Blurred Lines Trial - Transcript Exhibit G PDF

Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 1 of 66 Page ID
#:9729
HIBIT G

#:9730
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
THE HONORABLE
JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE PRESIDING
5
6
Pharrell Williams, et al.,
Plaintiffs,
9
10
Case No.
vs.
CV 13-06004-JAK(AGRx)
11
12
13
Bridgeport Music, Inc., et al.,

Defendants.
14
15
16
17
REPORTER'S TRANSCRIPT
OF TRIAL PROCEEDINGS
18
Day 3
19
Los Angeles, California
20
Thursday, February 26, 2015
21
22
23
24
25
Pamela A. Batalo, CSR, FCRR, RMR

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

#:9731
14
1
correct?
A.
Yes.
00:
Q.
And you wrote the liner notes on the re-issue of Live At
00:
The London Palladium, the album on which Got To Give It Up
00:
initially appeared; correct?
00:
A.
Yes.
00:
Q.
So you are very familiar with the song Got To Give It Up;
00:
correct?
A.
I am.
00:
10
Q.
Now, you had -- it is your view that you listened to
00:
11
Blurred Lines when it came out and you believed that Blurred
00:
12
Lines and Got To Give It Up sounded very similar; correct?
00:
13
A.
Yes.
00:
14
Q.
And it was your view that when you heard Blurred Lines, you
00:
15
believed that it was utterly based on Got To Give It Up;
00:
16
correct?
00:
17
A.
18
Q.
You may have said it or you did say it?
19
A.
20
Q.
And your view that Blurred Lines was utterly based on Got
21
To Give It Up led you to send an e-mail onJune27.2013.to
00:
22
Doug Barasch, a senior director of digital marketing
00:
23
strategy at UMG; correct?
24
A.
Yes.
00:
25
Q.
Would you please put on the board Exhibit 1200 at 1.
00:
00:
00:
may have said that.
00:
00:
did say it.
00:
and
00:
00:

#:9732
20
Q.
Mr. Weinger,
Kirk
Bonin?
00:
A.
Yes,
00:
Q.
And
sampled/borrowed
from Marvin and all is well, that was based
upon
that
based
correct?
A.
No.
10
Q.
It was
11
A.
No.
your
14
Q.
15
upon?
16
A.
17
discussed
18
had been
19
Q.
e-mail
where
this
e-mail
on July
listening
you
say,
9, 2013,
00:
Yep, they
they sampled/borrowed
says
to the two
songs
00:
00:
from Marvin was
and your
belief;
00:
00:
00:
not?
00:
00:
BUSCH:
Okay.
Let me play
then
page
48 -- hold
on
00:
00:
second.
what
Was
was
they sampled/borrowed
the
from Marvin based
00:
00:
I had had
That
a conversation
its similarities
official,
that
with
and
licensed?
THE COURT:
One
Jan, to whom
are you
THE WITNESS:
23
THE COURT:
24
THE WITNESS:
conversation.
was
that
the
song.
it had been
please.
-- it
00:
00:
When
you
referred
please?
if you could
That
00:
okay.
to
00:
00:
Jan Gaye.
And
We
00:
second,
referring,
Jan about
she said
everything
it had been
22
25
send
00:
MR.
one
21
in this
upon
13
you
I did.
-- the part
12
20
did
to
00:
use
--
was my understanding
00:
of the
00:
00:

#:9733
29
What is the difference between the -- the ownership of the
Q.
compositions
and ownership of the sound recordings?
MR. BUSCH:
Objection,
THE COURT:
Sustained.
MR. KING:
As framed, it's a legal issue.
songs or the exploitation
-- let me rephrase that.
Do you know who collects the money from the
exploitation
00:
00:
Do you know who collects the money from the sale of the
Q.
00:
00:
Okay.
your Honor.
00:
of the sheet music of Got To Give It Up as it's
00:
00:
00:
00:
10
embodied in sound recordings?
11
A.
12
would be controlled by Sony ATV, publishing
13
Q.
14
ATV and Universal Music Group?
15
A.
There's not.
00:
16
Q.
In connection with the sale by Universal Music of the sound
00:
17
recordings of the Marvin Gaye catalog, does Universal use the
00:
18
name and likeness of Marvin Gaye to sell records?
00:
19
A.
Yes.
00:
20
Q.
Do you read music?
00:
21
A.
No.
00:
22
Q.
I'm sorry.
23
A.
No.
24
Q.
You're not a musicologist,
25
A.
No.
00:
I believe in the case of most of Motown recordings, they
Is there any affiliation
concern.
that you're aware of between Sony
00:
00:
00:
00:
Do you read music?
00:
00:
are you?
00:
00:

#:9734
30
Do any
of your
Q.
involve
label
without
A.
No.
Q.
When
words
to you at the
Blurred Lines?
looking
might
job duties
at Universal
for potential
have
against
Music
infringement
others
who have
claims
used
Enterprises
00:
that
00:
your
your
products
00:
permission?
00:
00:
you
that
said
Mr.
It had
to your
Busch
time
read
you
the
to that
first
song
effect,
heard
the
sounded
what
sound
familiar
sounded
recording
or
00:
familiar
00:
of
00:
00:
a certain
10
A.
11
the bass
12
Q.
13
to see whether
14
deposit
15
A.
You might
16
Q.
Did you
17
to see if any
18
noise,
19
to being
20
A.
21
Give It Up.
22
Q.
When
23
they
had
a style
24
that
the
songs
25
Lines had copied
line,
Did you
bosses
groove,
the party
the percussion,
ever
consult
any
all had
the deposit
of those
items
sounds
a familiar
copy
you
and
the record,
sound
to it.
To Give It Up
of Got
just mentioned
were
in the
copy?
00:
00:
00:
00:
have
ever
to explain
look
of those
the percussion,
I've
00:
in the
record
never
-- no.
you
at any
deposit copy.
sheet
elements
etc.,
that
music
you just
were
in the
you had heard
I've
not
seen
00:
To Give It Up
of Got
mentioned,
sheet
music
as opposed
To Give It Up?
of Got
sheet
the crowd
music
for Got
To
00:
00:
00:
00:
00:
00:
said
you thought
or a groove,
had
been
copied
Give It Up?
the songs
were
from
you
sounded
expressing
each
other,
similar
some
that
because
opinion
Blurred
00:
00:
01:
01:

#:9735
31
1
A.
I mean,
I felt
it was
Q.
What
A.
There
was
Q.
Other
than
percussion,
did
A.
Yes.
Q.
The hi-hat,
A.
Yes.
10
Q.
The
11
A.
No.
12
Q.
Did
13
the two
14
A.
Not
15
Q.
Okay.
What
would
16
that
caused
you
to send
17
listed?
18
A.
19
saying
20
alike.
21
Q.
Now,
what
22
exploiting
the
23
A.
24
record,
25
it on a hits
do you mean
sung,
were
the
that
the
to Marvin
Gaye,
certainly.
an homage?
record
what
in the way
the
record
feels.
01:
01:
you mentioned,
falsetto
01:
01:
a lot of similarities
just
the way
by
an homage
the
contribute
crowd
to that
noise
and
the
impression?
01:
01:
01:
did
that
contribute
to that
impression?
01:
01:
lyrics,
did
the
lyrics
contribute
to that
impression?
01:
01:
you
find
songs
any
similarity
as it related
in your
to the
initial
listening
to
lyrics?
01:
01:
at all.
01:
you
say was
those
the most
as between
important
the
items
similarity
you
just
01:
01:
01:
They
had
about
a similar
the
groove
kind
of energy,
and the vibe,
so similar
they
just
to what
seemed
I was
really
01:
01:
01:
Well,
was
your
sound
recording
we obviously
it was
job at the time

of Got
in creating
one of his biggest
record.
You
know,
as it related
To Give
a Marvin
hits,
we had
01:
It Up?
Gaye
we would
done
to
the
01:
greatest
have
hits
included
re-issue
of the
01:
01:
01:

#:9736
32
1
original
passed
ago,
LP.
But
so any
we look
time
we can
with
in kind
this
of that
sell
for any sort
And
the time
a record
reading
of the Court
oh,
this
sounds
get
some
visibility
of
popular
40
almost
had
01:
years
01:
01:
Q.
Were
A.
Yes.
10
Q.
Were
11
Blurred
12
A.
No.
It seemed
to be doing
13
Q.
Now,
Mr.
showed
14
need
to put
15
recollection.
and what
the public,
I thought
for Got
trying
from
of similarity
you
being
of opportunity.
sort
similar,
record
why
To Give
to increase
not
I had been
it seemed
associate
them
01:
like,
01:
and
01:
It Up.
the
01:
sales
of Got
To Give
It Up?
01:
you
trying
to do anything
with
respect
to the
sales
of
Lines?
Busch
them
up, but
you
said
conversation
you had
18
conversation
with
Can
20
Jan Gaye
21
A.
22
it over
23
that
24
she had
25
seemed
Oh,
on its own.
e-mails.
if you need
01:
I don't
think
to refresh
01:
your
01:
all
is good,
you
said
was
that based
it was based
upon
on a with
Jan Gaye.
for me the
you to say that
-- my
like
the Tweet,
everything
the
was
conversation
basically
of things.
recollection
things
01:
01:
01:
a combination
I had
it seemed
like
that
-- I think
caused
it was
sent
some
I will
you describe
that
and
you
okay
01:
17
19
01:
01:
When
16
01:
had been
Both
all
you had with
01:
was good?
01:
-- we had
of the conversation
worked
combination
fine between
out.
of those
And
then
things,
the two parties.
talked
01:
was
01:
when
it
01:
01:
01:

#:9737
33
1
Q.
trying
the
A.
Yes.
Q.
Did
A.
No.
Q.
Did the matter
A.
As
Q.
Just
So you
sent,
to create
I think,
two
something
e-mails
that
to your
would
superiors
about
01:
Got To Give It Up to
link
01:
of Blurred Lines; correct?
success
01:
01:
you
get any response?
01:
01:
end
then,
far as I -- there
one
link.
You
suggested
11
Blurred Lines, which
12
link.
was
01:
jury
01:
understand
in one of these
the
concerned?
no follow-up.
I didn't
question.
10
as far as you were
has
what's
e-mails
already
that
seen,
a buy-from
the video
have
01:
of
01:
a buy-from
01:
01:
What
13
Well,
does
often
that
in this
mean?
new
01:
age
of digital
marketing,
if a
14
A.
15
video
16
song
is -- whether
17
very
often
18
button
19
and
20
hoping
21
Q.
22
people
23
basically
24
A.
Yes.
01:
25
Q.
Of Got To Give It Up?
01:
is up on any of the video
what
that
it will
YouTube
allows
take
we could
Okay.
there
buy
is an official
allows
the
the consumer
get the
seeking
listening
a record
video
they
store
association
like
record
when
you to a digital
So you were
who were
services
hear
to buy
to do is put
the
you?
song
that
a link
that
01:
01:
01:
to click
01:
I was
01:
song.
the two.
to Blurred Lines to press
from
whether
or a fan video,
labels
between
to have
YouTube,
01:
01:
would
allow
a button
and
01:
01:
01:

#:9738
34
1
A.
Yes.
MR. KING:
2
3
01:
Okay.
I have no further questions.
Thank
you.
01:
01:
THE COURT:
Any recross?
01:
MR. BUSCH:
Yes, your Honor.
01:
REDIRECT EXAMINATION
6
7
BY MR. BUSCH:
Q.
you just mentioned
01:
01:
Can you put on the -- I want to -- you just discussed -in your conversation
-- your examination by
01:
10
Mr. King of a supposed conversation
11
that right?
12
A.
Uh-huh, yes.
01:
13
Q.
And concerning Got To Give It Up and Blurred Lines?
01:
14
A.
Yes.
01:
MR. BUSCH:
15
you had with Jan Gaye; is
01:
01:
01:
Your Honor, I would like to publish to the
01:
16
jury Mr. Weinger's testimony at page 32, line 16 through line
01:
17
21.
01:
18
THE COURT:
Do you propose to play it or read it?
01:
19
MR. BUSCH:
Read it.
01:
20
THE COURT:
Any objection to that being read?
21
MR. KING:
22
MR. BUSCH:
32, line 13, to page 32, line 21.
01:
23
THE COURT:
Is it starting at line 13 or 16?
01:
24
MR. BUSCH:
I'm sorry.
01:
25
MR. KING:
I'm sorry.
I don't have that video ready.
13 to
01:
Line 16.
I would object.
01:
My mistake.
There's no proper purpose
01:

#:9739
35
1
01:
for this.
MR. BUSCH:
It's directly contrary to his testimony.
01 :
THE COURT:
Excuse me.
01:
No.
MR. BUSCH:
Your Honor, may I have a sidebar?
THE COURT:
No.
8
9
Let's move on, please.
01:
Let's move on, please.
This witness is here for a limited purpose.
01:
I read it.
Thank you.
01:
BY MR. BUSCH:
Q.
Okay.
01:
01:
Mr. Weinger, on cross-examination
by Mr. King or
01:
10
examination by Mr. King, you made the point that you work in New
01:
11
York; is that
01:
12
A.
Yes.
01:
13
Q.
And that you do -- you are involved with many projects
01:
14
from -- with the Interscope, Geffen, and Motown who are based in
01:
15
Los Angeles; isn't that right?
01:
16
A.
I'm not involved in any projects with Interscope.
17
Q.
with Geffen and with Motown located in Los Angeles;
18
A.
Motown at the time I was working this was in New York.
01:
19
Q.
Does the fact that you live in New York and Interscope is
01:
20
located in Los Angeles affect in any way your ability to receive
01:
21
e-mails?
01:
22
A.
No.
01:
23
Q.
Does it affect your ability to listen to two songs and
01:
24
reach an opinion about your view of two songs?
25
MR. KING:
Objection.
01:
right?
It's argumentive and beyond the
01:
01:
01:

#:9740
36
1
scope.
01:
THE COURT:
Yes, sustained.
MR. BUSCH:
Okay.
403,
402.
01:
01:
Q.
In examination by Mr. King, he said that you stated that
01 :
in your e-mails and your testimony, that the two songs -- the
01:
words Mr. King used were sounded familiar.
01:
Do you recall him saying that?
MR. KING:
THE COURT:
10
Did you hear that?
01:
Object to the form of the question.
01:
Sustained.
01 :
BY MR. BUSCH:
01:
You didn't say in your e-mails and the correspondence
with
11
Q.
12
various executives at UMG that the two songs sounded familiar,
01:
13
did you?
01:
14
A.
I mean, I don't have them in front of me, so .
01:
15
Q.
Do you remember me showing you an e-mail where you said
01:
16
that Blurred Lines was utterly based on?
17
A.
Sure.
01:
18
Q.
And
01:
THE COURT:
19
20
respond.
21
22
Wait for the question, please, before you
01 :
01:
01 :
Thank you, Mr. Weinger.
01:
Go ahead, please.
01:
BY MR. BUSCH:
01:
23
Q.
And do you recall saying that you had a reaction when you
01:
24
listened to Blurred Lines and the song sounded very similar to
01:
25
you?
01:

#:9741
37
MR. KING:
THE COURT:
3
4
Sustained.
Q.
01:
And did I hear you right to say that -THE COURT:
Sustained.
01:
These are not in the proper
form.
BY MR. BUSCH:
01:
Isn't it true, sir, that you believe the bass lines between
Q.
the two songs sounded very similar?

do.
A.
11
Q.
And just to be clear, you are an employee of a defendant in
12
this case; correct?
13
MR. KING:
01:
THE COURT:
01:
01:
Objection.
Asked and answered,
argumentive.
15
01:
01:
10
16
01:
01:
14
01:
01:
BY MR. BUSCH:
5
6
It's -- I object to the form and --
01:
01:
You may answer.
01:
BY MR. BUSCH:
01:
17
Q.
You are an employee of a defendant in this case; correct?
01:
18
A.
Yes.
01:
19
MR. BUSCH:
Nothing further.
20
THE COURT:
Just a minute.
21
lines 16 through 21.
22
MR. BUSCH:
23
your Honor.
24
Q.
25
01:
You may read page 32,
01:
Thank you, your Honor.
Thank you,
01:
01:
Mr. Weinger
THE COURT:
01:
01:
No.
Just read them, please.
01:

#:9742
38
1
MR. BUSCH:
Just read them?
Q. Have
spoken
you
to Jan about
Page 32, line 16:
this
case
and
these
songs?
A. Not
about
this
Q. Not
about
-- not
Give
01:
01:
01:
Okay.
case,
no.
about
'Blurred
01:
or 'Got To
Lines'
It Up'?
01:
01:
A.
I don't
recall.
THE COURT:
Okay.
MR. KING:
01:
Any further questions?
01:
One question.
01:
RECROSS-EXAMINATION
10
01:
11
BY MR. KING:
12
Q.
13
bass lines sounded very similar, were you talking about the bass
01:
14
lines that were in the sound recordings or the bass lines that
01:
15
were reflected in the sheet music for Got To Give
01:
16
A.
17
didn't look to the sheet music.
01:
Mr. Weinger, when you testified that you thought the
I only listened to the two records, the recordings.
18
MR. KING:
19
THE COURT:
20
Sir, you're excused.
THE WITNESS:
22
THE COURT:
01:
01:
Thank you.
21
23
It Up?
01:
01:
Mr. Weinger, thank you for your testimony.
01:
Have a safe trip home.
01:
Thank you.
01:
Mr. Busch, are you going to resume with
Ms. Finell?
01:
01:
24
MR. BUSCH:
Yes, your Honor.
01:
25
THE COURT:
All right.
01:
Would she come forward,

#:9743
39
1
01:
please.
MR.
BUSCH:
The witness?
THE
COURT:
Yes.
come
forward,
here.
Would
you
Please
previously
be seated.
sworn
Good
afternoon,
01:
01:
THE COURT:
do not have
to spell
11
THE WITNESS:
12
THE
under
01:
01:
Finell.
THE WITNESS:
13
Finell,
THE COURT:
10
she's
01:
Judith
Ms.
Finell,
please.
5
6
Ms.
01:
Good
Would
afternoon.
you please
01:
restate
your
name.
You
it.
01:
Judith
COURT:
And
Finell.
01:
do you understand
that
you
remain
oath?
01:
01:
14
THE WITNESS:
15
THE COURT:
16
Please
17
MR.
Yes,
Thank
proceed,
BUSCH:
I do.
BY MR.
20
Q.
Good
afternoon,
21
A.
Good
afternoon.
22
Q.
Picking
23
several
24
A.
Yes.
25
Q.
And
01:
Busch.
you,
DIRECT
19
01:
you.
Mr.
Thank
18
your
01:
Honor.
01:
EXAMINATION
01:
BUSCH:
ways
01:
01:
up with
Ms.
Finell.
01:
01:
our
to notate
examination
a musical
from
yesterday,
are there
composition?
01:
01:
01:
in your
experience,
are you
familiar
with
lead
sheets
01:

#:9744
40
1
and their creation?
A.
I am.
01:
Q.
How so?
01:
A.
Well, I spent many years as a music editor for music
01:
publishers,
closely with composers on expressing the music
they intended on the scores of the music that was then
01:
published,
01:
Q.
01:
and one of my responsibilities
was to work very
for example.
Okay.
And how would you describe the notation within a
10
lead sheet?
11
A.
12
professional
13
intended by the composer.
14
it would be, say, in a classical musical work.
A lead sheet is really meant as from a musician

musician
MR. MILLER:
16
THE COURT:
standpoint,
01:
Not all the music
I object.
MR. BUSCH:
01:
as a shorthand for what is

lS
written out as
Expert.
Well, I'll overrule the objection at this
Yes, sir.
01:
01:
01:
402, 403, your Honor.
point, but the testimony must be focused as previously
18
01:
01:
15
17
the music that
01:
ordered.
Yes, your Honor.
01:
01:
01:
01:
Have you reviewed the deposit copy lead sheet for Got To
19
Q.
20
Give It Up and After the Dance filed with the United States
01:
21
copyright office?
01:
22
A.
I have.
01:
23
Q.
Okay.
24
during your testimony about eight different similarities
you've
01:
25
identified between Blurred Lines and Got To Give It Up.
So I
01:
I'm going to be asking you to discuss with the jury
01:
01:

#:9745
41
1
will ask you this in more detail as we discuss each similarity.

But is each element from Got To Give It Up that you
01:
01:
have identified as being very similar to Blurred Lines and
01:
contained within Blurred Lines substantially
01:
deposited copy lead sheets you have reviewed?
reflected in those
MR. MILLER:
THE COURT:
Sustained.
01:
MR. BUSCH:
Okay.
01:
Q.
Object to form.
01:
01:
Is each element from Got To Give It Up that you have
01:
10
identified as being very similar to Blurred Lines and contained
01:
11
within Blurred Lines substantially
01:
12
lead sheets?
14
01:
THE COURT:
13
reflected in the deposit copy
Sustained.
It's the word substantially.
01:
BY MR. BUSCH:
01:
Okay.
01:
Is each element of Got To Give It Up that you have
15
Q.
16
identified as being very similar to Blurred Lines and contained
01:
17
within Blurred Lines reflected in those deposit copy lead
01:
18
sheets?
01:
19
A.
Yes, it is.
01:
20
Q.
Okay.
01:
21
this case that you intend to play for the jury; correct?
22
A.
Yes.
01:
23
Q.
I will also ask you this in more detail as we discuss each
01:
24
specific similarity, but are the recorded excerpts within your
01:
25
demonstratives
01:
Now, you have created various musical excerpts in
that you intend to playa
fair and accurate
01:

#:9746
42
1
representation
of the expression of what is in the deposit copy
lead sheets for Got To Give It Up?
MR. MILLER:
THE COURT:
Objection.
Yes.
01:
01:
Overbroad.
01:
Sustained as framed.
01:
01:
BY MR. BUSCH:
The first slide I intend to play, the audio exhibit is a --
01:
Q.
are the bass lines and keyboards in Got To Give It Up and
01:
Blurred Lines.
01:
Are the bass lines and keyboard and keyboard rhythms
01:
10
all reflected in the deposit copy lead sheet for Got To Give It
01:
11
Up?
01:
MR. MILLER:
12
13
Objection to form.
It's vague.
I don't
know what he's referring to.

THE COURT:
14
Well, it's compound so break it down and
01:
01:
01:
15
perhaps if you would show the witness the exhibit that
01:
16
constitutes the lead sheet and focus your questions in that
01:
17
manner.
01:
MR. BUSCH:
18
Well, let's break it down.
Are the bass lines that are within the audio excerpt that
01:
01:
19
Q.
20
you intend to play contained within the lead sheet?
21
A.
Yes.
01:
22
Q.
Are the keyboard portions that are within the audio excerpt
01:
23
that you intend to play contained within the lead sheet?
24
A.
Yes.
01:
25
Q.
Are the keyboard rhythms within the audio excerpt that you
01:
01:
01:

#:9747
43
1
intend to play contained within the deposit copy lead sheet?
A.
Yes.
Q.
Okay.
sheet that the bass line repeats throughout the song Got To Give
01:
It Up?
01:
10
Is there an indication in the deposit copy lead
Objection.
Leading, your Honor.
This is
going beyond having her play something.

THE COURT:
01:
MR. MILLER:
01:
01:
01:
01:
The experts may be led, but restate the
question, please.
01:
01:
BY MR. BUSCH:
01:
With respect to the bass line within the Got To Give It Up
11
Q.
12
lead sheet, is there or is there not anything that shows that it
01:
13
plays throughout the entire song?
01:
14
A.
15
bass simile, which means continue in a similar fashion.
16
that also applies to the keyboard.
17
Q.
in the
01:
18
audio excerpts that we will play consistent with the composer's
01:
19
intended expression of the composition?
01:
Yes.
In the lead sheet after the first eight bars, it says
MR. MILLER:
21
THE COURT:
22
Objection.
MR. BUSCH:
23
Calls for speculation --
Yeah, sustained.
based on the sheet music, please.
Q.
25
you're about to play?
01:
01:
Frame the questions
01:
So restate the question.
01:
Okay.
Is the sheet music consistent with the audio excerpts
24
01:
01:
Do you have an opinion about whether the expression
20
And
01:
01:
01:
01:

#:9748
44
1
2
3
A.
Absolutely.
MR. BUSCH:
01:
Okay.
We'd like to publish slide 2 in
Ms. -- a demonstrative.
01:
01:
MR. MILLER:
Which demonstrative?
THE COURT:
until we find out what it is.
publish, please?
Don't publish it.
01:
Please defer publishing
What are you proposing to
01:
01:
01:
MR. BUSCH:
Slide 2.
01:
THE COURT:
What exhibit?
01:
10
MR. BUSCH:
Exhibit 380, Demonstrative
11
MR. MILLER:
12
MR. BUSCH:
13
MR. MILLER:
14
THE COURT:
15
demonstrative
l.
01:
380?
01:
Yes.
01:
It says sound recording.

There is
--
01:
380 just refers to the
Exhibit 63.
16
MR. BUSCH:
17
Exhibit 376, demo 1.
18
THE COURT:
19
MR. MILLER:
01:
01:
I apologize, your Honor.
It's
01:
01:
Just a moment.
376.
01:
20
know what he means by demo, your Honor.
21
slides in 376.
I don't
01:
There are a number of
01:
01:
22
MR. BUSCH:
It is the first slide in line, Mr. Miller.
01:
23
THE COURT:
376, page Ii
01:
24
MR. BUSCH:
Yes.
25
is that it?
It is the -- it's page 2, demo 1
with the heading instrumentals,
the heartbeat of the songs.
01:
01:

#:9749
45
1
THE COURT:
This is a demonstrative
MR. BUSCH:
Yes.
01:
THE COURT:
Is there any objection to this being
01:
displayed during the testimony?
MR. MILLER:
THE COURT:
MR. MILLER:
THE COURT:
01:
01:
Yes.
01:
Do you have 376?
And the first page of it has
01:
01:
Turn to the -- turn to the next page.
Do
MR. MILLER:
01:
01:
you have that page?
12
13
I'm still
something to do with Ms. Wilbur.
10
11
I'm still -- I apologize.
Exhibit 376.
01:
01:
having trouble finding what he's referring to.
exhibit; correct?
Yes.
There are no audio examples on the
01:
01:
next page.
14
THE COURT:
Well
01:
15
MR. BUSCH:
Yes, there are.
01:
16
THE COURT:
Well, there's pictures of speakers.
17
18
19
20
21
22
23
Is
01:
that the designated audio file?

MR. BUSCH:
That does.
Here, Mr. Miller, if you need
it, I have an extra set for you.

THE COURT:
Okay.
Which pages of this exhibit are
you -- do you propose to display?

MR. BUSCH:
01:
We're going -- at this time, this page,
and we're going to go right through the
01:
01:
01:
01:
01:
01:
24
THE COURT:
So every page?
01:
25
MR. BUSCH:
Yes.
01:

#:9750
46
1
MR. MILLER:
Your Honor, I would object to page 2
because of your order regarding admissibility
recordings.
transcription
5
6
7
of sound
If you note the numbered colon 19, this is a

of a sound recording by Marvin Gaye.
MR. BUSCH:
There's no transcription
here and this is
the audio excerpt that your Honor has ruled may come in.
MR. MILLER:
The audio excerpt is different from the
pink highlighted part with the colon 19 in the left-hand corner.
01:
01:
01:
01:
01:
01:
01:
01:
THE COURT:
What page of the exhibit
01:
10
MR~ BUSCH:
You're not looking at the right
01:
11
THE COURT:
Wait, wait.
01:
12
To which page of the exhibit are you referring?
13
MR. MILLER:
14
THE COURT:
15
MR. MILLER:
16
THE COURT:
17
MR. MILLER:
18
THE COURT:
19
MR. MILLER:
Could you wait, please.

I'm sorry.
Page 5?
I was on the wrong page, your Honor.

To what page are you referring?
Page 3.
01:
01:
01:
01:
01:
01:
What is your objection?
01:
My objection is that it is a
01:
of the sound recording so it's contrary to the
01:
20
transcription
21
rulings in this case.
01:
22
THE COURT:
And what's your -- is this the same --
01:
23
MR. BUSCH:
It is.
01:
24
THE COURT:
Excuse me.
25
the sheet music?
Is this the sound recording or
01:
01:

#:9751
47
Ms. Finell will
It is the sheet music.
MR. BUSCH:
testify that they are the same.
01:
--
01:
Your Honor
01:
Well
THE COURT:
MR. MILLER:
THE COURT:
Is this the sheet music?
MR. BUSCH:
This is her transcription.
THE COURT:
MR. BUSCH:
01:
01:
Well, no, my question was is this an image
This is not an image.
This is her
01:
01:
01:
01:
transcription.
MR. MILLER:
12
Your Honor, whether it's the same notes
13
as the deposit copy is not the issue here.
14
she has listened to the sound recording.
15
it.
16
it.
The issue here is

She has transcribed
I have no objection to the audio itself.
You have ruled on
01:
01:
01:
01:
01:
17
THE COURT:
18
Let me talk to you briefly.
I understand.
(Sidebar conference commenced.)
19
20
The answer is
of the sheet music that was filed with the copyright office.
10
11
01:
that they're the same.
01:
THE COURT:
First, Mr. Busch, my question wasn't
01:
01:
01:
01:
21
complicated when I asked you is this a copy of the deposit copy,
01:
22
so don't make me ask the same question three times to get the
01:
23
correct answer.
01:
24
But what is this?
Is this something that -- is this
25
what the witness prepared from what?
01:
01:

#:9752
48
MR.
prepared
from
the deposit
same
and
BUSCH:
This
the recording
copy
truly
lead
what
recording
reflective
MR.
THE COURT:
10
sound
11
recording;
here
BUSCH:
recording,
is that
she will
thing
transcription
will
be that
of that
the
edited
edited
01:
sound
14
MR. MILLER:
15
hearing
16
ruled
17
They
have
had plenty
18
this
page
and put
19
transcription
all this
I made
stuff
to take
it in here.
of something
THE COURT:
exhibits
what
are not
an understanding
what
Why
that's
Here's
you
24
display
the deposit
copy
25
testify
as to the deposit
should
this
in the
01:
You
01:
objection.
out of the
the deposit
are we looking
01:
slides.
copy
excerpt
of
I think.
fact
do,
01:
and the
First
01:
of all,
The purpose
is to
to,
is to
and the witness

recording.
01:
01:
finder.
if you wish
to the witness
01:
01:
at a
excluded?
admissible.
by the
copy
same
be taken
01:
Mr. Miller?
is we covered
the exact
should
of time
01:
objection,
My objection
day.
01:
01:
is your
I think
01:
sound
right?
What
23
the
01:
is whether
01:
is her
THE COURT:
facilitate
01:
01:
relevant
with
testimony
13
22
it is the
copy.
So her
is correct.
demonstrative
that
01:
That
21
01:
it is.
BUSCH:
20
it to
and compared
I've permitted.
MR.
that
01:
originally
testify
that's
12
the other
went
is consistent
Yes,
this
she then
and
only
admission
the witness
of the deposit
The
she has prepared

whose
but
sheet,
THE COURT:
is what
can
So you
don't
01 :
01:
01:

#:9753
49
need to put this exhibit up because as presented,
whether this accurately reflects the deposit copy.

MR. BUSCH:
3
4
I don't know
01:
She's going to say it does as an expert
01:
01:
witness.
THE COURT:
01:
Well, if you -- as I said, that wasn't
01:
what you first said and now I understand what you are saying,
01:
but I have just ruled.
01:
think -- listen, I think what you need to do is to be efficient,
01:
and whether you publish this with a jury whom I'm going to tell,
01:
10
as with any demonstrative,
01:
11
establish this through the witness.
And I think what you need to do -- I
it's not evidence.
You need to
01:
12
MR. BUSCH:
I'm trying to -- I will do that.
01:
13
THE COURT:
Do that.
01:
I don't think you need all the
14
demonstratives
to do that, and we get into some potential
15
issues because there could be a dispute as to whether this does
01:
16
accurately
01:
17
sound recording and now she is adopting that and saying it is
01:
18
the same as to the edited one.
01:
19
MR. BUSCH:
01:
reflect that if it were prepared previously
403
from the
Your Honor, it is one thing to say that
what is admissible are the elements that are reflected in
01:
20
the
21
the deposit copy lead sheet, which we have done and which we
01:
22
have created.
01:
01:
23
THE COURT:
Right.
01:
24
MR. BUSCH:
These -- she is going to testify, and I
01:
25
will lay the foundation, that the notes are in fact the same and
01:

#:9754
50
1
that her transcription
is entirely consistent with --
THE COURT:
Once that's established,
it, but until it is, I won't.
then I may permit
01:
01:
01:
Yes, Mr. Miller?
01:
MR. MILLER:
That is exactly my point here and this
01:
one is a little less troubling, but when we get into the bass
01:
parts that she has done the same way and these are
01:
transcriptions
01:
from her October 2013 report
THE COURT:
You are going to need to establish that is
Again, let me be focused here.
This isn't going to
01:
10
accurate.
11
the jury -- it's not going to the fact finder, whether myself or
01:
12
the jury.
01:
So you need to focus on her testimony, her opinions.
13
01:
01:
14
For example, she has already testified that although she can
01:
15
play certain pitchshifting
01:
16
Only her opinion.
So it's a similar thing.
I think you need to be focused on how to be efficient
17
18
things, that's not going to the jury.
MR. BUSCH:
I understand.
20
the notes don't match up.
21
actually do -THE COURT:
22
01:
01:
and consistent with my rulings.
19
01:
But their side is saying
I am showing by this that the notes
01:
01:
01:
You need to establish that through her
01:
And, you know, I may have to hear it outside the
01:
23
testimony.
24
presence of the jury if this were prepared prior to -- from the
01:
25
sound recording, I want to know what steps she took after that
01:

#:9755
51
1
to confirm that it's consistent with the lead sheet.
establish that.
01:
MR. BUSCH:
All right.
THE COURT:
That's my ruling.
THE COURT:
10
01:
01:
One moment, please, Mr. Busch.
Okay.
One
01:
01:
moment.
Ladies and gentlemen,
01:
Thank you.
(Sidebar conference ended.)
01:
So
I've read an instruction about
01:
this before, but -- I think I have, but if I haven't, I want to
01:
make something clear.
01:
During the course of the trial, you have already seen
11
12
some exhibits and you'll be seeing other exhibits.
13
something that's called a demonstrative
14
demonstrative
15
evidence.
exhibit, and the
exhibit is a different kind of exhibit.
It's not
01:
01:
01:
01:
A demonstrative
16
There's
01:
exhibit is one that's designed to
01:
17
facilitate your understanding
of some testimony that's being
01:
18
presented or other evidence.
So you may see it, but the
01:
19
demonstrative
20
exhibits during the trial, their purpose is so you can better
01:
21
understand other testimony.
01:
22
evidence.
exhibit during -- or one or more demonstrative
The demonstrative
itself is not
01:
01:
Okay.
01:
23
Go ahead, please, Mr. Busch.
24
MR. BUSCH:
May I display this particular
25
THE COURT:
After you have established a foundation.
--
01:
01:

#:9756
52
1
MR. BUSCH:
doesn't have the transcription
THE COURT:
What page --
01:
MR. BUSCH:
That was page 2.
01:
THE COURT:
Slow down.
01:
MR. BUSCH:
Yes.
MR. MILLER:
a slide.
10
11
This is Exhibit 376, page 2?
Entitled Instrumentals
equal the
01:
01:
Your Honor, it's testimony in the form of
01:
It's a demonstrative.
01:
THE COURT:
01:
Well, I have explained it's not evidence.
01:
You may display that.

Also, ladies and gentlemen, we are going to get to
12
01:
01:
on it.
heartbeat of the song.
8
9
I'm talking about the original one that
01:
13
some sounds during the course of the trial where a witness may
01:
14
be able to testify concerning what the witness -- the witness's
01:
15
opinion about certain sounds.
01:
What's admissible
16
is the witness's opinion in some
17
instances and not the sounds themselves.
18
confusing, but before that testimony occurs, I'll remind you of
01:
19
that distinction.
01:
And so, Mr. Busch, before you elicit that testimony,
20
21
then let me know so I can give my limiting instruction.
01:
01:
01:
01:
Thank you.
22
23
It's a little
01:
BY MR. BUSCH:
01:
Okay.
01:
Ms. Finell, would you look on the screen at the
24
Q.
25
demonstrative
in front of you entitled Instrumentals
equal the
01:

#:9757
53
1
heartbeat of the song and would you explain this for the jury,
01:
please.
01:
MR. MILLER:
THE COURT:
01:
Calls for a narrative.

Yes.
Restate the question, please.
01:
01:
BY MR. BUSCH:
Q.
What do you mean when you say that the bass line and --
01:
bass melodies and descent and the keyboard chord pitches and
01:
rhythms equal the heartbeat
01:
MR. MILLER:
Object to form.
10
THE COURT:
11
You may answer.
12
of the songs?
All right.
01:
Leading.
01:
Overruled.
01:
01:
BY MR. BUSCH:
13
Q.
You can answer.
01:
14
A.
Yes.
01:
15
consider, a heartbeat in that it's a pulse that runs through the
01:
16
song and drives each song.
01:
17
of like our own pulses or our own hearts are beating constantly.
01:
18
It moves the song forward.
01:
The two songs contain a really similar, what I
In essence, it's always going, sort
It does it in a very similar way with two of the same
19
01:
20
components, meaning the keyboard and the bass.
21
components, there are many important similarities between the
01:
22
two songs.
01:
23
Q.
24
these similarities?
25
A.
Okay.
Yes.
And within those
01:
And have you prepared audio excerpts to demonstrate
The first audio excerpt is from the bass and keyboard
01:
01:
01:

#:9758
54
1
of Got To Give It Up and the second one is from the bass and
01:
keyboard of Blurred Lines.
01:
Q.
similar?
A.
introduction,
And is it your opinion that these two are significantly
Yes.
01:
They're the first eight bars, which is the
to strike.
similarities
10
Your Honor, I'm going to object and move
The expert is here to testify in extrinsic

and there is no testimony, either foundation to
01:
01:
01:
01:
01:
01:
THE COURT:
Sustained.
And also it's inconsistent
with the ruling on the word substantial.
01:
01:
So establish, please, the foundation for the creation
13
14
similar.
these or
11
12
and they are significantly
MR. MILLER:
01:
01:
01:
of the recordings and then let's go from there.
15
MR. BUSCH:
Okay.
01:
16
THE COURT:
Thank you.
01:
17
01:
BY MR. BUSCH:
Would you explain how these recorded excerpts were
01:
18
Q.
19
prepared.
20
A.
21
used for this was the Marvin Gaye song in its approximately
01:
22
four-minute version.
01:
23
right off the recording, but it was reduced -- the other
01 :
24
instrumentation
01 :
25
removed.
Yes.
01:
They come from the -- the first recording that was
It's called the single.
And it was taken
that I was told I was not allowed to use was
So this is only the keyboard and only the bass line.
01:
01 :

#:9759
55
1
The
same
MR.
BUSCH:
MR. MILLER:
this
is what
BY MR.
May
Your
I play
Honor,
is in the deposit
You
01:
Blurred Lines.
with
Okay.
THE COURT:
5
6
is true
01:
the
there
is no foundation
01:
that
01:
copy.
need
to establish
01:
that.
01:
BUSCH:
is
And
with
what's
A.
Yes.
01:
10
Q.
Okay.
01:
in the deposit
THE COURT:
11
12
precise,
13
BY MR.
Q.
please.
from
-- keep
consistent
Not
01:
copy?
It's
-- you need
to lay that more
01:
Is it reflected
in the deposit
MR. MILLER:
16
THE COURT:
BY MR.
Same
copy
objection,
lead
your
01:
sheet?
01:
Honor.
01:
Sustained.
01:
BUSCH:
How
is it reflected
18
Q.
19
sheet?
20
A.
21
rhythms
22
also
very
23
also
the
01:
01:
with.
BUSCH:
15
17
audio
01:
Q.
14
is this
Got To Give It Up consistent
by what's
in the deposit
copy
01:
lead
01:
The bass
that
line
are
similar
is very,
shown
very
similar
in the deposit
to what's
indicated
to all of the notes
copy,
and the
in the deposit
copy.
MR.
BUSCH:
25
MR. MILLER:
01:
01:
keyboard,
And
01:
01:
chords.
24
and
Okay.
Your
May
I play
Honor,
it, your
I would
Honor?
object.
There's
01:
01:

#:9760
56
1
first of all, the testimony is that it's not the same notes;
01:
it's similar.
01:
it's the keyboard part.
And second of all, there's no explanation
THE COURT:
of how
01:
Establish
again, what is it
please
01:
the
01:
establish what -- please seek to establish the basis
foundational basis for what you're about to play, beyond just
01:
similar to.
01:
The testimony thus far has been that the bass line is
01:
very, very similar, etc., so I need you to establish the
01:
10
foundation for the recording based on the lead sheet, sheet
01:
11
music.
01:
MR. BUSCH:
12
01:
Okay.
Do you believe that the audio excerpts that you are -- that
01:
13
Q.
14
you have prepared are consistent with and reflected in the
01:
15
deposit copy lead sheet and is a consistent expression of what's
01:
16
in the deposit copy lead sheet?
01:
17
MR. MILLER:
18
THE COURT:
19
Objection.
01:
Compound.
Yes -- well, those are the same words --
01:
01:
BY MR. BUSCH:
Is what you are about to play consistent with the
20
Q.
21
expression of what's in the deposit copy lead sheet?
22
MR. MILLER:
23
THE COURT:
Same objection, your Honor.

Same ruling.
24
used before.
25
the deposit copy shows.
Sustained.
That word was
I want you to ask the witness whether this is what
01:
01:
01:
01:
01:
01:

#:9761
57
1
01:
BY MR. BUSCH:
Q.
Is this what the deposit copy shows?
01:
A.
Yes.
01:
THE COURT:
5
6
That's the witness's opinion.
Do you want
to confirm that, please, that is her opinion.
01:
01:
01:
BY MR. BUSCH:
Q.
That is your opinion?
01:
A.
Yes.
01:
THE COURT:
Go ahead.
(Whereupon, the audio was played for the jury.)
10
11
That's fine.
01:
01:
01:
BY MR. BUSCH:
12
Q.
And that was Got To Give It Up?
01:
13
A.
Yes.
01:
MR. BUSCH:
14
15
18
Would you please explain to the jury what they just heard.
19
MR. MILLER:
20
THE COURT:
21
01:
01:
BY MR. BUSCH:
Q.
01:
01:
Lines.
16
17
And now could we please hear Blurred
Objection.
Calls for a narrative.
Sustained.
01:
01:
01:
01:
BY MR. BUSCH:
22
Q.
Were those the first eight bars of both songs?
01:
23
A.
Yes.
01:
24
Q.
Does that keyboard and bass line that we just heard from
01:
25
both songs run throughout
the entirety of both songs?
01:

#:9762
58
1
01:
Yes, it does.
A.
THE COURT:
And Mr. Busch, again, just to avoid any
ambiguity, the word songs was just used.
are focusing on the sheet music.
Please make sure you
01:
01:
01:
MR. BUSCH:
Yes.
01:
THE COURT:
Thank you.
01:
01:
BY MR. BUSCH:
Did you compare the sheet music from Got To Give It Up with
01:
Q.
Blurred Lines in order to analyze whether -- why those excerpts
01:
sound as they do?
01:
10
11
MR. MILLER:
12
test that she's testifying to.
13
jury
your Honor.
It's an extrinsic
How they sound is for the
01:
01:
01:
THE COURT:
14
15
Objection,
Yes.
Focus on the elements, please.
01:
01:
BY MR. BUSCH:
Did you review -- compare the sheet music of Got To Give It
01:
16
Q.
17
Up with Blurred Lines to -- as part of your analysis?
18
A.
Yes.
19
Q.
Okay.
20
and bass line of Got To Give It Up from the deposit copy lead
01:
21
sheet compared to Blurred Lines?
01:
22
23
01:
01:
And have you prepared transcriptions
MR. MILLER:
of the keyboard
Have you done that?
Objection.
Move to strike.
The deposit
THE COURT:
25
I think you misstated
01:
01:
copy is the lead sheet.
24
01:
01:
Just a minute.
it.
What I mean is I think you
01:

#:9763
59
1
01:
left out the verb.

MR. BUSCH:
01:
Okay.
Did you prepare transcriptions
comparing the elements in
01:
Q.
the deposit copy lead sheet, the notes, with the comparable
01:
passage from Blurred Lines?
01:
A.
Yes.
Q.
Okay.
comparison?
A.
Yes.
10
Q.
Okay.
And have you prepared a demonstrative
showing that
01:
I believe it's later in this exhibit.

All right.
01:
And we'll go to that next.
I'd like to move to is slide 3, signature phrase, same exhibit.

MR. MILLER:
13
01:
01:
The next thing I would like to play, the next thing
11
12
01:
Your Honor, I'll just object for the
14
record.
Again, I don't believe that there is any evidence that
15
this is based on the deposit copy.
01:
01:
01:
01:
01:
16
THE COURT:
You need to -- before displaying this --
01:
17
MR. BUSCH:
I will.
01:
18
THE COURT:
Please take it down.
Before displaying
The
01:
01:
19
it, please -- it's not being displayed, excuse me.
20
foundational basis for what is on page 3 in terms of the written
01:
21
music and that it is -- it is what you just asked about.
01:
22
MR. BUSCH:
Okay.
01:
23
THE COURT:
Thank you.
01:
24
25
BY MR. BUSCH:
Q.
So looking at -- do you have -- you've prepared a
01:
01:

#:9764
60
1
transcription
of the
signature
correct?
A.
I did.
Q.
Okay.
To Give It Up from the deposit
A.
sheet.
Q.
01:
in the two compositions;
01:
It's
01:
And
is the
reflected
I've
Okay.
compared
And
what
11
THE WITNESS:
No.
12
phrase
because
I see
13
phrase
in both
songs.
14
the
15
hears
16
Got To Give It Up.
you provided
from
Got
as the deposit
copy
01:
lead
01:
for note.
the
signature
Vague,
your
phrase?
01:
Honor.
01:
01:
Overruled.
that
one hears
that
this
it as the
or very
01:
signature
01:
recognizable
in Got To Give It Up, it's
For example,
in the song.
is
you're
And
about
when
one
to hear
BUSCH:
18
MR.
MILLER:
19
nonresponsive.
01:
01:
01:
Okay.
Objection.
Move
to strike
01:
as
01:
COURT:
No.
01:
Overruled.
01:
BY MR. BUSCH:
22
Q.
And,
again,
23
A.
It's
-- well,
24
of me, but
25
Q.
it's
what
01:
01:
MR.
And
01:
01:
sheet?
it as an identifying
know
17
THE
lead
I -- I identified
phrase
it, you would
20
note
Objection.
COURT:
vocal
copy
do you call
THE
that
the same
them
10
first
transcription
-- it's
MR. MILLER:
21
phrase
what
is the signature
I -- it would
basically
do you call
phrase
be helpful
in Blurred Lines?
to have
it in front
I'm gon' to take a good girl.

the
signature
phrase
in Got To Give It
01:
01:
01:
01:

#:9765
61
01:
Up?
A.
parties.
The words
are
I like to go out -- I used to go out to
Excuse
me.
Excuse
me,
01:
I misspoke.
The
exact
words
Blurred Lines is and I'm gon' take a good girl.
Q.
Why
A.
They're
melodic
Gaye's
10
voice.
do you
song,
that
it's
MR.
would
13
phrase.
like
the
15
discussed.
16
deposit
first
BUSCH:
Okay.
to publish
Just
what
you would
and
in the case
you hear
Marvin
consider
01:
of Marvin
Gaye's
01:
01:
singing
And
for the
so at this
jury
slide
time,
your
3, similarity
Honor,
01:
signature
01:
Object,
looking
your
at it,
Honor,
for the reasons
I can see it is not music
we've
01:
in the
01:
01:
THE
on that
COURT:
That's
all right.
You
can cross-examine
Again,
20
now
is not
21
understanding
22
she's
ladies
evidence.
and
It's
gentlemen,
designed
of the testimony
what
you are going
to facilitate
of the witness
to see
your
and the opinions
you can explain
at the top you
01:
01:
01:
BUSCH:
So that
01:
01:
expressing.
BY MR.
01:
01:
point.
19
this
time
01:
phrase?
copy.
17
25
have
01:
01:
an identifying
is recognizable,
MR. MILLER:
Q.
They
for
01:
14
24
of those
I believe
01:
12
23
both
recognizable.
profile
11
18
call
01:
see
this
to the jury,
Ms.
Finell,
the signature phrase identifies four
01:
01:

#:9766
62
1
01:
similar elements.
What
2
Yes.
are the
four
similar
A.
musical
analyst,
I should
musical
phrases,
for example,
THE COURT:
Restate
And,
10
please.
question,
Finell,
THE WITNESS:
12
THE COURT:
13
Please
BY MR.
you
All
Thank
-- a
01:
at
01:
to look
01:
identify
Excuse
me, Ms.
01:
Finell.
01:
please.
if you
could
And
and
is taught
01:
found?
I'll
focus
if you don't
have
Mr.
01:
on the questions,
understand
01:
rephrase
it.
01:
Busch
right.
01:
you.
01:
01:
proceed.
01:
BUSCH:
with
respect
15
Q.
16
training
17
similar
18
A.
19
of this
20
the -- when
21
hear
teach
to the
you that
four
similar
allows
elements,
to you
identify
what
does
these
four
your
kind
what
01:
teaches
tones,
24
rhythms,
25
up or down,
and other
that's
when
is intended
the notes
and how
long
elements
called
at two melodies
and compare
I say hear, I mean
So what
are the
me to look
of situation
the music
23
01:
01:
elements?
My training
22
and
much.
tell me
11
14
explain,
sustained.
you very
please
just
the question,
Ms.
Thank
that
To Give It Up and Blurred Lines, there
In Got
elements
what
I look
to be
such
the
music,
last,
which
01:
I can
01:
01:
which
of the melody.
the notes
01:
01:
are the
or not
01:
of
like.
of the pitches,
as whether
contour
in terms
at sheet
to sound
are in terms
the notes
I hear
in the case
go
01:
01:

#:9767
63
So all of those -- all of those components are what an
01:
01:
analyst looks at to compare two melodies.
Q.
that you say you found four similar elements.
explain to the jury those four similar elements with respect to
01:
the two signature phrases?
01:
A.
elements A, B, C, and
my mind is element B, which I'll get to in a moment.
And with respect to the signature phrase, it -- I see here
Yes.
Would you please
So I've identified them here with brackets as
o.
The most powerful similar element in
01:
01:
01:
01:
01:
10
But each phrase begins with repeated notes.
01:
11
I should also tell you that the numerals above each of
01 :
12
the notes in the diagram that you're looking at refer to what is
01:
13
called scale degrees.
01:
14
scale, for example, in our culture has seven notes so a C
01:
15
scale -- if you think of all the white notes right adjacent to
01:
16
one another on a scale, the note C would be 1, the next note up,
01:
17
0, would be 2, the next note would be E, would be 3, sort of
01:
18
like the alphabet, and that's how I compare music.
01:
19
MR. MILLER:
20
THE COURT:
21
MR. MILLER:
22
THE COURT:
23
MR. MILLER:
24
THE COURT:
25
objection.
So when an analyst is looking at music, a
Your Honor
Just a minute.
01:
Yes?
I'm going to object.
01:
She is
I understand.
01:
It should be a question and answer.

I agree.
I understand.
01:
Just state your
01:
01:
01:

#:9768
64
You need to focus -- please ask questions.
1
2
MR. BUSCH:
A narrative.
THE COURT:
-- narrative.
8
9
01:
So focus that and then,
just to make it -- just focus your questions, please.
there will be additional questions.
01:
I think we need to do a little background before you start
10
getting into the four similarities.
11
jury what the numbers are -- above the transcription mean.
12
A.
13
series of numbers with brackets
14
Yes.
01:
01:
BY MR. BUSCH:
Q.
01:
01:
Ms. Finell, again, please focus on each question and
01:
01:
want to have a --
I don't
So would you explain to the
If you look at the top musical line, you'll see a

above them.
So the first -- thank you.
01:
01:
01 :
01:
01:
So the first series is 5,
15
5, 5 with a little bracket that says A.
16
1, 2, 1, 5 with brackets
17
brackets also.
18
which will -- I'll talk about in a minute in terms of rhythms.
01:
19
And then D, the last bracket on the bottom, shows the last
01:
20
similarity I'm going to talk about.
01:
21
22
And underneath are
The first six notes underneath have a bracket C,
MR. MILLER:
nonresponsive.
showing a B.
The next group is 5, 6,
01:
Your Honor, I move to strike.
The question is what the numbers show.

Yes.
Just a minute.
It's
01:
01:
01:
01:
01:
23
THE COURT:
24
Well, this is foundational.
01:
25
MR. BUSCH:
01:
Thank you.
01 :

#:9769
65
THE COURT:
(Record Read)
THE COURT:
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
01:
Thank you.
Do you have the question in mind?

Yes.
01:
I'm going to talk about the
01:
01:
I'm sorry?
Read just the last part of the question,
(Record Read)
THE COURT:
14
THE WITNESS:
15
THE COURT:
16
THE WITNESS:
17
Yes.
01:
Do you have that question in mind?
01:
01:
Yes.
Could you respond, please.
01:
01:
Thank you.
The numbers above the transcription
indicate the
scale degrees, and that's how an analyst compares melodies.
And what about -- same question with respect to the letters
Q.
21
C and D that you have underneath
22
A.
23
in this phrase to do with rhythmic and other musical elements.
24
Q.
Yes.
01:
01:
01:
BY MR. BUSCH:
20
25
01:
01:
13
19
Oh.
01:
01:
please~
12
18
And by the way, Ms. Finell, if you touch
comparison of the numbers.
10
11
01:
that screen, you can use it to draw.
01:
01:
recent question, please.
Restate the -- would you read the most
the transcription.
C and D indicate two of the four similarities
01:
01:
I found
01:
01:
01:
Okay.
Now let's turn to the four similar elements that you
01:

#:9770
66
found in these two phrases.
four similar elements that you found.
A.
Yes.
01:
Q.
Okay.
01:
THE COURT:
5
6
Would you explain to the jury the
01:
01:
Well, do it one at a time, please.
01:
BY MR. BUSCH:
Let's take it -- as the judge requested, let's take it one
Q.
at a time.
01:
01:
The first similar element, what did you find?
01:
That would be element A, and the reason why I found that
01:
01:
10
A.
11
similar was that in both songs, they begin with repeated notes.
01:
12
They aren't the same repeated notes, but the fact that they're
01:
13
repeated is significant
01:
in musicological
terms.
And those notes in Got To Give It Up are the repeated
14
And for Blurred
01:
01:
15
5, 5, 5 for the first three words I used to.
16
Lines, it's a repeated 3, which for a moment goes down to a 2
01:
17
sharp but then up to a 3.
01:
18
referring to with the A brackets below for the words and
01:
19
that's -- and then I'm.
01:
20
Q.
Would you also explain to the jury along these lines
01:
21
whether the melody that goes along with lyrics is important in
01:
22
your analysis.
01:
23
A.
Yes.
01:
24
Q.
And could you explain to the jury why?
25
A.
Well, the -- when I compare melodies,
So the 3, 3, 3s are what I'm
Very much so.
01:
I'm looking for
01:

#:9771
67
1
similar pitches, meaning the tones, as well as other elements.
01:
How -- how long the tones last or how often they're used.
But
01 :
the most important element in comparing melodies
is whether or
01:
not they have a succession of similar or the same tones.

None of the other considerations
beyond that are as
01:
01:
01:
powerful as that.
Q.
which I believe you said a moment ago you found to be the most.
01:
striking?
01:
Okay.
Let's talk about the second similarity you found,
Yes.
The next similarity, which is marked with a bracket B
01:
shows a series of really six notes in a row, of which
01:
10
A.
11
as in boy,
12
five are identical in their scale degrees.

So we're talking about what I would consider sort of
13
01:
01:
01:
14
the meat of the phrase because it's go out to parties for Got To
01:
15
Give It Up and it's gon' take a good girl in Blurred Lines,
01:
16
which is the main musical expression of that phrase as well as
01:
17
in terms of lyrics.
01:
18
discussing.
19
Q.
And then the third similarity that you found?
01:
20
A.
The third similarity
01:
21
same phrase, it's marked as similarity C -- or, I'm sorry,
22
element
23
notes in each of the two songs.
24
Q.
25
phrases that you found?
c.
Okay.
It's what the lyrics are primarily
01:
is that in the first six notes of the
It has six identical rhythms which are called 8th
And then the fourth similarity within these two
01:
01:
01:
01:
01:

#:9772
68
The fourth is called a melisma.
That's similarity D, like
01:
A.
David, and I could discuss it, if you like.
Q.
Yes.
Would you explain what a melisma is, please.
01:
A.
Yes.
Well, in setting vocal music, in other words, songs,
01:
there are two considerations
those individual words are sung with, an A or B or C, when
01:
you're singing Happy Birthday, for example.
01:
One is what notes
And the other element is how you treat each of those
8
9
for a composer.
01:
words.
Words are broken up into, say, syllables so the word
01:
01:
01:
10
happy of happy birthday has two syllables, H -- H-A-P and then
01:
11
P-Y.
01:
So hap-py.
A composer setting that to music has to have a note
12
13
for each of those syllables.
14
on hap and another note on py.
18
MR. MILLER:
Your Honor, move to strike.
20
THE COURT:
21
MR. MILLER:
22
THE COURT:
23
Next question, please.
01:
It -- I --
01:
Excuse me.
This is nonresponsive
to the question.
Let's move on.
BY MR. BUSCH:
Q.
01:
01:
THE WITNESS:
25
This is not
about a melisma.
19
24
01:
01:
decide --
17
01:
01:
And the same is true here, or the composer can
15
16
So a composer might have one note
01:
Do you have examples of what -- how a composer would
01:
01:
01:
01:
01:

#:9773
69
1
demonstrate
THE
2
3
melisma.
BY MR.
01:
a melisma?
COURT:
Restate
the question
as to what
01:
is a
01:
01:
BUSCH:
Q.
Let's
break
it down,
A.
SO a melisma
with
only
those
Q.
Do you have
10
A.
The
11
syllable
of Got
12
parties,
T-I-E-S,
13
the normal
14
Q.
is counter
one note
syllables
to the
A melisma
examples
it over
in my
what
there
All
is a melisma?
are
syllables
being
01:
means
you take
one of
01:
that
several
notes
01:
instead.
01:
comparison.
I just
three
notes
explained
01:
individual
For the
To Give It Up for the last half

sung
in happy
01:
last
01:
of the word
there
instead
of
01:
01:
birthday.
01:
right.
you prepared
audio
excerpts
to compare
these
two
01:
phrases?
01:
I have.
01:
16
signature
17
A.
Yes,
18
Q.
Okay.
19
from
Got To Give It Up reflective
20
A.
Yes.
21
Q.
Okay.
22
excerpts?
23
A.
24
individual
25
voice
This
First,
of melisma?
are here
one that
Have
15
each.
Finell.
and you sing
examples
Okay.
Ms.
And
on this particular
page,
of the
is the audio
lead
01:
excerpt
01:
sheet?
01:
And would
you
explain
what
is in these
two audio
01:
01:
is the vocal
track
alone,
phrase
so it's
and the
same
just
from
Got To Give It Up from the
-- I believe
is true
this
one
is just
of Blurred Lines from
the
the
01:
01:
01:

#:9774
70
01:
individual vocal track.
Q.
vocal track?
A.
instrumentalists
we call tracks, and then later all of that is blended together
01:
in what is referred to as a mix.
01:
Okay.
Yes.
10
01:
01:
When music is recorded, individual vocalists and

are recorded individually,
01:
if you will, on what
And so when you hear a full-scale recording, you may
8
9
And can you explain what you mean by the individual
01:
01:
hear 16 different tracks going at the same time with the guitars
01:
and the drums and the bass and the voices.
01:
So what we've done in order to help isolate this and
11
12
understand where I heard the similarities
13
similarities,
14
track in this case of the voices from the recordings.
15
Q.
01:
16
believe you explained that to the jury yesterday, but just to
01:
17
refresh the jury's recollection
01:
18
which is reflected at the bottom of this demonstrative.
19
A.
20
transposing
21
key so you can eliminate that factor and really focus on what
01:
22
relates between the two songs.
01:
23
Q.
24
25
Okay.
or where I saw the
01:
I was able to show you just in the individual
And I see a notation here about pitchshifting.
Yes.
01:
01:
01:
about what pitchshiftingmeans,
This is accepted musicological
practice for
two songs that are in different keys into the same
01:
01:
01:
01:
Okay.
Would you please -- may I play the two excerpts,
your Honor?
01:
01:

#:9775
71
MR. MILLER:
Your Honor, I would object in that the
expert's testimony is directed to extrinsic similarities.
has explained those on the slide.
that would demonstrate

THE COURT:
She
There is nothing in the audio
Overruled.
However, the
01:
01:
01:
any objective extrinsic similarity.

Okay.
01:
ladies
01:
that
01:
And
01:
and gentlemen, I told you a few minutes ago that when
certain audio recordings are the basis for opinion only.
the -- what's admissible evidence is the opinion and not the
01:
recording.
01:
And this -- one of the two -- the second recording you
10
01:
11
are going to hear has been what has been explained has been
01:
12
pitchshifted.
01:
So accordingly,
13
what is admissible is the opinion of
14
the expert, not the recording.
15
of to understand the basis for her opinion.

Go ahead.
16
17
And here the recording is part
01:
01:
01:
01:
You may play the first
01:
BY MR. BUSCH:
18
Q.
So what will be played first?
01:
19
A.
The first is the signature phrase in Got To Give It Up.
01:
20
Just the vocalist.
21
Q.
Okay.
01 :
And would you play that.
01:
And then what is the second audio excerpt?
22
It's also the signature phrase in Blurred
23
A.
24
vocalist.
25
01:
Lines,
only the
01:
01:
01:

#:9776
72
1
01:
BY MR. BUSCH:
Okay.
Would you please turn to the next slide.
Q.
next slide, we have the same transcription.
And on the
Do you see that, Ms. Finell?
01:
01:
01:
A.
I'm sorry.
Q.
Slide 4.
01:
A.
There is nothing here.
01:
Q.
I'm sorry.
01:
example that has the vocal and with the instrumental using a
01:
10
MIDI synthesizer for the signature phrase?
01 :
11
A.
Yes, I did.
01:
12
Q.
And what is the purpose of that?
01:
13
A.
It enables a listener to hear the melodic comparison
01:
14
without the distraction
15
Q.
16
on this next demonstrative
17
sheet?
Okay.
There's nothing --
01:
Have you prepared another slide with an audio
of the voices or lyrics.
And is the example with respect to Got To Give It Up

consistent with the deposit copy lead
01:
01:
01:
01:
18
MR. MILLER:
Objection to the form --
19
THE COURT:
Sustained.
20
MR. BUSCH:
Okay.
Not consistent with.
Is the Got To Give It Up audio excerpt consistent with the
21
Q.
22
Got To Give It Up deposit copy lead sheet?
23
MR. MILLER:
24
THE COURT:
25
MR. MILLER:
Same objection.
Sustained.
He is asking whether the notes are --
01:
01:
01:
01:
01:
01:
01:
01:

#:9777
73
THE COURT:
I agree.
01:
Sustained.
01:
BY MR. BUSCH:
Q.
Are the notes reflected by the deposit copy lead sheet?
01:
A.
Yes.
01:
MR. BUSCH:
5
6
We would ask that this be
THE COURT:
01:
01:
allowed to be played.
All right.
And the second -- are you playing the
first and the second or just the first?
01:
01:
MR. BUSCH:
This is the first followed by the second.
01:
10
THE COURT:
And the second has been pitchshifted;
01:
11
01:
correct?
12
MR. BUSCH:
Yes.
13
THE COURT:
Same instruction,
14
heard?
19
A.
21
THE COURT:
25
01:
01:
What we just heard -MR. MILLER:
Objection, your Honor.
Leading.
Please ask for the expert's opinions.
01:
01:
02:
Thank you.
02:
BY MR. BUSCH:
Q.
we just
01:
20
24
01:
Would you explain, Ms. Finell, what compositionally
18
23
01:
BY MR. BUSCH:
Q.
01:
01:
17
22
ladies and gentlemen, as
to the second excerpt you will hear.
15
16
01:
What comparative notes did we just hear?

MR. MILLER:
Same objection.
02:
02:

#:9778
74
THE COURT:
Sustained.
Ask for opinions, please.
02:
BY MR. BUSCH:
02:
Okay.
02:
What is your opinion of the comparative notes that
Q.
we just heard?
A.
similar, as I say,
02:
because of the four elements that they share but especially
02:
element B.
02:
Q.
And what do you mean by element B?
02:
A.
Element B contains six of the notes, which is the majority
02:
02:
These two phrases are significantly
10
of the phrase of which five are identical.
11
Q.
Okay.
02:
Thank you.
Do you have -- now, what is so significant in your
12
02:
02:
02:
13
mind about the four similarities within one phrase?
14
A.
15
few notes.
16
those, every note is accounted for in one or more similarities.
02:
17
So that's a great deal of similarity.
02:
Well, you're talking about a phrase here of, you know, very
I mean, there's 11 notes, I believe, and out of
And it's also occurring during the playing of the bass
18
02:
02:
02:
02:
19
and the keyboard.
20
Q.
And what is the significance
21
A.
Well, as I studied the music in this case, I realized that
22
the
there is always more than one similarity occurring at the
02:
23
one
at the same time and that's very unusual.
02:
24
25
of that, in your mind?
I believe that because of the way they intersect at

the same time so that you have the bass line going while you
02:
02:
02:
02:

#:9779
75
1
have
a similar
while
way
that
why
I began
Q.
constellation?
A.
occurring
where
you have
And
part
something
I see
I use
to see it that
11
and there
12
kinds
13
or more
14
music.
this
I analyzed
to the jury
and
have
you have
instead
keyboard
what
of
02:
02:
the music.
you mean
02:
02:
in a
is an example
some
be similar
other
similarities
phrase
phrase
isolated
what
all
there's
02:
by a
more
of a consecutive
a signature
of similarities,
and
by
you have
occurring
like
is often
at the
one
that's
that
two,
a few
02:
similar
02:
02:
or other
three,
same moment
02:
02:
similarity
then maybe
itself
phrases
than
four
02:
02:
in the
02:
And
15
16
I believe
17
another
that
that's
the
in a way
-- that
similar
that
it's
MR. MILLER:
18
these
And
way when
similar
-- it coincides
constellation because
the word
may
it's
the
02:
you maybe
later
that
have
it as a constellation.
similarity
bars
and you also

else,
can you explain
10
19
vocal
narrative
Your
was pretty
features
stunning,
interact
and that's
and relate
why
to one
I'm going
to move
to strike
THE COURT:
21
MR.
MILLER:
22
THE
COURT:
23
I'm going
02:
Well
She went
Just
24
stunning and -- from there
25
in from
02:
far beyond
02:
a minute.
to strike
I use the word
02:
02:
answers.
20
02:
02:
a constellation.
Honor,
02:
and that's -- that was pretty
to the
end of the answer,
but
leave
'constellation' from all occurring at the
02:
02:
02:

#:9780
76
1
02:
same moment in the music.
02:
BY MR. BUSCH:
Do you have an opinion about whether that constellation
Q.
comparing the two songs is unusual?
MR. MILLER:
THE COURT:
Objection.
in
02:
Lacks foundation.
02:
Have you compared
Q.
determining
02:
02:
Sustained.
BY MR. BUSCH:
02:
how many songs have you compared for
whether there are similarities between the songs in
02:
02:
02:
10
your career?
11
A.
Over the last 20 --
12
Q.
Yes.
13
A.
20-plus years?
14
Q.
Yes.
15
A.
Hundreds.
02:
16
Q.
Okay.
02:
17
constellation
18
appearing at the same time in the same way unusual?
20
02:
02:
And in your experience, do you find this
issue here.
of elements appearing
Objection.
similar elements
Lacks foundation as to the
There has been no testimony on a constellation.
THE COURT:
21
22
02:
MR. MILLER:
19
02:
Overruled.
02:
02:
02:
02:
02:
02:
BY MR. BUSCH:
23
Q.
You may answer.
02:
24
A.
Highly unusual.
02:
25
MR. BUSCH:
I would like to play those two audio
02:

#:9781
77
1
examples again, your Honor, for the jury so the jury can hear
02:
them again.
02:
THE COURT:
3
4
They were just played.
Let's move on,
02:
please.
MR. BUSCH:
02:
All right.
02:
Okay.
The next slide we have is an audio example
02:
Q.
of -- this is page 6 of exhibit
Exhibit 376, with the Got To Give It Up signature phrase element
02:
B audio examples and the same transcription.
02:
same exhibit, page 6, 376,
First of all, is the Got To Give It Up signature
10
02:
02:
11
phrase in this audio excerpt consistent with the Got To Give It
02: ..'
12
Up deposit copy lead sheet?
02:
THE COURT:
13
14
Sustained.
02:
02:
BY MR. BUSCH:
15
Q.
Is it in the deposit copy lead sheet?
02:
16
A.
Yes.
02:
THE COURT:
17
The issue is, please, if you're going to
02:
18
present this, whether this expression, written expression of the
02:
19
music --
02:
20
MR. BUSCH:
Okay.
02:
21
THE COURT:
-- is exactly what's in the lead sheet.
02:
22
23
That's what I want you to keep doing, please.
02:
BY MR. BUSCH:
Is the written expression
24
Q.
25
the lead sheet?
02:
of this music consistent -- in
02:
02:

#:9782
78
MR. MILLER:
1
2
Objection,
He said
02:
02:
consistent.
THE COURT:
Do you understand
THE WITNESS:
THE COURT:
THE WITNESS:
MR. BUSCH:
All right.
THE COURT:
Yes.
10
your Honor.
pitchshifted;
02:
Well, no.
02:
the question?
02:
I believe so.
All right.
You may answer.
It is in the lead sheet, yes.

May I play the audio examples?
And the second example is again
02:
02:
02:
02:
02:
correct?
11
MR. BUSCH:
It is pitchshifted,
12
THE COURT:
Same instruction,
your Honor.
ladies and gentlemen.
02:
02:
13
It's the opinion of the expert.
02:
14
BY MR. BUSCH:
02:
15
Q.
16
you've done with respect to these audio excerpts, what we're
02:
17
listening to exactly.
02:
18
A.
In this -- as in this excerpt, I am showing element B,
02:
19
which I described earlier as sort of the meat of the phrase, and
02:
20
I've extracted that just to make that more clear.
02:
21
Q.
Okay.
02:
22
A.
Okay.
02:
23
Q.
All right.
02:
24
25
Before we play it, can you explain to the jury exactly what

BY MR. BUSCH:
02:
02:
02:

#:9783
79
In your opinion, are the notes being sung in those two
02:
Q.
phrases identical?
A.
Out of the six notes, five are identical, yes.
02:
Q.
And the sixth note?
02:
A.
The sixth one is just a repeat of one of the other five
02:
identical notes in the case of Blurred Lines.
Q.
compared and the audio excerpts that we just listened to with
02:
the four similarities,
02:
Okay.
02:
02:
With respect to the signature phrases that we just
do you believe in your opinion that it is
02:
10
likely or unlikely that all these similarities were the result
02:
11
of coincidence?
02:
12
MR. MILLER:
13
THE COURT:
14
Objection,
02:
your Honor.
02:
Sustained.
02:
BY MR. BUSCH:
We've talked about pitchshifting
15
Q.
16
excerpts.
in several of these audio
02:
Would you be able to demonstrate pitchshifting
17
02:
on the
02:
18
keyboard?
02:
19
A.
Yes.
02:
20
MR. MILLER:
21
THE COURT:
22
23
24
25
Objection.
We saw this yesterday.
I think that was done yesterday.
It's
All right.
don't have an objection,

THE COURT:
02:
02:
cumulative.
MR. BUSCH:
02:
Put on the next screen -- we
I believe, about this.
I'm sorry.
What are you --
02:
02:
02:

#:9784
80
1
MR. BUSCH:
Demonstrative
slide 8.
02:
THE COURT:
376, page 8.
Any objection to that being
02:
02:
displayed?
MR. MILLER:
THE COURT:
02:
No objection.
All right.
02:
You may display that.
02:
BY MR. BUSCH:
02:
Ms. Finell, could you explain to the jury what a hook
Q.
means, hook of a song?
A.
Yes.
02:
It's a phrase -- I mean a word that describes usually
02:
10
in popular music what you would think of as sort of the most
02:
11
well-known or memorable
02:
12
with the title lyrics of the song.
13
Q.
theme of a song.
Often it's connected
02:
02:
Ms. Finell -- can you take it off the screen, please.

Before we go on to the hook, the next comparison,
14
02:
15
want to talk to you about the signature phrase, one last thought
02:
16
on that, and outgrowth.
02:
17
Can you explain what an outgrowth is musically.
02:
18
MR. MILLER:
02:
19
Objection.
Cumulative.
It was done
02:
yesterday, your Honor.
20
MR. BUSCH:
I don't believe so, your Honor.
02:
21
THE COURT:
You may answer.
02:
22
23
The question is what is
an outgrowth?
BY MR. BUSCH:
02:
02:
24
Q.
What is an outgrowth musically?
02:
25
A.
Yes.
02:
An outgrowth in music is -- means that there could be

#:9785
81
I played you Happy
02:
what you call a statement of the theme.
Birthday, for example.
you are listening to Happy Birthday that you have heard Happy
02:
birthday
02:
The first phrase was the first time, if
to you.
And then subsequent phrases build on that.
So maybe a
02:
02:
note is changed, maybe it's longer.
But the analyst knows that
02:
it all is referring back to the first time that one experiences
02:
that phrase.
02:
illustrate.
Okay.
So in Happy Birthday, that is what I was trying to
02:
With respect to the signature phrase, you said the
02:
10
Q.
11
signature phrase is in the deposit copy lead sheet.
12
outgrowth of the signature phrase also in the deposit copy lead
02:
13
sheet?
02:
14
A.
15
first page of the deposit copy lead sheet if -- when -- when I
02:
16
have it in front of me, I can illustrate that.
02:
17
for most -- a good half of the song.
18
Q.
19
so you can demonstrate.
Yes.
Is there an
It occupies a great deal -- I think it's the entire
But it goes on
I'm going to put the deposit copy lead sheet on the screen
02:
02:
02:
02:
02:
20
THE COURT:
What is the exhibit number, please?
02:
21
MR. BUSCH:
This is Exhibit No. 248 --
02:
22
THE COURT:
Slow down, please.
02:
23
MR. BUSCH:
Exhibit 248.
02:
24
THE WITNESS:
Thank you.
02:
25
THE COURT:
What is the question?
02:

#:9786
82
1
02:
BY MR. BUSCH:
The question is can you demonstrate
Q.
and its outgrowth in the deposit copy lead sheet?
A.
try circling this.
The first time one sees the signature phrase -- I'll
parties, please?
I haven't used this technology before but --
Thank you.
deposit copy.
02:
02:
02:
02:
Thank you.
So that's what the signature phrase looks like on the
02:
Could we circle the first phrase, I used to go out to
6
7
Yes.
02:
the signature phrase
02:
02:
And then the analyst's job is to assess the
10
phrases that come after that to see if they relate -- refer back
02:
11
to that, like when I showed you Happy Birthday.
02:
12
So the next phrase musically
speaking does relate.
So
02:
13
and stand around relates also to what is the second half of the
02:
14
first phrase.
02:
15
words out to parties.
It's the -- the relationship
starts with the
02:
The -- the third phrase which starts with 'cause I was
16
02:
17
too nervous is very, very close, again, to the signature phrase
02:
18
from beginning
02:
19
this continues all the way through a long section of this entire
02:
20
song so that --
02:
to end.
It has almost all the same notes.
And
Stop there.
02:
21
THE COURT:
22
Next question, please.
02:
23
MR. BUSCH:
02:
All right.
Can you show the jury on a keyboard an example of the
24
Q.
25
outgrowth in the song and how a few notes can occupy an entire
02:
02:

#:9787
83
1
02:
song?
MR. MILLER:
2
3
THE COURT:
All right.
Could you restate the
02:
Do you have an example such as Beethoven's
Q.
that can demonstrate
5th Symphony
MR. MILLER:
Objection.
02:
02:
an outgrowth?
Cumulative.
It was done
02:
02:
yesterday, your Honor.
11
THE COURT:
12
You may use the keyboard, but at the keyboard, please
13
02:
02:
BY MR. BUSCH:
02:
02:
question.
10
don't know what that means.
Objection to the form, your Honor.
Overruled.
02:
02:
02:
pose your question.
14
MR. BUSCH:
Yes.
02:
15
THE COURT:
You may go to the keyboard, Ms. Finell.
02:
16
Ladies and gentlemen, do any of you need a break right
17
02:
now?
Okay.
18
19
20
21
When you get to a convenient breaking point,
please let me know, Mr. Busch.

BY MR. BUSCH:
Q.
02:
So let me ask you a question.

Ms. Finell, can a relatively few number of notes be
22
23
very important to a song?
24
A.
Yes.
25
Q.
Okay.
Very much so.

Do you have an example of that?
02:
02:
02:
02:
02:
02:
02:
02:

#:9788
84
Yes.
Beethoven's
5th Symphony
A.
melody
of which
fourth
is the new note.
Q.
Would
A.
Yes.
are the
Would
the witness
and then
02:
the
you play
02:
that.
plays
the
02:
keyboard.)
02:
BUSCH:
Q.
What
A.
You heard
10
many
consider
11
melodies
12
Q.
And
13
song
in an outgrowth
pattern?
14
A.
Yes.
phrase
15
show
you the outgrowth.
did we just
BY MR.
02:
hear?
the main
theme
the most
to Beethoven's
creative
-- one
written
in music
history.
can you
show
those
The
first
how
(Whereupon,
16
17
notes
02:
you -- I'm sorry.
(Whereupon,
BY MR.
identical
02:
on a four-note
02:
6
7
three
is built
5th Symphony,
of the most
which
02:
creative
02:
four
notes
go throughout
02:
the
02:
I'll play
Here
is the
it was played
it again
and then
02:
I'll
phrase.
02:
for the jury.)
02:
first
02:
BUSCH:
18
Q.
What
19
A.
The
20
in a different
21
Q.
22
song?
23
A.
24
entire
25
Q.
And
did we just
first
then
02:
phrase
(witness
position,
does
02:
hear?
plays
(witness
that
continue
keyboard)
plays
was
repeated
but
02:
keyboard.)
throughout
02:
the entirety
of the
02:
02:
Yes.
It's
a very
-- hundreds
So would
long
symphony
and hundreds
it be fair
in which
of measures
to say that
he builds
from
oftentimes
02:
an
02:
that.
a few notes
can
02:

#:9789
85
1
02:
be the entirety of a song?

MR. MILLER:
THE COURT:
Sustained.
02:
MR. BUSCH:
You may sit down.
02:
Okay.
Objection.
02:
Asked and --
Ms. Finell, with respect to the signature phrase
02:
Q.
you can take that down now -- Ms. Wilbur, who is the expert
02:
witness for Mr. Thicke who they'll call later in the case,
02:
disagrees with you by saying that the rhythm is different
two signature phrases so they are not similar melodically.
in the
02:
02:
10
Is that what you understand?
02:
11
MR. MILLER:
02:
12
THE COURT:
Sustained.
02:
13
MR. BUSCH:
I thought we had -- may I speak at sidebar
02:
14
15
16
17
18
19
20
Objection to the form, your Honor.
02:
about this, please, your Honor?

THE COURT:
The issue is how you phrased the question,
02:
I believe; correct?
MR. MILLER:
Correct.
As well as there is no
testimony from Ms. Wilbur in this case yet.

MR. BUSCH:
Except that I thought we had an agreement
about that, so I would like to speak about it at sidebar.
21
THE COURT:
22
Ladies and gentlemen, we will take our first break and
Let's take a break here.
23
we will resume in about 20 minutes.
24
during the break.
25
02:
Do not discuss the case
02:
02:
02:
02:
02:
02:
02:
02:
(Jury Out)
02:

#:9790
86
02:
THE COURT:
You may be seated.
Ms. Finell, you may step down.
Okay.
You wish to do what?
02:
MR. BUSCH:
02:
02:
Thank you.
02:
You may be seated.
So we originally had an agreement or we
were working on an agreement that Ms. Wilbur would be called in
02:
my case-in-chief by Mr. King and Mr. Miller after Ms. Finell and
02:
Ms. Monson testify and then I could have my experts do a
02:
rebuttal.
02:
Ms. Wilbur was not available this week, so that was --
10
11
02:
02:
that did not happen.

We then discussed
that rather than have to call my
02:
13
expert witnesses back in a rebuttal, that it might make more
02:
14
practical
02:
15
understand Ms. Wilbur's opinions as expressed in her report
02:
16
would be, and so that was what I was intending to do.
02:
12
sense and use of time for them to respond to what we
17
THE COURT:
18
Mr. King?
19
MR. KING:
02:
Okay.
02:
Yes.
This is my alleged agreement.
All I
02:
20
said, which I think didn't get resolved, was I thought that if
02:
21
we could pull it off, we should have the musicologist
grouped,
02:
22
meaning you have the claimants' musicologist
and then you have
02:
23
the defendants' musicologist
24
musicologist
25
years said you get to put on the case --
and then -- I'm sorry -- our
and then you have a rebuttal.
I never in a million
02:
02:
02:

#:9791
87
1
THE COURT:
MR. KING:
THE COURT:
MR. BUSCH:
Okay.
THE COURT:
Then I think what you are going to
02:
02:
And not address Ms. Wilbur now but come
02:
02:
Correct.
Because I don't know what
Ms. Wilbur's testimony would be that would be rebutted.
MR. BUSCH:
Okay.
10
THE COURT:
Okay.
11
02:
02:
Tuesday.
back in rebuttal?
7
8
available?
need to do here is proceed in the normal course.
5
6
When is your musicologist
02:
02:
02:
Thanks.
We will resume in 20
02:
02:
minutes.
12
(Recess taken)
02:
13
(Jury Out)
02:
THE COURT:
14
We are back on the record.
No jurors are
02:
All counsel are present.
02:
16
Is Ms. Finell here?
02:
17
MR. BUSCH:
Yes, she's here.
02:
18
THE COURT:
Would you have her come forward, please.
02:
19
What's your time estimate in terms of your remaining
02:
15
20
21
22
present.
02:
time on direct?
MR. BUSCH:
Depending on the objections
I get, I would
say that it's unlikely I'll finish with Ms. Finell today.
02:
02:
23
THE COURT:
What is your time estimate?
02:
24
MR. BUSCH:
From here, I would say three and a half
02:
25
hours or so.
We have a lot of similarities to go through,
02:

#:9792
88
1
02:
your Honor -THE COURT:
Well, I urge you to be more efficient than
02:
that, because so far we've spent a lot of time that wasn't
02:
efficient.
02:
that it's not really being used efficiently,
to adhere to -- I think you ought to be able to move more
02:
expeditiously
02:
And I have given you time amounts, but if I conclude

then I'm not going
than that.
02:
MR. BUSCH:
I will try my best.
02:
THE COURT:
Thanks.
02:
Is there something you have?
02:
Well, as long as we are waiting, let's
02:
10
Yes, Mr. King?
11
MR. KING:
12
13
remember Mr. King's ski day that we are still hoping to make.
THE COURT:
Well, no, the number of hours that I have
14
allotted is prior to that.
15
want you to be efficient.
I have told you this before.
Jurors
02:
02:
02:
02:
16
MR. BUSCH:
I will try my best.
02:
17
THE COURT:
It serves everyone's interest for each
02:
18
19
02:
side to be efficient.
MR. BUSCH:
02:
Yes, sir.
21
THE COURT:
All right.
22
All right.
All eight jurors are back.
23
02:
(Jury In)
20
Please be seated.
Welcome back,
02:
02:
02:
ladies and gentlemen.
24
Ms. Finell, would you please restate your name.
02:
25
THE WITNESS:
02:
Judith Finell.

#:9793
89
THE COURT:
And do you understand
that you remain
02:
02:
under oath?
02:
THE WITNESS:
Yes, I do.
THE COURT:
Please proceed, Mr. Busch.
02:
MR. BUSCH:
02:
Okay.
02:
Thank you.
Thank you, your Honor.
Ms. Finell, were you present yesterday when Mr. Thicke
02:
Q.
testified?
A.
I was.
02:
10
Q.
Did you hear him testify about the repeated scale degrees
02:
11
in what you have identified or believe is similarity A in the
02:
12
signature phrase?
02:
MR. MILLER:
13
14
02:
testimony.
Objection.
Mischaracterizes
the
He testified he didn't know what a scale degree was.

Could you speak into a microphone, please?
02:
02:
15
THE COURT:
16
Restate the question, please.
02:
17
MR. BUSCH:
02:
Okay.
02:
18
Q.
You heard Mr. Thicke's testimony; correct?
02:
19
A.
Yes.
02:
20
Q.
Do you have -- did you hear him testify about what you
02:
21
believe to be similarity A in the signature phrase?
22
A.
Yes.
02:
23
Q.
Do you agree or disagree with his testimony on that point?
02:
24
A.
Well, I agree.
02:
25
had, yes.
He identified the same similarities that I
02:
02:

#:9794
90
1
Q.
You believe
A.
Yes.
he agreed
MR.
MILLER:
THE
COURT:
Disregard
Please
she's
prepared
BY MR.
10
that
you
can have
11
rhythmic
12
A.
02:
--
02:
sustained.
the
focus
last
question
the attention
report.
to -- Ms.
the
Thank
02:
and answer.
on the expert
02:
and what
02:
you.
Finell,
jury
dissimilarities
listen
within
is there
to that
the
same
an audio
explains
02:
excerpt
rhythmic
--
02:
02:
song?
02:
Yes.
MR.
about
to strike
02:
respect
14
Move
BUSCH:
with
13
Objection.
in her
Q.
02:
you?
02:
with
BUSCH:
We do not have
an objection,
I believe,
02:
02:
this.
02:
is it?
15
THE
COURT:
What
16
MR.
BUSCH:
Slide
17
THE
COURT:
What
exhibit
18
MR.
BUSCH:
Same
exhibit.
19
THE
COURT:
What
is the exhibit
20
MR.
BUSCH:
376,
your
21
THE
COURT:
And
22
MR.
BUSCH:
42.
23
THE
COURT:
Any
24
MR.
MILLER:
25
THE
COURT:
02:
what
is it, please?
02:
number,
please?
02:
02:
Honor.
02:
page?
02:
to this
objection
No objection,
All
02:
right.
your
You may
being
played?
Honor.
play
that.
02:
02:
02:

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

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

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT JUDGE PRESIDING

Pharrell Williams, et al.,

Bridgeport Music, Inc., et al.,

Los Angeles, California

Thursday, February 26, 2015

Pamela A. Batalo, CSR, FCRR, RMR

United States District Court, Central District of California

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

And you wrote the liner notes on the re-issue of Live At

The London Palladium, the album on which Got To Give It Up

initially appeared; correct?

Now, you had -- it is your view that you listened to

Lines and Got To Give It Up sounded very similar; correct?

believed that it was utterly based on Got To Give It Up;

You may have said it or you did say it?

To Give It Up led you to send an e-mail onJune27.2013.to

Doug Barasch, a senior director of digital marketing

strategy at UMG; correct?

Would you please put on the board Exhibit 1200 at 1.

may have said that.

did say it.

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

from Marvin and all is well, that was based

from Marvin was

from Marvin based

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

and ownership of the sound recordings?

As framed, it's a legal issue.

songs or the exploitation

-- let me rephrase that.

Do you know who collects the money from the

of the sheet music of Got To Give It Up as it's

embodied in sound recordings?

would be controlled by Sony ATV, publishing

ATV and Universal Music Group?

In connection with the sale by Universal Music of the sound

recordings of the Marvin Gaye catalog, does Universal use the

name and likeness of Marvin Gaye to sell records?

Do you read music?

You're not a musicologist,

I believe in the case of most of Motown recordings, they

Is there any affiliation

that you're aware of between Sony

Do you read music?

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

Lines had copied

you had heard

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

and the vibe,

job at the time

one of his biggest

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

for any sort

you to say that

you had with

the two parties.

Case 2:13-cv-06004-JAK-AGR Document 347-2 Filed 03/17/15 Page 9 of 66 Page ID

Did the matter