Blurred Lines Trial - Transcript Exhibit G Part 2 PDF

Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 1 of 70 Page ID
#:9795
91
1
BY MR.
02:
BUSCH:
Q.
What
is it that
A.
Two versions
version
Q.
And
A.
It shows
even
with
and then
what
10
11
with
Q.
Thank
the
the rhythmic
14
versions
15
differences
16
phrase?
shows?
02:
is still
Okay.
completely
02:
recognizable,
02:
the
Please
audio
02:
play.
was
played
02:
for the jury.)
02:
02:
is the
rhythmic
dissimilarities
in what
-- in your
we just
or less
heard
than
the
opinion,
in those
is
two
rhythmic
in Got to Give it Up and Blurred in the signature
02:
02:
02:
02:
02:
MR. MILLER:
18
THE COURT:
BY MR.
differences
of Happy Birthday greater
17
Improper
Objection.
02:
--
02:
Sustained.
02:
BUSCH:
All
right.
Take
21
We talked
22
Exhibit
23
so you can explain
24
A.
25
02:
in the rhythm.
BUSCH:
And
Q.
02:
the traditional
modified.
this
song
First,
02:
Finell?
you.
13
20
rhythm
Ms.
BUSCH:
12
19
the
(Whereupon,
BY MR.
to hear,
of Happy Birthday.
that
MR.
about
do you believe
shifts
we're
that
about
off the
what
376, page
to the
screen,
the hook
8, slide
jury;
02:
please.
was before
the break.
8, is two versions
of hooks
02:
02:
02:
correct?
02:
Yes.
MR.
BUSCH:
I do not believe
we have
an objection
02:

#:9796
92
1
2
MR. MILLER:
THE COURT:
previously
02:
No objection, your Honor.

Correct.
That's right.
This was
02:
02:
BY MR. BUSCH:
Before you play it, can you explain what the jury is about
Q.
to hear?
A.
02:
02:
displayed.
You may play it.
5
6
02:
about this, your Honor.
02:
02:
In popular music, as I mentioned before, there is
Yes.
02:
10
often a phrase that becomes more or less what you would think of
02:
11
as sort of the identifying phrase of the song.
02:
12
with ringtones, that's what the ringtone would be.
13
hook of the song.
It's the
02:
02:
So
02:
Stop there.
14
THE COURT:
15
Next question, please.
16
Sometimes now
02:
02:
BY MR. BUSCH:
02:
17
Q.
And so what are we going to hear?
18
A.
So you'll hear the hooks of two popular songs.
19
song from the show Annie and the other one Cyndi Lauper's Girls
02:
20
Just Wanna Have Fun.
02:
21
Q.
And are these the hooks to these two songs?
02:
22
A.
That's right.
02:
23
Q.
Can a hook be very short?
02:
24
A.
Very.
02:
25
Q.
With respect to Beethoven's
One the
5th, which we heard earlier,
02:
02:

#:9797
93
1
how many notes were in that hook?
A.
02:
There are only four notes.

THE COURT:
02:
Sustained.
02:
It's cumulative.
02:
BY MR. BUSCH:
And what are the hooks in Got to Give it Up and Blurred
Q.
Lines?
A.
back on, please.
02:
Four notes.
I'm sorry.
The lyrics -- could you put that
02:
02:
The lyrics in Got to Give it Up, which contains one
02:
02:
10
hook that's repeated, is with the words keep on dancin', and in
02:
11
Blurred Lines it has two hooks.
02:
12
other one is I hate these blurred lines.
13
Q.
One is take a good girl and the
02:
What makes up these hooks?
14
MR. MILLER:
15
THE COURT:
16
Are you going to play these?
17
MR. BUSCH:
18
Q.
02:
Objection.
02:
Vague.
02:
Sustained.
They've just been played -- yes.
02:
We will.
With respect to the hooks --
02:
02:
19
Page 9 -- we won't put
02:
20
MR. MILLER:
02:
21
MR. BUSCH:
Don't put them on the screen.
02:
No.
With respect to the hooks, keep on dancin' from Got to Give
22
Q.
23
it Up, is -- did you prepare a transcription?
24
A.
Y~s, I did.
25
Q.
And is the transcription
02:
02:
02:
you prepared from the lead sheet?
02:

#:9798
94
1
A.
It's exactly as it is in the lead sheet, yes.
02:
Q.
Okay.
02:
as well; correct?
A.
02:
02:
MR. BUSCH:
Your Honor, we would ask for permission
THE COURT:
MR. MILLER:
slide, your Honor.
02:
Any objection?
Yes.
02:
I have several objections to this
02:
The fourth bullet point is a reference to
the sound recording of Marvin Gaye.
11
accurate reflection of the actual notes as they appear in the
12
deposit copy.
THE COURT:
13
02:
02:
10
14
to
display page 9 of Exhibit 376, similarity hooks.
from Blurred Lines
That's correct.
5
6
And you prepared a transcription
The transcription
is not an
02:
02:
02:
02:
You may display this, but eliminate just
02:
the -- following the bullet points.
15
MR. BUSCH:
Just play without the bullet points?
02:
16
THE COURT:
Just show -- if you wish to display this,
02:
17
start with, quote, Got to Give it Up, and don't display the
02:
18
other portion, and you can achieve that either by your computer
02:
19
or use of the projector.
02:
20
MR. BUSCH:
Thank you, your Honor.
02:
21
THE COURT:
And I understand your objection with
02:
22
23
02:
respect to the other issue.
02:
BY MR. BUSCH:
Okay.
And so, Ms. Finell, looking at your transcription
24
Q.
25
Got to Give it Up and the Blurred Lines hook, what do your
on
02:
02:

#:9799
95
1
transcriptions
A.
They
show
So out of the
four notes
scale
Q.
Okay.
A.
The
notes
Q.
And
10
A.
Yes.
02:
show?
the
four
comparison
of pitches,
notes
the Got to Give it Up hook
from
Blurred Lines, three
from
meaning
are
scale
identical
02:
degrees.
02:
and
02:
in their
02:
degrees.
02:
fourth
one
is a repeat
of one of the three
02:
identical
02:
in Blurred Lines.
is the
The
11
two notes
12
which
13
Q.
And why
14
A.
Well,
music
16
measures.
17
the pulse
rhythmic
before
affects
15
rhythmic
18
is similar
music's
and two notes
after
divided
up into
02:
the bar
line
02:
02:
into
02:
In the
case
before
smaller
individual
the placement
emphasis
bars
of these
the
20
is circled,
21
think
22
Up and good girl in Blurred Lines, occurred
23
the bar
24
what
25
the bar
the
of as the money
keywords
words
and therefore
the downbeat.
It's
a lot to do with
significance
of
02:
which
02:
line,
of the hook
-- what
you would
the
02:
02:
the bar
02:
dancin' in Got to Give it
are -- the
02:
02:
called
after
-- meaning
they
of
words.
the two notes
is that
are also
has
two hooks,
the two notes
A long piece
which
in the measure
of particular
and
units.
19
you call
are
there
significant?
or the
line
in that
stressing.
is that
is divided
line
02:
similar?
placement
the bar
the
And
placement
immediately
first
strongest
part
beat
02:
after
of that
right
02:
is
after
02:
02:
02:
line.

#:9800
96
And in the sheet music, is there -- does the Got to Give it
Q.
Up hook repeat?
A.
Oh, yes, it does.
Q.
Okay.
A.
I believe it's 14.
Q.
Okay.
8
9
10
02:
02:
And how many times does it repeat?
And in Blurred Lines, the similar hook that you've
Well, there are two Blurred Lines hooks, but combined, they
occur 12 times in the song, which is quite repetitious.

Q.
Okay.
02:
02:
02:
02:
And have you prepared audio examples using a MIDI
02:
for the hook of Got to Give it Up, keep on dancin',
02:
11
synthesizer
12
and the Blurred Lines, take a good girl?
13
A.
Yes, I have.
14
Q.
And is the audio excerpt keep on dancing from Got to Give
15
it Up in the deposit copy lead sheet?
16
A.
17
02:
02:
described, how many times does it repeat in Blurred Lines?

A.
02:
02:
02:
02:
02:
It is.
MR. BUSCH:
02:
All right.
We would like to play now
02:
Exhibit 376, page 10, your Honor, and we could display the
02:
18
exhibit just by -- fine.
02:
19
20
21
22
23
24
25
THE COURT:
My -- we have already --
Excuse me.
The first recording is based
on the recording that's admissible;
is that correct?
02:
02:
MR. BUSCH:
Yes, your Honor.
02:
THE COURT:
Okay.
02:
Subject to your prior objections,
any objection to this being played?

MR. MILLER:
No objection, your Honor.
02:
02:

#:9801
97
1
THE COURT:
You may
Excuse
Could
MR.
slide
that
9
10
11
13
exhibits
17
told
18
offered
Excuse
BUSCH:
It's
THE
COURT:
Could
MILLER:
COURT:
page
to help
that's
02:
whether
there
an objection
02:
is any
to the bullet
point.
02:
02:
what
02:
is in the demonstrative
designed
to facilitate
you understand
of these
-- as I
the opinions
being
recordings
taken
from
the
02:
02:
02:
THE
COURT:
Okay.
the
02:
02:
admissible?
22
your
did we just hear?
02:
Honor.
Thank
audio
BUSCH:
What
02:
one.
02:
Is each
(Whereupon,
02:
02:
It's
Yes,
Q.
the
10.
and gentlemen,
BUSCH:
25
right
to show
I understand.
MR.
BY MR.
the
you need
point.
Okay.
21
24
isn't
02:
Honor.
Finell.
Okay.
23
02:
so, your
I think
confirm
I have
evidence.
by Ms.
evidence
me.
This
to the bullet
it's merely
19
02:
in the recording?
isn't
you,
I'm sorry.
second.
in these?
I do not believe
MR.
Ladies
16
-- one
any pitchshifting
that.
THE
15
second
02:
with
objection
14
20
goes
MR.
Same
02:
you.
02:
Is the
BUSCH:
pitchshifting
12
Thank
these.
THE WITNESS:
objection.
that?
Is there
play
me.
you pause
No new
02:
you.
was played
for the jury.)
02:
02:
02:

#:9802
98
That's
the hook
A.
would
Q.
second
A.
The
first
Q.
And
what
comparison?
A.
identical,
have
been
Okay.
And
from
Got to Give it Up with
the words
that
02:
keep on dancin'.
next,
we have
-- what
do we have
-- what's
the
02:
02:
audio?
Yes.
02:
in Blurred Lines which
hook
is it that
we just
heard
is take a good girl.
02:
02:
as far as the note
02:
There
are
they're
10
percent
11
identical
12
girl, the note
13
already
14
similarities.
15
Q.
16
two
audio
17
A.
No.
18
Q.
Have
19
or called
20
A.
Yes,
21
Q.
Okay.
22
A.
Theme
four
shown
of the notes
is really
heard
are
notes
with
identical
for the word

and
hook,
the arrows
identical
before
in each
above
them,
and the note
to itself
in that
good is a scale
after
of which
itself,
meaning
are
02:
75
02:
isn't
02:
in take a good
02:
that
degree
so those
three
1, which
is
02:
02:
are the
02:
We heard
-- did we hear
rhythmic
changes
within
the
last
02:
02:
excerpts?
02:
you
identified
Theme
a similarity
that
you have
identified
02:
X?
02:
I have.
And
02:
what
is Theme
X is a melody
23
it Up, it's what
24
dancin' lady.
25
Lines, it's the main
I would
And
02:
X?
-- a four-note
call
a backup
In Got to Give
melody.
melody
sung
to the words
in Got to Give it Up -- I'm sorry,

theme
that
occurs
throughout
all
02:
02:
in Blurred
02:
four
02:

#:9803
99
1
02:
verses with words like --
THE COURT:
THE WITNESS:
can't
see,
if you
02:
You may finish.

Okay.
can't
With words like if
02:
etc., and it also occurs in
02:
Excuse me.
you
the choruses and in the signature -- it's embedded in the
02:
signature phrase.
02:
MR. MILLER:
hear,
Object and move to strike.
There is no
02:
evidence before the Court that this is in the deposit copy.
02:
There is no foundation for it.
02:
10
MR. BUSCH:
I can lay the foundation.
02:
11
THE COURT:
I'm going to strike the response at this
02:
12
point subject to establishing
Ladies and gentlemen,
13
02:
a foundation.
you may remember one of the
02:
14
early instructions
15
that certain -- that the actual commercial recording wasn't at
02:
16
issue in this case.
02:
So we're touching on these issues and we will come
17
18
back and do more explaining to you about it later.

Establish the foundation, please.
19
20
I read you talked about deposit copy, and
02:
Or seek to do so.
Is Theme X, as you've described it, the backup hook in Got
21
Q.
22
to Give it Up in the deposit copy lead sheet?

MR. MILLER:
24
THE COURT:
25
THE WITNESS:
02:
02:
02:
BY MR. BUSCH:
23
02:
02:
02:
Vague, your Honor.
02:
Do you understand the question?
02:
Objection.
I do.
02:

#:9804
100
THE COURT:
2
3
02:
BY MR. BUSCH:
Is it shown in the deposit copy lead sheet?
Q.
MR. MILLER:
02:
02:
deposit copy lead sheet?
5
6
By in -- what do you mean by in the
Same objection, your Honor.
02:
Are the
02:
02:
notes in the deposit copy?
MR. BUSCH:
I will rephrase the question.
02:
THE COURT:
Just restate the question so that the
02:
9
10
11
witness can address whether -- the basis for her view as to what
02:
issue -- whether Theme X is shown in the lead sheet.
02:
Thank you.
02:
BY MR. BUSCH:
12
Q.
Is the audio excerpt that we have -- that I have -- that
02:
13
you have prepared with respect to Theme X in the deposit copy
02:
14
lead sheet?
02:
15
MR. MILLER:
16
THE COURT:
17

Define in, please.
02:
Do you believe it is consistent with, in, reflected by --
Q.
19
do you believe it's in the deposit copy lead sheet?

MR. MILLER:
20
THE COURT:
Sustained.
02:
02:
The question
is whether it's identical to what's in the lead sheet.
22
23
02:
BY MR. BUSCH:
18
21
02:
Restate it, please.
BY MR. BUSCH:
Do you believe the audio excerpt that you have prepared
24
Q.
25
with respect to Theme X is specifically -- is it in the deposit
02:
02:
02:
02:
02:
02:

#:9805
101
1
02:
copy lead sheet?
I'm not sure how else to ask the question, your Honor.
02:
MR. MILLER:
02:
The question
02:
is is it identical to notes in the lead sheet.

Well, lay the foundation, please, as to
02:
the basis upon which the witness has evaluated the lead sheet
02:
with respect to this issue.
02:
THE COURT:
8
9
02:
BY MR. BUSCH:
All right.
Q.
Have you reviewed the deposit copy lead sheet
10
with respect to Theme X?
11
A.
Yes.
12
Q.
Okay.
13
copy
14
deposit copy lead sheet?
And do you have an opinion about whether the deposit
16
THE COURT:
lead sheet
02:
We have to establish what she did with the
-I will.
19
THE COURT:
-- before you get to that question.
02:
Thank
02:
BY MR. BUSCH:
What did you do in order to reach your opinion about
22
Q.
23
whether Theme X is in the deposit copy lead sheet?

THE COURT:
Q.
02:
02:
you.
24
02:
02:
MR. BUSCH:
25
02:
Same objection.
18
21
02:
02:
the audio example that you have prepared is in the
MR. MILLER:
20
02:
02:
15
17
02:
And talk more slowly, please.
What did you do in order to reach your opinion that Theme X
02:
02:
02:
02:

#:9806
102
1
is in the deposit
A.
found
what
to the Theme
Q.
opinion
A.
couple
of limitations
that.
That
10
I reviewed
the
section
Yes.
Theme
has
BY MR.
why
X, as it's
an impact
I saw
shown
02:
contained
02:
it as referring
X -- why
in the
copy
lead
sheet,
If I could
02:
it is your
lead
02:
sheet?
has
explain
02:
about
02:
02:
on my analysis.
Ask
the
questions,
03:
please.
03:
BUSCH:
Okay.
Would
14
have
just
described.
15
A.
Okay.
you please
16
shorthand
for musicians
17
performed
as.
A lead
sheet
lead
20
the same
time
21
singers,
so there's
22
all singing
sheet
only
shows
is in essence
to understand
by singers
parallel
the
of Theme
one
of three
who
a high
notes
MR. MILLER:
answering
the
limitations
that
03:
you
a musical
what
03:
-- musical
the music
should
be
03:
03:
19
23
explain
03:
So in the case
18
02:
02:
in my analysis.
Theme
on it.
sheet.
which
in the deposit
imposed
Q.
25
X, and
you believe
lead
sheet
discussing
X is found
13
24
of Theme
I've been
THE COURT:
2 of the
2 of the lead
a variant
Theme
02:
sheet?
1 and part
in part
explain
that
lead
part
X that
you
11
12
both
I consider
Can
copy
X, the actual
lines
that
are harmonizing,
voice,
but
not
Objection.
a middle
the same
Move
part
are being
a group
voice
03:
2 of the
sung
at
of
and a low voice
She is not
03:
03:
03:
question.
THE COURT:
03:
03:
notes
to strike.
03:
The word
is nonresponsive.
Do not argue
03:

#:9807
103
1
about
the what
the witness
I'm going
The
is doing.
to strike
Thank
03:
you.
So in the case of Theme X.
after
is So in the case of Theme Xr
answer
03:
the actual
03:
part 2 of the lead sheet only shows one of three lines that are
03:
being sung.
03:
You
6
7
The
sheet,
the
rest
need
sheet
to make
music,
MR.
THE COURT:
10
BY MR.
11
Q.
12
why
13
A.
of it is stricken.
BUSCH:
sure
to focus,
as opposed
to the
please,
sound
on the
03:
lead
03:
recording.
03:
Right.
Thank
03:
you.
03:
BUSCH:
So if you would
Theme
please
X is in the
lead
explain,
sheet,
Ms.
Finell,
please
do so.
your
03:
analysis
03:
03:
Theme--
14
MR. MILLER:
15
THE COURT:
16
subject
17
Please
to a motion
Objection.
I'll
Asked
see.
You may
to strike.
and answered.
03:
respond
03:
Go ahead.
and it's
Thank
you Ms.
03:
Finell.
03:
proceed.
THE WITNESS:
18
19
the
lead
20
four-note
21
short
sheet,
consists
melody.
melody
23
called
24
then
25
So basically
Theme
we would
it what
X, in the part
call music.
you call
It's
a cell,
03:
2 of
03:
meaning
are -- the
In other
up one note
it's
static,
03:
03:
or pattern.
static.
it goes
you.
of what
I consider
The notes
22
Thank
words,
same
note
repeated
the
same
note,
same
note,
and back
down
one note.
in the scale
static,
up, down.
once,
which
and
is
03:
03:
03:
03:

#:9808
104
Theme
1
2
mirror
form,
X occurs
which
MR. MILLER:
THE
what
COURT:
the witness
on the recording
Objection,
Excuse
meant
me.
Honor.
What
-- I want
I believe
she's
THE
COURT:
Why
we find
don't
Q.
What
10
A.
Well,
11
identified
12
theme
do you mean
Theme
by the word
about
--
03:
out.
03:
X in the part
it is referring
and that's
what
recording?
of the
I was
Objection.
03:
sheet
variant
where
03:
of that
same
03:
to explain.
03:
Move
03:
trying
14
THE
COURT:
Strike
that.
15
MR.
BUSCH:
I can
clarify,
16
THE COURT:
Just
17
Ms.
you
Finell,
lead
to an earlier
MR. MILLER:
to strike.
03:
I believe,
your
Honor.
03:
03:
a minute.
said
Theme
X also
-- excuse
me.
You
Theme X occurs also on the recording of part 1.
19
Do you
20
THE WITNESS:
21
THE COURT:
what
talking
03:
03:
13
22
03:
BUSCH:
said
to understand
recording.
by the word
BUSCH:
18
03:
03:
your
MR.
BY MR.
1 in a
03:
of part
I can explain.
also
-- to what
recall
What
were
24
reviewed.
25
and another
One
was
03:
03:
that?
03:
I do.
-- when
you
said
the word
recording,
Well,
there
were
a -- an approximately
one was what
you call
03:
03:
you referring?
THE WITNESS:
23
saying
03:
two recordings
four-minute
an extended
03:
recording,
03:
recording,
that
which
03:

#:9809
105
1
THE COURT:
2
3
03:
was a much longer recording of Got to Give it Up.

I want to understand what these recordings
03:
are before I determine whether to strike the response.

MR. BUSCH:
03:
03:
Okay.
Q.
Is the audio excerpt that you have created what you have
03:
referred to as the recording that is consistent with what you
03:
say is in the lead sheet?
03:
A.
MR. MILLER:
10
03:
Yes.
strike.
Your Honor, I would object and move to
03:
03:
That's not the question.
11
THE COURT:
Is there an exhibit --
03:
12
MR. BUSCH:
Yes.
03:
13
THE COURT:
-- associated with the recording as you
03:
14
03:
have -- as it's just been defined?
15
MR. BUSCH:
Yes, sir.
03:
16
THE COURT:
What is --
03:
17
MR. BUSCH:
Yes, your Honor.
03:
18
THE COURT:
What is the exhibit number, please?
03:
19
MR. BUSCH:
It is 376,
20
THE COURT:
So based on that understanding,
21
page 11.
03:
with that
limitation, the answer may stand.
22
MR. BUSCH:
23
We would ask, based on that, to play the audio
24
25
Thank you.
03:
03:
03:
03:
excerpts on that page.

THE COURT:
03:
Okay.
03:

#:9810
106
1
MR. MILLER:
been
copy.
no
lacks
She has
Your Honor,
foundation
testified
as
to
it's
the
THE COURT: I understand.
MR. MILLER:
THE COURT: I thought
recordings
--
that
admissible.
are
that
the
admissible
the
MR. MILLER:
recording.
11,
the
has
deposit
the
03:
All
03:
right.
03:
testimony
the
was that
on the
recordings
these
which
is
is
that
03:
are
03:
correct.
03:
testified
an excerpt
that
from the
is
an excerpt
it's
Marvin
in
376,
03:
Gaye sound
03:
that
has
been
allowed
THE COURT: It's
17
MR. BUSCH: Edi ted
one,
18
THE COURT: Okay.
Again,
the
21
different
22
We will
--
we are
commercial
be talking
--
25
copy.
has
been
is
I have
to
MR. MILLER:
there
the
referring
recording
version
23
24
to
03:
03:
16
20
03:
recordings
be played
referring
03:
Give sound recording.
was based
She has
MR. BUSCH: It
19
03:
03:
14
15
in
there
03:
11
13
that
testimony.
one --
MR. BUSCH: That
Exhibit
her
testimony
10
12
Theme X being
in
That's
I would object
edited
to
not
one?
correct.
no foundation
what
at
would
and gentlemen,
I have
issue
explained
that
03:
ladies
in
that
you more about

I just
03:
it.
told
this
in
All
you is
case.
the
is
part
that
A
instruction.
right.
of
03:
03:
03:
03:
03:
renew my objection
this
I'm
the
that
deposit
03:
03:
03:

#:9811
107
THE COURT:
2
3
I understand.
Thank you.
Overruled.
03:
03:
It's a subject for cross-examination.

BY MR. BUSCH:
03:
Okay.
03:
Ms. Finell, looking at what I have placed on the
Q.
screen, which is Exhibit 376, page 11, would you please explain
03:
what we are viewing.
03:
A.
Theme X in the two songs at issue here, Got to Give it Up and
03:
Blurred Lines.
03:
Yes.
The first audio example -- this is to compare the
So the first sound example is Got to Give it Up, it's
10
03:
03:
11
backup hook to the words dancin' lady, and that is compared to
03:
12
two different phrases in Blurred Lines.
03:
13
Blurred Lines occurs in every verse of the entire song and,
03:
14
therefore, the words keep changing but it's still the same
03:
15
musical cell, which I explained before.
03:
16
Q.
17
reference to Theme X repeating?
18
MR. MILLER:
19
to Theme X in the deposit copy.
20
phrase occurs in the deposit copy as it's about to be played.
22
And in the Got to Give it Up deposit copy, is there a
THE COURT:
21
Objection,
All right.
your Honor.
Lacks foundation
The question is whether the
Restate the question, please.
24
in the deposit copy?

MR. MILLER:
03:
03:
03:
03:
03:
Is the phrase that you've referred to as Theme X repeated
Q.
03:
03:
BY MR. BUSCH:
23
25
As I said, Theme X in
03:
03:
Same objection.
The question is whether
03:

#:9812
108
1
the phrase that's about to be played is heard in the deposit
copy.
03:
THE COURT:
03:
I understand.
Restate the question.
It's
03:
not about repeated, whether it appears.

MR. BUSCH:
03:
All right.
We talked about that it appears.
You have a reference here
Q.
to Got to Give it Up, dancin' lady repeats 28 times in 28 bars.
A.
03:
03:
03:
What do you mean by that?
03:
It should say repeats 14 times in part 2.
I don't know
03:
03:
10
where you are reading from.
11
Q.
Okay.
12
A.
And that refers to the deposit copy.
13
that means repeat this phrase.
14
Q.
Okay.
03:
15
A.
In music notation.
03:
16
Q.
All right.
03:
17
variance occurred 25 times.
18
A.
19
multiple times in each verse plus in the signature phrase and
03:
20
throughout the chorus.
03:
21
Q.
Okay.
22
A.
The first audio excerpt is Theme X with the words dancin'
23
lady from Got to Give it Up and then the second two are from
03:
24
different sections of Blurred Lines that contain Theme X.
03:
25
Q.
03:
It has a symbol in it
03:
And then Blurred Lines you wrote Theme X in

I mean it occurs in all four verses of Blurred Lines,
And what are the audio excerpts we're going to hear?
And they are both pitchshifted
03:
up?
03:
03:
03:
03:
03:

#:9813
109
Yes.
They are shifted up to be in the same key so they're
A.
more easily compared.
MR. MILLER:
03:
03:
Your Honor, I would object to playing any
03:
of these examples as we have yet to have an answer to the
03:
question whether Theme X appears with those notes that are about
03:
to be played exactly in the deposit copy.
03:
THE COURT:
THE WITNESS:
Okay.
Can you respond to that question?
03:
Theme X in the deposit copy part 2 is
03:
referencing an earlier version and it's a mirror of the earlier
03:
10
version.
03:
11
compositional
12
goes static, static, down, up, in its original version and
03:
13
static, static, up, down, in its mirror version and it has the
03:
14
word lady in both but one has dancin' lady and one is, I think,
03:
15
mistranscribed
03:
16
than that, they are clearly the same.
17
They are the same cell.
I've explained that.

technique.
It's an analytical and
It has the same number of notes, it
03:
in their deposit copy as fancy lady but other
MR. MILLER:
They are the same theme.
03:
03:
I would object and move to strike the
03:
19
testimony is that other than not being the same notes or the
03:
20
same lyrics, they -- the phrase exists in the Marvin Gaye sound
03:
21
recording.
03:
18
THE COURT:
22
23
24
25
It does not exist in the deposit copy.

Well, what did you mean by earlier
03:
03:
version?
THE WITNESS:
Well, there
the deposit copy part 2
begins after the first four minutes of the extended version.
03:
It
03:

#:9814
110
1
doesn't start at the beginning of the song.
shorter version stops.
It starts where the
03:
03:
So it doesn't -- it's missing the first four minutes.
03:
MR. MILLER:
03:
that's all testimony about the Marvin Gaye sound recording.

THE COURT:
I would object and move to strike that
Just a minute.
Thank you.
All right.
03:
(Sidebar conference commenced.)

THE COURT:
03:
03:
Let me talk to you briefly.
03:
Until it's established that the recording
03:
10
you wish to play is based on the deposit copy, then I don't want
03:
11
it played.
03:
12
MR. BUSCH:
It is based on the deposit copy.
03:
13
THE COURT:
Well, she hasn't said that.
03:
She said it
14
was based on a prior version and then she explained that the
03:
15
prior version was something other than deposit copy.
03:
16
MR. BUSCH:
She can clarify that.
03:
17
THE COURT:
Well, you need to, because you have been
03:
18
03:
at this for 15 minutes.
19
MR. BUSCH:
No.
He's going to have to --
20
THE COURT:
Excuse me.
It's your job to establish
03:
03:
21
that what she wants to say and what she wants to play is in the
03:
22
deposit copy.
03:
23
not going to be played.
And if you think you need to meet with
03:
24
your witness and further explore this, then maybe move to a new
03:
25
area so you can efficiently use the time now.
03:
You need to do that.
And until you do that, it's

#:9815
111
1
MR. BUSCH:
What's happening,
your Honor, is that
03:
Mr. Miller is trying to re-argue the entire -- the Court has
03:
never ruled that the notes themselves have to be identical.
03:
THE COURT:
I didn't say that, but she just answered
03:
my question as to what she meant by the prior version and she
03:
didn't say that was the deposit copy.
03:
part of a song, I think.
She referred to another
03:
MR. BUSCH:
No.
03:
THE COURT:
I didn't understand her to say it's in the
03:
10
03:
deposit copy.
11
MR. BUSCH:
12
MR. MILLER:
13
THE COURT:
14
MR. MILLER:
I'll get that answer.
03:
Your Honor, if I may be heard on this.
03:
Briefly.
Very briefly.
03:
What she is testifying to,
03:
15
and I will continue to object, is that the Marvin Gaye sound
03:
16
recording has something that's called dancin' lady that has
03:
17
certain notes in it.
03:
18
the deposit copy and she cannot get to it without --
19
20
21
THE COURT:
Neither the lyrics nor those notes are in
I think I said that.
I don't really need
to hear from you six times on the same thing either.

So I would suggest that an efficient use of your time
03:
03:
03:
03:
22
perhaps is to move to a new area, come back -- listen, you've
03:
23
estimated hours on this, still further hours.
03:
24
as you wish, but I'm cautioning you if it's not efficiently
03:
25
done, then we're going to --
03:
You use your time

#:9816
112
MR. BUSCH:
1
2
I have one question that can clarify this
03:
whole thing and then we can move on.

THE COURT:
Good.
03:
Thank you.
03:
(Sidebar conference ended.)
THE COURT:
Okay.
Thank you for your patience,
03:
03:
Please proceed, Mr. Busch.

As
03:
when we have these conferences,
03:
ladies and gentlemen.
I have said in our instructions,
we know we are keeping you waiting but we are trying to make
03:
ultimately
03:
03:
Go ahead, please, Mr. Busch.
10
11
things more efficient.
03:
BY MR. BUSCH:
In the deposited -- deposited with the Got to Give it Up
03:
12
Q.
13
copyright registration,
14
Registered?
15
A.
Yes, there are.
03:
16
Q.
And are they called Got to Give it Up part 1 and part 2?
03:
17
A.
Yes.
03:
18
Q.
Okay.
19
filed with the United States copyright office?
21
03:
03:
Is Theme X, in your opinion, in the deposit copy
MR. MILLER:
20
are there two lead sheets filed?
03:
03:
Asked and
03:
03:
answered.
Overruled.
03:
22
THE COURT:
23
You may answer.
03:
24
THE WITNESS:
03:
25
MR. BUSCH:
Yes, it is.
Okay.
Thank you.
03:

#:9817
113
I would like to play, your Honor, the audio excerpts
1
2
03:
03:
on this page.
03:
THE COURT:
MR. MILLER:
THE COURT:
You may play them.
MR. BUSCH:
back-to-back-to-back.
THE COURT:
And is any of these pitchshifted?
03:
10
MR. BUSCH:
Yes.
03:
11
You may play.
03:
Same objection.
All right.
Same objections.
Overruled.
03:
03:
Thank you.
03:
Play all three
03:
Two of the three as reflected on the
03:
exhibit are pitchshifted.
12
THE COURT:
So the second and third?
03:
13
MR. BUSCH:
Yes, sir.
03:
14
THE COURT:
Same instruction,
ladies and gentlemen, as
15
to the second and third.
16
matters.
17
so you can evaluate the expert's opinion.
The purpose of your hearing this is to understand
03:
03:
03:
(Whereupon, the audio was played for jury.)
18
19
It's the expert's opinion that
03:
03:
03:
BY MR. BUSCH:
20
Q.
What did we just hear, Ms. Finell?
03:
21
A.
You heard the initial song from Got to Give it Up with the
03:
22
words dancin'
23
3,
24
Q.
And
25
A.
I'm sorry.
lady
is in scale degree comparison is 3, sharp 2,
03:
03:
3.
03:
I did that backwards.
Pardon me.
It was 3 --
03:

#:9818
114
dancin' lady.
with Marvin Gaye's song.
Q.
And with Blurred Lines?
03:
A.
The same cell with two extra syllables added, so it's 3, 3,
03:
sharp 2, 3 and then again sharp 2, 3.
the Blurred Lines examples.
Q.
Okay.
3, 3, sharp 2, 3 is what you heard
03:
They're exactly the same.
Turn to slide 13 .
Exhibit 376, slide 13.
illustrate your point that the notes were the same?

A.
Yes.
11
Q.
Okay.
12
to show that the notes are the same?
13
A.
16
And what is the next audio example you've prepared
May I see the slide, please?

THE COURT:
14
03:
03:
03:
03:
03:
03:
10
15
And that's for both of
Oh, do you have additional audio examples to further
8
9
Excuse me.
03:
Just publish the lower portion of that.
03:
03:
03:
03:
03:
Thank you.
03:
BY MR. BUSCH:
And what are these audio examples that you have prepared to
03:
17
Q.
18
show the notes are the same?
19
A.
20
Theme X.
21
connected with the hook in Blurred Lines, it's the phrase
03:
22
that -- it's embedded in the signature phrase we've already
03:
23
discussed and it's for the words and that's why I'm and it's
03:
24
right before the hook.
03:
25
03:
This is, again, dancin' lady from Got to Give it Up, the
And then the section in the signature phrase, which is
MR. BUSCH:
Okay.
Can we play those two, please.
03:
03:
03:

#:9819
115
03:
(Whereupon, the audio was played for the jury.)
03:
BY MR. BUSCH:
Q.
And what does this show in your opinion?
03:
A.
That they are very, very similar through the same musical
03:
material.
Q.
Why are they the same musical material?
03:
A.
They are the same notes, very similar rhythm and they --
03:
it's just the same.
Q.
Okay.
03:
03:
Do you have a third musical example to put a pin in
10
your opinion about this -- the fact that the notes are the same?
11
A.
13
lower portion, please.
14
THE COURT:
15
MR. MILLER:
16
03:
03:
Yes.
MR. BUSCH:
12
03:
Can you put that on the screen, just the

Slide No. 14?
03:
03:
You can have a standing objection.
03:
Yes, I have a standing objection.
03:
03:
BY MR. BUSCH:
17
Q.
And what is this audio example?
03:
18
A.
This is just to remove the distraction of the words since
03:
19
what's similar about them is the melodies, not the words.
20
the first one is dancin' lady again played on a synthesizer,
03:
21
just the notes themselves,
03:
22
playing the words you just heard of Blurred Lines.
23
were there it would be and that's why I'm.
24
Q.
So this is the music with words removed?
03:
25
A.
That's right.
03:
So
and the second one is a synthesizer

If the words
03:
03:
03:

#:9820
116
MR. BUSCH:
03:
Play it, please.
2
3
Okay.
03:
03:
BY MR. BUSCH:
03:
Q.
What did we just hear?
A.
You heard the Theme X in both songs.
Blurred Lines, it occurs throughout the song.
times allover
it's the same theme.
Q.
And are the notes identical, in your opinion?
03:
10
A.
Yes.
03:
11
Q.
No difference?
03:
12
A.
Nope.
03:
13
Q.
And Theme X appears in the Got to Give it Up lead sheet 14
03:
14
times?
the verses.
It's used with different words but
16
THE COURT:
03:
03:
03:
Objection,
your Honor.
Asked and answered, let's move on, please.
Have you prepared a chart showing the bar numbers and times
Q.
19
that Theme X appears in Blurred Lines?
20
A.
We would like to put on the screen slide
THE COURT:
24
MR. MILLER:
25
THE COURT:
03:
03:
Any objection to that being displayed?

Subject to my standing objection
Thank you.
03:
03:
No. 15, your Honor, Exhibit 376.
23
03:
03:
I have.
MR. BUSCH:
03:
03:
BY MR. BUSCH:
18
22
03:
03:
MR. MILLER:
21
I believe it's 25
In this case, they are.
15
17
And in the case of
You may publish that.
03:
03:
03:

#:9821
117
1
03:
BY MR. BUSCH:
Q.
What does this chart show?
03:
A.
This -- this chart shows where throughout the song Blurred
03:
Lines Theme X appears.
so the -- the theme -- oh, did I just do that?
not familiar with this technology.
The middle column tells the bar numbers.
03:
03:
03:
03:
03 :
As I said,
music is divided into individual bars.

And the third column just tells the timing of when
11
12
I'm
it is in the song, verse 1, verse 2, etc.
10
I'm sorry.
So the first -- the first left-hand column shows where
7
8
As I said, it appears in all four verses
03:
03:
03:
03:
they occur.
13
And at the bottom is the total.
03:
14
So out of the entire song, all of these occurrences
03:
15
total 31 out of 130 total bars.
16
bars.
17
31 bars, contain Theme X.
18
the song.
So out of that, about 25 percent of the song, which is

It's probably the most used theme in
03:
03:
03:
03:
19
May I add --
20
THE COURT:
21
Blurred Lines is 130 total
03:
There's no question pending.
03:
BY MR. BUSCH:
03:
Okay.
03:
Do you believe that the -- the identical notes being
22
Q.
23
used that you've just described was a conscious choice?
03:
24
MR. MILLER:
Objection
03:
25
THE COURT:
Sustained.
03:

#:9822
118
1
03:
BY MR. BUSCH:
Do composers make -- in your opinion, does music
is
03:
Q.
music created randomly?
A.
individual choices that composers make.
The exact note that's
03:
chosen, how long to hold the note, how to take a lyric, a word
03:
like love or happy or any other kind of lyric and set it to
03:
tones.
03:
No.
THE COURT:
10
11
Music is composed and represents a series of
MR. MILLER:
03:
03:
03:
Objection.
I'm going to strike after the word No.
03:
03:
BY MR. BUSCH:
Would you please explain why you believe music does not
03:
12
Q.
13
happen randomly?
14
A.
15
of choices that composers make in terms of exactly what notes
03:
16
they decide to use, how many
03:
17
decide to express the lyrics of -- with notes and the harmonies,
03:
18
etc.
03:
19
composer.
20
Q.
21
about your methodology,
22
broken rules.
23
A.
Yes.
03:
24
Q.
Would you explain what you mean by broken rules.
03:
25
03:
Well, like any art form, music is a -- represents a series
what kind of rhythms, how they
All of that is a conscious choice on the part of a
Okay.
It's not just accidental.

Earlier in your testimony when you were talking
MR. MILLER:
you stated that you sometimes look for
03:
03:
03:
03:
03:
Objection.
Asked and answered,
03:

#:9823
119
1
your
Honor.
We did
MR.
THE COURT:
this
BUSCH:
I don't
Answer
believe
that
03:
--
it, but please
focus
03:
on the
03:
question.
THE WITNESS:
Okay.
music
has
seven
notes,
The
03:
you.
I explained
and one of the
about
broken
traditions
rules
is a scale
is
THE
03:
11
Next
in the compared
COURT:
03:
03:
of
as I said.
10
BY MR.
Thank
reason
traditions
Well,
12
03:
yesterday.
Stop
question,
Theme
right
03:
03:
there.
03:
please.
03:
BUSCH:
13
Q.
When
you were
comparing
the
Theme
14
with
Blurred Lines, the similarities,
15
rules?
X in Got to Give it Up
did
you note
03:
03:
any broken
03:
MR.
MILLER:
17
THE
COURT:
18
You may
19
THE WITNESS:
20
comparisons
21
The
22
key.
23
series
reason
The note
3, 3, sharp
Honor.
03:
03:
03:
answer.
it's
had
your
Overruled.
of Theme
why
Leading,
Objection.
16
Yes.
Yes.
X contain
called
the broken
sharp
to be changed
2, 3.
24
THE COURT:
25
Next
Stop
question.
Well,
Exactly.
rule
particular
of the sharp
2 is there's
no sharp
so that
both
that
there,
These
they
sharp
please.
2 isn't
have
2.
2 in that
the
in the
key.
03:
03:
03:
03:
03:
03:
03:

#:9824
120
MR.
1
2
Q.
Why
your
mind?
A.
They
way.
Q.
Is that
A.
Well,
is the
03:
Okay.
sharp
2 in both
deviated
from
it's
a red
flag
their
MR. MILLER:
when
own
scale
exactly
I'm comparing
Objection.
in
in the
same
03:
Move
to strike
03:
as
03:
MR.
Okay.
12
THE COURT:
BY MR.
BUSCH:
It's
-- let's
move
03:
on, please.
03:
03:
cumulative.
03:
Where
else
Q.
15
describing
16
Lines?
17
A.
Yes,
18
Q.
Okay.
How
19
A.
Excuse
me.
does
as Theme
this
Is it found
in the
else
that
is it found
signature
you've
03:
been
03:
in Blurred
03:
phrase?
03:
could
It's
21
THE COURT:
was
MR.
23
melody
it is.
MR. MILLER:
that
four-note
X -- where
20
chart
It's
BUSCH:
14
the
03:
03:
music.
nonresponsive.
11
25
rule,
03:
Yeah.
24
same broken
unusual?
THE COURT:
22
the
03:
10
13
songs
03:
both
8
9
BUSCH:
just
you explain
embedded
that
in the
Objection,
Sustained.
to the
signature
jury,
phrase
cumulative,
your
How
different
is this
please.
03:
for
03:
03:
Honor.
than
I'm not
03:
03:
discussed?
BUSCH:
the
sure
the signature
phrase
is on
03:
03:
chart.
THE WITNESS:
It -- it is.
03:

#:9825
121
1
BY MR.
Okay?
Q.
03:
BUSCH:
It is?
Okay.
3
4
similarities,
A.
Yes,
Q.
Okay.
melody
bass
melodies,
deposit
copy
lead
MR. MILLER:
11
THE COURT:
14
BY MR.
Q.
16
to bass
melodies,
you have
is the part
from
03:
if I could.
identified,
03:
the
Got to Give it Up in the
All
same
your
right.
issue
Honor.
03:
Vague.
Overruled.
Subject
-- the same matters
that
03:
to
03:
we've
03:
03:
BUSCH:
review
melodies
03:
03:
the deposit
copy
lead
sheet
with
03:
respect
03:
-And
talk
more
slowly,
03:
please.
03:
BUSCH:
Did you review
the deposit
19
Q.
20
the bass
21
A.
Yes.
22
Q.
Is the bass
23
Blurred Lines in the deposit
24
Up?
25
that
Objection,
THE COURT:
BY MR.
to bass
before.
17
18
the
Did you
15
03:
additional
sheet?
10
discussed
found
03:
to now move
similar
13
you
03:
establishing
Have
are.
I want
12
more?
Finell?
Is the bass
03:
right.
Is there
Ms.
there
All
copy
lead
sheet
with
respect
to
03:
03:
melodies?
03:
melody
that
you are analyzing

copy
lead
sheet
and comparing
to
of Got to Give it
03:
03:
03:
MR. MILLER:
Same
objection,
your
Honor.
03:

#:9826
122
03:
THE COURT:
Overruled.
You may answer.
03:
THE WITNESS:
03:
Yes.
Does the deposit copy lead sheet for Got to Give it Up
Q.
reflect that the bass line continues throughout the song?
A.
Yes.
Q.
Okay.
line appear in Blurred Lines?
11
How often does the bass line and descending bass
THE COURT:
10
03:
03:
MR. MILLER:
03:
03:
03:
Objection.
03:
Lacks foundation.
03:
Overruled.
BY MR. BUSCH:
03:
12
Q.
Go ahead.
03:
13
A.
The bass line in Blurred Lines and its similar features
03:
14
recur throughout Blurred Lines.
15
Q.
Have you created audio examples comparing
03:
16
A.
Oh, I didn't complete my answer.
03:
THE COURT:
17
18
Excuse me.
It's a repetitious
song.
03:
03:
03:
BY MR. BUSCH:
19
Q.
Did you want to correct something, Ms. Finell?
03:
20
A.
Thank you.
03:
THE COURT:
21
22
I believe -Restate the question, please.
03:
BY MR. BUSCH:
Does the bass melody from Got to Give it Up repeat -- how
23
Q.
24
often does the bass line repeat throughout Blurred Lines?
25
A.
Yes.
Yes, I believe it's 77.
03:
It occurs in 77 --
03:
03:

#:9827
123
1
THE COURT:
Okay.
Miss Finell, wait until I tell you to respond.
Would you read the question, please?
Restate the question, please.
you.
Go ahead.
5
Q.
you've identified appear in Blurred Lines?
MR. MILLER:
THE COURT:
Same objection.
03:
03:
Asked and answered.
03:
Overruled.
10
You may answer briefly.
11
THE WITNESS:
13
03:
How often does the bass line from Got to Give it Up that
12
Thank
03:
I think it's in 77 of the measures.
Out
03:
03:
of 130.
BY MR. BUSCH:
03:
Okay.
03:
We played earlier for the jury, if you recall, the
14
Q.
15
bass line and keyboard together that you've described as the
03:
16
heartbeat of the song?
03:
17
A.
MR. BUSCH:
18
19
03:
Yes.
THE COURT:
21
MR. MILLER:
22
transcription
23
copy.
25
Now, your Honor, we would like to
03:
03:
put on the board, based on Exhibit 376, slide 16.
20
24
Okay.
03:
All right.
The
of the bass part is not what's in the deposit
03:
03:
03:
THE COURT:
All right.
standing objection on that.
Same rUling.
You can have a
03:
03:

#:9828
124
03:
You may display that.
03:
BY MR. BUSCH:
And can you explain to the jury what they're about to --
03:
Q.
what they're reviewing first, Ms. Finell?
A.
of each song, so Got to Give it Up, it's the first four bars in
03:
the introduction
03:
Lines, the first four bars, pitchshifted
key as Got to Give it Up.
Yes.
03:
This is from the individual tracks of the recordings
section of the song.
And you've prepared
And the same with Blurred

up to be in the same
03:
03:
03:
comparative transcriptions
of the two;
03:
10
Q.
11
correct?
12
A.
Yes.
03:
13
Q.
Would you please explain to the jury the numbers and the
03:
14
arrows that are above the transcription?
15
A.
16
They're called target notes in this analysis.
17
that in my opinion, those are the most important notes; the
03:
18
essential notes of each bass line.
And it shows that the Is and
03:
19
the flat 7, the little -- the flat 7 looks like a small B, lower
03:
20
case B and a 7 but that means flat 7.
03:
Yes.
03:
03:
The arrows show where the notes are the same.

So that means
So the Is and the flat 7s are the same between the
21
22
songs and often in the same rhythmic positions.
23
that, both songs have a leap up from scale degree 1 to 4.
24
Q.
25
have a leap up from scale degree 1 to 4?
Okay.
And beyond
Can you please explain what you mean by both songs
03:
03:
03:
03:
03:
03:
03:

#:9829
125
Yes.
In analyzing melodies, melodies
can go in three
03:
A.
different ways.
as I earlier said,
03:
static, meaning that the note repeats itself, it does not go up
03:
higher or down lower.
03:
series and then the third note, etc., can go up higher or down
03:
lower.
03:
They can repeat themselves,
Or a note can go -- the second note in a
And when it goes up higher or lower, it can either go
03:
to the next note, adjacent note, if you think of a piano, it
03:
would be like the next white note above the C would be to D, to
03:
10
E, etc.
03:
11
notes and go from one lower note to a note quite a bit higher,
03:
12
or the reverse, from one note to another note quite a bit lower
03:
13
and that's called a leap.
03:
14
Q.
15
mind?
16
A.
Because it represents a shared creative choice of going
03:
17
from exactly the same scale degree 1 to the exact same scale
03:
18
degree 4 in both.
03:
19
Q.
20
between a comparison of the notes that you've transcribed,
21
to Give it Up versus Blurred Lines with respect to the bass
03:
22
melody, very similar?
03:
23
A.
Very similar, yes.
03:
24
Q.
Okay.
03:
25
keyboards removed?
That's call step wise.
Or you could jump over those
And why is the similarity in the leap significant in your
03:
03:
In your opinion, are the notes that you have transcribed
Do you have audio of the bass line with the
Got
03:
03:
03:

#:9830
126
1
A.
Yes.
line by
The
that
we will
be hearing
is only
of the bass
MR.
BUSCH:
Okay.
(Whereupon,
4
BY MR.
the
Would
audio
you please
was played
03:
play.
03:
for the jury.)
03:
BUSCH:
Q.
Okay.
play
over
A.
Yes.
Q.
Okay.
10
A.
A mash-up
11
played
Have
12
have
coinciding
13
like
superimposing
14
the melodies
15
Q.
16
mashed-up
17
differences
18
A.
It definitely
19
Q.
Do you have
20
there
21
A.
22
dissonant.
23
Q.
And
24
bass
lines
for this
25
A.
Well,
they
each
you prepared
a mash-up
where
the two bass
lines
03:
03:
other?
03:
And
what
same
what
Yes.
time
so that
It's
you
the
play
being
recordings
view
lines
case
or not
are
they
on top of each
it shows
other
very
to see if all
03:
03:
if the two
03:
well
03:
without
03:
noticed?
suggests
an opinion
03:
similarity.
whether
if that
were
not
the
case,
would
It would
how was
be what
musically
be a clash,
-- how was
were
03:
03:
be a clash?
There
03:
03:
it would
for example.
that
03:
be
terms,
musical
same pitches,
in this
can see whether
-- in visual
two different
is it in your
songs
would
two different
notes.
have
03:
is a mash-up?
is when
at the
And
03:
03:
itself.
audio
pitchshifted
call
03:
03:
yes.
the mash-up
case prepared?
you would
you prepared
How were
so that
they
they
for the two
prepared?
would
be in the
03:
03:
03:

#:9831
127
1
same
individually
Q.
And
bass
line?
A.
Yes,
Q.
Okay.
whether
reflected
the
recording
of Blurred Lines?
10
A.
key and then
page
at the
did
a matter
same
you use
of just
playing
each
of them
03:
03:
time.
the multi-tracks
from both
songs
03:
of the
03:
03:
I did.
Did you
the two
satisfy
yourself
components
lead
sheet
that
as part
were
of this
mashed-up
03:
actually
to Give it Up and the
of Got
03:
process
commercial
03:
03:
03:
Yes.
MR.
BUSCH:
17, your
Honor.
11
12
it was
We would
like
to play
the mash-up
03:
on
03:
13
THE COURT:
You may.
03:
14
MR.
Thank
03:
(Whereupon,
15
16
BUSCH:
BY MR.
the
you.
audio
was
played
for the
03:
jury.)
03:
BUSCH:
And
what
do you believe
that
shows,
Ms.
17
Q.
18
respect
19
A.
20
it.
21
Q.
22
could.
23
A.
Okay.
24
Q.
And
25
to Give it Up and Blurred Lines, do you have
Finell,
03:
with
03:
to the notes?
That
the
two lines
coincide
very
closely
through
most
of
03:
03:
I want
to talk
now
about
the descending
bass
melody,
if we
03:
03:
with
03:
respect
to the descending
bass
melody
between
an opinion
Got
about
03:
03:

#:9832
128
03:
whether those are similar?
A.
Yes.
Q.
Why is that?
03:
A.
The descending bass line, which means a bass line that
03:
moves down to lower notes from higher notes -- the descending
03:
bass line in Got to Give it Up both begin on the 5 of the scale
03:
and end on the 1 of the scale.
03:
targeted destination.
MR. MILLER:
03:
They are very similar.
So they end up on the same
03:
Objection and move to strike.
This is
03:
10
based on the sound recording now, it's not based on the deposit
03:
11
copy.
03:
12
MR. BUSCH:
I will establish the foundation.
03:
13
THE COURT:
All right.
03:
14
Ladies and gentlemen,
15
16
17
03:
BY MR. BUSCH:
Q.
Is the descending bass line in the deposit copy lead sheet?
19
THE COURT:
20
Do you understand
21
THE WITNESS:
22
THE COURT:
23
THE WITNESS:
Objection.
Overruled.
We have been over this.
the question?
03:
03:
03:
I do.
You may answer.
03:
03:
Yes.
And is your transcription
03:
Vague.
03:
BY MR. BUSCH:
Q.
03:
03:
MR. MILLER:
25
I will rule in a moment based on
the next answer.
18
24
Let's see.
that you have prepared for this
03:

#:9833
129
1
from
the deposit
THE COURT:
2
3
copy
BY MR.
lead
sheet
Slow
down
with
your
Is the transcription
lead
sheet
A.
It is
Q.
Okay.
page
18, Exhibit
that
you prepared
it is shown
All
right.
in the deposit
I would
like
describe
your
11
line
is Got to Give it Up and the bottom
or descend
don't
know
16
see it now.
we're
in the
talking
same
if I
okay.
So
could
So the upper
17
which
I'll
20
directions
that
21
notes
are
that
from
5, which
goes,
contained
we're
is the
THE COURT:
Next
25
MR.
Okay.
BUSCH:
circle
shows
that
note,
lines
target
is the upper
that?
line
Thank
a 5 and then
that
line
go, and
down
question,
to a 1.
please.
03:
03:
can't
03:
03:
then
a 3
03:
03:
03:
through
analyze
the
03:
03:
movements.
is something
03:
-- I
you.
a 4 and
03:
03:
notes.
so you
to analyze
melodies
about
go
and a 1.
are taught
talking
24
same
the upper
is Blurred Lines.
two bass
is the upper
in those
first
line
the
in a minute,
analysts
music
So what
you
03:
the numbers,
about
way with
This
line
explain
And music
19
03:
screen
transcription.
above
In Got to Give it Up, which
15
23
see the arrows
So, again,
14
on the
03:
you please
So if you
03:
03:
yes.
376.
Yes.
12
copy,
to put
A.
22
copy
03:
10
flat,
in the deposit
of Got to Give it Up?
Would
18
03:
please.
03:
Q.
down
questions,
BUSCH:
13
03:
to Give it Up?
of Got
that
goes
03:
03:
03:
03:

#:9834
130
1
Q.
And
do you believe
A.
Yes.
Q.
Why?
A.
Because
a 5, which
the
they're
Q.
Okay.
that
you have
03:
to be significant?
03:
to Blurred Lines, yes.
In comparison
03:
same
Blurred Lines also has its bass melody

is the
first
intervening
arrow,
notes,
and ends
which
descend
on a 1, and has
are less
important,
from
03:
of
03:
some
03:
but
03:
there.
With
respect
to Blurred Lines, is there
identified
called
octave
rebound
03:
something
or doubling
going
03:
03:
10
on?
11
A.
Yes.
12
Q.
What
13
A.
Thank
14
Q.
--
15
A.
All
16
in which
17
different
Some
03:
03:
you.
could
you please
right.
you
see that
standard
20
that
21
another
03:
explain?
So octave
the
rebound
same
is a term
note
in music
is played
again
03:
analysis
03:
at a
03:
octave.
Octaves
19
03:
-- okay.
is that
18
scale
you would
mean
the notes
of 7 notes,
hit
called
So if you sing,
23
octave
or register
24
an octave
below
and
if that
So in this
8 notes
apart
so that
playing
it on a keyboard
in a
would
you
person
know
be
were
what's
03:
03:
that
else
03:
03:
note
an octave.
somebody
case,
are
C, D, E, F, G, A, B, the next
if you were
C and that's
22
25
that
sopranos
could
sing
sing
the
in one
same
notes
03:
03:
an alto.
happening
03:
is that
the descent
03:

#:9835
131
1
is the same.
in addition,
rebound.
lower
note
could
circle
then
you
each
from
the
note
and then
So these
notes
circle
the
itself
the
call
as the
you
but
first
by a
wait
Next
question,
11
THE WITNESS:
5 there
and
the above,
the
03:
5, the -- if
03:
03:
a second.
03:
please.
03:
Okay.
03:
right.
Can
13
Q.
14
the
15
A.
Yes.
16
Q.
And
17
A.
Yes.
18
of each
19
Lines are the lower
20
high,
21
and the
22
Q.
23
composer
24
work?
same
03:
03:
1.
BUSCH:
All
03:
03:
-- if we
see the
03:
03:
an octave
is played
register
notes,
like
you
notes,
5 -- no, no.
THE COURT:
BY MR.
same
3 and then
are
intervening
in what
the unparenthesized
the
could
some
-- the note
up to the
10
25
is echoed
4 and then
12
5 to 1 with
So it's played
7
8
It's
you
as the notes
-- are the notes
in Got
that
have
been
circled
03:
03:
to Give it Up?
03:
is there
That's
note,
doubling
what
I meant
the ones
low, high,
that
octave
low,
does
in your
are
same
note
experience,
So that
this
to camouflage
03:
on the Blurred
03:
lower
it alternates
all the highs

an octave
element
The
in parentheses
first.
But
oftentimes
03:
on?
by the echo.
high.
low one is the
Is this
going
are the
low,
same
note
something
similarities
03:
03:
below.
doubling,
03:
in another
03:
03:
03:
THE COURT:
Sustained.
03:

#:9836
132
1
Is this a disguising
Q.
MR. MILLER:
THE COURT:
03:
technique?
03:
Objection.
03:
Sustained.
03:
BY MR. BUSCH:
Why do composers often time double, in your experience,
Q.
Ms. Finell?
03:
03:
MR. MILLER:
THE COURT:
10
03:
BY MR. BUSCH:
Same objection.
03:
Sustained.
03:
BY MR. BUSCH:
Do you have an opinion about what the purpose of octave
11
Q.
12
rebounding is?
03:
03:
03:
13
THE COURT:
Sustained.
03:
14
Let's move on, please.
03:
15
16
03:
BY MR. BUSCH:
Q.
Do you have an example of octave rebound, Ms. Finell?
03:
03:
17
MR. MILLER:
Objection.
18
THE COURT:
19
Is there something new?
03:
20
MR. BUSCH:
I would like to have the jury hear --
03:
Sustained.
It's been explained.
03:
21
Q.
Can you play on the keyboard the same composition with
03:
22
octave rebound and then with octave rebound removed in order to
03:
23
show the two notes are similar?
03:
24
A.
25
03:
Yes.
MR. MILLER:
Objection.
403.
03:

#:9837
133
THE
1
2
the exhibit,
COURT:
the
Is that
audio
different
excerpts
shown
MR.
BUSCH:
It is different.
THE
COURT:
All
THE WITNESS:
THE
page
Thank
COURT:
Are
MR.
BUSCH:
No,
03:
You may
play
03:
that.
03:
to play
what
03:
is on
Honor.
She
is going
to play
an
MR.
BUSCH:
Yes.
12
THE
COURT:
Would
So it's
you read
14
THE
COURT:
Do you have
15
MR.
BUSCH:
She answered
16
THE
COURT:
I didn't
17
THE WITNESS:
to the
COURT:
question,
03:
please.
03:
Read)
the question
03:
in mind?
03:
yes.
03:
hear.
03:
Yes.
jury
what
I think
you are about

we just
did
03:
to
that
go ahead.
03:
03:
Q.
Explain
23
with
and without
THE
is what
the
BUSCH:
22
24
I had
03:
03:
THE
BY MR.
right?
BUSCH:
Explain
20
one or the other;
03:
(Record
13
Q.
03:
03:
11
BY MR.
03:
03:
18?
example.
Okay.
25
on
you.
your
COURT:
21
is shown
03:
THE
19
in page
you planning
10
18
what
18?
8
9
right.
than
to the
jury
the composition
the octave
COURT:
read.
are about
to play
this
was what
03:
03:
rebound.
I think
That
you
question
you
asked
was
her
just
posed
to do.
which
And
03:
03:

#:9838
134
1
that's why I asked her if she understood
said yes.
03:
03:
(Record Read)
4
5
THE COURT:
THE WITNESS:
03:
Go ahead.
Okay.
So this is octave rebound in
03:
03:
Blurred Lines.
03:
I'm sorry.
(Whereupon, the witness plays for the jury.)
I'll do it again.
10
THE WITNESS:
11
(Whereupon, the witness plays for the jury.)
12
03:
03:
Read the question once more, please.
the question and she
And then with no octave rebound.
03:
03:
03:
03:
BY MR. BUSCH:
Can you play the comparison of the descending bass line
03:
13
Q.
14
from Got to Give it Up so the jury can hear the comparison of
03:
15
the two.
03:
16
A.
17
doing it by memory.
18
Q.
I don't have that here at the keyboard.
03:
Okay.
(Witness plays for the jury.)
20
THE WITNESS:
That's Got to Give it Up.
(Witness plays for the jury.)
21
03:
03:
19
22
I would just be
BY MR. BUSCH:
03:
03:
03:
03:
23
Q.
And that is?
03:
24
A.
Blurred Lines without the octave rebounds.
03:
25
Q.
Thank you.
03:

#:9839
135
Do you have
1
bass
line
the notes
A.
Very
Q.
Please
A.
Well,
the
both
songs
Q.
Okay.
10
A.
They
have
11
Q.
All
right.
are very
03:
the descending
03:
Got to Give it Up -- whether
03:
similar?
03:
explain
they
way
all
to close
in the
03:
why.
have
the same
target
the phrase.
same
notes.
They're
It -- they're
used
significant
in
to
03:
03:
03:
way.
03:
most
13
in the deposit
14
that?
15
A.
of the
Thank
We've
12
same
03:
you.
-- we previously
copy.
03:
notes.
talked
Do you recall
about
earlier
the
keyboard
I asked
being
you about
03:
03:
03:
03:
Yes.
MR.
16
BUSCH:
-- or show
Okay.
MR. MILLER:
Same
19
THE COURT:
That's
BY MR.
Your
on the screen
18
20
whether
similar.
same
play
about
in Blurred Lines versus
17
an opinion
Honor,
Exhibit
I would
376,
like
slide
to now
03:
20.
03:
objection.
fine.
03:
Overruled.
03:
BUSCH:
Can
you explain
21
Q.
22
parts
23
that
you have
24
A.
Yes.
25
Q.
19.
to the
the transcriptions
But
03:
jury
that
with
respect
we are reviewing
and
My mistake.
03:
similarities
03:
03:
found?
this
keyboard
to the
-- this
isn't
the right
slide.
03:
03:

#:9840
136
1
A.
Thank
Q.
Same
seeing
A.
Yes.
them
earlier,
song.
03:
you.
question.
and why
keyboard
chords
they
parts
are part
to the
jury
what
03:
they're
03:
are similar.
in the two songs,
of the heartbeat
03:
as I described
or the pulse
03:
of the
03:
They're
three
explain
you believe
The
7
8
Please
reasons.
that
very
similar
Primarily
the
are indicated
between
them
for two
keyboard
part
plays
in the
In Blurred Lines there
10
11
in the
song
12
a slightly
So they
13
14
chords
together.
15
often
16
repetition.
those
harmonies
03:
or
03:
are two chords
that
two
03:
alternate
chords
appear
in
The
03:
03:
form.
share
chords
03:
or
sheet.
to Give it Up, those
and in Got
decorated
lead
-- two
the
three
chords
main
notes
of their
in -- and number
are played
in terms
two
of the
is how
rhythm
03:
primary
-- how
03:
03:
and
03:
17
THE COURT:
18
Next
19
MR.
All
question,
BUSCH:
Q.
Would
you please
21
they
share
the distinctive
22
A.
Yes.
As I mentioned
23
think
24
rhythmic
25
speak,
music
is the part
03:
there.
03:
please.
03:
explain
about
you're
where
what
you mean
offbeat
in a measure.
that
Stop
Okay.
20
of as beats
right.
rhythm,
rhythm,
your
foot
you
03:
are beats,
tapping
your
to, the onbeat,

goes
03:
say that
please.
there
If you're
listening
when
down
to the
what
foot
to
03:
03:
03:
so to
floor
we
and
03:

#:9841
137
1
when you raise your ankle up to prepare for the next tap, that
03:
would be the offbeat.
03:
So it's strong, weak, strong, weak, strong, weak.
03:
That's what rhythm about in this case -- context.

Well, both songs here use -- play their keyboards with
03:
their same harmonies on the offbeat and it's very distinctive.
It throws the pulse off.
Q.
between the two?
03:
03:
03:
It feels dislocated.
And is that something you found to be unusual coincidence
03:
03:
A distinctive
03:
10
A.
Yes.
trait.
11
Q.
Okay.
12
chords of three notes in Blurred Lines with two identical scale
03:
13
degrees.
03:
14
A.
And you also say that they have the same two root
Would you explain that?
03:
Yes
Objection.
03:
15
MR. MILLER:
16
THE COURT:
17
Let's take a brief break here, ladies and gentlemen.
Asked and answered.
We will take a break for 10 minutes.
19
Thank you.
23
24
25
Don't discuss the case.
03:
03:
03:
03:
(Jury Out)
20
22
03:
Sustained.
18
THE COURT:
21
03:
You may step down, Ms. Finell.
You may be
03:
03:
seated.
We will resume in 10 minutes.
We have a request for
03:
03:
this from the jurors.

(Recess taken)
03:

#:9842
138
THE COURT:
2
3
Is Ms. Finell here?
THE COURT:
03:
Please be seated.
All eight jurors are
04:
Ladies and gentlemen, does any of you have a
scheduling conflict this afternoon?
for about another 45 minutes to an hour.

right.
Okay.
We will probably go
Does that work?
All
04:
BY MR. BUSCH:
I believe we were on the keyboard parts.
Q.
14
through the first two similarities
We had gone
on the page.
Would you please describe what you mean by same
15
04:
04:
04:
04:
16
rhythmic suspension?
17
A.
18
offbeat rhythm that I describe as a pulse.
19
in both keyboards in the same way.
Yes.
04:
04:
Please proceed, Mr. Busch.
13
04:
04:
Thank you.
11
20
04:
04:
back.
12
03:
03:
(Jury In)
10
Would you have her
come up, please.
03:
(Jury Out)
The keyboard parts, as I say, have this constant

But it's interrupted
04:
04:
04:
If you look at the fourth bar in the upper -- in
04:
21
the -- if you could circle the fourth bar with the rhythmic
04:
22
suspension, that's it right there.
04:
23
it in the fourth bar is a rhythmic suspension.
24
25
You'll see that also below
So what rhythmic suspension means here is that that

constant pulse of going on the offbeat is interrupted
04:
04:
04:

#:9843
139
1
temporarily and the notes are held longer and it's done very
04:
similarly.
04:
purpose of the word suspension.
Q.
keyboard parts in your mind a significant similarity?
A.
both composers made.
Q.
parts share distinctive
So it's a temporary interruption
Is that temporary
Yes.
and that's the
interruption or suspension
04:
in both of the
04:
I would consider it a shared creative choice that
04:
A.
12
basically divided in half.
13
has 88 keys.
The first half -- a piano keyboard
04:
04:
So your right hand is more or less responsible
14
04:
On a keyboard such as a piano, the keyboard is
11
04:
04:
rhythmic traits and pitches.
Would you describe what you mean by that.

Yes.
04:
04:
And the last bullet point that you describe is left-hand
10
04:
for all
04:
15
the keys -- all 44 keys from middle C up to the top -- top
04:
16
highest note, and your left hand is responsible
04:
17
all the notes from middle C down to the very bottom notes.
in essence for
So when I say the left-hand part, I'm talking about
18
19
the lower notes that are played with the left hand.
Keyboard
20
player's left hand, I mean.
21
Q.
22
that are shared?
23
A.
24
actually primarily
25
scale degree 1, and then the flat 7, which is scale degree --
And what are the distinctive rhythmic traits and pitches
Yes.
04:
04:
04:
04:
04:
04:
The left hand has similar target notes that are

the same in both, meaning the A, which is
04:
04:
04:

#:9844
140
1
scale
degree
particular
target
same
moments
there
note,
scale
rhythms
sense
of silence.
are rests,
of a rhythm
silences
as well
11
half
of beat
12
Q.
Are
13
shared
14
A.
these
four
creative
MR.
play
is.
the notes
same
many
hard
04:
off -- the
bars
04:
of --
to explain
04:
but
04:
And
silence
So they
share
occur,
say,
is as much
on the
04:
second
04:
in your
opinion,
the
result
of
04:
04:
There
BUSCH:
04:
04:
the same
is no accident
Okay.
Would
about
04:
them.
you please
play
the two
04:
04:
audios.
18
THE COURT:
Objection.
I'm going
And move
to strike
(Whereupon,
20
the audio
the last
was played
04:
to strike.
there is no accident about them, as not part
BY MR.
04:
--
any notes.
rests.
similarities,
MR. MILLER:
21
many,
number
often.
17
19
target
the
04:
in this
choices?
Absolutely.
15
all
-- it's
the same
as where
4 quite
there's
don't
playing
notes
it shares
what
mean
share
as a note
10
that
That's
which
So they
1, but
04:
in both.
target
is all As so it's
degree
in the
is a G natural
Lines, the main
four bars
16
7, which
In Blurred
flat
sentence,
of the case.
for the
jury.)
22
Q.
And
23
A.
Yes,
24
Q.
And
25
A.
Blurred Lines, bars
that
04:
04:
04:
BUSCH:
then
04:
that
was
now what
was
what
did we just
Got to Give it Up, bars

will
be the next
1 to 4.
thing
04:
hear?
1 through
we will
4.
hear?
04:
04:
04:

#:9845
141
(Whereupon,
BY MR.
Okay.
terms,
A.
Yes.
bit,
yes.
Q.
And
A.
It's
It's
similar
11
little
you also
for the
04:
jury.)
prepared
example
of both
a slowed-down,
of the
keyboards
or in tech
04:
keyboards?
slowed
04:
down
quite
04:
04:
why
can
audio
A comparison
did
to focus
for a listener
to slow motion
focus
04:
you do that?
easier
on it more
if you're
easily
if you
watching
if the music
slow
04:
it down.
a football
is slowed
game.
down
04:
04:
04:
bit.
MR.
12
No.
have
time-stretched
You
played
04:
And
Q.
10
was
BUSCH:
13
the audio
BUSCH:
I would
like
to play,
then,
Exhibit
376,
04:
04:
20.
(Whereupon,
14
15
BY MR.
16
Q.
That
17
A.
Yes.
18
Q.
And
19
A.
Yes.
the audio
was played
for the
04:
jury.)
04:
BUSCH:
04:
Got to Give it Up?
was
04:
now
04 :
(Whereupon,
20
04:
is Blurred Lines?
the audio
was played
for the
04:
jury.)
04:
21
BY MR.
BUSCH:
22
Q.
What
23
A.
It illustrates
24
playing
25
that
does
the
their
that
same
left
illustrate
all of their
chords,
hand
that
alternates
04:
as far as you are concerned?

similarities
they
are playing
with
the upper
that
they
are
04:
the
same
rhythms,
04:
hand
rhythms
and
04:

#:9846
142
04:
that they're very similar.
Q.
in both songs?
A.
If you look -- maybe you could circle this.
lower -- what's called the left hand, it's -- in essence, it's
04 :
the bass part within the piano itself.
04:
I'm sorry.
It's the A and
04:
the G and the A and the G in Got to Give it Up and in the lower
04 :
10
part, it's A, A.
04 :
11
very silent for almost -- most of the bar.
12
with the upper.
13
And the high part is always on the offbeat.
What do you mean when you say that the left-hand parts are
04:
Well, again the left hand is what you would call sparse.
If you look at the
So the low notes are --
I'll have to explain it with notes.
See how they have all the rests there.
It's
So they alternate
So you will have that low, high, low, high.
So it's very -- it's almost like a conversation
14
04:
04:
04:
04:
04:
04:
04 :
15
between the lower -- that lower left-hand part and that higher
04:
16
response, in a sense, chord in the right-hand part and they're
04 :
17
done in the same rhythms.
04:
18
Q.
19
from the keyboards now.
All right.
They are very similar rhythms.
Thank you.
Have you found -- we can move on
04:
Have you found even more similarities, Ms. Finell?
20
04:
04:
04:
21
A.
Yes.
Quite a few more.
22
Q.
Okay.
23
you have identified as word painting?
24
A.
Yes, I have.
04:
25
Q.
Okay.
04:
Have you found similarities
in lyrics and music that
Would you please explain to the jury what you mean
04:
04:

#:9847
143
04 :
when you say word painting.
A.
the music in terms of the melodies,
number of melodic traits, can be used to actually illustrate or,
04 :
so to speak, paint the words in the lyrics.
04:
In music, there's a compositional
Yes.
technique in which
rhythms, harmonies,
any
For example, if it's a song about you want your --
04 :
04:
04:
your beloved to return to you, a melody that does that may take
04:
a note and then depart from that note to another note and keep
04:
coming back to the first note.
04 :
10
So that musically
What we would call rebounding.
it illustrates the meaning of that lyric.
Another example is if a song is singing about going
11
04:
04 :
12
higher, that the notes also go higher in pitch as a way of
04:
13
illustrating
That's called word painting.
04:
14
Q.
Is word painting a long- established musical
04:
15
composing technique?
16
A.
Yes.
17
Q.
Do you believe there is very similar word painting in Got
18
to Give it Up and Blurred Lines?
19
A.
Okay.
that.
It's been used for many centuries.
04:
04:
04:
04:
Yes.
MR. BUSCH:
20
04:
Exhibit 376, slide 32.
04:
21
Q.
What does this -- what does this slide show?
04:
22
A.
In both songs, Got to Give it Up and Blurred Lines, there's
04 :
23
a section of each song with a similar series of words, each sung
04:
24
within very short phrases of two or three notes in length, one
04:
25
after the other.
04:
In both songs this is in a section called a

#:9848
144
1
bridge section, which means a transition from other sections or
04:
two other sections.
04:
Q.
parallel
Up?
A.
Very much so.
04:
Q.
Can you explain to the jury how?
04:
A.
Well, they both share the word painting element, and there
04:
are other elements that they have in common with the melody, in
04:
10
other words, the way they do the word painting, as well as the
04:
11
words themselves.
04:
12
Q.
13
function of each in both songs?
14
A.
15
between one section and another.
16
Q.
17
the melodies that underlie the lyrics and the function; is that
04:
18
correct?
04:
19
A.
That's right.
20
Q.
And is there a shared unusual compositional
21
well?
22
A.
Well, the technique is word painting, as I said, but I
04:
23
should say that their bridge acts in each case like a bookend to
04:
24
another important section which I'll be talking about a little
04:
25
bit later, but both the Blurred Lines and the Got to Give it Up
04:
Okay.
With respect to the bridge sections, are they
in your mind between Blurred Lines and Got to Give it
04:
04:
04:
So it's the melodies,
Yes.
Okay.
the words.
Is there a comparable
The function is the bridge.
So it's lyrics, the melodies
04:
04:
It's meant to transition
04:
04:
sung to the lyrics or
04:
04:
All four.
technique as
04:
04:

#:9849
145
04:
in essence bookended
similar ways.
Q.
lyrics.
similar lyrics in the two songs?
A.
each separated by rests, so they are separate phrases one right
04:
after another, are move it up, turn 'round -- I'm sorry -- turn
04:
it 'round, ooh, shake it down.
04:
All right.
another key section of their songs in
04:
So let's start with No.1,
the similarity of
Explain what this page reflects with respect to the
Okay.
04:
04:
In Got to Give it Up the series of lyrics that are
And then in Blurred Lines, there's the similar series
10
04:
04:
04:
11
of phrases, one right after another, and the words are also
04:
12
there but in a slightly different order.
04:
13
it's shake around, get down, get up.
14
where -- how they relate to one another on the page.
15
Q.
16
music these phrases are set to.
17
A.
18
are contained in these three phrases, each of them being so
04:
19
short, altogether they have four scale degrees that they use in
04:
20
their three phrases.
04:
21
identical, No.1.
22
All right.
So in Blurred Lines,
04:
And the arrows show
04:
You also said there was a similarity in the
04:
What is that similarity?
Well, for example, of the three -- of the four notes that
No.2,
04:
Of those four scale degrees, three are
04:
04:
the way they paint the words is similar.
Where
04:
23
it says move it up, both of them go up in the same way to the
04:
24
next scale degree.
04:
25
down -- coming down onto scale degree 1 on what you call the
When it says get down, they both end up
04:

#:9850
146
04:
downbeat or the strongest emphasized beat of the bar.
So
there's that illustration
Q.
A.
It's that bridge function again.
Q.
Okay.
yet, but what is the section in the songs, respective songs,
04:
where the bridges appear?
04:
A.
element, too.
04:
Your third similarity within this is a shared function.
04:
04:
And I'm not sure you mentioned
Yes.
04:
this specifically
In Got to Give it Up, there's a section of the song
04:
04:
10
that we have -- we will discuss soon called parlando section,
04:
11
which I'll explain, which is a deviation from anything before or
04:
12
after it in the song.
04:
In Got -- I'm sorry.
13
In Blurred Lines, there is a
04:
14
section that is a rap section that you can hear clearly because
04:
15
it's completely different
04:
16
that song.
from the before and after portion of
04:
So in Got to Give it Up, this bridge, move it up, turn
17
04:
18
it 'round, shake it down, is immediately before the parlando
04:
19
section, which is a chanted section that's a deviation.
And
04:
20
it's a bookend.
That's just the best way I can describe it.
04:
And with Blurred Lines, it's immediately after the rap
21
04:
22
stops and then it's shake it 'round, get down, get up, and
04:
23
that's the bookend on the other side of that similar parallel
04:
24
section.
25
Q.
Okay.
04:
And I may have neglected to mention this, but are
04:

#:9851
147
1
these
-- is this
lyrics
A.
Absolutely,
Q.
Okay.
slide
the
reflected
in the
Could
seeing
A.
about
on this
Yes.
04:
the
04:
sheet?
Would
like
you please
to put
you please
turn
on the board,
explain
to the
to Exhibit
04:
376,
04:
please.
jury
what
04:
they're
04:
demonstrative.
This
describes
the pitches,
similarly
painted
11
series
12
Blurred Lines and their
13
function.
of lyrics
the points
the way
10
I've
in which
in the melody,
already
the word
and the way
made,
really,
down and up is
04:
the
04:
lyrics,
the
Got to Give it Up are reorganized
from
shared
location
04:
as a bridge
04:
in
04:
and
04:
Do you
14
-- should
15
Q.
I will
ask
16
A.
Excuse
me.
17
Q.
And
18
excerpt
19
A.
20
illustrate
21
Got to Give it Up's lyrics
22
with
23
arrows
24
sound
25
underlying
04:
right.
I would
lead
and the melody
yes.
All
33.
lyrics
Well,
how
the
same
some
going
04:
to hear?
04:
parallel
over
here.
that
we're
a mash-up,
these
are,
each
were
be able
it's
actually
to hear
done
them.
in order
the order
in their
to show
04:
to hear?
that
the prior
04:
is the audio
about
meaning
are alternating
other,
What
I changed
If you remember
if they
So you'll
audio
prepared
is in a way
Blurred Lines.
crossing
we're
04:
you have
this
what
you the question.
I see you have

that
I explain
so that
related
slide
with
you how they
in the same
First,
to
way
the
would
order.
the one song
04:
04:
04:
04:
04:
04:
04:

#:9852
148
1
and then
order
the other
any
MR.
shared
lyrics,
so they're
not
out of
04 :
04 :
BUSCH:
Would
you please
play
the audio
excerpt,
04:
04:
please.
(Whereupon,
5
6
the
longer.
3
4
with
BY MR.
the
auio
was played
for the
04:
jury.)
04:
BUSCH:
Q.
In your
opinion,
A.
Three
Blurred Lines.
very
what
similar
phrases
Q.
And melodically?
11
A.
Melodically
12
know,
13
Q.
14
themes
15
A.
very
similar
choice
In addition,
did
and the word
that
you
they
both
identify
in terms
Both
songs
of the
story
do share
lines.
18
Got to Give it Up is speaking

But
20
introverted
21
more
22
to dance
lines
23
trying
to make
24
song,
and then
25
in the
more
song.
04:
you believe
who wishes
attractive
him.
about
in himself
actually
that
they
theme
are similar
he could
who
addresses
yes.
04 :
story
04:
whereas
04:
04 :
that
liberated,
hope
that
he talks
he's
04:
is of an
be more
he would
what
women
person,
line
a transformation
and that's
share,
mostly.
story
04:
04:
of their
to another
himself
to women
So there's
that
an overall
in Got to Give it Up, the
person
with
04:
04 :
is, you
share.
what
Blurred Lines in a way talks
17
free,
painting
Got to Give it Up and Blurred Lines?
within
19
Got to Give it Up and
between
04 :
an unusual
16
04 :
hear?
04:
10
Themes
did we just
would
want
flirting
04 :
04 :
he is
about
04:
in the
04:
with
04:
04:

#:9853
149
In Blurred Lines, the transformation
is on the part of
04:
the singer is really of the other person, hoping that the
04:
young -- the girl that he is seeing to will transform from a
04:
good girl to a more sexually liberated girl and there is a
04:
singing back and forth about that in that song.
04:
MR. MILLER:
I would object and move to strike in that
she has been qualified as an expert in music and this is a
literary theme.
THE COURT:
04:
04:
04:
04:
sustained.
10
Disregard the last question and answer.
04:
11
04:
12
04:
BY MR. BUSCH:
Have you prepared a chart that shows lyrical similarities
13
Q.
14
between the two songs?
15
A.
04:
04:
04:
Yes.
16
MR. BUSCH:
17
MR. MILLER:
Could you put on the chart page 35.
04:
Your Honor, I would object to this
04:
18
exhibit on the third column, for the same reasons as the prior
19
objection.
04:
04:
04:
20
THE COURT:
Sustained.
21
So do you have an objection to columns 1 and 2?
04:
22
think that's something similar to what was shown by the Thicke
04:
23
parties in opening, isn't it?
04:
24
MR. MILLER:
25
THE COURT:
That's correct, in response to this.

All right.
You may show columns 1 and 2.
04:
04:

#:9854
150
04:
MR. BUSCH:
Thank you.
THE COURT:
But please focus your questions,
in light
of my ruling, with respect to literary versus musical issues.
Thank you.
04:
I understand.
Have you prepared comparative
lyrics between Got to Give it
Q.
Up and Blurred Lines?
A.
Yes.
Q.
And the Got to Give it Up lyrics that you've identified in
10
04:
MR. MILLER:
THE COURT:
Your Honor, I apologize for interrupting.
Okay.
Go ahead.
Ask the questions.
04:
04:
04:
04:
The header is also -- I didn't notice that.
13
04:
04:
column 1 are identified -- those -- each one is next to a --
11
12
04 :
04:
MR. BUSCH:
04:
04:
14
don't know that you need this chart to display this, so ask the
04:
15
questions.
04:
Let's go.
16
MR. BUSCH:
Okay.
04:
17
THE COURT:
Please.
04:
18
BY MR. BUSCH:
You've compared the lyrics but my body yearned to be free
04:
04:
19
Q.
20
with the lyrics just let me liberate you; correct?
21
A.
Yes.
04:
22
Q.
And you compared the lyrics somebody watching might wanna
04:
23
make romance with I know you want it, must wanna get nasty;
04:
24
correct?
04 :
25
A.
Yes.
04:
04:

#:9855
151
Q.
versus -- I apologize in advance
that ass into; correct?
A.
Yes.
Q.
And the lyrics let me slip into your erotic zone
versus I'll give you something
I'm not going to read it.
lost that bet.
let me be the one you back
04:
04:
04:
-- and I'll apologize again
You can read it on the screen.
04:
04 :
Okay.
You've been discussing, Ms. Finell,
10
the rap parlando section similarities
11
similarities;
12
A.
Yes.
13
Q.
Okay.
14
similarity you found which is the rap parlando similarity?
15
A.
16
deviates, and I mentioned
17
broken rules or deviations
Yes.
04:
04:
All right.
18
04:
And the lyrics you can bump me when you want to, babe,
04:
04:
in those compositional
04:
correct?
04:
04:
Can you please explain for the jury the next
04:
04:
In Got to Give it Up, there's a section that

earlier that a musicologist
looks at
04:
from the norm.
So it deviates from itself in the
04:
in the sense that
04:
the music changes from melodic music to chanted music, some of
04:
19
which is just sung in a monotone,
04:
20
21
technique of not having a melody --
22
23
MR. MILLER:
Objection.
almost in a spoken way.
That
04:
Your Honor, this is about the
04:
04:
sound recording.
MR. BUSCH:
No, your Honor, we've addressed this.
04:
24
25
THE COURT:
I think you can be more focused.
04:
She has

#:9856
152
1
already testified extensively
focused question, please?
about this, so what is your
04:
04:
BY MR. BUSCH:
Let me ask this question first in light of the objection by
Q.
Mr. Miller.
parlando in the lead sheet?
A.
notated.
Yes.
04:
04:
Is the chanted -- is the chanted spoken portion of the
04:
04:
04:
I could show it in the lead sheet.
It's very clearly
04:
04:
10
Q.
Okay.
04:
Thank you.
Now, with respect to the parlando rap section, is
11
12
there anything -- what is the most significant thing that you
13
have identified with respect to it?
14
A.
04:
THE COURT:
16
17
sections or section?
18
MR. BUSCH:
19
21
THE COURT:
I agree.
Sustained.
Are you referring to
MR. BUSCH:
Q.
04:
04:
I understand what my limitation is,
04:
04:
Because you referred to parlando and rap
04:
04:
in the same question.
22
23
04:
Objection to form.
your Honor, so let me
20
04:
04:
Well
MR. MILLER:
15
04:
That's fine.
with respect to the parlando section that you just
24
described, the spoken, chanted section, what is the bar on which
25
it begins in Got to Give it Up?
04:
04:
04:
04:

#:9857
153
04:
A.
73.
Q.
And with respect to the rap -- T.I. 's rap section in
Blurred Lines, what bar does it begin on?
A.
73.
Q.
with respect to the parlando chanted section in Got to Give
it Up, what bar does it end on?
A.
88.
Q.
With respect to the rap section of Blurred Lines, what bar
does it end on?
04:
04:
04:
04:
04 :
04:
04:
04 :
04 :
10
A.
88.
11
Q.
Do you have a chart that you've prepared that illustrates
12
this?
13
A.
Yes.
14
Q.
Would you please put on the screen 376/37.
04:
04:
04:
Would you please describe for the jury what this chart
15
04:
04:
04:
16
shows.
17
A.
18
the parlando section occurs in Got to Give it Up and the rap
04:
19
section occurs in Blurred Lines.
It's in the same location.
04:
20
Q.
21
after.
This chart illustrates where in the structure of each song
Okay.
And you say deviation from material before and
04:
04:
22
04:
In both songs, before and after these sections, the songs
04:
04:
23
A.
24
are sung in a melodious way in Got to Give it Up, where the
04:
25
melodies rise and fall many notes, 6, 7, 5 notes, up and down,
04:

#:9858
154
1
as I say, with leaps, etc., but when it changes to parlando, it
04:
sho~s on the lead sheet.
04 :
for a whole bar.
that you would chant, almost like you would speak instead, and
04:
it shows -- it even changes the rhythm to what you call
04 :
triplets.
04:
out singing.
It's just a single note, for example,
It's just a single note sung repetitive way
It's more as an inflected speaking than it is a full
04:
And that goes on until bar 88, and then it goes right
04:
04:
back to the signature phrase which is very melodious and
04:
10
involves all the different movements
04:
11
definitely a deviation.
of the note.
04:
The same things happens in the rap.
12
So it's
Of course, there
04:
13
it's really obvious because it goes to pure speaking in a
04 :
14
rhythmic sense.
04:
15
opinion, many years before -- before rap was used as an art
16
form.
17
Q.
18
phrase, what do you mean?
19
A.
20
when you want to, babe, is the lyric.
21
right after the first statements, the immediate next phrase
04:
22
is -- right after one thing I ask you is the phrase that we
04:
23
didn't want to say before.
04:
24
But it means the same thing.
25
Q.
But parlando is a precursor
to the rap, in my
04:
04:
When you say the third phrase similar starting lyrical
Yes.
Okay.
04:
In the parlando, the early phrase is you can bump me
All right.
04:
And in the rap section,
And I don't have it in front of me.
Do you have audio examples to show the
04:
04 :
04:
04:

#:9859
155
1
bridge followed by the spoken part followed by the bridge in
both songs?
A.
bridge being the bookend for these separate sections, yes.
Yes.
It will show the way the contrast exists and also the
Would you please play the audio on slide
All right.
04 :
04 :
04:
04:
BY MR. BUSCH:
Q.
04 :
04:
38, Exhibit 376.
04:
MR. BUSCH:
04:
At some -- before you play that, where was
10
the -- where did the spoken end and the more melodic singing
11
begin within that?
12
A.
04:
04:
04:
It was right where he started -- I mean, I'd have to have
04:
it in front of me, but it was right where he started -- I think
04:
13
it was you can move your body, baby.
04:
14
15
Q.
And was the bars that preceded that 73 to 88?
16
A.
Yes.
17
Q.
Okay.
18
Blurred Lines rap and surrounding bars.
20
21
04:
All right.
Let's play the second track, which is
19
Okay.
23
and bass playing as well?
24
A.
25
about the constellation.
Yes.
The heartbeat
04:
04:
04:
Okay.
Now, underlying both sections, did we hear the organ
22
04:
04:
BY MR. BUSCH:
Q.
04:
04:
04:
is always going and that's what I mean

There's so many similarities at the
04:
04:

#:9860
156
1
same time.
Q.
04:
Okay.
MR. MILLER:
THE COURT:
04:
Now-Move to strike everything after yes.

Motion is granted.
It's not responsive to
04 :
04:
04:
the question.
Let's move on, please.
04:
MR. BUSCH:
04:
All right.
with respect to the third audio exhibit, what are we going
Q.
to hear?
04 :
04:
SO this is the same thing but without the -- any of the
04 :
10
A.
11
instruments playing so you can focus on how the -- how the vocal
04 :
12
lines change.
04:
13
Q.
14
portion toward the end where the chanting goes back to a more
04:
15
melodic singing?
04:
16
A.
Yes, there is.
04:
17
Q.
And I just want, for the jury's sake -- the chanting ends
04:
18
at bar 88 and more singing begins?
19
A.
20
was in the earlier part of the song.
21
essence.
22
Q.
23
heard?
24
A.
25
Okay.
Yes.
Okay.
Now, with respect to Got to Give
It's just -- it transitions
it Up, is there a
04 :
04:
right back to the way it
04:
The deviation is over, in
04:
04:
And is that the same length as the T.I. rap that we
04:
04:
Exactly the same length.

04:
04:

#:9861
157
1
BY MR. BUSCH:
04:
Okay.
04:
So bars 73 to 88 were up to but not including when
Q.
you move -- when you're moving your body?
A.
part.
Q.
And the T.I. rap is 73 to 88 as well?
04:
A.
That's right.
04:
Q.
And would you play -- what is the fourth --
04 :
A.
It's the vocal track only in Blurred Lines.
04:
10
Q.
Let's play that, too.
04:
That's right.
04:
That's when it goes back to the melodious
04:
04:
11
12
04:
04:
BY MR. BUSCH:
So with respect to that last audio example, was that bridge
04:
13
Q.
14
that you've identified in Blurred Lines shown or heard right
04:
15
after the rap section?
04:
16
A.
Yes, it was.
04:
17
Q.
And in the last example of Marvin Gaye's parlando preceding
04:
18
his parlando was the bridge that you just identified heard?
19
A.
Yes.
20
Q.
And do you consider that significant?
04:
21
A.
Yes.
04:
22
Q.
What do you mean by fingerprint?
23
A.
In musical terms, I mean that it's the -- the similarity
24
so unlikely otherwise that it's a fingerprint and --
25
04:
04:
The bridge with the word painting was, yes.
I think it's what you might call a fingerprint.
MR. MILLER:
Objection,
your Honor.
04:
is
04:
04:
04:

#:9862
158
1
MR. BUSCH:
Her opinion, your Honor.
04:
THE COURT:
I agree.
04:
Strike the last response.
04:
What's the next question, please?
04:
Just a minute.
04:
BY MR. BUSCH:
Q.
Is it unusual to have two such similarities
like you
just
A.
Yes.
Q.
Have you ever, in your years of experience in this
04:
04 :
like we just heard in two songs?
04:
Very much.
04:
10
business -- have you ever seen similarities like that, beginning
04:
11
and starting at the same bar and measure with the same bookends?
04 :
12
Have you ever seen anything like that?
04 :
MR. MILLER:
14
THE COURT:
15
You may answer that.
04 :
16
THE WITNESS:
04 :
17
Objection.
No.
Relevance.
403.
04:
13
Overruled.
No.
04:
BY MR. BUSCH:
Okay.
04 :
We have prepared
have you prepared a chart
04:
18
Q.
19
showing those constellations
20
over at length over the last day and where they appear within
04:
21
Blurred Lines?
04 :
22
A.
Yes.
04 :
23
Q.
Okay.
04:
24
25
THE COURT:
of similarities that we have gone
Is there something new that you are
offering now that hasn't been covered?
04:
04 :
04:

#:9863
159
MR.
finished,
your
Honor.
MR. MILLER:
THE COURT:
has
already
been
MR.
6
runs
We're
BUSCH:
It will
Object
Based
the
entire
THE COURT:
This
MR.
Yes.
11
12
BUSCH:
THE COURT:
concerning
BY MR.
13
Q.
14
use
this.
Do you have
a document
on the question
04:
over
you
all
just
this.
asked,
04:
this
17
exhibit.
18
BY MR.
been
covered
to show
where
it
04:
song.
is a demonstrative
exhibit.
04:
04:
already
see what
testified
your
question
I think
04 :
is.
04:
that
illustrates
how pervasive
the
Objection.
403.
Sustained.
That's
04 :
04:
04 :
not
a demonstrative
04:
04:
BUSCH:
do you have
THE COURT:
a demonstrative
BY MR.
04:
04:
Well,
20
04:
04:
of Got to Give it Up in Blurred Lines is?
THE COURT:
22
30 seconds.
04:
16
21
04:
BUSCH:
MR. MILLER:
Q.
-- I'm almost
on 403 to going
She has
So let's
15
19
take
It hasn't
10
where
covered.
BUSCH:
throughout
showing
a -Does
04:
she have
an opinion,
perhaps,
but not
exhibit.
04:
04:
BUSCH:
Do you have
23
Q.
24
contained
25
to Give it Up?
04:
an opinion
about
in Blurred Lines that
the elements
are very
that
similar
are
to those
04:
in Got
04:
04:

#:9864
160
1
THE COURT:
Is there something new?
This is cumulative.
04:
Q.
something substantially
A.
Is there any bars of Blurred Lines that do not contain
Very few.
-- very similar to Got to Give it Up?
Out of 130 bars, almost none.
MR. BUSCH:
04:
04:
04:
That's all we have for Ms. Finell,
04:
your Honor.
9
10
04:
BY MR. BUSCH:
04:
04:
THE COURT:
All right.
Thank you.
Thanks for being
expeditious.
04:
04:
11
What's your time estimate on your cross-examination?
04:
12
MR. MILLER:
04:
13
more like -- probably
14
THE COURT:
Hour, hour and a half, I'd say.
Probably
over an hour, I would guess.
04:
All right.
04:
Then I think probably the most
15
efficient thing, ladies and gentlemen, would be to let you go
04:
16
home.
04:
You don't want to go home?
17
Well, I -- as counsel know, I agree with that.
04:
18
Can you cover a section in 15 minutes?
04:
19
MR. MILLER:
04:
20
THE COURT:
Yeah, I guess I could.

All right, then, let's proceed for 15
21
minutes, approximately.
22
conflict?
23
No.
All right.
Go ahead, please, Mr. Miller.
24
25
Is there any other juror who has a
CROSS-EXAMINATION
BY MR. MILLER:
04:
04:
04:
04:
04:
04:

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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 1 of 70 Page ID

for the jury.)

in Got to Give it Up and Blurred in the signature

of Happy Birthday greater

so you can explain

Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 2 of 70 Page ID

No objection, your Honor.

about this, your Honor.

In popular music, as I mentioned before, there is

as sort of the identifying phrase of the song.

with ringtones, that's what the ringtone would be.

hook of the song.

Next question, please.

And so what are we going to hear?

So you'll hear the hooks of two popular songs.

Just Wanna Have Fun.

And are these the hooks to these two songs?

Can a hook be very short?

With respect to Beethoven's

5th, which we heard earlier,

Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 3 of 70 Page ID

how many notes were in that hook?

There are only four notes.

back on, please.

The lyrics -- could you put that

The lyrics in Got to Give it Up, which contains one

hook that's repeated, is with the words keep on dancin', and in

Blurred Lines it has two hooks.

other one is I hate these blurred lines.

One is take a good girl and the

What makes up these hooks?

Are you going to play these?

They've just been played -- yes.

With respect to the hooks --

Page 9 -- we won't put

Don't put them on the screen.

With respect to the hooks, keep on dancin' from Got to Give

it Up, is -- did you prepare a transcription?

And is the transcription

you prepared from the lead sheet?

Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 4 of 70 Page ID

It's exactly as it is in the lead sheet, yes.

Your Honor, we would ask for permission

I have several objections to this

The fourth bullet point is a reference to

the sound recording of Marvin Gaye.

accurate reflection of the actual notes as they appear in the

display page 9 of Exhibit 376, similarity hooks.

from Blurred Lines

And you prepared a transcription

You may display this, but eliminate just

the -- following the bullet points.

Just play without the bullet points?

Just show -- if you wish to display this,

or use of the projector.

Thank you, your Honor.

And I understand your objection with

respect to the other issue.

And so, Ms. Finell, looking at your transcription

Got to Give it Up and the Blurred Lines hook, what do your

Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 5 of 70 Page ID

the Got to Give it Up hook