Pharrell Williams Et Al V Bri

Exhibit 11
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Exhibit 12
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Exhibit 13
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Exhibit 14
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1 could have a one-minute restroom break, I'll be right back,
2 Judge.
3 THE COURT: Sure. Sure.
4 (Mr. Showalter and Mr. Garcia exit and enter courtroom;
5 discussion off record.)
6 MR. GARCIA: May I proceed, Your Honor?
7 THE COURT: Yes.
8 MR. GARCIA: We next call Sandy Wilbur. Has she been
9 sworn in?
10 THE WITNESS: Yes.
11 MR. GARCIA: Okay.
12 SANDY WILBUR, DEFENDANT'S WITNESS, SWORN
13 DIRECT EXAMINATION
14 BY MR. GARCIA:
15 Q Good morning, Ms. Wilbur.
16 A Good morning.
17 Q Would you please state your full name for the Court.
18 A Sandra Beth Wilbur.
19 Q And what is your current employment, Ms. Wilbur?
20 A I'm president of MusioData, which is really Sandy Wilbur
21 Music, Inc., d/b/a MusioData for forensic musicology purposes.
22 THE REPORTER: Can you speak into the microphone a
23 little more, please?
24 BY MR. GARCIA:
25 Q And please inform the Court about your educational

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1 background.
2 A Okay. I was classically trained. I was, in high school,
3 chosen as one of two to study with the head of the Yale Music
4 Department, Classical Piano, for the last two years of high
5 school. That was an honor.
6 I also was a folk singer. I started as a teenager, and we
7 were -- we were awarded the best folk duo for the State of
8 Connecticut and managed to go on the Hootenanny Road Show back
9 in the day.
10 And then I went to Sarah Lawrence College where I studied
11 music as well as other things. I was awarded a Hertz Fellowship
12 in composing. I went to the University of California at
13 Berkeley and did that where I found that the atonal nature of it
14 was not as appealing to me as I had hoped.
15 I was offered a teaching assistantship at UCLA, and I
16 received my master's degree in music with a specialization in
17 musicology. At the time I wanted very much to -- to do song
18 studies -- regional and popular song studies, but I wasn't
19 really allowed at the time. So I did my dissertation on Pawnee
20 American Indians with reference to present-day Oklahoma
21 practices and lived with these folks for part of the summer to
22 collect data on them.
23 Q And have you also had training in the music business field?
24 A I have. I -- I was a songwriter for quite some time. I was
25 associate music director of one -- at the time the fifth largest

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1 ad agency in the country.
2 It was there that I was first asked to speak in a case in
3 Los Angeles -- in Los Angeles to explain to a jury what the
4 facts were in a case brought against Benton & Bowles Advertising
5 and Schlitz -- Schlitz beer.
6 Q Have you done work for other advertisers and film companies?
7 And give us some flavor of that background.
8 A Okay. I -- I worked for music publishers, record companies.
9 I do -- advertising agencies, lawyers who call. Basically, I
10 started an entire preventative program.
11 When the Bette Midler sound-alike case happened in the late
12 '80s, I was asked to put together a preventative program so that
13 they wouldn't have so many litigations. And I put that into
14 practice in the late '80s, and now that's been universally
15 accepted at other agencies.
16 I listen to -- I work with a lot of ad agencies and a lot
17 of music producers, and I listen to be certain that they don't
18 sound like other pieces of music so that there won't be some
19 problem. I have a form that basically says if it sounds like
20 something else, please let me know. If you are asked to make it
21 sound like something else, please let me know, et cetera, so
22 that I can actually do that.
23 But even without that I have a team of people who listen to
24 works that are in particular fields so that we can be sure that
25 the work is sufficiently generic, shall we say.

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1 Q Or whether or not --
2 A Or unique.
3 Q Or unique; is that right?
4 A Right. I've also worked with the Coen brothers on their
5 award-winning film "O Brother, Where Art Thou." I did the
6 research on all the songs on that soundtrack, including their
7 next documentary, "Down from the Mountain," so that -- and it
8 took a year and a half.
9 And what happened in my first meeting with the Coen
10 brothers was they said, "Well, these are all traditional songs.
11 It says so right on the CD. It says 'Traditional.'"
12 And I said, "So what?" It doesn't matter what it says on
13 the label. It really matters what is the song.
14 And so I spent a lot of time in the Library of Congress
15 listening to field recordings and comparing field recordings to
16 the actual songs that they had chosen. We ended up choosing --
17 their main song was a song that I knew with a completely
18 different melody and lyric, but this happened to have been the
19 only song that hadn't been copyrighted. So they were able to
20 use it.
21 But -- but the bottom line is -- is that it was a
22 tremendous amount of work. One day I'd like to write the book
23 on the -- on all the songs that I've -- that I've researched for
24 this film because every song is a story, and they evolve -- they
25 evolve from -- I found songs with the same titles that were

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1 public domain but didn't sound anything like the way they had
2 evolved over time. So -- so songs have always been my interest.
3 I am a songwriter. I've had over 40 songs recorded, some
4 chart success. I've had an album of my work where I've played
5 all the parts released. I've -- I have done hundreds of jingles
6 and scores for television.
7 I've had my own production company and my own studio. I'm
8 a thousand years old so -- so I've had -- you know, I've worn a
9 lot of hats in this business. And my most recent project, as I
10 was mentioning, is doing educational music videos for kids
11 with -- with the idea of teaching kids history so that -- so
12 that -- we have a song I composed and produced the videos using
13 the arranger from the Saturday Night Live band, the
14 cinematographer and video editor from Kevin Burns Production
15 Company.
16 So these are -- these are things that are meant to be
17 distributed as tools to teachers and students. The first one
18 has, the last time I looked, about 168,000 hits on YouTube. And
19 I auditioned to kids and recorded kids doing these things.
20 Q Have you won any awards for any of your work?
21 A Yes. I've -- I've won CLIO recognition for a body of
22 Schlitz ads that used recording artists -- used 35 different
23 recording artists. I went to their studios and recorded them
24 and let them spend as much time as they wanted EQ-ing their
25 drums or whatever. And, basically, I paid them for one hour of

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1 studio session time because I could have gotten musicians to do
2 it.
3 Q Have you testified in other copyright infringement cases?
4 A I have. This will be the seventh.
5 Q Have you been hired as an expert witness in other copyright
6 cases?
7 A I've been a consulting witness in hundreds of cases.
8 And I'd like to -- I'd like to also mention that when a
9 lawyer calls me and asks me if I will work for them or listen to
10 their material, my protocol is as follows:
11 I ask them not to tell me anything. I ask them not to tell
12 me what side they're on. I will take it and I will do my
13 analysis, and I will call them and read orally what my report
14 is. And if it turns out to be it's the same opinion as their
15 own, then I will go forward with the case. I will not -- I will
16 not take on a new case if I've -- obviously, if I've told them I
17 don't believe -- believe it has merit.
18 So that's -- that's how I -- how I do it. And I do the
19 same thing with the advertising agencies. If I think they've
20 made a mistake, I'll do a copyright evaluation to tell them
21 where I think there's a problem.
22 There has been a tremendous rise in litigations in the last
23 couple of years. I think that's because the music industry has
24 really had a very, very hard time, and so that's -- that's one
25 of the things.

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1 I also do a lot of prior art research. I also do a lot of
2 public domain research. I advise -- I advise clients on what
3 songs they might want to license, and I've done a lot of
4 licensing work as well. Song licensing primarily.
5 Q And in your litigation expert witness work, is it mostly on
6 the plaintiff's side or the defense side, or how would you --
7 A It doesn't matter. It's -- it breaks down about 50/50.
8 Q You mentioned the concept of a -- of a prior art. Would you
9 explain to the judge what is prior art and what is a prior art
10 search and what's the significance of that.
11 A I do prior art searches regardless of if it's on the
12 plaintiff's side or the defendant's side because I think if --
13 if there's a plaintiff case, then I want to be certain that I've
14 done enough due diligence to be certain that there are not prior
15 art -- existing pieces before I would go forward. If there are,
16 then, of course, I let them know that.
17 Prior art is work that appears before the two works or
18 three works in question that has some of the same
19 characteristics.
20 Q Have you ever researched songs from Mexico?
21 A I have. I worked for three or four advertising agencies
22 that concentrate on the Latin American market or the Mexican
23 market.
24 Now, I've had opportunities to compare Mexican songs, and
25 what I -- and to deal with the Performing Arts Society in Mexico

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1 City. I do not speak Spanish, but I do have somebody who
2 translates for me.
3 And what I found is that Mexico is an especially difficult
4 market because so much is oral. There is not a lot of
5 documentation of songs. And so it's -- it's sometimes difficult
6 to find examples because so much of Mexican music has not been
7 written down.
8 Q So what does that mean? It's just -- just played over
9 the --
10 A It's played. It's folk music that's been around sometimes
11 for generations, passed along, and it's -- it's, you know,
12 played -- played and known, but, you know, not necessarily
13 copyrighted or notated or even recorded.
14 Q What are some of your notable engagements, if you can just
15 give us a few?
16 A Well, one, I worked with you on the BMI Beyonce Knowles
17 case. I felt that that had absolutely no merit whatsoever. I
18 worked -- I worked on an interesting case in the Central
19 California court where the Judge basically said -- this was
20 Frank Gari Productions versus Coca-Cola Company where -- where
21 the judge basically said, "I don't understand either one of
22 these experts. I don't understand you, and I don't understand
23 you. So the two of you are going to have to decide who you will
24 agree to use for me so that I can have the advice of a
25 musicologist who will then, you know, help me -- help me

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1 understand what you're saying."
2 I ended up doing about two months' worth of prior art
3 research before I came to my conclusion.
4 Q So you were -- you were the -- you were the musicologist
5 that the two sides agreed should be hired for --
6 A Right.
7 Q -- advising the judge?
8 A So the judge would be able to be helped to understand what
9 they were saying.
10 Q Currently, how many copyright matters are you engaged in?
11 A Litigation matters, six.
12 Q And we have other examples of your qualifications and your
13 background.
14 MR. GARCIA: Your Honor, they're in Exhibit 22 and 23.
15 I won't go over it or read it all into the record, but would
16 move to admit Exhibit 22 and 23, her resume.
17 THE COURT: All right. It's admitted.
18 BY MR. GARCIA:
19 Q Ms. Wilbur --
20 MR. SHOWALTER: No objections to 22 and 23.
21 THE COURT: They're admitted.
22 BY MR. GARCIA:
23 Q Ms. Wilbur, there was some discussion -- or did you sit
24 through and listen to the testimony of the plaintiff's expert,
25 Robert -- Dr. Robert Gross?

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1 A I did.
2 Q And there was some discussion about musicologists and
3 forensic musicologists and music theorists.
4 Could you explain to the Court what is a musicologist and
5 the body of music -- forensic musicology and --
6 A Right.
7 Q -- what a forensic musicologist does versus what a music
8 theorist does.
9 A The reason it's called forensic musicology is that it's --
10 it's distinguished from musicology as it's known in academic
11 circles, which is the study of history of music. I did not
12 study the history of music. I studied composing and
13 ethnomusicology.
14 Forensic musicologists look -- compare works and contrast
15 them in -- the forensic part is it looks for fingerprints and
16 sees if there's -- if there's examples of copying. It's -- it
17 deals with copyright issues, basically -- basically -- and prior
18 domain, you know, public domain and prior art in some of these
19 other issues that relate to copyright.
20 Q And music theory, is that a practice used in the forensic
21 setting or academic, or could you please explain?
22 A There -- there are several fine forensic musicologists who
23 have a background in theory. One of them was head of the theory
24 department for the school of music for many years. So theory is
25 certainly a background for it.

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1 I certainly didn't study forensic musicology. It's not
2 something you study. I got involved in it because I was asked
3 to be involved in it and the lawyers were happy with what I
4 said, and I was able to explain to the lay jury how the music
5 was put together.
6 And then I was asked to do this preventative program, and
7 then, you know, things -- I've never -- I've never been as busy
8 as I am currently and with as many clients and with this many
9 litigation matters, but that seems to be the -- the direction
10 that things are going.
11 Q Are there other --
12 THE COURT: So you've had -- in other cases you've
13 been involved in, music theorists have testified or been
14 designated as experts?
15 THE WITNESS: Absolutely. Well, yes. Now, if you
16 ask -- I guess I'll let the lawyers ask.
17 BY MR. GARCIA:
18 Q No, you may answer the judge's question. Please elaborate.
19 THE WITNESS: I have never seen Schenkerian analysis
20 in any of the cases I've been involved in. We're talking about
21 basic music theory. Schenkerian analysis is something that I
22 did in graduate school and composing, and it was really used to
23 understand highly complex classical and atonal works.
24 The idea of consonant substitutions is completely and
25 totally -- certainly even the concept of it I have never seen in

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1 any of these cases. And I've -- I've been in many. I've read
2 many expert reports, and -- and this is simply not a methodology
3 that makes -- makes any sense to me at all. And it goes against
4 the whole idea of copyright because if you can say that any note
5 in a chord could be substituted, then what are we talking about
6 in terms of the melody? It doesn't make any sense.
7 BY MR. GARCIA:
8 Q Is a -- is a melody a -- well, explain what a melody is and
9 whether a melody includes substituted notes, or is it a fixed
10 melody? What is your -- what is the copyrightable melody?
11 A Well, unlike Dr. Gross, I do not think of melody as clumps
12 of notes. I think of them as relating to the harmonic
13 structure. That's the context, if you will, the bones.
14 Sometimes you've got -- you've got -- you've got various
15 elements that you're examining, including the melody, the
16 harmony, the rhythm, the structure, melodic contour, harmonic
17 rhythm, arrangement, lyrics -- you know, a number of -- of
18 various things.
19 And how these elements relate to one another, how they are
20 put together are all relevant, and every single case is
21 different.
22 Q Have you ever seen an expert report or a forensic -- or a
23 copyright music setting in which notes have been swapped out to
24 show comparison to another work?
25 A No. Absolutely not. And the notion of "swapped out" seems

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1 to imply that somebody knowingly took notes and decided to
2 change them and -- and use different notes that would really
3 create the -- a copy without it seeming like a copy. That --
4 that doesn't make sense to me in this case whatsoever.
5 Q Are you familiar with the element of song description?
6 A Yes.
7 Q And what is that?
8 A Well, the first thing -- first thing you do -- or the first
9 thing that I do is get the songs, the recording or whatever
10 other material.
11 In this case I got two recordings and a lead sheet that was
12 the copyrighted version of -- of "Triste."
13 Q Well, I'll get to what you did, but --
14 A Okay.
15 Q -- in terms of the generic, what does that mean? Song
16 description, what does that mean?
17 A That really means what are the basic general outlines, what
18 kind of genre, style, key, tempo, you know, structural elements,
19 and what is your first reaction to it. Because very often I've
20 found that the first reaction might be the reaction that the
21 layperson has, and so, you know, I -- I -- I -- before I delve
22 deeply into it, I listen to the two works and say, "Are these
23 two works similar," or "What -- what ways are they similar?"
24 I focus, then, on the similarities and compare and contrast
25 them, and I look at them in relationship to: Are they generic

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1 with the style? Is it something that comes out of a genre,
2 or -- and, also, how important are these similarities in
3 relationship to the whole work?
4 So you're looking at a lot of -- a lot of information, and
5 you organize it in such a way that -- that it makes sense and so
6 that you weigh those various things and determine how important
7 they are.
8 One of the things that we use and -- certainly not
9 consonant substitution, but one of the -- one of the ways of
10 looking at melody is to look at important weighted notes. Where
11 are the important notes in a piece? Where is it basically
12 going?
13 In -- in this kind of a -- kind of simple folk-type songs,
14 I would say that the first note in the measure -- and if it's
15 not a chord tone, then the -- well, I'm trying to be general.
16 Q Yeah. Be general with it.
17 A So -- so important weighted notes is one of the things that
18 I look at.
19 Q So then -- now let's be specific.
20 Did you look at the three works that are at issue in this
21 case?
22 A I did.
23 Q Okay. You were provided a copy of the "Triste" --
24 A Right.
25 Q -- copyrighted lead sheet, correct?

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1 A Correct.
2 Q You reviewed that?
3 A I did.
4 Q Were you provided a copy of the "Triste Aventurera" sound
5 recording by Mr. Guzman?
6 A Yes.
7 Q Did you review that?
8 A I reviewed it, and I transcribed it.
9 Q Did you receive and review a copy of the sound recording of
10 "Cartas de Amor" recorded at Hacienda Records?
11 A I did.
12 Q And did you transcribe that?
13 A I transcribed it. I transcribe all the recorded things that
14 I get.
15 Q What does that mean, for the Court? What does that mean,
16 "transcribed it"?
17 A That means to put in notation. Now --
18 Q Do you have an illustration of your transcriptions?
19 A Yes. They're in the report. They're in the report.
20 Q That's in --
21 A The first thing you do is you transcribe in the original
22 key. So Triste's was in the key of A flat major, so it's
23 transcribed in the key of A flat major. The other song was in
24 the key of C.
25 Q Which song?

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1 A "Cartas."
2 Q Okay?
3 A And after you transcribe them in the original key, you --
4 you transpose, generally, one of them to the key of the other.
5 In this case we transposed the A flat major to the C major so
6 that it would match the "Cartas" song.
7 I consider the transcriptions very important even though
8 they don't -- they're -- they're illustrating what the melody
9 does. Obviously, if a singer changes the way they sing a
10 particular note or stops short -- so I -- I -- I agree with
11 Dr. Gross that the attack points are -- are important.
12 I -- I feel very strongly that the transcriptions have to
13 be factually correct.
14 Q Let's look at those transcriptions. And do you have an
15 opinion whether Dr. Gross's transcription was correct?
16 A Okay.
17 Q First, let's pull up the "Triste" -- the sound recording
18 is -- your transcription is appendix -- appendix --
19 A I think that --
20 Q Which one should we pull up?
21 A (Indicating.)
22 Q Okay. You want to pull up that one?
23 A Yes.
24 Q Okay. That is --
25 MR. GARCIA: That was the original exhibit up here,

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1 the big one.
2 A This one.
3 BY MR. GARCIA:
4 Q Oh, is that the exhibit? No, that's your copy.
5 THE WITNESS: That's my copy.
6 MR. GARCIA: Mr. Rivers, the exhibits were --
7 originals were here. Do you remember the ones we marked
8 yesterday?
9 THE CASE MANAGER: Oh, I think I put them up on
10 Judge's --
11 MR. GARCIA: The big over-sized copy. There was a big
12 one. We marked it yesterday, a couple of demonstrative -- yeah,
13 that one. Thank you.
14 BY MR. GARCIA:
15 Q Okay. You have -- can you see the one on the screen, or
16 would you prefer --
17 A Just show the -- can I see the title? Yeah. That's the
18 correct one.
19 Q That the one?
20 A Yeah.
21 Q Okay. We have on the screen -- this was a -- an exhibit
22 prepared by Dr. Gross.
23 Do you remember that?
24 A Yes.
25 Q And we marked this as Defendant's Exhibit 82.

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1 And did you have an opportunity to study this document?
2 A I did.
3 Q And what did you observe?
4 A I observed that it was not accurate. First of all, I have
5 never seen transcriptions that are marked in this kind of way
6 that obscures the notes and you have to look so hard at what's
7 happening.
8 I remember that Dr. Gross said that there were 81 -- he
9 counted 81 cons- -- I can't remember the term. Consonance
10 substitutions -- which he called chord tones, and I would say
11 that there are quite a few mistakes here.
12 Q What -- where are the mistakes?
13 A Okay. In the -- I think you went over some of them. The
14 last two lines were not in the line, some of those kind of
15 things. And the notes -- any lines on the angles were not
16 reasonable because they weren't happening simultaneously.
17 But the bigger issue, because we want to be sure we're
18 talking about the musical facts in the case and as objectively
19 as possible, is that the part on the second line -- well, as you
20 can see, you have repeated sections, one, two, three, four,
21 five -- six notes, and then they're repeated, and then there are
22 measures in which they continue.
23 The second lane -- the whole first --
24 Q Do you want to come over here and point to what you're -- so
25 we can know what you're referring to, or do you want me to

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1 point?
2 A Yeah. If you could do that, that would be fine.
3 Q All right. Where are you at?
4 A Okay. On the second line -- I just wanted to say in the
5 first case that everything on the first line is in the -- in
6 the -- using the chord C.
7 Q So --
8 A The second --
9 Q -- this upper line (indicating) --
10 A Right.
11 Q -- is the chord of C?
12 A Right. Now, there are differences, and I'm going to go over
13 the harmonic differences, and I'm going to go over the
14 structural differences as well. But I just want to point to
15 some of these things now so that we can get these straight right
16 away.
17 In the first -- in the first line -- the first melody line,
18 it goes -- I'm going demonstrate it on the keyboard. Three
19 (playing keyboard) -- okay?
20 That's the key of C (playing keyboard). That's the C chord
21 (playing keyboard). So it's 3, 6, 5, 6, 5, 3.
22 Q Are you at the upper line or the lower line?
23 A Right. The upper line right there. Those are the notes
24 right there.
25 Q So 3, 6, 5, 6, 5, 3?

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1 A Right.
2 Q Those right there?
3 A Right.
4 Q All right.
5 A Now, in the second line he goes -- I'm just going to --
6 Q Down here (indicating)?
7 A No. Next line down, the staff --
8 Q Oh, this?
9 A -- right there.
10 If you'll notice that, he has (playing keyboard) -- okay?
11 Now, that actually -- he made quite a big deal about the
12 repeated B, A, B and the odds of that happening. The only --
13 only problem with that is that that's the harmony part. It's
14 not in the -- this is not the melody in the recorded version,
15 which is what he's calling the arrangement. Rather, the notes
16 are (playing keyboard).
17 I have to look at my transcription.
18 We'll put it up later. In other words, those notes are
19 wrong. They're actually supposed to be a third below that.
20 Q So the --
21 A So instead of B, A, B --
22 Q -- the line --
23 A -- they really are G, F, G. So 5, 4, 5, not 7, 6, 7 as he
24 has indicated.
25 Q That's on the "Triste"?

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1 A That's on the "Triste" recording.
2 Now, another --
3 Q So I'm showing Exhibit 33 -- your Exhibit 33.
4 A Yeah. That would be good to show as well.
5 Q And that -- so in the "Triste" --
6 A Into the --
7 THE REPORTER: I'm sorry. One at a time.
8 BY MR. GARCIA:
9 Q You have to let me finish before you start speaking.
10 So for sake of comparison, you said the upper line was
11 using the melody. The second line then swaps to the harmony; is
12 that true?
13 A Correct. In those two sections, yes.
14 Q In these two sections.
15 But -- and -- so, actually, in the melody -- if you are
16 consistently comparing melody, you're saying, then, these are
17 really not B, A, B notes in the -- in the melody of "Triste"; is
18 that true?
19 A Correct.
20 Q So where is the B, A, B, then, or where -- where are the
21 true notes of the "Triste" sound recording in the second line
22 here that's been --
23 A Okay.
24 Q -- not used?
25 A What I have done on this -- on this graph, which we will

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1 refer to often -- and, sadly, it has only my scribbling --
2 writing on top to show you what the notes are. But I have
3 another graph that just uses those notes.
4 On the very top staff all the way through it is the
5 copyrighted version in C. I've transposed it to the key of C,
6 but it's actually the same notes as what appears in the
7 copyrighted version of "Triste."
8 Q This top line --
9 A Yes.
10 Q -- is the copyrighted version of "Triste"?
11 A Right. And if you go down to in the next grouping of
12 staffs -- no. No. No. That one.
13 Q Yes.
14 A -- that continues, and the next grouping of staffs. So the
15 top line of the grouping of staffs is the copyrighted version of
16 "Triste."
17 On the second line is the recording.
18 Q Right here (indicating)?
19 A Right.
20 Q And what I've done is the bigger notes are the -- the
21 melody, and the harmony part is above it, generally. Yeah. The
22 harmony part is above it.
23 And on the third line is the "Cartas" -- the melody of the
24 "Cartas" recording, and it -- including its -- the chords.
25 Q Okay.

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1 A So -- yes. Right there.
2 So if you look at the second line -- I'm sorry. That's not
3 correct.
4 Q Of -- of this one on the --
5 A Right. What happens is I have them grouped in four -- in
6 four measures across. So the third line down --
8 A Yes. And then the second staff -- right -- where the
9 recording is, you can see that I've written those notes 5, 4, 5.
10 If you look above to the copyrighted version, B, A, B is in
11 the copyrighted version, but it doesn't use the melody -- the
12 copyrighted version doesn't have the same melody as the recorded
13 version.
14 So, in other words, what Dr. Gross did was he used the
15 melody of -- in the beginning (playing keyboard), if you go to
16 the top of the page right there. So the recorded -- no. That's
17 the copyright. That one. Is (playing keyboard).
18 Q Right here?
19 A Is (playing keyboard) okay? And --
20 Q So 3, 6, 5, 6, 5, 3?
21 A Yeah.
22 Q 3, 6, 5, 6, 5, 3?
23 A Right. And then it's repeated again (playing keyboard) a
24 second time. And then if you go to where the second part occurs
25 right there -- that's right. (Playing keyboard) Okay?

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1 Q Right here?
2 A 2, 5, 4, 5, 4, 5, 5, okay?
3 Q Right.
4 A So -- so that's the correct song melody.
5 And the other one that he indicated was (playing keyboard).
6 Q But yet the -- but it has the B, A, B, which is -- really
7 should be the 2, 5, 4, 5, 4 --
8 A Correct.
9 Q I got you.
10 A Right. Right. Now, the biggest --
11 Q So the -- the -- to be clear, then, the two -- the -- the 5
12 is what note?
13 A G.
14 Q This is a G. The next note, 4, is what note?
15 A F.
16 Q And the next note is what note?
17 A G.
18 Q G.
19 So instead of B, A, B, the true melody in the sound
20 recording is G, F, G is what you're saying?
21 A That's correct.
22 Q And we'll get to that in a minute, but just some big
23 picture -- did you want to say any other big picture issues on
24 this one?
25 A Yeah. The other thing that was very -- a very serious

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1 mistake, if you go -- push that up a little further, you'll see
2 where the break is right there.
3 Q Yes.
4 A And the top line is the "Triste Aventurera." This is the --
5 he's saying that this is the recorded melody on the top.
7 A And the -- that entire section all the way through to the
8 bottom of the piece, there and the next staff grouping on the
9 top -- right there all the way to the end -- all those notes are
10 incorrect -- well, most of them are incorrect.
11 And more --
12 Q And why is that?
13 A They simply weren't transcribed correctly.
14 Q Oh, the transcription is wrong?
15 A The transcription is wrong. I don't know where he got these
16 notes from. I know when you asked him he said he thought that
17 the copyright version was incorrect, but the whole thing was
18 incorrect.
19 But the truth is that the recording did not sing those
20 notes, and -- and much more to the point, he moved the entire
21 line -- the entire melodic line over one measure so that it
22 lines up with the pickup measure, which is -- which is simply
23 not correct.
24 Why he might have done that, I'm going to show you on my
25 transcriptions and show you the difference, but, nonetheless,

#:2820
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1 in -- in -- in that whole section -- now, this is the refrain
2 section. This is the part that's the chorus. This is the part
3 that's repeated. This is the most important part of the song.
4 The -- the chords in the introduction, the chords in the
5 instrumental break are the same chords as used in this refrain
6 section. So to get these notes wrong is -- is a pretty big
7 mistake, but to move them over a measure so that they line up
8 over the pickup three notes below, is --
9 Q So, in other words, Dr. Gross [sic], you're saying -- excuse
10 me. What Dr. Gross did was that -- as I understand it, to do an
11 apples-to-apples comparison, you compare the simultaneously
12 occurring notes in the two songs?
13 A Right.
14 Q But what he did was he took the two songs and he shifted
15 part of it over, then, to line up?
16 A That is exactly right. He lined -- he lined up those -- the
17 downbeat of the refrain in "Triste" with the wrong notes to the
18 pickup measure. So you don't -- you don't start a chorus with
19 (playing keyboard).
20 So if you're playing the chorus -- I'm just going to do it
21 an octave lower (playing keyboard) -- okay? That's -- that's --
22 those three first notes are called pickup notes. He has it
23 correctly indicated in the very first note of the piece. It
24 comes before the bar line.
25 Q This note right here is called a pickup note (indicating)?

#:2821
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1 A That's a pickup note.
2 Q Okay.
3 A (Playing keyboard.) And you can hear it. The downbeat is
4 (playing keyboard), okay? And what you have in the refrain is
5 you have three pickup notes (playing keyboard), which is
6 correctly notated.
7 His "Cartas," the one that he did himself, is correctly
8 notated, although I will also say that this is another thing
9 that is kind of a dead giveaway. He writes down here "Cartas de
10 Amor omits this filler measure." It doesn't omit a filler
11 measure. He had to add a measure there so that it would line
12 up.
13 Q Right here? Is this the part you're talking about
14 (indicating)?
15 A Right. That's what I'm talking about. Those measures,
16 there's -- there's no break. If you notice, the pickup measures
17 come right after it. So it's this (playing keyboard), okay,
18 which is correct. But he wanted to have a space in there. I
19 played it all as one unit, which is the way it is heard on the
20 recording.
21 So, in other words, by shifting it over one measure, he had
22 to add that issue there to make it work. Now, these are pretty
23 serious -- these are pretty serious errors. And I know that he
24 said that some graduate student or somebody did -- did the
25 transcriptions. He didn't -- he did the "Cartas"

#:2822
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1 transcriptions, but he didn't do the other ones. But he's still
2 responsible for -- and there's nothing wrong with somebody else
3 doing transcriptions, by the way.
4 If I have a lot of work to do, I have somebody who I trust
5 do transcriptions, and then I verify them to be certain that
6 they're accurate. I mean, because I think that that's the
7 most -- one of the most important things -- tools, if you will,
8 in the tool box of a forensic musicologist is that you have to
9 transcribe the music as accurately as you can.
10 Q Now, we may be breaking shortly for lunch, but before we do,
11 did you prepare a sound demonstration for the Court that
12 illustrated the -- what -- well, let me back up and say this:
13 Did you do a prior art search on the melodies of these songs?
14 A I certainly did.
15 Q And as part of a forensic musicological analysis and
16 methodology, is there always a prior art search done?
17 A Yes. Well, certainly, here -- yes.
18 Q In a copyright infringement setting?
19 A Yes. It's in much more detail on the defendant's side than
20 the plaintiff's side usually, but yes, always.
21 Q And did you --
22 A If -- pardon me.
23 Q Go ahead.
24 A If there's any similarity at all.
25 Q So if they are just totally dissimilar, there may not be a

#:2823
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1 need?
2 A In the Armour/Knowles case there wasn't.
3 Q So was there, in fact, some similar melody between the two
4 in that -- did you notice any in that first verse?
5 A The -- the similarities -- well, the recorded versions have
6 very, very few similarities, but the -- the melody is closer to
7 the copyrighted version because that has (playing keyboard).
8 You know, it has the 5, 1, 7, 1.
9 Those four notes are the same in the copyrighted version,
10 and also (playing keyboard) the -- the second theme, if you
11 will, with the other chord goes down a step. There's a common,
12 what I call, compositional device. It's -- I found examples
13 that show this device very clearly.
14 Q So --
15 A Certainly, there's nothing unique about 5, 1, 7, 1, and
16 certainly as a compositional device, going down a step when
17 you're going into a different chord, G (playing keyboard).
18 So, in other words -- (playing keyboard) -- if you go to G
19 -- (playing keyboard) -- it's -- it's a parallel pattern using
20 the chord tones of the G scale as opposed to the C scale.
21 Extremely common.
22 Q Now, as to the 5, 1, 7, 1 that you observed --
23 A Uh-huh.
24 Q -- in the "Cartas" piece --
25 A Right.

#:2824
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1 Q Actually, let's go ahead and look at that.
2 In the beginning of the song --
3 A Right.
4 Q -- 5, 1, 7, 1, 2, 3, do you see that?
5 A Right (playing keyboard).
6 Q Is that the "Cartas" --
7 A Yes. I'm sorry (playing keyboard). That's the melody of
8 "Cartas."
9 Q The "Triste" copyright also has a 5, 1, 7, 1; is that true?
10 A (Playing keyboard) Correct.
11 Q And that was the melody that you actually --
12 A Well, this is the first four notes (playing keyboard) -- is
13 the one of "Cartas" -- (playing keyboard) is the copyrighted
14 version of "Triste."
15 Q Now, as to that common melody in the beginning measure --
16 A Uh-huh.
17 Q -- the 5, 1, 7, 1 that is common to the copyright version
18 and to the "Cartas" sound recording --
19 A Right.
20 Q -- were you able to locate prior art --
21 A Many examples. Many examples.
22 Q Is the 5, 1, 7, 1 combination of notes unique to either
23 "Cartas" or "Triste"?
24 A No. In fact, the Nutcracker Suite, bum, bum, bum, bum, bum,
25 bum, bum, bum, bum -- I mean, it's a very common blend.

#:2825
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1 MR. GARCIA: Your Honor, we have a short audio we
2 would like to demonstrate for Your Honor, the 5, 1, 7, 1, and
3 the melodies contrasting the two, similar to what Dr. Gross did.
4 THE COURT: Sure.
5 MR. GARCIA: We'd like to play that at this moment.
6 THE COURT: Which exhibit?
7 MR. GARCIA: I am going to find it. It is Exhibit 34
8 on our exhibit list. It's an audio file. It wouldn't be in
9 the -- so I'll play that now.
10 (Exhibit 34 plays.)
11 MR. GARCIA: Your Honor, we could go on, or did you
12 want to --
13 THE COURT: Yeah. Let's go ahead and break. This is
14 a good stopping point. Let's return at -- at 1:30.
15 You may step down.
16 (Lunch recess taken from 12:32 p.m. to 1:35 p.m; the Court
17 heard another matter.)
18 THE COURT: All right. You can be seated.
19 You can continue.
20 You can come back up.
21 MR. GARCIA: May I proceed, Your Honor?
22 THE COURT: Yes.
23 BY MR. GARCIA:
24 Q Ms. Wilbur, before the break you were giving us some
25 background. What -- I'd like to then, now, go into some of your

#:2826
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1 observations.
2 First, did you make some observations regarding the song
3 description between the two works?
4 A What I regularly do as a methodology is to, you know, kind
5 of look at the general scope of the song and then work into the
6 details.
7 So I look at, you know, the tempo, the duration of the
8 song, what type of style it's in, and do a little background
9 research. But, basically, I -- I determined that "Triste" was
10 109 beats. It was 2 minutes and 38 seconds long. It was in a
11 Norteo style, and that was the -- the "Triste" and the "Cartas"
12 was in a much more contemporary style, and it was --
13 Q Well, first, what you just described was the "Triste"
14 copyright?
15 A No. That was the recorded -- recorded song.
16 Q The "Triste" recorded --
17 A I also -- I also looked at the copyrighted version and
18 determined that they were not the same, but the harmony part in
19 the recorded version hit rather closely to the copyrighted
20 version.
21 The last few notes in the copyrighted version were
22 incorrect. They were probably -- if you -- if you recognized
23 how closely it cued to the harmonic -- harmony part of the
24 recording, it's pretty easy to deduce what those notes are.
25 But -- but, generally, that -- those were the over-- overarching

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1 things.
2 I also felt that the harmonic instrumental parts and the
3 introduction and the instrumental breaks of both songs used the
4 same chords as the refrain or the chorus section. The chorus or
5 refrain is the most important part, generally, of a song. It's
6 the part that's repeated.
7 Then the next step that I do after just getting kind of a
8 general sense of the songs is I do -- and after I've transcribed
9 them, I look closely at their -- their structures. The
10 structures are on page 6 of my report.
11 Q Well, before you get to that on the song -- before we get to
12 the structure, on the song descriptions did you have opportunity
13 to do any research regarding the historical origin and
14 background of the two songs?
15 A Yes. Yes. Because this is, you know, not a style that I
16 was completely familiar with, I did some -- some research. And
17 I found, actually -- if you wouldn't mind playing a YouTube -- a
18 couple minutes of a YouTube --
19 Q Did you locate a YouTube document which gave information on
20 the historical origins of Tejano music?
21 A Yes.
22 Q Okay.
23 MR. GARCIA: Your Honor, that is Exhibit 44. We're
24 not going to play the whole -- the whole segment, but the
25 beginning part of it.

#:2828
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1 MR. SHOWALTER: We object to some YouTube video coming
2 into trial we know nothing about, no opportunity to
3 cross-examine it, the basis for this person's statements,
4 qualifications, credentials, and it's --
5 THE COURT: I mean, it does seem like classic hearsay.
6 How do you get around that, Mr. Garcia?
7 MR. GARCIA: It's part of her research. You read a
8 book. You talk -- you make an interview. You don't, you know,
9 pile everything in --
10 THE COURT: Well, she can say what she's learned about
11 Tejano music, but I think playing the recording -- that would
12 swallow the hearsay rule if you could publish anything --
13 anything an expert relied on. So you can ask her what her
14 understanding is based on her research in Tejano music, whatever
15 the point you want to bring out.
16 MR. GARCIA: Well, as a demonstrative may we play it?
17 THE COURT: No.
18 BY MR. GARCIA:
19 Q And from your research and observing that video, what did
20 you learn, Ms. Wilbur?
21 A This -- this was -- Narcissus was the name of the person
22 being interviewed, and this YouTube clip was -- and he's a
23 respected Norteno musician.
24 He said -- and I've learned subsequently that -- that a lot
25 of Germans and Eastern Europeans settled in the northern part of

#:2829
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1 Mexico and along the border towns, and the German folk songs and
2 the accordion, in fact, were introduced into Mexican music, and
3 this was a very important part of -- of the influence on the
4 music.
5 So the polka and the accordion both originated from -- from
6 Germany, really, and Eastern European countries. And they
7 produced the waltz, the accordion, and the -- and the polka.
8 So both of these use that 2/4 meter, which is a polka kind
9 of style. They use the accordion that was introduced by -- by
10 German -- and German folk songs also had an important part.
11 Now, the other thing, of course, is that -- is that music
12 isn't static. It's influenced by all kinds of things. And,
13 certainly, the Tejano music has been influenced by -- has had
14 pop influences and rock and roll influences and those kind of
15 influences as well. But, certainly, the German and Eastern
16 European influence was very major.
17 Q The -- would you say the origin and roots for the Tejano
18 music originated from Germany and Eastern Europe?
19 A Well, it -- it was part of a -- of formation of the Norteo
20 style, which was the more traditional Mexican style that was in
21 the northern part of Mexico, with the -- with the German and the
22 Eastern European influences. And then as time went on, more
23 rock influences and pop influences from the United States.
24 Q Did you conduct any other research to -- regarding the
25 historical origins of Tejano music?

#:2830
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182
1 A I did. Once I had done my analysis of the song, I contacted
2 Dan Sheehy, who is head of the Smithsonian Folkways Records
3 [sic], who I happen to know well -- and he got his Ph.D. in this
4 very music, and I've known him for years. He graduated from
5 UCLA in the same musicology department, and he -- he shed some
6 similar light on it.
7 I also asked him -- he confirmed that -- that there were
8 many -- that Mexican music is very oral, and there is not a lot
9 of documentation on it. He's recorded himself hundreds of
10 pieces of Tejano music. He's very well aware of it. He did his
11 Ph.D. in it, and he said that these were both extremely common
12 forms -- extremely common Tejano -- Tejano-type folk songs that
13 would have been part of this genre.
14 Q When you say "both of these" you mean "Triste" --
15 A Both "Cartas" and the -- both recordings.
16 Q "Cartas" and "Triste"?
17 A Right.
18 Q In fact, did Dr. Sheehy confirm that to you in writing?
19 A He certainly did. He sent a letter to me -- I spoke to him
20 first, and he told me. And then I asked him if he would send me
21 a letter confirming our conversation, and he did so, and it's --
22 it is in one of the exhibits, I believe.
23 MR. GARCIA: Well, Your Honor, Exhibit 24 --
24 MR. SHOWALTER: We object to this exhibit on the same
25 grounds.

#:2831
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183
1 THE COURT: Sustained.
2 MR. GARCIA: I'll move on, Your Honor.
3 BY MR. GARCIA:
4 Q Did you also conduct any research regarding similarities of
5 the two songs, anything regarding harmony or chords or anything
6 of that style?
7 A Well, I certainly determined that the -- the harmony is
8 very, very common. I think that's your question.
9 Q Yes.
10 A The harmony is very common. It uses the three basic chords
11 in the C scale. That would be the 1 chord, the 5 chord and the
12 4 chord. And it is a very simple harmonic structure where it
13 has eight measures of the C chord and -- approximately.
14 Now, they are different. They -- they are not exactly the
15 same, and I can go through the breakdown later. But generally
16 speaking they have eight measures with -- or four measures if
17 you think of it as 4/4 time, but eight measures of the C chord.
18 And then it goes generally to the G chord, which is the 5 chord.
19 So you have the C chord (playing keyboard). Then it goes
20 to the G chord (playing keyboard) for eight measures
21 approximately, and then it goes to the 4 chord (playing
22 keyboard) in the refrain.
23 Q Is there anything unique to either two songs regarding the
24 1, 5, 4 chord usage --
25 A No. Absolutely not.

#:2832
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184
1 Q -- in the C scale?
2 A No. And, in fact, the reason that Dr. Gross found so many
3 consonant substitutions was because they are playing one chord,
4 and the notes that would go with that one chord would be
5 consonant to it. And then when you go to the G chord, there
6 would be a lot of notes that would be consonant to that as well.
7 These are -- these are what I would refer to as
8 harmonically based -- I mean, the harmonies are important in
9 these songs.
10 Q The -- as far as the 2/4 beat ranchera polka --
11 A Uh-huh.
12 Q -- is there -- is that unique to either song?
13 A No.
14 Q Is that also common?
15 A Very common. It's a polka, basically. The tempos are
16 different in the two songs. "Cartas" is slower. I think one
17 was -- I think it was 101 beats per minute, and one was 109
18 beats.
19 So "Triste," the recording was 109 beats per minute, and
20 "Cartas" was 101 beats per minute.
21 Q So did you -- we would like for you to elaborate on some of
22 the differences you now found between the two songs.
23 A Uh-huh.
24 Q And when I say "two," I guess it's the three "Triste" --
25 there's three "Tristes," and then there's the "Cartas de Amor."

#:2833
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185
1 A Right.
2 Q So would you identify for the Court some of the differences
3 you found.
4 A Okay. I found that the refrain sections were quite
5 different using different melodic patterns, different chords,
6 and even though the structure of the songs were -- are common,
7 they were also quite different.
8 I found that the -- the refrains were different and the
9 instrumental parts of both songs in terms of the introduction,
10 the instrumental breaks -- there were two instrumental breaks in
11 "Cartas" and one instrumental break and an introduction in
12 "Triste."
13 These -- these were quite different. They both are on the
14 4 chord and -- they start on the 4 chord, pardon me, and then
15 they have different chords throughout and different melodies
16 throughout.
17 The instrumental intros are related to the refrains in that
18 they use the same chords and melodic material, and both of them
19 are different.
20 I found it interesting structurally that the -- the refrain
21 in the -- the instrumental parts that related to the refrain
22 were in "Cartas," 95 of the measures out of the 127 measures.
23 And in "Triste" they were 79 measures out of a total of 138. So
24 "Cartas" used 75 percent of the body of the song on material
25 that relates to the refrain.

#:2834
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186
1 Now, the reason that refrains, of course, are very
2 important is that they're repeated, and they tend to be the
3 focus. And you certainly find in both songs that the
4 introductions and the repeated refrains and the instrumental
5 break between the -- the refrains are -- are different, but they
6 also have other differences.
7 The -- the "Cartas" structure has an instrumental
8 introduction, and then it has the -- what I call the verse 1A,
9 which is the theme -- the theme one, which is on the C chord.
10 Then it has --
11 THE COURT: Why don't we do it this way. Let's break
12 it up. It's getting a little long. Do it by question and
13 answer.
14 And I don't -- I mean, it looks like you're basically
15 just reading your report into the record.
16 THE WITNESS: Oh, I'm not.
17 THE COURT: Well, you're reading something.
18 But just go ahead and break it up and ask her some
19 questions.
20 BY MR. GARCIA:
21 Q Yeah. Let's talk first about the song structure.
22 Regarding the --
23 A Can you just put that up on the screen so --
24 Q Yes. Yes. We'll make sure --
25 A So I don't have to read the notes out of my chart.

#:2835
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187
1 Q This is the page -- Exhibit 21, page 6.
2 Did you, in fact, analyze the structure between the two
3 songs?
4 A I did.
5 Q And did you, in fact, find differences between the structure
6 of "Triste" and the structure of "Cartas"?
7 A I did.
8 Q Um --
9 A They both started with -- okay. You can see --
10 Q First, let's talk one at a time here -- that the -- were the
11 instrumental introductions different --
12 A Yes, they were.
13 Q -- between the two?
14 That's what you were describing a moment ago?
15 A Yes.
16 Q When you said verse A1, is this the timing difference here?
17 A Those both are theme one. The theme ones are different in
18 each piece.
19 Q And then the -- what are some of the other major structural
20 differences you -- you have identified?
21 A You'll see that in "Triste" you have verse 1A and 1B. That
22 simply means the theme that's played on the C chord and the
23 theme that's played on the G chord.
24 Then you have instrumental breaks that are considerably
25 longer in Tristas -- "Triste" than in "Cartas." You have -- you

#:2836
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188
1 have a full second verse, verse 2A and verse 2B. Then you have
2 a refrain, which is 17 measures, and then you have an
3 instrumental break and then the refrain.
4 The instrumental -- the instrumental -- first instrumental
5 intro and the instrumental between the two refrains are very
6 similar, and they use the chords of the refrain.
7 On the "Cartas" side you have a verse 1 and a verse 2 with
8 a smaller filler, if you will, after the introduction. Then you
9 have what I call a pre-refrain. And the reason that I call it a
10 pre-refrain is that it has very different chords leading up to
11 the -- it uses some of the same chords as -- as the beginning of
12 the verse, but it goes into four measures that are different and
13 lead up to the refrain.
14 Again, you can see that there are filler -- filler
15 instrumentals of two measures each on the "Cartas" side and
16 eight or seven on the other, so that's different.
17 You have -- another difference here. You have the refrain
18 and instrumental break, a pre-refrain again, an instrumental
19 break of two measures, and then you have the refrain again, and
20 then you have another instrumental break, which is related to
21 the previous one.
22 So you have two repeated pre-refrain sections. You have
23 two refrains and two instrumental breaks and -- and an
24 additional instrumental introduction, all of which are related
25 to the refrain section.

#:2837
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189
1 Q So if -- you basically dissected the song?
2 A Yeah. I literally went --
3 Q In other words --
4 A -- through it measure by measure by measure. It gave
5 approximate times where the -- the changes of the sections would
6 occur and how many measures were in each section.
7 THE COURT: So given that there are, as you said, some
8 similarities -- I know you don't think --
9 THE WITNESS: Of course.
10 THE COURT: -- it gets anywhere close to substantial
11 similarity.
12 THE WITNESS: No.
13 THE COURT: But given that there are some musical
14 similarities, and then you add onto that the fact there are
15 these four lines of lyrics that are with -- you know, but for an
16 "S" or two are identical --
17 THE WITNESS: I agree.
18 THE COURT: At the end of the day the question is:
19 Was this copied from Mr. Guzman's song? And you think it's
20 possible that the four same -- virtually same lines of lyrics
21 and these other -- some similarities in the music could have
22 been generated completely independently?
23 THE WITNESS: It's a tough one, but yes, I do. I have
24 seen -- I have seen instances of coincidence like this. But
25 there's no question that those lyrics are virtually the same.

#:2838
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190
1 THE COURT: And you would agree in assessing
2 substantial similarity or copying -- I mean, you look -- you
3 said you looked at everything, and you think there are some
4 things that you think are more important to look at than
5 others --
6 THE WITNESS: Sure.
7 THE COURT: -- but you look at the lyrics, you look at
8 the music, the harmony -- all these different things you talked
9 about --
10 THE WITNESS: Right.
11 THE COURT: -- structure, harmony. You don't just
12 look at one and say --
13 THE WITNESS: No.
14 THE COURT: -- is it substantially. You look at it
15 all in totality?
16 THE WITNESS: Correct. And the lyrics of the rest of
17 the piece are substantially different. They are -- and the
18 meaning of the lyric. And I agree with you that those -- those
19 first -- the first half of the first verse lyrically are -- are
20 the same except for the fact that one is singular and one is
21 plural.
22 That has some different meaning in terms of what's the
23 rest of the lyric, and I have -- I have a lyric. It might be
24 useful just to put it up now so you can see the translation as
25 well --

#:2839
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191
1 THE COURT: Right. That would be helpful.
2 THE WITNESS: -- a side-by-side comparison.
3 MR. GARCIA: We might as well jump to the lyrics,
4 Judge, if you don't mind.
5 THE COURT: Sure. Please. And just before you show
6 that -- but so you basically -- for it to be a coincidence, the
7 same person -- I think Mr. Ortiz -- who came up with these
8 same -- very similar four lyrics at the beginning of the song
9 writing the lyric as Mr. Guzman also, coincidentally, had, I
10 think what you'll agree, are some musical similarities.
11 THE WITNESS: Oh, yeah. Sure.
12 THE COURT: You have to think both of those things
13 were coincidental -- all right. Show me the lyrics. What did
14 you want to point out there?
15 MR. GARCIA: Mr. Rivera, we'll switch to the computer.
16 Thank you.
17 A It's hard to see.
18 THE COURT: Probably blow it up more.
19 MR. GARCIA: The ELMO might be more --
20 THE COURT: Yeah. You can blow it up easier on the
21 ELMO.
22 MR. GARCIA: Let's just use the ELMO.
23 A I'd like to look at lyrics on a page because it helps
24 clarify. Those first two lines are obviously similar.
25 THE COURT: Right.

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1 A And the translation -- the literal translation is: I have
2 in my possession a love letter that you have sent me asking for
3 compassion.
4 The other one is: I have in my possession your love
5 letters that you sent me -- have sent me asking me for
6 compassion.
7 The way you might translate that in English is: I have
8 your love letter asking for forgiveness.
9 The -- the idea --
10 BY MR. GARCIA:
11 Q Are the themes different in these lyrics between the two
12 songs?
13 A Well, what I -- what I also look for in a lyric is rhyme
14 scheme because if, in fact, it's trying to copy, you want to see
15 where -- where -- if there's a rhyme scheme in here. That's one
16 of the things -- you know, the A, A -- you know, whatever.
17 Those are the kind of fingerprints that I'm talking about,
18 and I don't see -- I don't see any correlation in terms of -- of
19 rhyme scheme.
20 In terms of the real meaning of the lyric, you have the --
21 "Triste" is a very angry one saying, "You're poison, you're
22 deceitful, you're deadly and destructive, and it's useless for
23 you to keep on insisting because your fate has changed. Your
24 path in life -- you are going to live this -- I -- you're going
25 to be the sad wanderer, adventurer for the rest of your life."

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1 The other one is basically, "You played me for a fool, and
2 don't beg me because I've learned my lesson. You really hurt
3 me, and how does it feel to be on the other side of the equation
4 now?"
5 Those -- those are -- those are different, but it -- it --
6 there's no question that those first two lines -- and, yes, the
7 first four notes -- are -- are are the same.
8 Q Looking at the overall melody, the overall theme, the
9 overall structure, do those -- does it seem, in your opinion, to
10 be substantially similar between the two works?
11 A No.
12 MR. GARCIA: Your Honor, since we have --
13 THE COURT: I think I asked Dr. Gross the same
14 question. I mean, "substantially similar" is just words, right,
15 like all these legal standards.
16 How similar -- is there another way you can explain
17 what you -- how you evaluate what substantial -- substantially
18 similar is? And I'm sure you've done cases where you found
19 where it's substantially similar. That's what you've done for
20 years.
22 THE COURT: What's the threshold? I don't know if
23 you're able to give it more -- I think Dr. Gross said you know
24 it when you see it. I don't know if there's a way to do better
25 than that, but -- because almost all songs are going to have

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1 some similarity, right?
2 THE WITNESS: Let's put it this way: If this were a
3 deliberate effort to copy the other song, why would you be so
4 foolish as to copy the exact words, you know? That doesn't make
5 sense to me. So that certainly from the standpoint, you know,
6 of copying, it would have been foolish to do that. So, I mean,
7 that's -- that's -- that's one thing.
8 Could it be coincidence? Yes. I look for
9 fingerprints. That's why I'm a forensic musicology --
10 THE COURT: I guess I'm saying -- and forgetting this
11 case for a second --
12 THE WITNESS: Yeah.
13 THE COURT: -- just in general. I mean, how many
14 fingerprints -- because I'm sure a lot of these comparisons have
15 some similarities.
17 THE COURT: So how many fingerprints does it take to
18 hit that substantial threshold? I mean, there's probably -- you
19 know, there's two songs that are musical and lyrics word for
20 word, 100 percent similarity.
22 THE COURT: Then there's probably two songs that have
23 nothing do with each other, 0 percent. I'm sure most songs fall
24 somewhere in the middle of zero and 100. Again, I don't know if
25 you can pinpoint any more specifically, but if -- I don't know

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1 if you have a sense of how -- you know, what -- how many
2 fingerprints does it take to be substantial.
3 THE WITNESS: No. It's difficult because each case is
4 so different.
5 THE COURT: Right.
6 THE WITNESS: And, you know, I try to look at the
7 musical facts in isolation from any of the other -- other
8 things. But, you know, in sitting here for the last week -- I
9 mean, or the last several days --
11 THE WITNESS: -- I -- it doesn't pass my threshold
12 that there was access. That's -- I mean, even if it was played
13 locally I just, you know --
14 MR. SHOWALTER: I've got to object on her --
15 THE COURT: Well, I agree. You don't need to get into
16 the access issue. But on the similarity issue --
17 THE WITNESS: Okay.
18 THE COURT: I mean, it sounds like you are, at least
19 on that, agreeing with Dr. Gross. You have done this a lot, and
20 you know when it's substantially similar, and you have a sense
21 when it isn't.
22 THE WITNESS: Yes. I think you form -- you form an
23 opinion. When I first listened to the two songs -- and I did
24 not have the lyrics at first, obviously. I listened to the two
25 songs. I said, "These songs aren't the same." They've got

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1 different melodies. They're using different chords and
2 different melodies in the refrain, different melodies in the
3 introduction. They're using different melodic contours.
4 They're based on simple -- very simple folk melodies that are
5 common."
6 So I didn't feel that there was anything particularly
7 special about the -- or protectable, really, in terms of the
8 melodies.
9 When I did find out that those two lyric lines were
10 the same, you know, I wanted to know more about that. I -- I
11 did do some research on -- on that. I did not find another song
12 that had exactly the same lyric.
13 I certainly was -- was told that there's a lot of oral
14 tradition, and I know from my work with both the blues and with
15 folk music as I -- and I've done a ton of that work, that you
16 find these expressions in -- in oral traditions. There's now a
17 blues database that I've used a lot.
18 And a lot of these lines can be passed on in the oral
19 tradition, and -- and this is something that very well might
20 have been the case. I've certainly found in the blues and folk
21 that that is often the case, that it's something that goes back
22 a long time.
23 People will say, "Well, my 90-year-old grandmother
24 remembers that line." I didn't do field research in this,
25 but -- but it's the kind of thing that could have come out of

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1 the oral tradition. And I found in many cases -- and
2 particularly one which I can't go into great detail -- but to
3 say that there was a -- a private equity company that bought a
4 huge catalog, and they also made a claim.
5 And when I -- and they hired me to do the research.
6 And I found, to their dismay, that every single one of these
7 lines in this -- this piece could be found in other works, much
8 that predate it. And I have -- I had a hard time getting paid
9 for that, but -- but, I mean, I try to tell the truth. This
10 sounds like something that could have come out of oral tradition
11 to me.
12 THE COURT: Okay.
13 BY MR. GARCIA:
14 Q In terms of maybe this not exact sequence of words, but the
15 words and the theme -- some of the themes, like love letters or
16 compassion or those -- is there anything --
17 A Well, I did do research on that.
18 Q -- unique --
19 A I looked -- I looked for -- I put in, you know, a Google
20 search that said love letter compassion, love letter forgiveness
21 lyric, and I found an overwhelming number of -- of those.
22 So -- so needless to say these are common everyday
23 expresses. I looked for "yo tengo mi poder." Forgive my
24 pronunciation. I looked for that phrase because the translation
25 I have in my possession seemed so incredibly formal, and I found

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1 that that was a very, very common -- very, very common phrase.
2 Literally millions of -- I mean, I just couldn't keep going on.
3 There were millions of them.
4 In connection with a love letter, I did not find that. But
5 certainly love letter forgiveness, love letter compassion, lots
6 and lots of examples. In terms of -- in terms of --
7 Q So the combination --
8 A Even though -- the whole attitude, if you will, there's
9 songs such as, "You had your chance," which is the same kind of
10 thing. You know, "You're coming back begging, and you had your
11 chance. How does it feel to be on the other side?" There
12 were -- there were -- there were, you know, songs with that kind
13 of an attitude.
14 So the -- they are -- they are -- except for those first
15 two lines, they are very different in attitude, and they are
16 very different in -- in sentiments, one being very angry and one
17 being, you know, "You were so beautiful and gorgeous, and I was
18 such a fool," and, you know, these are common -- these are
19 common.
20 Q So the -- so some of the groupings within the grouping you
21 would say are certainly in the public domain. Yo tengo mi
22 poder, for example?
23 A Very much a common expression.
24 Q That's not unique to either writer?
25 A No. And a love letter or love letters --

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1 Q Una carta de amor, I mean, that in itself is not unique to
2 either writer?
3 A No.
4 MR. GARCIA: Your Honor, since we have been looking at
5 this document, I'd like to mark it just for demonstrative so we
6 have it in the record.
7 THE COURT: Sure.
8 MR. GARCIA: So I move to admit -- I think the next
9 number's 84. Move to admit Defendant's Exhibit 84.
10 THE COURT: All right. That'll be admitted for
11 demonstrative purposes.
12 A I think it also shows the structural elements. The lyrics
13 show quite a bit of the structural elements here. You have
14 repeating refrain.
15 MR. SHOWALTER: Object to her just talking and talking
16 and talking without responding to questions.
17 THE COURT: No. That's -- you can -- you can finish
18 your thought if it's not too long.
19 A Simply that the repeating sections are obviously the ones
20 that are important as well, and there were two pre- --
21 precourses that were repeated, and then -- and a broke -- broke
22 up. "But, woman, don't beg me. I don't want your love. Don't
23 you see that with my soul, I want to forget you. But now you
24 come into my thoughts. Tell me, how does it feel to be on the
25 other side."

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1 I mean, basically, that's the one that's repeated. So --
2 and on the other side it's, "It's useless for you to keep
3 uninsisting [sic] because your fate has changed, your path in
4 life. Keep on living your life as a sad adventurer. You will
5 never get anything from men just like me." Those are pretty
6 different.
7 BY MR. GARCIA:
8 Q And as to the melodic considerations, have you already given
9 us your input on the -- of your findings regarding melodic --
10 not prior art, melodic considerations?
11 A I think if -- if I may, if you wouldn't mind just showing
12 the melodic contour chart, which was --
13 Q Okay.
14 A -- page 9.
15 Q Oh, I see.
16 A But I think everybody can --
17 Q Sure.
18 A You can only hear the differences in the terms of melodic
19 contour.
20 Q What is -- we're at page --
21 A It's supposed to be color-coded.
22 Q I think -- it's in color, but it's -- you can barely see the
23 color, but what does this chart show?
24 A This chart shows --
25 Q And we're at page 9 of your Exhibit 21.

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1 A The recording is the lower notes, 3, 6, 5, 6 -- 3, 6, 5, 6,
2 5, 3. The two record -- the copyrighted version, the harmony
3 part of the recording has the same 5, 1, 7, 1, and then they
4 diverge. One goes up; one stays the same, bum, bum, bum, bum,
5 bum, bum; the other one goes, bum, bum, bum, bum, bum, bum.
6 Q Right.
7 A Well, actually, it goes bum, bum, bum, bum, bum, bum.
8 Bottom one goes, bum, bum, bum, bum, bum, bum. And the
9 copyrighted one goes, bum, bum, bum, bum, bum, bum.
10 Q So red being --
11 A Those are different.
12 Q Red being the "Cartas," so here you have your 5, 1, 7, 1, 2,
13 3?
14 A Right. And you can see there are two numbers in each of
15 those because they -- they are the same in the copyrighted
16 version, which is the harmony part of the recording.
17 Q So the copyrighted version has those same four notes 5, 1,
18 7, 1?
19 A Correct. As does --
20 Q 5, 1, 7, 1?
21 A Uh-huh.
22 Q But, of course, the copyrighted version's not the one we're
23 hearing in our ear?
24 A No.
25 Q You just -- you were playing those notes from the

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1 copyrighted version; is that correct?
2 A That's correct.
3 Q The one we hear on the sound recording --
4 A Bum, bum, bum, bum, bum, bum.
5 Q -- is this one down here (indicating)?
6 A Right. Now, the harmony part, the second vocal which is the
7 higher vocal, is actually singing the -- the bum, bum, bum, bum,
8 bum, bum is actually singing -- not in the same rhythm, but
9 singing what is the copyrighted -- it's the harmony part.
10 Where you can certainly hear that it's a harmony part, it's
11 not as loud, and it's not as -- as strong as the -- the lead
12 singer.
13 Q Do you have any other observations regarding the melodic
14 contours?
15 A I think the most important one is the compositional device
16 that goes to the -- the second theme on the G chord.
17 Q Where is that illustrated at?
18 A Let me -- I think I have a -- well, I think I'm just going
19 to have to play it. Let me -- I did some prior art on the
20 compositional device of taking the same melodic shape, and then
21 in the G chord, it's just going to be a note lower. This is a
22 very common device.
23 "The Mexican Hat Dance" goes, ba dum, ba dum, ba dum.
24 That's similar in some ways to bum, bum, bum, bum, bum -- pardon
25 me, bum, bum, bum, bum, bum, bum.

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1 One of the things I look at is important weighted notes,
2 dum, dum, dum -- bum, bum, bum, bum, bum, bum -- bum, bum, bum,
3 bum, bum, bum. Different -- different meters, but they still
4 have important notes.
5 The reason that's important is that "Mexican Hat Dance" --
6 ba bum, ba bum, ba bum, ba, ba, ba, ba, ba, ba bum, ba bum, ba
7 bum, ba bum -- in the G chord it goes down, so (playing
8 keyboard) -- G chord -- sorry.
9 So in the G chord (playing keyboard) -- sorry. Holding on
10 to my pen. I can't do that.
11 (Playing keyboard ) It's a very -- it's the same device.
12 And I know that they -- they made fun of my prior art,
13 "La Cucaracha," but -- but (playing keyboard) okay? So you have
14 the C chord (playing keyboard), very similar to if you look at
15 the -- listen to the important weighted notes (playing
16 keyboard). Okay?
17 And you have (playing keyboard) -- okay? (Playing
18 keyboard) -- okay? That's -- that's the important weighted
19 notes, (playing keyboard). So you have, starting on the 5
20 (playing keyboard) -- those are all the chord notes of the C
21 chord, G, C, E.
22 Then you have (playing keyboard) -- G, B, D of the G chord.
23 It's just one step lower in the same pattern. So -- so I think,
24 again, this is one of the most rudimentary common folk patterns
25 that is the way you change a simple pattern from one chord to

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1 the other.
2 Now, it's not to say that you don't have other choices, but
3 you don't have twelve choices, not in a -- in a -- in a Western
4 7-note scale, and not with something that doesn't have many
5 accidentals.
6 Q The -- in terms of the melodic -- that's the contour --
7 A Uh-huh.
8 Q -- of whether you go up or down on music --
9 A Uh-huh.
10 Q 5, 1, 7, 1, 2, 3 or 5, 1, 7, 1, 2, 3 or 5, 1, 7, 1 -- or you
11 go down?
12 A Right.
13 Q So the contours --
14 A Uh-huh.
15 Q -- are important to know: Is it upward, or is it downward
16 music?
17 A "Cartas" goes up. The "Triste" recorded version goes down.
18 And the other one goes up and stays flat. So (playing
19 keyboard) -- that goes up and stays flat (playing keyboard), and
20 then (playing keyboard).
21 So there really are different melodic phrases starting with
22 the same four notes, but they do have differences. I think --
23 okay. Sorry.
24 Q So then after you lined them up and you look for common
25 melody -- or did you look for common melody?

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1 A I always look for those areas that are similar and compare
2 and contrast them, yes.
3 Q And between the "Triste" copyright version and the
4 "Cartas de Amor," were there any same melodies between the two?
5 A They -- there was closer correlation between the "Cartas"
6 melody and the copyrighted version than there was between the
7 "Cartas" and the recorded version.
8 There were -- the recorded version's melody was quite
9 different, in my estimation, from the melody --
10 Q So --
11 A -- of "Cartas."
12 Q Of the common melody notes, the 5, 1, 7, 1?
13 A Right.
14 Q The --
15 A And they also had the 7, 6, 7.
16 What Dr. Gross had made such a big deal out of with the B,
17 A, B, that was the harmony part or the copyrighted version. It
18 was not the melody of the song recording.
19 Q So giving the benefit of the doubt to the "Triste" version
20 that's most closest --
21 A Uh-huh.
22 Q -- in melody to "Cartas de Amor," that would be the
23 "Triste Aventurera" copyrighted version, true?
24 A Yes.
25 Q Now, and of that copyright --

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1 A And may I qualify that?
2 Q Yes.
3 A We're just talking about the verse portions.
4 Q About the --
5 A We haven't gotten to the refraining at all.
6 Q Right. Right.
7 A Just talking about the melody notes in the verses.
8 Q In the -- the -- where you sing, the melody of the songs?
9 A Right. The verses of the songs.
10 Q And of those -- of the melody of the two songs --
11 A Uh-huh.
12 Q -- "Triste" copyrighted and "Cartas de Amor," what -- how
13 many notes in common in sequence --
14 A Uh-huh.
15 Q -- simultaneously played are there?
16 A Well, what happens in this kind of a piece is that you have
17 a lot of repetition. So you have 5, 1, 7, 1 repeated four
18 times. So that's 16 notes that are the same. I think he said
19 25, so there were 16 of those that -- that 5, 1 -- you know.
20 Now, if you went to the copyrighted version, you'd also
21 have the correlation between the -- not the first note, but the
22 three notes 7, 6, 7 on one of it.
23 In the recording, the harmony note actually --
24 Q The recording of "Triste"?
25 A Yes. I'm sorry. The recording of "Triste." It's seven --

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1 no, I'm sorry. Wrong. I'm getting it confused with -- with the
2 melody.
3 Q The "Triste" recordings --
4 A That's -- that's --
5 Q Hold on a second.
6 You've got the 5, 1, 7, 1 --
7 A Uh-huh.
8 Q -- of the "Triste" copyright?
9 A Right. And you can see on the lowest line, "Cartas," you
10 have 5, 1, 7, 1.
11 Q "Cartas" also has 5, 1, 7, 1?
12 A You can also see in the next phrase 5, 1, 7, 1.
13 Q And it repeats.
14 A So the four notes are the same there.
15 When you go to verse 2 you always have 5, 1, 7, 1, but I --
16 I don't have it on -- you know, on the next page.
17 But when you go to the G chord, which is the third line
18 down --
19 Q G chord here (indicating).
20 A Right.
21 Q Okay.
22 A You have 5, 7, 6, 7.
23 Q 7, 6, 5, 7, 6, 7 right here (indicating)?
24 A And in the next one you only have the two 7s that are the
25 same because I heard it sung (playing keyboard) -- sorry

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1 (playing keyboard).
2 So that second one was, instead of (playing keyboard), it
3 was (playing keyboard). This is a perfectly decent
4 substitution. So the seven notes were the same.
5 Q But in terms of, like, a string of lyrics together or a
6 string of melody together where somebody would say, "Hey, that's
7 my song," the most in common you've identified were four
8 notes -- simultaneously notes played in common, and that was
9 just the "Triste" copyright compared to the "Cartas"; is that
10 correct?
11 A That's -- that's correct.
12 Q The -- now, we heard a demonstration of it.
13 MR. GARCIA: May I ask how much time I have left,
14 Your Honor?
15 THE COURT: Sure.
16 THE LAW CLERK: About an hour 15.
17 THE COURT: How much was it?
18 THE LAW CLERK: An hour 15.
19 BY MR. GARCIA:
20 Q In terms of the prior art melody, we -- we touched on that
21 with your audio demonstration.
22 I want to also see that visually on the notes -- on the --
23 on the music graph, but -- so you did conduct prior art
24 research, correct?
25 A I did. And it was -- it was, of course, interesting that

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1 there were two German folk songs that I found that had the
2 same -- the same melody, again speaking to the German and the
3 accordion influence and the polka style.
4 So I thought that that was interesting, and, of course,
5 this are -- the other ones that I've mentioned.
6 Q And so looking at the 5, 1, 7, 1, taking that first --
7 A Uh-huh.
8 Q -- we've identified --
9 MR. GARCIA: We're on Exhibit 77, Your Honor,
10 demonstrative.
11 THE COURT: And how do you find these prior art? I
12 mean, you enter these note combinations and it'll pull it up?
13 I'm curious how you found these.
14 THE WITNESS: Well, some of them, you know, you
15 just -- you just pull up.
16 THE COURT: Right. But like the German folk songs, I
17 take it.
18 THE WITNESS: No. No, not those.
20 THE WITNESS: I -- I have access to a lot of melody
21 databases, and, you know, you do searches for -- for them. I
22 have --
23 THE COURT: By note? Like I'm just curious: What do
24 you type in the database?
25 THE WITNESS: 5, 1, 7, 1.

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1 THE COURT: Yeah. The note.
2 THE WITNESS: Yeah. Or the notes, and then you say in
3 any key. And -- but these are specific databases that are
4 proprietary that I have access to, and some of them are not.
5 Some of them you can just get online. So --
6 THE COURT: Okay.
7 THE WITNESS: So that -- that was -- and then my
8 knowledge of folk music.
9 BY MR. GARCIA:
10 Q So then looking at Exhibit 77 on the screen, is this an
11 illustration of the 5, 1, 7, 1 melody that you located in prior
12 art?
13 A Right. Yes, it is.
14 And so what happens in this is that although there are
15 connecting notes in between, the -- the 5, 1, 7, 1, 2, actually,
16 since it goes with the "Cartas," repeats in the same place in
17 the measure. That's -- that's reasonably significant in my
18 estimation because it shows that that's a common repeating
19 pattern. It just illustrates that point, that it happens in the
20 same part in the measure.
21 Q So even Beethoven repeated the 5, 1, 7, 1?
22 A Right. Right.
23 Q Is that what you're saying?
24 A Yes. I guess, you know, a lot of prior art is -- is to
25 demonstrate that it's not original with -- with the -- either of

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1 these songs.
2 Q So then going to page 2 -- well, actually, you can look at
3 this document here.
4 You've got the 5, 1, 7, 1 --
5 A Uh-huh.
6 Q -- on Beethoven, the "Triste" copyright 5, 1, 7, 1, but
7 then --
8 A I have a graph that demonstrates the prior art that I think
9 you have.
10 Q It's in the -- it's in your report?
11 A It's the color graph.
12 Q Oh, oh. Well, it's not this one. We just looked at that.
13 A No. No.
14 It was simply to show the -- the comparisons between all
15 three of these versions, and there was plenty of prior art in
16 each one of these cases.
17 Q Was it in your report or separate?
18 A No, it was separate. It was the color -- colored blocks.
19 Q Oh, oh, oh. Well, that's in here.
20 These?
21 A Yes.
22 Q Okay. What -- this is page 1, 2 -- page 5 of Exhibit 77.
23 Could you identify for the Court what this document is?
24 A This is to show prior art examples, but this shows you the
25 pattern of notes and the numbers on -- that correspond to the

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1 notes in the transcription.
2 Q So this page is the -- the two --
3 A So this just shows you the three main melodies. The melody
4 of the "Triste" recording is on the top.
5 Q And then --
6 A The melodies in common, that is.
7 Q And you've got "Cartas" on the next page --
8 A Yes.
9 Q -- the 5, 1, 7, 1, 2, 3.
10 A Right.
11 Q Then the next page shows "Triste," "Cartas," and the
12 Beethoven --
13 A Uh-huh.
14 Q -- with Beethoven being on top.
15 A Okay. It's just the same thing, but it's sometimes easier
16 for people who don't read music to see it in this -- in this
17 kind of a pattern so they can see what the pattern looks like.
18 Q And then going back to the notes so -- you can see here
19 where, on page 1 of Exhibit 77, you've got the 5, 1, 7, 1.
20 A And you also have 2.
21 Q And Beethoven goes up to 2. "Cartas" goes up to 2. But
22 "Triste" diverges at that point; is that correct?
23 A Correct.
24 Q And that goes to which note?
25 A That goes to 7.

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1 Q So that's the 5, 1, 7, 1?
2 A 7, 1.
3 Q 7, 1. Whereas the Beethoven and "Cartas" continue on with
4 5, 1, 7, 1, 2, 3 -- or 2.
5 A Well, 2.
6 Q 2. 2.
7 And the "Cartas" goes up to 3.
8 So then looking at the next page, page 2 of your
9 Exhibit 77, you were able to locate other melodies of the 5, 1,
10 7, 1, 2, 3?
11 A Correct.
12 Q Those were the Bizet "Galop," correct?
13 A Yes.
14 Q From 1835 era?
15 A Right.
16 Q And then two German folk songs; is that correct?
17 A Uh-huh.
18 Q All had the 5, 1, 7, 1, 2, 3 melody in them as well?
19 THE COURT: Aren't the vast majority of melodies going
20 to be -- you know, some combination's going to be in some other
21 work? I mean, how much is truly, you know, original in the
22 sense -- sense of no combination like -- which is what -- we're
23 only talking about six notes or something?
25 THE COURT: There's how many -- I know there's

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1 probably a lot of possibilities if you do factorials and
2 everything.
3 THE WITNESS: Sure. You're going to find, you know, a
4 lot. Although in that case where I was brought in as an expert
5 for the judge, I was only able to find six of the seven notes.
6 I could never find that --
7 THE COURT: In a prior art?
8 THE WITNESS: Right. And for the court, you know, it
9 was a problem.
10 THE COURT: And isn't -- I mean, but isn't -- in the
11 similarity analysis, it's not just do they have the same
12 combination of notes, but the placement in the song.
14 THE COURT: I mean, that --
15 THE WITNESS: Sure. And how important it is to the
16 whole song, and all of those things are important.
17 BY MR. GARCIA:
18 Q So back to the totality of the song.
19 Is it the same deal? Is it the same song? Is that what
20 you're -- look to the entire piece?
21 A We look at the entire piece. And -- and, yes, these --
22 these -- these opening notes are -- are important and they
23 repeat, but the fact that there are two versions of the one song
24 presents a bit of a problem.
25 Which one -- which one are we talking about? I mean --

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1 Q You mean the two "Tristes"?
2 A The two "Tristes."
3 THE COURT: The copyrighted one and the recorded one?
4 THE WITNESS: Yeah.
5 A That's -- I mean, can you copyright all the notes of the
6 C chord? I mean, can you -- which one is the one that -- which
7 is the one that's been infringed?
8 THE COURT: Mr. Showalter, what's your -- you're
9 bringing that claim. Which one do you think's been infringed?
10 MR. SHOWALTER: Well, the --
11 THE COURT: I don't think it's all that uncommon that
12 you write a piece of music, and every performance, you know, is
13 going to have variations in the performance. That's
14 commonplace.
15 MR. SHOWALTER: Exactly. Like if you go to a
16 Willie Nelson and he's sung "On the Road Again" 2,000 times,
17 he's requesting to sing that song, but he's going to substitute
18 consonants because he's tired of singing it the way we want to
19 hear it. He's going to sing it the way it's maybe easier to
20 sing, but it's the same song. And you wouldn't want to try to
21 sing "On the Road Again" and claim it as your own even if you
22 changed a few of the notes.
23 THE COURT: But which one -- you think the analysis
24 should be "Cartas" versus which version of "Triste"?
25 MR. SHOWALTER: I think they're both, like, similar --

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1 substantially similar to each other. So I think you can
2 consider both of them and then see is Ortiz's work substantially
3 similar to those, or is it derivative work?
4 THE COURT: All right.
5 MR. SHOWALTER: I think we've got testimony that
6 supports either version as the principal version.
7 MR. GARCIA: Well, what is -- what is challenging for
8 defendants or really any record label or any other composer,
9 writer out there is, you know, there's this argument you heard
10 something on the radio. Well, if the copyrighted version is
11 basically a different melody, well, you don't hear a piece of
12 paper on the radio. That's filed in the Copyright Office.
13 And their argument is, well, somebody might have been
14 listening to the radio in the car at some point in time
15 hypothetically. And so even if they did, they would not have
16 heard the copyrighted version. It's a different melody. So --
17 MR. SHOWALTER: Well --
18 MR. GARCIA: -- they must have -- you know, it's
19 really quite a dilemma when, you know, sometimes people actually
20 deposit their -- "This is my song."
22 MR. GARCIA: Like Mr. Pena Ortiz deposited his tape,
23 "This is my creation." Some similar words in the -- you know,
24 this is not the first string of six or seven words that have
25 ever been used that are simultaneous to other songs in the

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1 world.
2 So overall, you know, is that -- is that substantially
3 similar? Are we going to look at the piece of paper, or are we
4 going to look at -- because the truth is the piece of paper is
5 the only thing closest to the "Cartas," as we have heard today.
6 The actual singing, the actual 45 rendition, which we're alleged
7 to have heard --
8 THE COURT: Is dissimilar.
9 MR. GARCIA: -- is way dissimilar. Not even -- and if
10 it's the one on the radio we heard, well, that was never filed
11 with the copyright office, so there goes your statutory damages
12 as a matter of law.
13 So, I mean, it's -- it's a lot of tricky things here,
14 and we're being accused of all this nefarious stuff when the
15 song wasn't, you know -- you know, the -- the paper version was
16 not what was actually -- I'm not blaming Mr. Guzman's band for
17 messing up when they did their 45, but --
18 THE COURT: Improving it or -- I get what you're
19 saying.
20 Do you want to say something else?
21 MR. SHOWALTER: Well, I mean, the artist was
22 interpreting the song. They really are very similar. Despite
23 their attempts to find differences in them, they're
24 substantially similar, so --
25 MR. GARCIA: Oh, that's just --

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1 MR. SHOWALTER: That's not a baseline or foundation
2 for it.
3 THE COURT: Right.
4 Go ahead, Mr. Garcia. You're on the clock, so --
5 BY MR. GARCIA:
6 Q So then closing the loop, what we have is if you then go to
7 the -- you found the identical 5, 1, 7, 1, 2, 3 from "Cartas"
8 and these other works.
9 Now, when we go to the "Triste," which is not 5, 1, 7, 1,
10 2, 3, it's 5, 1, 7, 1, 7, 1 --
11 A Uh-huh.
12 Q Now, actually, that's not even -- that's not unique to
13 "Triste," is it?
14 A No.
15 Q Did you locate prior art for the "Triste" melody of 5, 1, 7,
16 1, 7, 1 --
17 A Right.
18 Q -- in other pieces?
19 A I did. I found the Gilbert and Sullivan, bum, bum, bum,
20 bum, bum, bum. "The Nutcracker Suite" is just another example,
21 bum, bum, bum, bum, bum, bum, bum -- same note.
22 Q And is that illustrated in this graph on Exhibit 77, page 1,
23 2 -- the fourth page here which has the Bates number HAC000716?
24 A Yes.
25 Q You've got a YouTube -- you've got a YouTube cite here. Is

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1 that where somebody --
2 A Right. That's just where if somebody wanted to doublecheck
3 and hear it, they would be welcome to do so.
4 Q So if they typed this in, they could listen to the Gilbert
5 and Sullivan opera as well?
6 A Yes.
7 Q And then the -- we've already seen the -- rather than
8 musical notes, if you wanted to see the color melodic contour,
9 you could look at the last few pages; is that correct?
10 A Yes.
11 Q Other than the 5, 1, 7, 1, 2, 3, have you seen any other
12 longer strings of common melody?
13 A No. Those are the ones that are similar, and those are the
14 ones that I focused on.
15 Q Are the rest -- is the rest of the melody between the two
16 songs different or --
17 A Well, the refrains are very different, and I wanted to
18 show -- show that.
19 Q Okay. Let's next go to -- which chart is that which shows
20 the refrain? Is there a refrain chart?
21 A The --
22 Q I'm not seeing it in your report.
23 A The numbers, the ones --
24 Q Oh, the new one.
25 A And I believe --

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1 MR. GARCIA: Mr. Rivera, could you switch --
2 BY MR. GARCIA:
3 Q Is it this one?
4 A No. It's (indicating) --
5 Q Oh, that one.
6 This one?
7 A Yep.
8 Q Okay. I want to show --
9 A The first --
10 Q -- show -- show you --
11 MR. GARCIA: Sorry, Mr. Rivera. Switching on you.
12 A This was color-coded, but we could only print it out in
13 black and white. So I've written on the side which each one is.
14 BY MR. GARCIA:
15 Q Okay. I have on the screen now a chart.
16 Is this chart prepared by you?
17 A Yes.
18 Q And would you explain to the judge what this chart
19 illustrates.
20 If you want to come down and point and explain it, you're
21 welcome to.
22 MR. GARCIA: Your Honor, may she come on down --
23 THE COURT: Sure.
24 MR. GARCIA: -- and explain this?
25 THE COURT: Yes.

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1 A Okay. Right here you have "Cartas." This is the refrain.
2 These are the three pickup notes. So measure one starts here
3 (indicating). "Triste" -- I'm sorry. The second one starts on
4 the one measure. As you can see it starts on the 4 here and the
5 1 here (indicating).
6 Now, what Dr. Gross did was he took the entire eight-note
7 passage here and he moved it -- advanced it one measure so that
8 it would line up with the pickup bars. This last one is the
9 transcription that Dr. Gross's, I guess, graduate student did
10 but which was completely and totally incorrect. This is both on
11 his transcription of the -- I believe it's called "Client's" --
12 Q Composition.
13 A -- "Composition," and it is on the marked-up piece that we
14 first looked at.
15 Okay. Yeah. Okay.
16 Q On the Exhibit 33, the -- this has all three songs, and
17 we'll go to the refrain page.
18 And what does this show you?
19 A It shows that he took the -- he took the refrain, and he
20 moved it over one bar, and this -- this other -- now, in the
21 beginning of the piece -- let me just show you that, and this is
22 what I talked about initially.
23 He knew very well what pickup -- what a pickup note was.
24 That's bum, bum. This is before the bar. In the chorus --
25 Q Actually, if I may, on Exhibit 83 --

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1 A Okay.
2 Q -- we had Dr. Gross identify where the pickup note was. He
3 confirmed it's this first note in the measure.
4 Is that correct? Do you remember that testimony?
5 A Yes.
6 Q This is 83. Okay. So you can lay on top of there the
7 pickup note.
8 A Okay. The -- the chorus -- he has the chorus starting right
9 here (indicating), and this is in A flat major, so these are not
10 the correct notes. And what I've done is I've taken the numbers
11 of all these notes so that it might be easier to understand, and
12 I can sing them for you.
13 The chorus of "Cartas" goes like this (singing). Now, the
14 "Triste" copyrighted version goes -- I have to dig into a
15 different key. I'm sorry. Okay (singing).
16 This is -- this is what I'm assuming these notes here
17 are -- I put them in because these are the same notes as the
18 harmony notes, and I assume that those are the correct notes.
19 They were incorrect in the transcription.
20 Now, what's happened is that by offsetting -- could you
21 hear the difference in terms of the melodies? I mean, the --
22 the -- (singing) is very different -- (singing). Very different
23 melodic contour, very different melody, very different -- if you
24 look at the important weighted notes, which is usually the first
25 note, you're going to have the chord tone F (singing).

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1 With this one (singing). Sorry couldn't get to that low
2 note. So those are pretty different.
3 Now, why would you move them over? Well, the reason you
4 might move them over is to see how the chords line up. See what
5 happens here when you move them over and you put them on the
6 pickup notes. The G chords line up. The C chords line up. You
7 have an F and a G here, but you have the C chords there. You
8 know, you have a lot more harmonic correspondence.
9 When you have more harmonic correspondence, they're going
10 to, obviously, sound, when you put them together, much more
11 similar because the chords are going to be the same. So by
12 doing his -- his comparison, you know, it sounded more
13 constant -- harmonic, if you will, by moving it over one
14 measure.
15 I have an audio example of what it sounds like when you put
16 the two on the downbeats, and they're quite dissonant. But we
17 can certainly play it.
18 MR. GARCIA: We can -- I believe Dr. Gross had played
19 a version of a matched-up where he put them on top --
20 THE COURT: Right. I remember.
21 MR. GARCIA: "Hey, they sound pretty close."
23 MR. GARCIA: Well, when you actually put them together
24 when they're in the -- in the sequence of each other, that's --
25 THE COURT: Right. I get what you're saying. You

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1 want to play it?
2 MR. GARCIA: If we may play it, Your Honor?
3 THE COURT: Sure.
4 (Audio plays.)
5 A That gives you an idea of what I'm talking about.
6 Now, the notes on the bottom, the incorrect transcription,
7 it starts with a chord, and the chord is F, but I honestly can't
8 figure out where this came from because I thought maybe it was
9 just a mistake and it was really A flat major. Maybe these were
10 the notes of the A flat major. But they don't really correspond
11 to any of the other notes.
12 I can sing it, but it doesn't -- it doesn't really make any
13 difference. It just is completely incorrect.
14 Q Okay.
15 MR. GARCIA: Why don't we mark this, Your Honor -- for
16 purposes of demonstrative, since she's been illustrating, if I
17 may mark this one on the -- on this -- on the ELMO as -- I think
18 the next number is -- let's see. Is it 85? Yes, the next
19 number's 85, Your Honor. We move to admit.
20 THE COURT: All right. That'll be admitted for
21 demonstrative.
22 MR. GARCIA: And then we would move to admit 86, the
23 sound file as a demonstrative, that was --
24 THE COURT: They'll both be admitted.
25 BY MR. GARCIA:

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1 Q Any other observations you want to share with us on -- on --
2 A Well, I just -- I just wanted to say that this is the
3 standard way of notating. When you have pickups, you certainly
4 never start a chorus on a rest like that. These are pickups --
5 clearly pickups. The note starts there (indicating) as the
6 chorus note, and -- and it's very little correspondence in here.
7 There are some things that line up, you know, but really
8 they're very, very different. And because the chorus sections
9 are so different, that means that the instrumental sections,
10 which are the same chords in the same sequence as the chorus
11 sections, are always different.
12 So we focused on the similarities that we found in the
13 notes in the verses primarily to the copyrighted version and the
14 "Cartas" version, and we certainly understand that the similar
15 two first lines are -- are the -- I would -- I would agree that
16 they're pretty much the same. One is plural, one isn't, but
17 they're the same.
18 But everything else is really, really, really quite
19 different. I mean, I put the notes -- I mean the letters -- I
20 mean the numbers on here to make it easier to quickly glance
21 through it, but I think you can see -- see clearly -- obviously,
22 the copyrighted version is different. If you look at the last
23 two measures of the first line, you'll see that the recorded
24 version goes down, goes 6, 5.
25 Q Point to the 6, 5.

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1 A Okay. These -- these notes keep going down (indicating).
2 This goes down, up and down (indicating). So there are
3 differences between them.
4 Q The two "Tristes," you mean?
5 A The two "Tristes," yes. But -- but really -- in fact, you
6 can really see that -- that the pattern of notes is really quite
7 different in both of these and the chords are different. You
8 have -- you have the F -- now I can't -- I can't find the chords
9 easily in here.
10 It's -- I have one that I haven't marked that might be
11 better to see where the chords are. But I can also show it in
12 the Harmonic analysis, too.
13 MR. GARCIA: I want to mark this, Your Honor, since we
14 have been -- it is already Exhibit 33 as a demonstrative, but
15 it's -- since it has illustrative markings, we're going to also
16 label this as Exhibit 86, which shows the shifting and the other
17 notations as a demonstrative.
18 THE COURT: It'll be admitted.
19 A This is the -- I did not deal with the filler measures. I
20 just dealt with the eight bars -- or eight measures in each.
21 As you can see here, measures 1 through 6 in both use a C.
22 On 7, "Cartas" uses an F and then goes to a G whereas in
23 "Triste" it goes C and stays on C until the eighth measure, G7.
24 On the second part of the verse where it's on the G chord,
25 you have "Triste" in G7 and "Cartas" in G. That's not very

#:2875
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1 different, and they both go to C on 8.
2 Verse 2A you can see that, again, they -- the "Triste" goes
3 through the whole verse again whereas "Cartas" uses five
4 measures of C, then to C7, and then to the F in the 8 -- in the
5 eighth measure. And here's the refrain where the -- the chords
6 are very different.
7 They both start on the F, but you can see how the -- the
8 patterns of melody notes go F, and then "Cartas" goes to G and
9 C -- two measures of C, two measures of G -- and then back to C
10 and then C7, goes to F, G, C for two bars, G for two bars and C.
11 In "Triste" you have two bars of F to begin with, and then
12 G, C, another F, G and six-beat for two bars, and then C at the
13 end.
14 Now, you can see that if you advance -- if you advance
15 this -- the "Triste" over one measure that -- if you move this
16 over here (indicating), you're going to have the Gs lining up,
17 the Cs lining up the, Gs lining up and the Cs lining up. So
18 that that is -- that is incorrect.
19 So this is -- this is why I think that this is important to
20 show this because these -- these harmonic patterns and melody
21 patterns are different. Even though you're using very basic
22 chords, they are different.
23 MR. GARCIA: Okay. Let me just mark this one chart in
24 this as demonstrative, Your Honor, which she was just referring
25 to, as demonstrative Defendant's No. 87.

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1 THE COURT: It'll being admitted.
2 BY MR. GARCIA:
3 Q Now, so we've covered the prior art melody.
4 Did you notice any -- have any observations regarding the
5 prior art structure and harmony, or have you already covered
6 that with --
7 A I think we've covered it.
8 Q Okay. That's been covered? Okay.
9 And then we've already discussed the lyrics.
10 What about the chorus between the two songs? Have you
11 covered your observations on the chorus?
12 A The choruses are different in that the -- the instrumental
13 breaks in the introductions are all related to the chorus
14 sections or refrains, and they are all different from one
15 another as I've just demonstrated.
16 Q And we have seen already Dr. Gross's report. In terms of
17 your understanding of the methodology of comparing musical works
18 in a copyright setting, did -- in your view, did Dr. Gross
19 follow the generally accepted practices of -- of the elements to
20 consider on musical works in a copyright setting?
21 A No. He didn't do the transcription of "Triste" independent
22 of putting it on a chart, which he then marked in such a fashion
23 that it was extremely difficult to understand or read.
24 Q You talking about those red lines.
25 A Yes. I found that to be distracting and unusual.

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1 Q Did -- did he perform a side-by-side comparison of
2 simultaneously occurring notes?
3 A I do not think so. I mean, it was clear that with his
4 lines, his lines were not always simultaneous. I found that
5 the -- the -- the consonant substitutions extremely problematic
6 from a copyright standpoint because if you can actually replace
7 a note with another note in the chord, and you have simple
8 harmonic patterns, that you have C chord and you can replace it
9 with any note you want, then what is protectable here?
10 I think -- I think I've shown that -- that the melody is --
11 and harmonies are common. I would think it would be very
12 difficult to have to be able to say that nobody else could use
13 those patterns.
14 Q And on the angling -- remember that red angling that
15 Dr. Gross used -- is the -- is his angling --
16 A That's not --
17 Q -- methodology ever used in comparing two musical notes?
18 A No. No. I mean, that's not simultaneous. They might be
19 the same notes, but to try to draw some connection between them
20 when they're not simultaneous is -- is not relevant.
21 Q And is it appropriate to shift music over to do a
22 side-by-side comparison of two songs?
23 A Absolutely not. I found that to be the most disturbing part
24 of the report, not to mention the fact that the notes are wrong.
25 I found that to be ingenious, I think.

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1 Q And was he using the correct refrain in the song?
2 A No.
3 Q Which refrain was erroneous, the "Cartas" or the "Triste"?
4 A No, his -- his transcription of "Cartas" was correct
5 finally. I mean, while the first one was incorrect and was very
6 confusing because I couldn't figure out where those notes came
7 from, his transcription and supplemental report for "Cartas" was
8 completely accurate.
9 So -- so if he had done the transcription of "Triste --
10 "Triste," the recording, I would have hoped that that would have
11 been accurate, too. I -- I am simply assuming that he relied on
12 a graduate student who did not do an accurate transcription,
13 and -- so there's nothing to say about it.
14 Q And --
15 A It's wrong.
16 Q What about the -- have you ever seen in a copyright
17 comparison setting using the practice of the swapping out notes
18 from one song to then compare to the second song? Have you ever
19 seen that before?
20 A No.
21 Q Have you ever -- in all of your years of practice as a
22 musicologist in the music industry, have you ever seen or heard
23 of Schenkerian analysis being used as a tool for comparison of
24 two works?
25 A No.

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1 Q Do you find that to be reliable and helpful, Schenkerian
2 analysis, in this setting?
3 A These are simple songs. Schenkerian analysis is -- is
4 controversial in terms of the methodology. It allows for a lot
5 of subjective determination. There's plenty online that can be
6 read about it.
7 In one comment it said it's all reduced to 3, 2, 1 or
8 "Three Blind Mice." I don't find it helpful or illuminating in
9 this discussion at all.
10 Q Would it be misleading as well?
11 A I think it's misleading, and I think the red marks are
12 extremely misleading.
13 Q On the theory of consonant substitution, have you -- in all
14 of your years of practice and all of your cases, have you ever
15 seen anyone, any court or any expert or any party, use consonant
16 substitution as a method to compare two works in a copyright
17 setting?
18 A No.
19 Q Is that a reliable and helpful method in this -- in the
20 copyright --
21 A I think it's extremely problematic.
22 Q -- setting?
23 Would it be misleading?
24 A I would say it would be misleading because, again, if you
25 put in red all the things that are related to the chord when you

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1 have a simple chord pattern, that is, a C chord and then a
2 G chord, and you put all those things that would be consonant
3 with it and you show something which has all that red on it, it
4 makes it look like there's got to be a lot of similarity.
5 You have to look through those red marks to find the little
6 dotted -- dotted lines to see where the consonant substitutions
7 are, and that's misleading.
8 Q Have -- have you -- on the topic of consonant substitution,
9 is -- I guess, is that approach, then, you take any note in a
10 chord, and you can swap it out with the other notes in the
11 chord. Is that your understanding?
12 A That was my understanding of how he defined it, and I -- as
13 I said, then we have no melody. Again, you know, if there was
14 more similarity in terms of the lyric or -- or other than simple
15 repetitive patterns that are common, I would have a very
16 different opinion.
17 Q In fact, I think we -- Dr. Gross had mentioned that for each
18 note, there were six consonant notes.
19 Do you recall that?
20 A I do.
21 Q So if in fact the song "Triste" has about 200 notes as --
22 more or less as Dr. Gross had mentioned on the stand, so how
23 many combinations of songs would be in consonant with the song
24 "Triste" by his Schenkerian math?
25 A I think he already said it was going to be 6 to the 200th

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233
1 power or something like that.
2 Q Well, and did you do a calculation of what is 6 to the 200th
3 power?
4 A Oh, I think it was four -- wait a minute.
5 Q Four point -- does this ring a bell, 4.628 with 155 zeros
6 following it?
7 A Yes.
8 Q Something --
9 A Something like that. I did try to calculate it last night.
10 Q So in your -- is -- is -- is it your opinion -- does -- by
11 Mr. Guzman filing his copyright to "Triste Aventurera," can he
12 claim ownership to 4.628 with 155 zeros versions of that song?
13 A That's what makes it problematic for me. I try to look at
14 what the consequences would be, and I can't find that these
15 melodic sequences and patterns can be owned by any one person.
16 Q What about the -- I heard something about a species
17 counterpoint. Have you ever seen the use of a species
18 counterpoint in -- as a method or practice of comparing two
19 musical works in a copyright setting?
20 A Absolutely not. It's a -- it's an academic exercise. I've
21 done many of them, but it's not appropriate and -- in a
22 copyright case.
23 Q Is it -- is -- would it be relevant or helpful or reliable
24 in a copyright setting case?
25 A No.

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1 Q What about the rhythmic analysis? Do you remember that?
2 A I do. I didn't spend a lot of time on it. I think that
3 eighth notes and quarter notes are the most common notes used in
4 songs. Spanish has more words than English. You would expect
5 more eighth notes at this tempo.
6 I mean, you know, they certainly do have patterns that are
7 similar in terms of the 6 note, 6 note, you know, whatever,
8 but -- but this is -- this is not uncommon, and it's not
9 uncommon to have a string of eighth notes.
10 Q Do you have other -- let's see here.
11 Did you bring any other charts we need to cover?
12 A I think not.
13 Q Anything else that you -- okay. Ms. Wilbur, based on your
14 training and experience and education and review of all the
15 materials in this case and of both versions of
16 "Triste Aventurera" and "Cartas de Amor," have you formed an
17 opinion as to whether "Triste Aventurera," either version, is
18 substantially similar to "Cartas de Amor"?
19 A Not substantially similar.
20 Q What about strikingly similar?
21 A In all my experience and in all the -- all the consulting
22 work that I've done, I've used the word "strikingly similar"
23 only twice. I use it very carefully. It's a very damning word
24 to use, and this certainly doesn't meet that test to me.
25 Q Do you -- did you find any original elements or components

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1 that are unique to Mr. Guzman and his song "Triste Aventurera"?
2 A Melodically I do not think that they're -- that they're -- I
3 think that they're common and generic patterns.
4 MR. GARCIA: Pass the witness, Your Honor.
5 THE COURT: All right. Let's -- let's take a break
6 before we start your cross, Mr. Showalter. Let's return at
7 3:25.
8 (Recess taken from 3:08 p.m. to 3:26 p.m.)
9 THE COURT: You can be seated.
10 MR. GARCIA: Ms. Wilbur's in the restroom. She'll be
11 right out.
12 THE COURT: Yeah. We'll wait for her.
13 (Witness enters courtroom.)
14 THE WITNESS: All right. Mr. Showalter, whenever
15 you're ready, you can begin.
16 MR. SHOWALTER: Thank you, Your Honor.
17 CROSS-EXAMINATION
18 BY MR. SHOWALTER:
19 Q Good afternoon, Dr. Wilbur.
20 A It's Ms. Wilbur.
21 Q Oh, it's not doctor?
22 A Nope.
23 Q Oh, I saw the reference to your dissertation, and I thought
24 it was a doctoral dissertation.
25 A It should have been, but it was a master's dissertation.

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1 Q Okay. Oh, a master -- not a master's thesis?
2 A No, it was --
3 Q I was confused. You -- you did a dissertation, but you're
4 not a doctor, right?
5 A That's correct.
6 Q Okay. Now, how much have you been paid so far to help
7 Hacienda Records in this case?
8 A I actually have not -- not added it up. If you're asking
9 what my fee is -- is that what you're asking?
10 Q Well, no. I asked you: How much have you been paid so far
11 to help Hacienda in this case?
12 A I believe around $15,000.
13 Q Okay. And does that include your time to travel?
14 A Wait. That must be wrong. I'm sorry. I don't remember.
15 THE COURT: What's your rate?
16 THE WITNESS: My rate is $300 an hour.
18 Q Okay. And so how much have you been paid before this trial
19 started?
20 A I'm sorry to say I don't know. I have to look it up.
21 Q Okay.
22 A I'm sorry.
23 Q That's all right.
24 So how many hours have you spent since you left New York
25 for this trial?

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1 When did you leave New York?
2 A Thursday a week ago.
3 Q Oh, my. And did you go to Houston?
4 A I did.
5 Q To work with the lawyers?
6 A Actually, to see my sister, who had been in the hospital --
7 Q Okay.
8 A -- for some of that, and then I did work with them, yes.
9 Q Okay. So you went to Houston, and you saw the lawyers,
10 right?
11 A Yes.
12 Q All right. You don't speak Spanish, do you?
13 A No.
14 Q Now, your resume says you're recognized in the forensic
15 field of musicology. Is there a textbook on forensic musicology
16 that we could look at to see that you're recognized as an
17 expert?
18 A You can certainly see that there is a field of forensic
19 musicology. In fact, the American Musicological Society
20 actually lists forensic musicologists.
21 Q So just who is it that recognizes you as a leading expert?
22 A I have a lot of clients, record companies --
23 Q Okay. People --
24 A -- film companies.
25 Q Okay. People who hire you --

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1 A Advertising agencies.
2 Q Excuse me.
3 A Yes.
4 Q People that hire you, like Hacienda Records, recognize you
5 as an expert, true?
6 A Yes. They call me in to...
7 Q You -- you, in 2012 alone, cleared approximately 335 pieces
8 of original music for broadcast?
9 A Yes.
10 Q Okay. And does that mean you got the clearances? As I
11 appreciate that term, you're responsible for getting the
12 licenses to use those works?
13 A No. Absolutely not.
14 Q Okay. So you were not --
15 A And that's why it says "clearing original music."
16 Q Okay. So you weren't involved in the licensing process?
17 A I do some licensing, but I was not involved in licensing in
18 those cases.
19 Q Okay. You know that if you're going to use a copyrighted
20 work, you need a license from the owner or administrator --
21 A I do.
22 Q -- of the copyright? And if you use it without permission,
23 you're an infringer, right?
24 A Right.
25 Q Pretty straightforward, right?

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1 A (Nods head up and down.)
2 Q Yes?
3 A Yes.
4 Q Okay. And if -- you're familiar with the concept of
5 compulsory licenses, true?
6 A Actually, that was new to me.
7 Q As an expert -- well, you're not an expert on copyright law,
8 so that would be new to you, right?
9 A No. That was new to me.
10 Q Okay. You've talked --
11 A That was helpful.
12 Q You -- well, go to the Copyright Office Web site and
13 research it. You might find that instructive.
14 You're not a music theorist, correct?
15 A I love music theory, and I love math, but I do not count
16 myself as a music theorist, no.
17 Q And by academic training you're not a music theorist,
18 correct?
19 A That is correct.
20 Q And you wouldn't begin to put yourself on the same plane as
21 Dr. Robert Gross in the field of music theory, would you?
22 A I would hope not, no.
23 Q You've got a master's in ethnomusicology, right?
24 A No. It was in music with a specialization in
25 ethnomusicology.

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1 Q Okay. And you did your thesis on Pawnee Indians?
2 A Yep.
3 Q Okay. While you don't have a doctorate in music theory, you
4 feel free to criticize Dr. Gross who does, fair enough?
5 A I would say my practical experience and my -- the work that
6 I've done over the last 30 years should speak for itself.
7 Q Being paid by people to come to court and take one position
8 or another, is that part of it?
9 A That is absolutely not part of it. I never take a case that
10 I don't believe in.
11 Q I understand that. And have you ever -- and this case you
12 took, you were going to get paid, right? That was part of the
13 deal?
14 A I don't -- I don't really do it for that.
15 Q You don't do it for the money?
16 A No.
17 Q Okay. You know Dr. Gross used a number of techniques to
18 assess the similarities of the songs? You're aware of that,
19 right?
20 A I'm certainly aware of that.
21 Q And when we're trying to assess the similarity, isn't it a
22 good idea to compare the -- the song from every -- a number of
23 different angles?
24 A Depends on what those angles are.
25 Q Well, the more we know about a song, the more we analyze it,

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1 the more we can understand it, true?
2 A I don't understand your question.
3 Q Well, isn't it better to know more than to make a decision
4 and rule out certain things and know less and then render
5 opinions on that?
6 A I don't understand. I'm sorry.
7 Q Let me try again. That wasn't a very good question.
8 When you're rendering opinions, it's better to know more
9 than to know less, right?
10 A Yes. And I try to learn as much as possible, which is why I
11 did what I did.
12 Q When you go to a doctor to diagnose a problem, and he thinks
13 he needs to do this test, that test, and that test, then we want
14 our doctor to know as much information as we can, right?
15 A Right.
16 Q And so that's what Dr. Gross did. He applied these
17 different techniques as he diagnosed or assessed the similarity.
18 Do you understand that?
19 A I'm aware of that.
20 Q Note-by-note analysis, is that a recognized technique in
21 music theory?
22 A "Note-by-note analysis," what do you mean by that?
23 Q Do you know what that means?
24 A Well, are you talking about note by note in a line, note by
25 note as vertical or horizontal, or what are you -- what are you

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1 referring to?
2 Q Maybe all of that. Are those recognized techniques in music
3 theory?
4 A I don't know.
5 Q Let's -- let's just work through this list together.
6 His next diagnostic technique was consonant substitution.
7 A Right.
8 Q Now, you know what he means by that, true?
9 A Yes, I do.
10 Q Okay. And is that a recognized music theory technique to
11 analyze music?
12 A This might all be very academic. This might be something
13 that he -- first of all, he explained that he made that term up.
14 He explained that that term talks about using other notes in a
15 chord, and that's what he meant by that.
16 That might be very useful in any kind of discussion of
17 academic -- academics.
18 Q I appreciate your --
19 A Yeah.
20 Q -- your explanation.
21 MR. GARCIA: Your Honor, he's interrupting her. She's
22 trying to explain her answer and her position on that.
23 THE COURT: All right. Let's let everyone wait for
24 the answer, but let's go back. I'll read the question. Hold
25 on.

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1 All right. I think the question was: "Is that a
2 recognized music theory technique to analyze music?" You were
3 giving your answer. "It might be very useful in any kind of
4 discussion of academics."
5 "I appreciate your" -- and then did you want to add
6 anything?
7 THE WITNESS: I -- I thought it was related more to
8 counterpoint exercises in an academic setting. It's not
9 particularly useful in analyzing two simple songs like this, no.
11 Q Do you quibble with his shorthand use of the phrase
12 "consonant substitution" as a way to refer to identifying notes
13 that may be switched around in compositions?
14 A I mean, from what he said, he basically said that any other
15 note in the chord -- any note that is consonant with another
16 note could be used.
17 Q Do you quibble with his use of that term to express that
18 concept?
19 A No.
20 Q You've coined terms yourself, haven't you?
21 A No.
22 Q Species counterpoint, isn't that a recognized music theory
23 principle?
24 A It's an academic one, yes.
25 Q Schenkerian analysis is a recognized music theory principle,

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1 true?
2 A It is a philosophy, it is a theory, and it is a technique.
3 I haven't seen it used in these kind of cases, no, but I'm aware
4 of it because I studied it myself in graduate school.
5 Q Making audio comparisons is a -- is an accepted diagnostic
6 technique, true?
7 A Absolutely.
8 Q Statistical analysis is an accepted means in music theory
9 circles to assess a similarity of work, isn't it?
10 A Depends on how you use it. The way he used it, I found it
11 preposterous. But, you know, in terms of the odds -- you know,
12 the statistical odds of finding those notes, I found that to be
13 peculiar, but I do count numbers.
14 I do count things up in songs, and so certainly using --
15 but using statistical probability is not something that -- that
16 I have used or I've seen used.
17 Q You -- are you particularly disliking it in this case
18 because it -- it disproves your point? Is that your problem
19 with it?
20 A I think the notes were wrong to start with, so that's a big
21 problem.
22 Q So you really didn't rely on statistic analysis like
23 Dr. Gross did, correct?
24 A Absolutely not.
25 Q Form analysis, is that an accepted means of assessing

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1 similarity in music theory?
2 A Do you mean structural analysis?
3 Q That's part of it.
4 A Form --
5 Q That's part of it.
6 A And what else is?
7 Q You tell us.
8 A Form is certainly part of -- part of the song.
9 Q And that's an accepted music theory, true?
10 A Yes.
11 Q As is rhythmic analysis, true?
12 THE COURT: You need to say an audible response one
13 way or the other.
14 A Yes.
15 THE COURT: Going back to the Schenkerian analysis, I
16 know you don't -- you've never seen it used in a legal
17 setting --
19 THE COURT: -- and don't think it should be --
20 THE WITNESS: No, no. That's not true. Not in
21 something like this.
22 THE COURT: Well, in a copyright analysis.
23 THE WITNESS: Not in a simple song. It's --
24 THE COURT: Oh, if it was classical music, it might be
25 appropriate?

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1 THE WITNESS: It certainly -- it's certainly an
2 academic study for sure, and --
3 THE COURT: In academic circles, is it an accepted
4 analytic technique?
5 THE WITNESS: It is a controversial technique, but it
6 is used in academic settings, yes.
7 THE COURT: I mean, a lot of things in academics are
8 controversial, right?
9 THE WITNESS: Of course.
10 THE COURT: That's how professors get paid, create
11 controversy. All right.
13 Q You talk a lot about the term "prior art" --
14 A Yes.
15 Q -- is that correct?
16 A Uh-huh.
17 Q Now, I'm familiar with prior art because it talks about
18 patents.
19 Are you saying the term "prior art" refers to copyrights
20 also?
21 A All the time.
22 Q All the time?
23 A All the time.
24 Q To copyrights or to copyright litigation?
25 A I do prior art research on a regular basis. It's to

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1 determine whether something is unique or whether it's something
2 that is generic compositional devices or other things that have
3 already entered into the public domain and are available to
4 anyone, and it's a regular part of what I do.
5 Q Mr. Guzman has a copyright. You don't dispute that --
6 A No.
7 Q -- do you?
8 A Huh-uh.
9 Q Aren't you involved in some cases in -- in taking songs and
10 then figuring out just how much you can change them to, in your
11 opinion, avoid a copyright infringement violation? You get
12 involved in that, don't you?
13 A I do.
14 Q You help people do that, don't you?
15 A No, no, no. Let me -- let me explain because this is very
16 important. As a musicologist --
17 Q Well --
18 THE COURT: Let her explain.
19 A -- I don't -- you asked.
20 As a musicologist, I never get involved in the creative
21 process. I never tell them what notes to play or what they
22 should do. I identify for them the problematic areas, and then
23 let them change and let me see if it passes muster.
25 Q So it happens a lot, doesn't it?

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1 A Yeah.
2 Q And you've seen that a lot, right?
3 A Yeah.
4 Q And you weigh in on people who are trying to skirt the
5 copyright law by changing up stuff just enough, don't you?
6 A I don't -- I don't allow -- I never clear it if it's -- if
7 that's what it's -- what it's about, no.
8 Q That's the whole point of you being involved in those cases
9 is help them change it enough or tell them it's changed enough
10 so, in your words, it passes muster, right?
11 A What I do is I have a form that asks if they have used a
12 reference track. Films do this all the time. They'll use a
13 reference track in the film, and then they'll get a composer at
14 the end to -- to do the score.
15 And they've already fallen in love with the piece of music
16 that they stuck in there. They want to have that piece of
17 music. Well, they have to license that piece of music if they
18 want to. If they get a composer and the composer makes it sound
19 too close to that other piece, I say that's not okay.
20 Q So --
21 A So I'm like a policeman.
22 Q So they know -- well, so you're working with people who have
23 taken one piece of music and realized they could be infringers,
24 and so they derive another piece of music that's enough
25 different so you can tell them, "Hey, I think you're safe,"

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1 right?
2 A I -- if it's different enough so that I can find two or
3 three other pieces that share the same similarities, then I say
4 it's okay.
5 Q But they -- they derived it from the work they started from,
6 and then you -- you try to find other samples out there to make
7 it sound okay, right?
8 A I don't try to make it sound okay.
9 Q Let me --
10 A I simply make an opinion.
11 Q From -- whether the -- the derived work is different enough
12 from the original work to be -- to pass muster, fair enough?
13 A There has to be substantially enough difference that it's
14 not a problem.
15 Q Well, but it's still derived from the first one, but it's
16 changed enough. So you tell them, "Hey, I think it's different
17 enough. We're okay," right?
18 A I -- I would say that, you know, there's a difference
19 between inspiration and trying to rip something off, and I make
20 certain that it has to pass muster.
21 Q Well, but they started with one work, and they know they
22 can't use it for whatever reason. But they like it, so they're
23 going to derive something that's safe to use, true?
24 A As long as it -- as long as it is generic enough and doesn't
25 point specifically -- my rule is this: It can't point to a

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1 particular piece of music, a particular song, a particular
2 artist, a particular sound, a particular group. And if it does
3 point specifically to one of those things, they've got a
4 problem.
5 Q So they need to change it a little more, right?
6 A If I don't pass it and they change it and they -- I get -- I
7 get to see that it's okay, fine.
8 Q So you get paid to disguise music, true?
9 A No.
10 Q You -- you get paid to help -- to participate with people
11 who are deriving a work, changing it enough so in your opinion
12 they can't -- can't be traced back or tagged with infringement
13 on the original work, true?
14 A No. That's actually not true at all. I give seminars to --
15 to ad agencies to tell them how vulnerable they are and to --
16 and because young people seem to feel that they can take
17 whatever they want off the Internet, I try to explain to them
18 that that's not okay. And so I try give them some framework in
19 which to work.
20 If they don't -- if they don't live up to that, then it
21 doesn't pass.
22 Q Now, when you're doing this analysis which you call prior
23 work to see if the derived composition is different enough from
24 the original one, isn't it best to use works in the same genre?
25 A I don't understand the question. Isn't it best to use --

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1 what do you mean?
2 Q Well, if you're trying to change up, say, a pop song to not
3 be like another --
4 A Let me explain something --
5 THE COURT: Let him finish his question.
6 BY MR. SHOWALTER:
7 Q If one of your clients is trying to change up a pop song so
8 it doesn't sound so much like another pop song, aren't you going
9 to do your prior art research in the pop song genre?
10 A Not necessarily, no.
11 Q It certainly would be helpful or useful, wouldn't it?
12 A Depends on the situation.
13 Q Wouldn't it be helpful to at least start in the genre that's
14 specific to that work and see if there's -- there's other
15 similar sounding songs?
16 A In most cases I would say that's true.
17 Q So in this case what -- what prior art research in the
18 Tejano genre did you do?
19 A Not very much.
20 Q You talked about these databases that you have access to --
21 A Uh-huh.
22 Q -- and Google.
23 What prior art research did you do in your proprietary
24 databases?
25 A I looked up some of those patterns.

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1 Q Oh, you have a Tejano proprietary database?
2 A I don't think that you have special assignments in one genre
3 of music or other. They're obviously influenced by the
4 German -- Germans, so I think that that qualifies.
5 Q Well, we're talking about Tejano music in this case, right?
6 A So --
7 Q Or a label that's been put on regional Mexican music. We're
8 talking about two songs of that genre, agreed?
9 A They are actually different from one another from that
10 standpoint, but yes.
11 Q They're songs of the same genre, true?
12 A Generally speaking.
13 Q Okay. And what prior art research did you do in this genre?
14 A I contacted somebody with a great deal of knowledge on it.
15 Q And what else?
16 A Not much else.
17 Q Okay. Hm. Did you talk to Reynaldo Ortiz?
18 A No.
19 Q Was there some reason you would not want to get information
20 from the purported composer to see from whence he drew his
21 inspiration?
22 A That wasn't my job. My job was to look at the musical facts
23 of these two works.
24 Q Your job was to try to find differences, right?
25 A No, that's not what --

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1 Q That's what you were paid to do, isn't it?
2 A No. I look at the similarities, and I contrast and compare
3 them.
4 Q Well --
5 A And, of course, I look at the differences, too.
6 Q What was -- pardon?
7 A And I look at the differences, but I focus on the
8 similarities.
9 Q So you didn't talk to the man who says he -- or that
10 Hacienda says composed it, did you?
11 A No.
12 Q You don't know if Ortiz got it from Mr. Guzman, do you?
13 A I don't have any idea.
14 Q Pardon?
15 A I don't have any idea. But I'm certainly told that he did
16 not.
17 Q You don't know if he heard it on the radio, do you?
18 A No.
19 Q Or heard it in a concert?
20 A I'm told that he did not.
21 THE COURT: By whom?
22 THE WITNESS: By the lawyers.
23 THE COURT: Have they talked to him?
24 THE WITNESS: I thought that they had, yes. I was
25 under the impression they had.

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1 BY MR. SHOWALTER:
2 Q And you don't know if they changed it up enough to disguise
3 it like these other clients that you work with, do you?
4 A You're asking if I know whether it's deliberately -- was
5 deliberately copied?
6 Q Or disguised, derived?
7 A I think that there's a lot that says it was not.
8 Q You can't testify that it was not -- that the "Cartas"
9 version that Hacienda released was not derived from "Triste,"
10 can you?
11 A I think it's different enough so that it was not.
12 Q "Triste Aventurera" is certainly prior art to
13 "Cartas de Amor," isn't it?
14 A Yes. It came first.
15 Q Came first. Copyrighted first. Those similarities were
16 created by Guzman before the "Cartas" version, true?
17 A Yes.
18 Q When we're looking at a song, we don't just focus on this
19 little piece or that little piece and say, "Hey, look how
20 different they are." We need to look at it as a whole, don't
21 we?
22 A That's right. That's what I do.
23 Q We need to look at music. We need to look at lyrics, right?
25 Q And you can have an infringement of -- got entirely

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1 different lyrics, but the music is close, right?
2 A Correct.
3 Q That happens, doesn't it?
4 A Yes.
5 Q And you can have an infringement the reverse of that where
6 you've got entirely different music, but the lyrics are close,
7 true?
8 A True.
9 Q And whenever you're using material from another composition
10 that you've derived it from, you need to give credit to the
11 original work, right?
12 A It depends on whether it's in the public domain or whether
13 you -- it was independently created.
14 Q Well, if it's in the public domain, then you don't give
15 credit or don't reference it, right?
16 A Well, you should, but you don't often.
17 Q Well, do you?
18 A I certainly do.
19 Q Okay. So if it's in the public domain, you give credit for
20 it, right --
21 A Yes.
22 Q -- as a source material?
23 A Right. I do.
24 Q And if it's not in the public domain, you need a license,
25 right, to create a derivative work, true?

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1 A Sure.
2 Q Now, you've copyrighted some works, right?
3 A Certainly have.
4 Q And the note patterns that are in your copyrighted work that
5 you're claiming to be the original composer of, those note
6 patterns appear in other songs, true?
7 A Yes.
8 Q The words that you use, maybe not put together the way you
9 put them together, but they appear in other songs, also, true?
10 A Yes.
11 Q But yet you claim -- and yet you claim to be a claimant --
12 original composer of those works, true?
13 A If -- if there's another source that I can give credit to, I
14 do.
15 Q Do your songs have 5, 1, 7, 1 in them?
16 A Not that I can recall.
17 Q Have you done any prior art searches on the compositions
18 you've registered copyrights in?
19 A No.
20 Q Never?
21 A Never.
22 Q Don't you think that's kind of risky for someone that has
23 your kind of knowledge and access to all of that prior art?
24 Aren't you taking a chance?
25 A I think in this business everybody's taking a chance.

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1 Q But you're not worried about it enough to do the research
2 and haven't on any of your original compositions, right?
3 A I've never -- I've never been accused of any violation
4 whatsoever.
5 Q You're familiar with the case of -- Chuck Berry sued the
6 Beach Boys on their song -- Beach Boy song, "Surfing USA," and
7 his song was "Sweet 16."
8 A I'm not familiar with that case, no.
9 Q You know he won that case, right, even though it was all
10 different lyrics and different themes?
11 A I'm not familiar with the case.
12 Q Okay. How about a Marvin Gay's case against Robin Thick?
13 Are you familiar with that one?
14 A Yes. I'm very familiar with that one.
15 Q Are you involved as an expert in that one?
16 A I'm a consulting expert at this point.
17 Q For which party?
18 A Do I have to answer that? This is kind of confidential.
19 THE COURT: Why is it confidential, that you're
20 working on the case? Have you been designated as an expert?
21 THE WITNESS: I have not yet. I'm a consulting expert
22 at this time.
23 MR. GARCIA: I don't think that's appropriate, Judge,
24 if she's a consulting expert.
25 THE COURT: Well, I don't think it's your -- it's your

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1 privilege to assert. It's hers.
2 Do you think you know?
3 BY MR. SHOWALTER:
4 Q Well, those songs are similar, aren't they?
5 A Which songs?
6 THE COURT: What's the relevance of this other case?
7 A Yes. Please.
8 MR. SHOWALTER: Well, it shows her bias. The only
9 thing in common with Marvin Gay's song or Robin Thick's song
10 "Blurred Lines" to Marvin Gay's song "Got to Give it Up" is the
11 beat, not even the music, not even the lyrics. It's just the
12 beat.
13 A I agree with you.
15 Q Well, you've just proved our case. Thank you very much.
16 A Wait a minute. Let me be sure I --
17 THE COURT: I'm confused, Mr. Showalter. You're
18 saying -- you're saying in that case she's a -- you think she's
19 with the plaintiff?
20 MR. SHOWALTER: I'm just asking her about the
21 similarities of those songs, and the mere fact that the main
22 commonality is a beat -- not the music, not the lyrics, but just
23 the beat is enough, in her opinion, to say they're substantially
24 similarity.
25 A Whoa. That's just the opposite of what I just said. No.

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1 You mis- -- I know that you wanted me -- to hear that answer.
2 But now I will tell you that I'm on the side of Robin Thick.
3 BY MR. SHOWALTER:
4 Q So you're -- you're going to be taking the position that
5 it's not similar and he didn't infringe on that prior
6 composition?
7 A He was clearly inspired, but he did not infringe, no.
8 There's a difference between infringe -- between infringement
9 and inspiration.
10 Q So -- so how do you know that Ortiz wasn't -- was either
11 inspired or infringed on Guzman?
12 A I have no way of knowing what the story is with him because
13 I've never met him.
14 Q Now, in your search of prior art, you said you did a Google
15 search, right?
16 A Uh-huh.
17 Q I remember seeing somewhere in your report you got a --
18 like, 4 million hits when you put in what? You said love and
19 letters, something like that.
20 What'd you put into Google?
21 A Love letter compassion.
22 Q Okay. And did you put --
23 A And lyric.
24 Q Excuse me. Go ahead.
25 A Love letter, compassion and lyric.

#:2908
WILBUR - CROSS
260
1 Q Lyric, okay.
2 And did you put those in in English or Spanish?
3 A I did it in English. I also did the Spanish versions as
4 well.
5 Q Of those three words?
6 A Yes.
7 Q Okay.
8 A And all three spellings of compassion as well.
9 Q Very good. Okay. Now, did you put a phrase -- did you put
10 this into Google or any of your proprietary search engines?
11 A I did, and I did not find them.
12 Q So in the entire universe -- the entire universe of music
13 for all time, you put this --
14 A I think --
15 Q -- you put in this phrase in Spanish, right?
16 A Correct.
17 Q And you found no other songs that had these lyrics other
18 than the infringing work, true?
19 A That is correct.
20 Q Now, did you -- did you translate this to English, or did
21 somebody else do that for you?
22 A Somebody else who works with me on Spanish projects.
23 Q They're Spanish-fluent, true?
24 A Yes.
25 Q Okay. And did you put the English translation of this into

#:2909
WILBUR - CROSS
261
1 any and all available search engines to see if you could find
2 this anywhere?
3 A I did, but --
4 Q And the results?
5 A I did not find it.
6 Q In the entire universe of music, Spanish and English, these
7 lyrics don't appear anywhere except in the infringed work, true?
8 A I don't know. I don't know if that's true. There's a lot
9 of oral tradition out there, and oral tradition means works that
10 have never been documented and are in the folk tradition in
11 Mexico, which is really a significant problem for Mexican works.
12 Q All right. Well, you -- if you would have found it, we'd
13 have heard about it, right?
14 A Absolutely.
15 Q You didn't find it, did you?
16 A No.
17 Q But you looked, didn't you?
18 A Yep.
19 Q In one of your graphs or charts, you said you disregarded
20 filler notes to -- I don't even remember the chart it was, but
21 to show the note patterns.
22 Do you remember which one I'm talking about?
23 A With the numbers on it?
24 Q I think so.
25 A Okay.

#:2910
WILBUR - CROSS
262
1 Q You did disregard some of the filler notes, right, for the
2 purposes of that analysis?
3 A I believe Dr. Gross did the same thing.
4 Q I understand. You -- and I'm not criticizing you for doing
5 that. I'm just asking you to agree with me that you did
6 disregard some filler notes, true?
7 A Yes.
8 Q And the reason he did that and you did that is so it would
9 be easier to see -- to make your comparisons, true?
10 A Yes.
11 Q Now, you said these songs were a little bit different in
12 length.
13 You know what a measure of rest is -- a rest measure?
14 A Yes.
15 Q You could add a measure of rest, make a song a little bit
16 longer -- or the same song a little bit longer, but it would
17 still be the same song, right?
18 A Correct.
19 Q So you're -- you've got -- seem to have a criticism of
20 Dr. Gross because he took a measure out in order to make the
21 comparison easier between the two songs, right? You remember
22 that criticism?
23 A That wasn't the criticism. You misunderstood, obviously.
24 Q Well, what was it -- you're criticizing him for taking out a
25 measure, right?

#:2911
WILBUR - CROSS
263
1 A I criticized him for putting the first measure of "Triste"
2 onto -- onto a measure that had pickup notes. By moving it over
3 in that way, that was not the way that chorus would have
4 started.
5 Q Of course, if you don't make that minor shift, it -- it
6 sounds like a mess on top of each other. But if you do make
7 that minor shift so you can be comparing apples to apples, it's
8 pretty easy to hear the similarity, isn't it?
9 A I stick with what I said earlier.
10 Q So you can -- you can add and take out filler notes if it
11 fits your purpose to synchronize the comparison, but when he
12 does it to make it obvious how similar it is, you think it's
13 just absolutely disingenuous, right?
14 A What he did was disingenuous, I believe. You don't -- you
15 don't put the start of something a measure early over pickup
16 notes. That's not the way it's done. He certainly understands
17 what pickup notes are, and he certainly did it in the verse,
18 so --
19 Q Well -- go ahead.
20 A -- he should have known better.
21 Q Don't you think it's helpful to weed out distractions and
22 get down to the -- the DNA of the song to see how similar it is?
23 A Not by -- not by moving and shifting things around or using
24 other chord tones to replace the notes in the melody, no. I
25 don't think that that's legitimate.

#:2912
WILBUR - CROSS
264
1 Q I'm talking about the shift right now.
2 All he did was, like, shift it so it would lock up, right?
3 A He shifted a measure early --
4 Q Right. He shift --
5 A -- in one case so that it would match up.
6 Q He shifted one measure, right?
7 A Yes. That's right.
8 Q And then it all matched up, didn't it?
9 A No, it doesn't match up. The chords matched up.
10 Q And don't you shift measures in these cases where you work
11 for your clients?
12 A Never.
13 Q Never shift a measure?
14 A Never.
15 Q So after he shifted the measure, Dr. Gross did, then his
16 similarities became striking, didn't they?
17 A No. Absolutely not. He simply put them in such a way that
18 the chords would sound the same, and, therefore, they would --
19 they would sound more harmonious.
20 Q Well, consonant substitution is one technique that an
21 infringer could employ to create a derivative work that sounds
22 different, true?
23 A I certainly never heard of it.
24 Q You could swap out notes in a key, right, intentionally to
25 make it sound a little different?

#:2913
WILBUR - CROSS
265
1 A I'm not in the business of -- of -- of, you know, making
2 something sound different, you know, no. I'm not in the
3 business of just -- you know, that kind of count.
4 Q What?
5 A I'm trying to find the words here.
6 I'm not in the business of disguising works. I'm in the
7 business of saying whether a work is substantially similar or
8 whether it really is too close to something else that needs to
9 be changed.
10 Q I'm not saying you're in the business of doing it, but you
11 represent clients who are doing it and getting your blessing on
12 a derivative work, basically?
13 A No. If it's a derivative work, they do not get my blessing.
14 They only get my blessing if it doesn't point specifically to
15 something else.
16 Q They've got to change it up enough, right?
17 A They've got to either throw it out and start again or change
18 it enough so that it doesn't point to something specific.
19 Q Would you play -- I'm sorry. Would you play "Twinkle,
20 Twinkle, Little Star" for us.
21 A (Witness complies.)
22 Q Okay. Let's take the first phrase of that, and at the end
23 of the first phrase, substitute a consonant for us.
24 A After the first phrase?
25 Q At the end of the first phrase -- last note of the first

#:2914
WILBUR - CROSS
266
1 phrase.
3 Q Okay. Now, would you clear that by somebody who liked --
4 wanted to use "Twinkle, Twinkle, Little Star"?
5 A Well, "Twinkle, Twinkle, Little Star" is in the public
6 domain, so there's really no issue.
7 Q Okay.
8 THE COURT: Forgetting that, though.
9 BY MR. SHOWALTER:
10 Q Can you -- let's assume it's a copyrighted work, fair
11 enough?
12 A Yeah.
13 Q Okay. Would you clear that if they did a consonant
14 substitution?
15 A No, I wouldn't, because I think that this (playing keyboard)
16 is very recognizable.
17 Q Well, what about the last -- the last note?
18 A So if you changed it (playing keyboard), I mean, it's still
19 "Twinkle, Twinkle, Little Star."
20 Q Okay.
21 A Because you have (playing keyboard). You know, you have
22 six -- six notes.
23 Q You played the phrase for us, right, and you --
24 A Uh-huh.
25 Q -- substituted a consonant for the last note of that phrase,

#:2915
WILBUR - CROSS
267
1 right?
2 A Well, actually, the last one was not a consonant. It was a
3 dissonant.
4 Q It was a dissonant. Okay.
5 Was it part of the chord, though?
6 A No.
7 Q Okay. Now, play "Twinkle, Twinkle, Little Star" for us
8 again, please.
10 Q Okay. Now, play that with [sic] us, and add a third harmony
11 to it.
12 A Okay. (Playing keyboard.)
13 Q Now --
14 A So -- okay. So now we have the harmony part.
15 Q Maybe I'm -- maybe I misrequested my -- my song selection.
16 Play "Twinkle, Twinkle, Little Star" and put -- and add a
17 parallel line above -- a third above it.
19 Q Okay. Now, take out the melody and just play the parallel
20 motion part.
22 Q And would that pass your -- your copyright clearance muster?
23 A It probably would.
24 Q Pretty close, isn't it?
25 A No. It's in -- it's certainly -- it's minor, (playing

#:2916
WILBUR - CROSS
268
1 keyboard).
2 I mean, again, what are you driving at?
3 Q Well, that's derived from "Twinkle, Twinkle, Little Star,"
4 isn't it?
5 A Yes.
6 Q Now.
7 A But if it's also similar to a lot of other things or doesn't
8 point to it, then it's okay.
9 Q Still derived from it, right?
10 A Yes.
11 Q Now, when you did your prior art comparison, you went back
12 to Beethoven; is that correct?
13 A Yes.
14 Q And you -- you seem to focus on four notes, right, not the
15 whole song?
16 A Well, that's because those were the notes that were common.
17 After that, they were different.
18 Q You know how we -- you put this (indicating) on a search and
19 found not one identical comparison anywhere else in the universe
20 except for the infringing work? Remember that?
21 A Right.
22 Q Those questions?
23 THE COURT: And for the record, he was holding up the
24 four verses of the lyrics -- or four lines of the lyrics.

#:2917
WILBUR - CROSS
269
1 Q Did you put in more than the four notes that you went back
2 to Beethoven?
3 How many notes did you put in of "Triste Aventurera" to
4 find other songs similar to that one?
5 A I used the main theme.
6 Q You're talking about the four notes?
7 A 5, 1, 7, 1, 7, 1, and I found two easy examples for that
8 that I already sang.
9 Q Well, I'm -- I'm not stopping at the 5, 1, 7, 1.
10 Beyond that -- why didn't you put in the rest of it to see
11 how similar -- what other songs popped up as similar?
12 A I don't understand your question.
13 Q Why didn't you put in more notes than just four notes to see
14 if there are all these songs out --
15 A There were more than four notes.
16 Q Excuse me.
17 THE COURT: Let him finish his question.
18 THE WITNESS: Okay.
20 Q Why didn't you put in more than four notes to see if there
21 were so many songs out there, like you say, that are so similar
22 to "Triste Aventurera"? Why didn't you do that?
23 A I took the main theme of all -- of the -- the two that were
24 the most similar, the copyrighted version and "Cartas," I took
25 those melodies, and I found examples of those melodies in the

#:2918
WILBUR - CROSS
270
1 public domain.
2 Q The 5, 1, 7, 1?
3 A 5, 1 -- absolutely.
4 Q That's --
5 A (Playing keyboard). That's not four notes.
6 Q Five notes?
7 A (Playing keyboard). Six notes.
8 Q Okay. Why did you stop there? That's my question.
9 Why didn't you go ahead and put in the whole first verse to
10 see what similarities there were --
11 A Well, first of all --
12 Q -- in other songs out there?
13 A -- the rest of the song is different. The rest of the line
14 was different. It was all in a downward direction, but it
15 didn't have any similarities.
16 Q And it didn't harmonize?
17 A No. I mean --
18 Q Wasn't -- pardon?
19 A You know...
20 Q It did harmonize, didn't it?
21 A I'd have to look at it again.
22 Q After all this work, you'd have to look at it again?
23 A Well, I mean, you know, if you want to talk about consonant
24 substitutions.
25 Q Let's look at your report here -- or a piece of it. This is

#:2919
WILBUR - CROSS
271
1 your -- you're going back to Beethoven to show us how similar
2 these two songs are, true? Is that part of this exercise here?
3 A Correct.
4 Q Now, this is a phrase, right (indicating)?
5 A Correct.
6 Q And this is a phrase, right (indicating)?
7 A Correct.
8 Q And in "Cartas," this is a phrase, right (indicating)?
9 A Uh-huh.
10 Q Is that a yes?
11 A Yes.
12 Q And this is a phrase, right (indicating)?
14 Q Now, on Beethoven, that's -- it's not two phrases. That's
15 one complete phrase, isn't it?
17 Q And the two Tejano songs end on the tonic note, right?
18 A The two --
19 Q "Triste" and "Cartas" end on a tonic?
20 A End on the tonic? What are you talking about? In the -- in
21 the phrase -- they end on the tonic in the phrase, or they end
22 on the tonic in the piece?
23 A This note right now (indicating).
24 A That's a tonic, but that's not a tonic on the bottom, no.
25 Q That's not a tonic?

#:2920
WILBUR - CROSS
272
1 A No, it's not.
2 Q Okay.
3 A That's -- that's an E, and the top one is a C.
4 Q And the Beethoven ends on a dominant, right?
5 A It ends on a B.
6 Q Is that the dominant note?
7 A In this case it is.
8 Q Okay. And does "Cartas" end on a dominant?
9 A No.
10 Q So these notes here in "Triste" and "Cartas" are pickup
11 notes, aren't they?
12 A They are.
13 Q And there's no pickup note in Beethoven, is there?
14 A There certainly is.
15 Q At the end of this -- this second theme?
16 A There certainly is at the front, at the beginning. That's a
17 pickup note.
18 Q Well, we're looking right here (indicating). We're trying
19 to compare apples to apples here, Doctor.
20 A Actually -- actually --
21 Q There's not --
22 A They probably -- there probably -- there might very well be.
23 I stopped there.
24 Q Well, this is all we have to go on, so that's all I'm
25 looking at.

#:2921
WILBUR - CROSS
273
1 A I actually do think there is a pickup into the next phrase.
2 Q Well, there's not a pickup in this measure, true?
3 A No, because it wasn't what I was comparing.
4 Q There's not a pickup in this measure, true?
5 A That's correct.
6 Q But there are pickup notes in "Triste" and "Cartas," true?
7 A Correct.
8 Q So they're similar, but as far as your prior art reference
9 to Beethoven just in that one line, there are several
10 dissimilarities, true?
11 A It served the purpose of showing that the four notes that
12 were in common were the same in Beethoven and appeared in the
13 same place twice.
14 Q The song is more -- more than about four notes, agreed?
15 A Absolutely.
16 Q It's about --
17 A I found other examples.
18 Q It's about lyrics, some of which are identical letter for
19 letter except for one letter, and it's about music that has
20 similarities, true?
21 A I don't think that it's identical except for one letter.
22 I'd have to look at that again, but I don't think so.
23 Q Do you have something to look at there?
24 A I do.
25 (Sotto voce discussion between Mr. Showalter and Mr. Leal.)

#:2922
WILBUR - CROSS
274
1 A There are two words that are different. One is -- two words
2 are plural, and two words are singular.
3 BY MR. SHOWALTER:
4 Q Did you have this done by a certified translator?
5 A No. I had it done by a doctoral student who is fluent in
6 Spanish.
7 Q Do -- are they a certified translator?
8 A No.
9 Q You know on something like this it can be pretty important?
10 Agreed?
11 A Well, if provided with -- I mean, I'd be happy to review
12 something else if you think this is -- this is not accurate. I
13 asked that it be translated as literally as possible.
14 Q Would you agree that these lyrics are strikingly similar
15 between the two songs?
16 A I would say that they are very similar.
17 Q Strikingly? Would you give me that?
18 A No.
19 Q Just because of those two "S"s?
20 A They're -- they're substantially similar.
21 Q But you won't go --
22 THE COURT: But -- they're not identical because of
23 the two "S"s --
24 THE WITNESS: They're not identical.
25 THE COURT: -- but isn't "strikingly similar" between

#:2923
WILBUR - CROSS
275
1 "identical" and "substantially similar"?
2 THE WITNESS: Isn't strikingly similar -- what did you
3 say again?
4 THE COURT: On the spectrum you've got substantially
5 similar --
6 THE WITNESS: Well, I mean --
7 THE COURT: -- and you've got identical. Strikingly
8 similar is somewhere between those two, right? It's not -- it's
9 not quite identical.
10 THE WITNESS: No, no, no. Striking is a legal term
11 that is very specific. It means that there is no way that you
12 could independently come up with something on your own.
13 THE COURT: Right. My point is: It's less than
14 identical, right?
15 THE WITNESS: It's less than identical.
16 THE COURT: I mean, just say identical, right? I
17 mean, why do they come up with this legal term "strikingly
18 similar" if it meant identical?
19 THE WITNESS: Because strikingly similar has a very
20 specific purpose. I mean, it's basically to say that there's no
21 way that this person could have come up with this without
22 knowing the other piece.
23 THE COURT: I know what it means.
24 THE WITNESS: But that's --
25 THE COURT: Your testimony is it is the same as

#:2924
WILBUR - CROSS
276
1 identical. In other words, I can rephrase this. To be
2 strikingly similar, something has to be identical. Is that your
3 testimony?
4 THE WITNESS: No. My -- I guess I'm trying to say
5 that the -- that --
6 THE COURT: Well, you just said --
7 THE WITNESS: Strikingly similar -- strikingly similar
8 means that it had to come from that other source, and I don't
9 have the answer to that. I -- I --
10 THE COURT: So you're saying even -- something could
11 be identical and still not strikingly similar because there may
12 have been some, you know, extreme coincidence? Is that what
13 you're saying?
14 THE WITNESS: I'm saying that there could have been
15 coincidence, right.
16 THE COURT: So it's a higher standard than identical.
17 THE WITNESS: The two -- the two phrases are very
18 close, obviously. You know, I mean, the -- that doesn't take
19 rocket science. I'm not -- I'm not trying to delude anybody,
20 and I've already said that they're similar.
21 MR. SHOWALTER: I'm going to pass the witness,
22 Your Honor.
23 THE COURT: All right. Anything, Mr. Cole?
24 MR. COLE: Just a couple of questions.
25 CROSS-EXAMINATION

#:2925
WILBUR - CROSS/REDIRECT
277
1 BY MR. COLE:
2 Q Did you make any attempt to compare the version of "Cartas"
3 that was filed with the Copyright Office to the one that was
4 performed by my client, Mr. Martinez?
5 A Let me just be sure I understand that.
6 Are you talking about the third song that I never heard
7 except in the courtroom?
8 Q I don't recall what that song would be, but there was a
9 recording of "Cartas" that had one person playing a guitar.
10 Did you hear that song?
11 A I never heard that song, no.
12 Q Okay.
13 MR. COLE: That's all I have, Your Honor.
14 THE COURT: All right.
15 MR. GARCIA: Quick response, Your Honor.
16 THE COURT: Sure. You can use all your time left for
17 redirect that you want.
18 REDIRECT EXAMINATION
19 BY MR. GARCIA:
20 Q The "Beer Barrel Polka" song --
21 A Yes.
22 Q -- by Narciso -- who is that by?
23 A It's in my report. It's a German song.
24 Q Narciso Martinez?
25 A Oh, yeah.

#:2926
WILBUR - REDIRECT
278
1 Q Is -- was that a -- is that Latin music? And
2 "La Cucaracha," was that a Latin -- Latin music?
3 Did you do -- how did you come up -- where did those, when
4 you were doing your search, but -- I thought you -- heard you
5 didn't do any search in the Latin music, or how did --
6 A Right. Well, I certainly -- I certainly did -- did, and
7 that was one of the ones that I did, and you're absolutely
8 right.
9 That was a Spanish song that I -- that I -- "Beer Barrel
10 Polka" was done by -- yes. I had -- it had quite a bit of
11 similarity.
12 Q So your search wasn't limited to English pop. It was --
13 A No, not by any means.
14 Q It was a global search?
15 A Right.
16 Q Okay.
17 A And I did -- and I did listen to some songs that Daniel
18 Sheehy sent to me, one of which I thought was -- was quite
19 close. But because it came reasonably late, I didn't have time
20 to do the analysis.
21 Q That --
22 A That predated --
23 Q -- the Tejano songs?
24 A Tejano songs, yes.
25 MR. GARCIA: Pass the witness, Your Honor.

#:2927
WILBUR - RECROSS
279
1 THE COURT: Anything else, Mr. Showalter?
2 RECROSS-EXAMINATION
3 BY MR. SHOWALTER:
4 Q So you didn't identify any other Tejano song that had even
5 the -- the similarities that you concede other than "Cartas de
6 Amor" to "Triste," true?
7 A I'm sorry. I didn't understand the question.
8 Q You haven't identified any other Tejano song that is as
9 similar to "Triste" as "Cartas," true?
10 A I did get some late, and I have not had a chance to
11 completely compare them. And I did think that one actually was
12 quite close, but I didn't do it.
13 Q You haven't identified any other song, have you?
14 A Not to this time, no.
15 Q Thank you.
16 MR. LEAL: Quick moment, Your Honor.
17 (Sotto voce discussion between Mr. Showalter and Mr. Leal.)
18 MR. SHOWALTER: Nothing further, Your Honor.
19 THE COURT: All right. Anything else from anyone
20 else?
21 MR. COLE: No, Your Honor.
22 MR. GARCIA: No.
23 THE COURT: All right. You're excused, ma'am. You
24 can step down, free to go, or you can stay if you like.
25 Call your next witness.

#:2928

Exhibit 15
#:2929

>> MUSICOLOGY SERVICES
FOR MUSIC SUPPLIERS + ADVERTISERS

WWW.MUSIODATA.COM
252 Seventh Ave. Suite 17G New York, NY 10001
TEL 212-217-2566 | FAX 212-217-2567
swilbur@musicolgy.com
>> IF YOU WISH TO REDUCE THE RISK OF:
your original work i nadvertentl y i nfri ngi ng another work
your musical work getting too cl ose to a work the composer was asked to sound l i ke
your piece of music soundi ng too f ami l i ar or reminiscent of a well known singer or group
your version of a public domain song i nfri ngi ng a copyri ghted arrangement of the public domain song
the popular song you got a synch license to use soundi ng too much l i ke the popular recording
your library or source music soundi ng too si mi l ar to a particular artists or groups sound
using music which has negative connotations in foreign cultures.
>> OR IF YOU NEED TO:
determine what the musi cal facts are
determine whether probl emati c si mi l ari ti es support an i nfri ngement cl ai m, a sound- al i ke claim, or
a combination of the two
get an expert opi ni on as to whether the similarities between two works constitute problematic similarities
or are as a result of common stylistic patterns or common compositional devices
research the publ i c domai n status of a particular song or arrangement of a public domain song
obtain pri or art research that is thorough, exhaustive, and accurate
do a sampl e anal ysi s in order to determine whether or not a sample or possible sample can be shown to
have come from the same recorded source
find a musi c expert who, if in agreement with your claims, can assist in all music related aspects from tri al
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>> SERVICES

MUSICOLOGICAL ANALYSIS
A thorough comparison of two or more pieces of music which examines all pertinent music and vocal elements
including melody, harmony, rhythm, instrumentation, lyrics, musical style, samples, vocal sound and style, etc. in
order to determine if there are problematic similarities between the works. An analysis is often called for if: the work
is reminiscent of another work; the composer has been asked to create a work that sounds like another; or in cases
where litigation is being considered or has been initiated. Works that sound very similar might only share permissible
stylistic similarities with many other works while works that sound different may have borrowed copyrighted material
in ways that are not at first obvious. Musiodata can help render a professional opinion as to what elements are
protected by music copyright and what elements are not. Even when there appear to be musical similarities, it is
sometimes not possible to render an opinion until some prior art research has been attempted (see below). In
addition, if infringement is suspected prior to release or broadcast, Musiodata can point to those areas that need
changing in order to avoid problematic similarities. * Reports are generally emailed or discussed verbally within five
business days or on a rush basis.

ORIGINAL MUSIC CLEARANCE
As a preventative measure to minimize the risk of litigation, all musical, vocal, and sound elements of the piece of
music in question are reviewed to assess their originality. It is the unique combination of elements, some of which can
be common or generic, that defines originality. If an infringement or sound-alike problem is suspected, changes or
additional research might be warranted. In that case, you would be contacted immediately to discuss what is needed
and any additional costs. Once a piece of music is clear to air, a clearance document is generally emailed to you as
soon as possible but certainly within five business days, or within 24 hours if a rush report is needed.*

#:2930
SAMPLE ANALYSIS
There is increasing litigation today regarding samples or potential samples. Using a sample, or the digital reproduction
of a part of a work from another recording, is a common practice today, especially in hip-hop music. Producers
normally license and pay for the use of samples. If there is a question as to whether or not a sample was used in a
particular recording, Musiodata will perform a thorough forensic analysis and compare the sounds using advanced
technology and side-by-side comparisons to attempt to determine if they can be proven to be from the same source.
In those cases where a sample license was denied, Musiodata can offer musical guidance as to what is permissible to
use.*

PUBLIC DOMAIN RESEARCH
Research can often determine if a piece of music is in the public domain and/or find a public domain version of the
piece. Music in the public domain is no longer protected by copyright laws and can be used without permission.
However, since different countries around the world have differing and changing copyright laws, it is not always
possible to say with certainty a work is PD worldwide. In some of these cases, doing a risk assessment is in order. In
order for a work to be in the public domain, it must exist in a public domain source. Works can be generally
considered to be in the public domain if several examples of the work sharing the same elements can be found in
well-respected and reliable sources. However, many popular versions or arrangements of public domain musical
works are NOT in the public domain. Because a piece of music is labeled as "traditional" does not necessarily mean it
can be used without any legal restrictions. This is a very thorny area and Musiodata can help clarify what versions are
in the public domain and/or who has ownership of a particular work.*

PRIOR ART RESEARCH
Prior art research is often an extensive and exhaustive search for examples that predate the two works in question
and share the same elements ( a specific melody, lyric, etc.) If the combination of similar elements can be found in
prior art, the original elements cannot have originated in either of the works being compared. In a situation where
someone is accused or could potentially be accused of infringement, the presentation of prior art is an essential
component of a good defense.

COPYRIGHT VALUATION
Musiodata can determines the value of copyright by analyzing comparable copyrights and determining what those
works earned in circumstances similar to the one in question.

SONG RESEARCH AND CONFIDENTIAL LICENSING INQUIRIES
Song research can determine the authors, publishers, name and status of a piece of music, as well as its availability.
Musiodata can assemble lists of appropriate songs for a specific advertising campaign, film, or other use, and follow
up with confidential licensing inquiries.

VERIFICATION OF ORIGINALITY
Musiodata will attempt to cite two or three other songs that share the same elements of concern as those in an
original piece of music in order to determine if there has been substantial borrowing in the creation of the piece, or if
it employs permissible stylistic elements shared by many works.

TRIAL PREPARATION & EXPERT WITNESS
If, after careful review and analysis of the musical facts, Sandy Wilbur agrees with the point of view of the inquiring
parties, she can assist them in all phases of the litigation process such as analyzing other expert reports, helping
outline deposition questions, researching prior art, providing expert testimony, and preparing graphic charts, audio
comparisons and musical demonstrations that are suitable for presentation to a non-musical judge and jury. She has
had considerable e experience working with legal teams, helping them understand the musical theories and
subtleties involved in a particular case.*

CREATIVE SUPPORT
Having been an Associate Music Director at a major advertising agency, Sandy Wilbur can help you with music
direction by researching appropriate songs, artists, composers, or arrangers for film, TV, or other projects.

*Sandy Wi l bur does not offer l egal advi ce and recommends consul ti ng an attorney i n conj uncti on wi th expert musi c
anal ysi s and musi col ogi cal opi ni ons.
#:2931

Exhibit 16
#:2932

Paul H. Duvall (SBN 73699)
E-Mail: pduvall@kingballow.com
KING & BALLOW
6540 Lusk Blvd., Suite 250
San Diego, CA 92121
(858) 597-6000
Fax: (858) 597-6008
Attorneys for Defendants and Counter-
Claimants Frankie Christian Gaye and
Nona Marvisa Gaye
Richard S. Busch (TN BPR 014594)
(pro hac vice)
E-Mail: rbusch@kingballow.com
KING & BALLOW
315 Union Street, Suite 1100
Nashville, TN 37201
(615) 259-3456 Fax: (615) 726-5417
Claimants Frankie Christian Gaye and Nona
Marvisa Gaye

Mark L. Block (SBN 115457)
E-Mail: mblock@wargofrench.com
WARGO & FRENCH LLP
1888 Century Park East; Suite 1520
Los Angeles, CA 90067
(310) 853-6355 Fax: (310) 853-6333
Claimants Frankie Christian Gaye and
Nona Marvisa Gaye
Paul N. Philips (SBN 18792)
E-Mail: pnp@pnplegal.com
The Law Offices of Paul N. Philips
9255 West Sunset Boulevard
West Hollywood, CA 90069
(323)813-1126 Fax: (323) 854-6902
Attorney for Defendant and Counter-Claimant
Marvin Gaye III

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
individual; and CLIFFORD HARRIS,
JR., an individual,

Plaintiffs,

vs.

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,

Defendants.

_______________________________

AND RELATED COUNTERCLAIMS
Case No. CV13-06004-JAK (AGRx)
Hon. John A. Kronstadt

FILED UNDER SEAL

EXHIBIT 16 TO THE
DECLARATION OF RICHARD S.
BUSCH IN SUPPORT OF COUNTER-
CLAIMANTS OPPOSITION TO
PLAINTIFFS AND COUNTER-
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, PARTIAL
SUMMARY JUDGMENT

Date: October 20, 2014
Time: 8:30 a.m.
Ctrm: 750

Action Commenced: August 15, 2013
Trial Date: February 10, 2015
MANUALLY FILED UNDER SEAL CONCURRENTLY
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#:2933
General Information
Court United States District Court for the Central District of California;
United States District Court for the Central District of California
Nature of Suit Property Rights - Copyrights[820]
Docket Number 2:13-cv-06004
Pharrell Williams et al v. Bridgeport Music Inc et al, Docket No. 2:13-cv-06004 (C.D. Cal. Aug 15, 2013), Court Docket
2014 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 150

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