCE sound
13 recording (discussed at page 11 of the Ingrid Monson 10/31/14 Report and at its
14 attached Musical Example 17).
NO LIMITATION TO MUSICAL ELEMENTS THAT CAN BE
15
D.
16
PROVIDED IN A DEPOSIT COPY
17
29.
The elements of the GIVE and DANCE sound recordings discussed
18 above that do not appear in the Deposit Copies easily could have been notated in a
19 written score and submitted as a deposit copy had Marvin Gaye chosen to do so.
20
30.
The notion that the common use of lead sheets somehow precluded a
21 composer in the 1970s from submitting a score indicating all instrumental or vocal
22 elements in which the composer claimed a copyright is without foundation.
23 Anything that can be played can be notated. Composers in the 1970s notated the
24 vocal melody, lyrics, and notes in lead sheet fashion because that was considered the
25 composition of the song (i.e., not how it was performed on any particular recording).
26
E.
DEFENDANTS' AUDIO EXAMPLES 1-5 ("MASH-UPS")
27
31 .
Defendants ' experts have prepared five audio examples, as follows.
28
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1 I created my mashups to demonstrate that mashups are inherently misleading and
2 probative of nothing other than that any two songs, if adjusted for key and tempo, in
3 most instances can be fit together with greater or lesser discordance. Mash ups do
4 not show at all or make it more likely than not that any extrinsic expression (as
5 opposed to generalized phrasing, structure, and harmonic content) in one song is
6 similar to expression found in the other song over which it has been "mashed up."
7
45.
The vocal track of GIVE can be played over any number of songs.
8 That it fits over the above songs for which I created mashups does not indicate that
9 any of those songs copy GIVE, or vice-versa. My opinion is that mashups,
10 including those submitted by the Defendants here, are not a proper, let alone
11 generally accepted, forensic musicological practice. I am not aware of any
12 musicological literature, studies, or analysis supporting the use of mash ups in
13 forensic musicology and am aware of at least one article criticizing mash ups.
14
46.
The group "Axis of Awesome" in a Y ouTube video that can be found
15 at http://www.youtube.com/watch?v=5pidokakU4I shows us that many hit songs are
16 roughly compatible because they use the same four chords (I V vi IV). The video is
17 an amusing illustration of how so many popular songs have similar structure and
18 chords-not because they infringe each other but because these are generic choices.
19 That these songs can be played over the same backup instrumental signifies nothing.
20
F.
WHAT THE DEPOSIT COPY COMPOSITIONS SOUND LIKE
21
4 7.
If it becomes necessary to demonstrate to the jury what the
22 compositions contained in the GIVE and DANCE Deposit Copies sound like (i.e.,
23 without any interpretative performance or arrangement aspects added to the
24 composition itself), the most accurate and objective way to do so would be to play
25 the Deposit Copy melodies on a keyboard (or sing them) while playing the chords in
26 root position on a keyboard on the first beat of each measure. That way, the
27 melodies and harmonies as notated in the Deposit Copy can be heard with the least
28 amount of subjective performance or arrangement interpretation added to them. The
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1 spoken phrases similarly can be spoken in the rhythms notated in the Deposit Copy.
2 This is common practice for forensic musicologists in a trial setting. The GIVE bass
3
4
intro similarly can be played with a bass sound on a keyboard.
48 .
The GIVE and DANCE sound recordings contain a large number of
5 musical elements (including instrumental parts and certain vocal parts, as discussed
6 above) that are not found in the GIVE and DANCE Deposit Copies, including many
7 elements that in my opinion are performance, recording, or arrangement aspects of
__
8 the Marvin Gaye sound recordings and not part of the underlying compositions.
,
9
G.
BACKGROUND AND QUALIFICATIONS
10
49.
For the last 25 years, I have been a testifying expert in several trials and
11
a full-time musicology consultant to record, film, and publishing companies, artists,
12 composers and advertising agencies. As president of Sandy Wilbur Music, Inc.
13 DBA Musiodata, I first served as an expert witness in a copyright infringement case
14 in 1981 and have been working extensively as a musicologist since 1989. I have
15 compared and analyzed thousands of musical pieces and samples, have created
16 chatis and exhibits, have done public domain and prior art searches, and copyright
17 valuation research and have consulted on a wide range of musical issues for law
18 firms , advertising agencies, film , television, and record companies, music publishing
19 and production companies. In 201 2 alone, the last time I counted, I cleared
20 approximately 335 pieces of original music for release or broadcast, performed
21 approximately 112 preliminary musicological analyses of which 5 were extensive
22 reports involving potential or pending litigation and 15 required recommended
23 changes before release or broadcast. I also performed 18 sample analyses mainly
24
for record companies about half of which concerned potential litigation.
25 Additionally, I did 8 prior art research reports and determined the public domain
26
status of 29 songs. Over the last several years, I have been consulted on an average
27 of 10- 15 potential litigation matters per year, about three of which are ongoing at
28 any given time and most of which settle.
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1
55.
I received a B.A. from Sarah Lawrence College, and an M.A. in
2 Ethnomusicology from the University of California at Los Angeles, with emphasis
3 on African, Indonesian, and Native American music and culture. My M.A.
4 dissertation was entitled "Music of the Pawnee Indians; With Special Reference To
5 Present Day Oklahoma Practices." I have taught music courses at several
6 universities and institutes, including Rutgers University, The Songwriter's Guild of
7 America and the State University ofNew York.
8
56.
I have received creative awards from ASCAP, CLIO, The New York
9 International Film Festival and The American Song Festival, among others. I am or
10 have been a member of ASCAP, SAG, AFTRA, AFM, Women in Music (previous
11 board member), and the Songwriters Guild of America (previous board member),
12 Copyright Society of the USA, among others. My complete resume and
13 qualifications are attached hereto as Exhibits E and F, respectively.
14
I declare under penalty of perjury under the laws of the United States of
15 America that the foregoing is true and correct.
16
Executed on January 5, 2015, at New York, New York.
17
18
19
Sandy Wilbur
20
21
22
23
24
25
26
27
28
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EXHIBIT I
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Page 1
1
2
3
4
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
PHARRELL WILLIAMS, an individual;)
ROBIN THICKE, an individual; and )
CLIFFORD HARRIS, JR., an
)
individual,
)
5
)
Plaintiffs,
)
6
)
vs.
7
)
CV13-06004-JAK
)
8
9
10
BRIDGEPORT MUSIC, INC., a
)
Michigan corporation; FRANKIE
)
CHRISTIAN GAYE, an individual;
)
MARVIN GAYE III, an individual;
)
NONA MARVISA GAYE, an individual;)
and DOES 1 through 10, inclusive,)
11
)
Defendants.
12
13
)
---------------------------------)
14
15
16
17
18
VIDEOTAPED DEPOSITION OF JUDITH FINELL
New York, New York
Friday, April 18, 2014
19
20
21
22
23
24
Reported by:
Philip Rizzuti
Job No. 72812
25
TSG Reporting - Worldwide
877-702-9580
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Page 83
Page 82
1
2
Q. Let me ask you to tum to page
2 of your report, and in paragraph 6 you
talk about a constellation of eight
substantially similar features, do you see
that?
A. I don't think -- oh yes, excuse
me, I see it.
Q. And that is referring to the
similarities 1 through 8 that are
identified later in the report?
A. Exactly.
Q. When you say these similar
elements occur simultaneously in each
work, what do you mean by that?
A. Well among those eight
elements, elements I through 5 which
are-- yes, I am sorry, elements 1
through -- excuse me a minute -- 1 through
6 contain melodic elements.
I am going to correct myself.
1 through 5, those elements are vocal in
nature and they are part of the key vocal
melodies in each of the two songs. And
those are supported by the instrumental
accompaniment which are elements 6, 7 and
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
8. So they occur, the instrumental
accompaniment occurs simultaneously as
these various vocal themes and what I am
calling themes, hooks, et cetera, are
occurring. So the elements 6, 7 and 8 are
going throughout both songs continuously
while the vocal part is sung and is heard.
Q. You say in paragraph 7 the two
songs' substantial similarities surpass
the realm of generic coincidence reaching
to the very essence of each work. Can you
explain what you mean by that?
A. Yes. The song "Blurred Lines"
has certain repeated musical themes and
phrases, and they are either the initial
what you call in musicological terms the
initial statement of that phrase such as
the first time you hear that particular
melody with the first time you hear those
particular words, like I talked about the
signature phrase.
Then what occurs in "Blurred
Lines" is that phrase sometimes is
repeated quite a bit. In one case one
phrase is repeated 21 times for example,
1
2
3
4
5
6
7
8
9
1o
11
12
13
14
15
16
17
18
19
2o
21
22
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[
another one lengthier. It is a song built
on repeats of material. And ifyou would
think of it this way, they are basically
individual modules of melodies, and
those-- each one of those vocal melodies
I was able to find to be substantially
similar to an important melody in
Mr. Gaye's song.
And that is why I referred to
it in the way that I did in paragraph 7,
that it was not just an occasional
similarity, it was not a similarity that
could have occurred because they shared
certain underlying materials that are
common throughout the literature, they
were very specific and that is why I used
the words that I did.
Q. And again you are referring to
the eight similarities that are identified
in the report; correct?
A. Yes.
Q. And then in paragraph 8 you say
in listening to these two songs the
ordinary lay listener would likely
recognize substantial similarities between
-- ,
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them.
Other than what is set out in
the report is there any basis for that
opinion?
A. Some of the similarities to me
are obvious enough that a lay listener
would hear them immediately, such as the
bass line, the cowbells, the keyboard
parts, and some would take guidance from
an expert like myself in terms of
understanding how to isolate the similar
materials and understanding how to listen
in a way where they would be able to hear
the similarities more easily.
Q. Is there anything other than
the bass line and the cowbell that you
think are obvious to a lay listener?
A. Depends on the sophistication
level of the listener to be honest with
you. But I did say the keyboard also.
Q. And the keyboard, okay.
A. I would just add one point
there, that each of those three elements
that I mentioned, bass line, cowbell and
keyboard recur constantly through both
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songs, and especially in the case of
"Blurred Lines" the bass line and the
3
cowbell become what I would consider the
4
musical glue of the song. For example
5
when it changes into a rap section the
6
only thing holding it together musically
7
is that bass line that is substantially
similar to Mr. Gaye's song, and the
~
~
cowbell, and at times the keyboard, and
b
that becomes the glue ofthe song and
1
holds together all the various sections
2
within "Blurred Lines", and I see it as
3
substantially similar to Mr. Gaye's song.
~
MR. BUSCH: Give me one second
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before you ask the next question
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please.
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Q. Your report does not make any
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reference to copying. Is it your opinion
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that you would be adding later to the
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report or is it your -- is it your opinion
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that "Got to Give It Up" copied "Blurred
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Lines"?
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MR. BUSCH: I believe you are
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mischaracterizing her report within
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that question. I object to the form
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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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compare two musical works, and so in doing
that I pointed out the similarities. But
because there are so many prevalent
similarities that really are woven into
the fabric of "Blurred Lines" and affect
its whole identity, I would say that I do
believe that "Blurred Lines" did copy
Mr. Gaye's song. But I didn't use that
word, you are correct.
Q. And that is based upon what is
stated in your report?
MR. BUSCH: Objection to the
form.
Q. Your opinion that there has
been copying is based upon what has been
put forth in your preliminary report?
MR. BUSCH: And in addition to
her testimony today about what she
might add to her report, or just the
report?
MR. MILLER: I would appreciate
just a regular objection.
Q. You can answer it however you
like, but-MR. BUSCH: Here is the issue.
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You wanted to know what she would add
to her report earlier. I could have
objected and said you could find out
when she does her report. I agreed
to allow her to testify about what
else she as she sits here today might
add. So I think it is fair if you
are going to ask her a question about
her conclusion about copying to say
is that based upon what you have
analyzed up until now which might
include what she has already
testified at length she would add.
So I think it is fair.
Q. Let me ask it very openly.
What is your opinion that there is copying
based on?
MR. BUSCH: Asked and answered.
A. I would say it is a couple of
things. Musically it is the similarities
I found so far, and the knowledge that I
will find more that are also quite
significant and very substantial just
because of the way the composition has
been organized and written by the writers
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