blurred lines trial - transcript exhibit g.pdf

HIBIT G

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

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Thursday, February 26, 2015

UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

4 THE HONORABLE JOHN A. KRONSTADT

5 UNITED STATES DISTRICT JUDGE PRESIDING

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7 Pharrell Williams, et al.,

8 Plaintiffs,

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vs. Case No.

CV 13-06004-JAK(AGRx)

12 Bridgeport Music, Inc., et al.,

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Defendants.

REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS

Day 3

Los Angeles, California

22 Pamela A. Batalo, CSR, FCRR, RMROfficial Reporter

23 Roybal Federal Building255 East Temple Street

24 Room 181-1Los Angeles, California 90012

25 (213) 687-0446

United States District Court, Central District of California

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correct?

A. Yes.

Q. 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?

A. Yes.

Q. So you are very familiar with the song Got To Give It Up;

correct?

A. I am.

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

Blurred Lines when it came out and you believed that Blurred

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

A. Yes.

Q. And it was your view that when you heard Blurred Lines, you

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

correct?

A. I may have said that.

Q. You may have said it or you did say it?

A. I did say it.

Q. And your view that Blurred Lines was utterly based on Got

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

Doug Barasch, a senior director of digital marketing and

strategy at UMG; correct?

A. Yes.

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

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2 Kirk Bonin?

Q. Mr. Weinger, did you send this e-mail on July 9, 2013,

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A. Yes, I did.

And in this e-mail where you say, Yep, theyQ.

5 sampled/borrowed from Marvin and all is well, that was based

6 upon -- the part that says they sampled/borrowed from Marvin

7 based upon your listening to the two songs and your belief;

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A. No.

It was not?

No.

Q.

A.

MR. BUSCH: Okay. Let me play then page 48 -- hold on

one second.

Q. Was what was the they sampled/borrowed from Marvin based

upon?

A. I had had a conversation with Jan about the song. We

discussed its similarities and she said that it had been -- it

had been official, that everything was okay.

That it had been licensed?

THE COURT: One second, please. When you referred to

Jan, to whom are you referring, please?

Q.

THE WITNESS: Jan Gaye.

THE COURT: And if you could use --

THE WITNESS: That was my understanding of the

conversation.

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Q. What is the difference between the -- the ownership of the

compositions and ownership of the sound recordings?

MR. BUSCH: Objection, your Honor.

THE COURT: Sustained. As framed, it's a legal issue.

MR. KING: Okay.

Q. Do you know who collects the money from the sale of the

songs or the exploitation -- let me rephrase that.

Do you know who collects the money from the

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

embodied in sound recordings?

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

would be controlled by Sony ATV, publishing concern.

Q. Is there any affiliation that you're aware of between Sony

ATV and Universal Music Group?

A. There's not.

Q. 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?

A. Yes.

Q. Do you read music?

A. No.

Q. I'm sorry. Do you read music?

A. No.

Q. You're not a musicologist, are you?

A. No.

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Q. Do any of your job duties at Universal Music Enterprises

involve looking for potential infringement claims that your

label might have against others who have used your products

without permission?

A. No.

Q. When you said to your bosses the song sounded familiar or

words that Mr. Busch read to that effect, what sounded familiar

to you at the time you first heard the sound recording of

Blurred Lines?

A. It had a certain groove, the party sounds and the record,

the bass line, the percussion, all had a familiar sound to it.

Q. Did you ever consult the deposit copy of Got To Give It Up

to see whether any of those items you just mentioned were in the

deposit copy?

A. You might have to explain deposit copy.

Q. Did you ever look at any sheet music of Got To Give It Up

to see if any of those elements you just mentioned, the crowd

noise, the percussion, etc., were in the sheet music as opposed

to being in the record that you had heard of Got To Give It Up?

A. I've never -- no. I've not seen sheet music for Got To

Give It Up.

Q. When you said you thought the songs sounded similar because

they had a style or a groove, were you expressing some opinion

that the songs had been copied from each other, that Blurred

Lines had copied Give It Up?

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A. I mean, I felt it was an homage to Marvin Gaye, certainly.

Q. What do you mean by an homage?

A. There were just a lot of similarities in the way the record

was sung, the way the record feels.

Q. Other than that what you mentioned, the crowd noise and the

percussion, did the falsetto contribute to that impression?

A. Yes.

Q. The hi-hat, did that contribute to that impression?

A. Yes.

Q. The lyrics, did the lyrics contribute to that impression?

A. No.

Q. Did you find any similarity in your initial listening to

the two songs as it related to the lyrics?

A. Not at all.

Q. Okay. What would you say was the most important similarity

that caused you to send those as between the items you just

listed?

A. They had a similar kind of energy, so similar to what I was

saying about the groove and the vibe, they just seemed really

alike.

Q. Now, what was your job at the time as it related to

exploiting the sound recording of Got To Give It Up?

A. Well, we obviously in creating a Marvin Gaye greatest hits

record, it was one of his biggest hits, we would have included

it on a hits record. You know, we had done the re-issue of the

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original LP. But the time of that record being popular had

passed so any time we can sell a record from almost 40 years

ago, we look for any sort of opportunity.

And with this sort of similarity and what I had been

reading in kind of the Court of the public, it seemed like,

oh, this sounds similar, I thought why not associate them and

get some visibility for Got To Give It Up.

Q. Were you trying to increase the sales of Got To Give It Up?

A. Yes.

Q. Were you trying to do anything with respect to the sales of

Blurred Lines?

A. No. It seemed to be doing okay on its own.

Q. Now, Mr. Busch showed you some e-mails. I don't think I

need to put them up, but I will if you need to refresh your

recollection.

When you said that all is good, was that based upon a

conversation you had -- I think you said it was based on a with

conversation with Jan Gaye.

Can you describe for me the conversation you had with

Jan Gaye that caused you to say that basically all was good?

A. Oh, it was a combination of things. Both -- we had talked

it over and I had -- my recollection of the conversation was

that it seemed like things had been worked out. And then when

she had sent the Tweet, the combination of those things, it

seemed like everything was fine between the two parties.

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Q. So you sent, I think, two e-mails to your superiors about

trying to create something that would link Got To Give It Up to

the success of Blurred Lines; correct?

A. Yes.

Q. Did you get any response?

A. No.

Q. Did the matter end then, as far as you were concerned?

A. As far as I -- there was no follow-up.

Just one question. I didn't understand what's a buy-fromQ.

link. You suggested in one of these e-mails that the video of

Blurred Lines, which the jury has already seen, have a buy-from

link.

What does that mean?

A. Well, often in this new age of digital marketing, if a

video is up on any of the video services like YouTube, whether a

song is -- whether there is an official video or a fan video,

very often what YouTube allows the record labels to do is put a

button that allows the consumer when they hear the song to click

and it will take you to a digital store to buy that song. I was

hoping we could get the association between the two.

Q. Okay. So you were seeking to have a link that would allow

people who were listening to Blurred Lines to press a button and

basically buy a record from you?

A. Yes.

Q. Of Got To Give It Up?

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A. Yes.

MR. KING: Okay. I have no further questions. Thank

you.

THE COURT: Any recross?

MR. BUSCH: Yes, your Honor.

REDIRECT EXAMINATION

BY MR. BUSCH:

Q. Can you put on the -- I want to -- you just discussed --

you just mentioned in your conversation -- your examination by

Mr. King of a supposed conversation you had with Jan Gaye; is

that right?

A. Uh-huh, yes.

And concerning Got To Give It Up and Blurred Lines?

Yes.

Q.

A.

MR. BUSCH: Your Honor, I would like to publish to the

jury Mr. Weinger's testimony at page 32, line 16 through line21.

THE COURT: Do you propose to play it or read it?

MR. BUSCH: Read it. I don't have that video ready.

THE COURT: Any objection to that being read?

MR. KING: I'm sorry. 13 to

MR. BUSCH: 32, line 13, to page 32, line 21.

THE COURT: Is it starting at line 13 or 16?

MR. BUSCH: I'm sorry. Line 16. My mistake.

MR. KING: I would object. There's no proper purpose

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for this.

MR. BUSCH: It's directly contrary to his testimony.

THE COURT: Excuse me.

No. Let's move on, please.

MR. BUSCH: Your Honor, may I have a sidebar?

THE COURT: No. Let's move on, please. I read it.

This witness is here for a limited purpose. Thank you.

BY MR. BUSCH:

Q. Okay. Mr. Weinger, on cross-examination by Mr. King or

examination by Mr. King, you made the point that you work in New

York; is that

A. Yes.

And that you do -- you are involved with many projectsQ.

from -- with the Interscope, Geffen, and Motown who are based in

Los Angeles; isn't that right?

A. I'm not involved in any projects with Interscope.

with Geffen and with Motown located in Los Angeles; right?

Motown at the time I was working this was in New York.

Does the fact that you live in New York and Interscope is

Q.

A.

Q.

located in Los Angeles affect in any way your ability to receive

e-mails?

A. No.

Does it affect your ability to listen to two songs andQ.

reach an opinion about your view of two songs?

MR. KING: Objection. It's argumentive and beyond the

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scope.

403, 402.THE COURT: Yes, sustained.

MR. BUSCH: Okay.

Q. In examination by Mr. King, he said that you stated that

in your e-mails and your testimony, that the two songs -- the

words Mr. King used were sounded familiar. Did you hear that?

Do you recall him saying that?

MR. KING: Object to the form of the question.

THE COURT: Sustained.

BY MR. BUSCH:

Q. You didn't say in your e-mails and the correspondence with

various executives at UMG that the two songs sounded familiar,

did you?

A. I mean, I don't have them in front of me, so .

Q. Do you remember me showing you an e-mail where you said

that Blurred Lines was utterly based on?

A. Sure.

Q. And

THE COURT: Wait for the question, please, before you

respond. Thank you, Mr. Weinger.

Go ahead, please.

BY MR. BUSCH:

Q. And do you recall saying that you had a reaction when you

listened to Blurred Lines and the song sounded very similar to

you?

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MR. KING: It's -- I object to the form and --


BY MR. BUSCH:

Q. And did I hear you right to say that --

THE COURT: Sustained. These are not in the proper

form.

BY MR. BUSCH:

Q. Isn't it true, sir, that you believe the bass lines between

9 the two songs sounded very similar?

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A. I do.

And just to be clear, you are an employee of a defendantQ.

12 this case; correct?

13 MR. KING: Objection. Asked and answered,

14 argumentive.

15 THE COURT: You may answer.

16 BY MR. BUSCH:

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Q. You are an employee of a defendant in this case; correct?

Yes.A.

MR. BUSCH: Nothing further.

THE COURT: Just a minute. You may read page 32,

21 lines 16 through 21.

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MR. BUSCH: Thank you, your Honor. Thank you,

Q. Mr. Weinger

THE COURT: No. Just read them, please.

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MR. BUSCH: Just read them? Okay. Page 32, line 16:

Q. Have you spoken to Jan about this case and these

songs?

A. Not about this case, no.

Q. Not about -- not about 'Blurred Lines' or 'Got To

Give It Up'?

A. I don't recall.

THE COURT: Okay. Any further questions?

MR. KING: One question.

RECROSS-EXAMINATION

BY MR. KING:

Q. Mr. Weinger, when you testified that you thought the

bass lines sounded very similar, were you talking about the bass

lines that were in the sound recordings or the bass lines that

were reflected in the sheet music for Got To Give It Up?

A. I only listened to the two records, the recordings. I

didn't look to the sheet music.

MR. KING: Thank you.

THE COURT: Mr. Weinger, thank you for your testimony.

Sir, you're excused. Have a safe trip home.

THE WITNESS: Thank you.

THE COURT: Mr. Busch, are you going to resume with

Ms. Finell?

MR. BUSCH: Yes, your Honor.

THE COURT: All right. Would she come forward,

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please.

MR. BUSCH: The witness?

THE COURT: Yes. Ms. Finell, she's here. Would you

come forward, please.

Judith Finell, previously sworn

THE COURT: Please be seated. Good afternoon,

Ms. Finell.

THE WITNESS: Good afternoon.

THE COURT: Would you please restate your name. You

do not have to spell it.

THE WITNESS: Judith Finell.

THE COURT: And do you understand that you remain

under oath?

THE WITNESS: Yes, I do.

THE COURT: Thank you.

Please proceed, Mr. Busch.

MR. BUSCH: Thank you, your Honor.

DIRECT EXAMINATION

BY MR. BUSCH:

Q. Good afternoon, Ms. Finell.

A. Good afternoon.

Q. Picking up with our examination from yesterday, are there

several ways to notate a musical composition?

A. Yes.

Q. And in your experience, are you familiar with lead sheets

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and their creation?

A. I am.

Q. How so?

A. Well, I spent many years as a music editor for music

publishers, and one of my responsibilities was to work very

closely with composers on expressing the music the music that

they intended on the scores of the music that was then

published, for example.

Q. Okay. And how would you describe the notation within a

lead sheet?

A. A lead sheet is really meant as from a musician

professional musician standpoint, as a shorthand for what is

intended by the composer. Not all the music lS written out as

it would be, say, in a classical musical work.

MR. MILLER: I object. 402, 403, your Honor. Expert.

THE COURT: Well, I'll overrule the objection at this

point, but the testimony must be focused as previously ordered.

MR. BUSCH: Yes, sir. Yes, your Honor.

Q. Have you reviewed the deposit copy lead sheet for Got To

Give It Up and After the Dance filed with the United States

copyright office?

A. I have.

Q. Okay. I'm going to be asking you to discuss with the jury

during your testimony about eight different similarities you've

identified between Blurred Lines and Got To Give It Up. So I

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will ask you this in more detail as we discuss each similarity.

But is each element from Got To Give It Up that you

have identified as being very similar to Blurred Lines and

contained within Blurred Lines substantially reflected in those

deposited copy lead sheets you have reviewed?

MR. MILLER: Object to form.


MR. BUSCH: Okay.

Q. Is each element from Got To Give It Up that you have

identified as being very similar to Blurred Lines and contained

within Blurred Lines substantially reflected in the deposit copy

lead sheets?

THE COURT: Sustained. It's the word substantially.

BY MR. BUSCH:

Q. Okay. Is each element of Got To Give It Up that you have

identified as being very similar to Blurred Lines and contained

within Blurred Lines reflected in those deposit copy lead

sheets?

A. Yes, it is.

Q. Okay. Now, you have created various musical excerpts in

this case that you intend to play for the jury; correct?

A. Yes.

Q. I will also ask you this in more detail as we discuss each

specific similarity, but are the recorded excerpts within your

demonstratives that you intend to playa fair and accurate

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representation of the expression of what is in the deposit copy

lead sheets for Got To Give It Up?

MR. MILLER: Objection. Overbroad.

THE COURT: Yes. Sustained as framed.

BY MR. BUSCH:

Q. The first slide I intend to play, the audio exhibit is a --

are the bass lines and keyboards in Got To Give It Up and

Blurred Lines.

Are the bass lines and keyboard and keyboard rhythms

all reflected in the deposit copy lead sheet for Got To Give It

Up?

MR. MILLER: Objection to form. It's vague. I don't

know what he's referring to.

THE COURT: Well, it's compound so break it down and

perhaps if you would show the witness the exhibit that

constitutes the lead sheet and focus your questions in that

manner.

MR. BUSCH: Well, let's break it down.

Q. Are the bass lines that are within the audio excerpt that

you intend to play contained within the lead sheet?

A. Yes.

Q. Are the keyboard portions that are within the audio excerpt

that you intend to play contained within the lead sheet?

A. Yes.

Q. Are the keyboard rhythms within the audio excerpt that you

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A. Yes.

Okay. Is there an indication in the deposit copy leadQ.

4 sheet that the bass line repeats throughout the song Got To

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It Up?

MR. MILLER: Objection. Leading, your Honor. This is

going beyond having her play something.

THE COURT: The experts may be led, but restate the

question, please.

BY MR. BUSCH:

Q. With respect to the bass line within the Got To Give It Up

lead sheet, is there or is there not anything that shows that it

plays throughout the entire song?

A. Yes. In the lead sheet after the first eight bars, it says

bass simile, which means continue in a similar fashion. And

that also applies to the keyboard.

Q. Do you have an opinion about whether the expression in the

audio excerpts that we will play consistent with the composer's

intended expression of the composition?

MR. MILLER: Objection. Calls for speculation --

THE COURT: Yeah, sustained. Frame the questions

based on the sheet music, please. So restate the question.

MR. BUSCH: Okay.

Q. Is the sheet music consistent with the audio excerpts

you're about to play?

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Absolutely.

MR. BUSCH: Okay. We'd like to publish slide 2 in

Ms. -- a demonstrative.

A.

MR. MILLER: Which demonstrative?

THE COURT: Don't publish it. Please defer publishing

until we find out what it is. What are you proposing to

publish, please?

MR. BUSCH: Slide 2.

THE COURT: What exhibit?

MR. BUSCH: Exhibit 380, Demonstrative l.

MR. MILLER: 380?

MR. BUSCH: Yes.

MR. MILLER: It says sound recording.

THE COURT: There is -- 380 just refers to the

demonstrative Exhibit 63.

MR. BUSCH: I apologize, your Honor. It's

Exhibit 376, demo 1.

THE COURT: Just a moment.

MR. MILLER: 376. I apologize, your Honor. I don't

know what he means by demo, your Honor. There are a number of

slides in 376.

MR. BUSCH: It is the first slide in line, Mr. Miller.

THE COURT: 376, page Ii is that it?

MR. BUSCH: Yes. It is the -- it's page 2, demo 1

with the heading instrumentals, the heartbeat of the songs.

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THE COURT: This is a demonstrative exhibit; correct?

MR. BUSCH: Yes.

THE COURT: Is there any objection to this being

displayed during the testimony?

MR. MILLER: I'm still -- I apologize. I'm still

having trouble finding what he's referring to.

THE COURT: Exhibit 376. Do you have 376?

MR. MILLER: Yes. And the first page of it has

something to do with Ms. Wilbur.

THE COURT: Turn to the -- turn to the next page. Do

you have that page?MR. MILLER: Yes. There are no audio examples on the

next page.

THE COURT: Well

MR. BUSCH: Yes, there are.

THE COURT: Well, there's pictures of speakers. Is

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: We're going -- at this time, this page,

and we're going to go right through the

THE COURT: So every page?

MR. BUSCH: Yes.

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MR. MILLER: Your Honor, I would object to page 2

because of your order regarding admissibility of sound

recordings. If you note the numbered colon 19, this is a

transcription 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.

THE COURT: What page of the exhibit

MR~ BUSCH: You're not looking at the right

THE COURT: Wait, wait. Could you wait, please.

To which page of the exhibit are you referring?

MR. MILLER: I apologize, your Honor.

THE COURT: I'm sorry. Page 5?

MR. MILLER: I was on the wrong page, your Honor.

THE COURT: To what page are you referring?

MR. MILLER: Page 3.

THE COURT: What is your objection?

MR. MILLER: My objection is that it is a

transcription of the sound recording so it's contrary to the

rulings in this case.

THE COURT: And what's your -- is this the same --

MR. BUSCH: It is.

THE COURT: Excuse me. Is this the sound recording or

the sheet music?

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MR. BUSCH: It is the sheet music. Ms. Finell will 01:

testify that they are the same. 01:

THE COURT: Well -- 01:

MR. MILLER: Your Honor 01:

THE COURT: Is this the sheet music? 01:

MR. BUSCH: This is her transcription. The answer is 01:

01:that they're the same.THE COURT: Well, no, my question was is this an image

of the sheet music that was filed with the copyright office.

MR. BUSCH: This is not an image. This is her

transcription.MR. MILLER: Your Honor, whether it's the same notes

as the deposit copy is not the issue here. The issue here is

she has listened to the sound recording. She has transcribed

it. I have no objection to the audio itself. You have ruled on

it.

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THE COURT: I understand.

Let me talk to you briefly.

(Sidebar conference commenced.)

THE COURT: First, Mr. Busch, my question wasn't

complicated when I asked you is this a copy of the deposit copy,

so don't make me ask the same question three times to get the

correct answer.

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But what is this? Is this something that -- is this

what the witness prepared from what?

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MR. BUSCH: This is what the witness originally

prepared from the recording but she then went and compared it to

the deposit copy lead sheet, and she will testify that it is the

same and truly reflective of the deposit copy.

THE COURT: The only thing that's relevant is whether

what she has prepared here is consistent with the sound

recording whose admission I've permitted.

MR. BUSCH: Yes, it is.

THE COURT: So her testimony will be that the edited

sound recording, this is her transcription of that edited sound

recording; is that right?

MR. BUSCH: That is correct.

THE COURT: What is your objection, Mr. Miller?

MR. MILLER: My objection is we covered this in the

hearing the other day. I made the exact same objection. You

ruled that all this stuff should be taken out of the slides.

They have had plenty of time to take the deposit copy excerpt of

this page and put it in here. Why are we looking at a

transcription of something that's excluded?

THE COURT: Here's what I think. First of all,

demonstrative exhibits are not admissible. The purpose is to

facilitate an understanding by the fact finder.

I think what you should do, if you wish to, is to

display the deposit copy to the witness and the witness can

testify as to the deposit copy and the recording. So you don't

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need to put this exhibit up because as presented, I don't know

whether this accurately reflects the deposit copy.

MR. BUSCH: She's going to say it does as an expert

witness.THE COURT: Well, if you -- as I said, that wasn't

what you first said and now I understand what you are saying,

but I have just ruled. And I think what you need to do -- I

think -- listen, I think what you need to do is to be efficient,

and whether you publish this with a jury whom I'm going to tell,

as with any demonstrative, it's not evidence. You need to

establish this through the witness.

MR. BUSCH: I'm trying to -- I will do that.

THE COURT: Do that. I don't think you need all the

demonstratives to do that, and we get into some potential 403

issues because there could be a dispute as to whether this does

accurately reflect that if it were prepared previously from the

sound recording and now she is adopting that and saying it is

the same as to the edited one.

MR. BUSCH: Your Honor, it is one thing to say that

the what is admissible are the elements that are reflected in

the deposit copy lead sheet, which we have done and which we

have created.

THE COURT: Right.

MR. BUSCH: These -- she is going to testify, and I

will lay the foundation, that the notes are in fact the same and

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that her transcription is entirely consistent with --

THE COURT: Once that's established, then I may permit

it, but until it is, I won't.

Yes, Mr. Miller?

MR. MILLER: That is exactly my point here and this

one is a little less troubling, but when we get into the bass

parts that she has done the same way and these are

transcriptions from her October 2013 report

THE COURT: You are going to need to establish that is

accurate. Again, let me be focused here. This isn't going to

the jury -- it's not going to the fact finder, whether myself or

the jury.So you need to focus on her testimony, her opinions.

For example, she has already testified that although she can

play certain pitchshifting things, that's not going to the jury.

Only her opinion. So it's a similar thing.

I think you need to be focused on how to be efficient

and consistent with my rulings.

MR. BUSCH: I understand. But their side is saying

the notes don't match up. I am showing by this that the notes

actually do --

THE COURT: You need to establish that through her

testimony. And, you know, I may have to hear it outside the

presence of the jury if this were prepared prior to -- from the

sound recording, I want to know what steps she took after that

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to confirm that it's consistent with the lead sheet. So

establish that.

MR. BUSCH: All right. Thank you.

THE COURT: That's my ruling.

(Sidebar conference ended.)

THE COURT: One moment, please, Mr. Busch. Okay. One

moment.Ladies and gentlemen, I've read an instruction about

this before, but -- I think I have, but if I haven't, I want to

make something clear.

During the course of the trial, you have already seen

some exhibits and you'll be seeing other exhibits. There's

something that's called a demonstrative exhibit, and the

demonstrative exhibit is a different kind of exhibit. It's not

evidence.

A demonstrative exhibit is one that's designed to

facilitate your understanding of some testimony that's being

presented or other evidence. So you may see it, but the

demonstrative exhibit during -- or one or more demonstrative

exhibits during the trial, their purpose is so you can better

understand other testimony. The demonstrative itself is not

evidence. Okay.

Go ahead, please, Mr. Busch.

MR. BUSCH:

THE COURT:

May I display this particular --

After you have established a foundation.

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MR. BUSCH: I'm talking about the original one that

doesn't have the transcription on it.

THE COURT:

MR. BUSCH:

THE COURT:

MR. BUSCH:

What page --

That was page 2.

Slow down. This is Exhibit 376, page 2?

Yes. Entitled Instrumentals equal the

heartbeat of the song.

MR. MILLER: Your Honor, it's testimony in the form of

a slide. It's a demonstrative.

THE COURT: Well, I have explained it's not evidence.

You may display that.

Also, ladies and gentlemen, we are going to get to

some sounds during the course of the trial where a witness may

be able to testify concerning what the witness -- the witness's

opinion about certain sounds.

What's admissible is the witness's opinion in some

instances and not the sounds themselves. It's a little

confusing, but before that testimony occurs, I'll remind you of

that distinction.

And so, Mr. Busch, before you elicit that testimony,

then let me know so I can give my limiting instruction.

Thank you.

BY MR. BUSCH:

Q. Okay. Ms. Finell, would you look on the screen at the

demonstrative in front of you entitled Instrumentals equal the

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heartbeat of the song and would you explain this for the jury,

please.MR. MILLER: Calls for a narrative.

THE COURT: Yes. Restate the question, please.

BY MR. BUSCH:

Q. What do you mean when you say that the bass line and --

bass melodies and descent and the keyboard chord pitches and

rhythms equal the heartbeat of the songs?

MR. MILLER: Object to form. Leading.

THE COURT: All right. Overruled.

You may answer.

BY MR. BUSCH:

Q. You can answer.

A. Yes. The two songs contain a really similar, what I

consider, a heartbeat in that it's a pulse that runs through the

song and drives each song. In essence, it's always going, sort

of like our own pulses or our own hearts are beating constantly.

It moves the song forward.It does it in a very similar way with two of the same

components, meaning the keyboard and the bass. And within those

components, there are many important similarities between the

two songs.Q. Okay. And have you prepared audio excerpts to demonstrate

these similarities?A. Yes. The first audio excerpt is from the bass and keyboard

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of Got To Give It Up and the second one is from the bass and

keyboard of Blurred Lines.

Q. And is it your opinion that these two are significantly

similar?

A. Yes. They're the first eight bars, which is the

introduction, and they are significantly similar.

MR. MILLER: Your Honor, I'm going to object and move

to strike. The expert is here to testify in extrinsic

similarities and there is no testimony, either foundation to

these orTHE COURT: Sustained. And also it's inconsistent

with the ruling on the word substantial.

So establish, please, the foundation for the creation

of the recordings and then let's go from there.

MR. BUSCH: Okay.


BY MR. BUSCH:

Q. Would you explain how these recorded excerpts were

prepared.

A. Yes. They come from the -- the first recording that was

used for this was the Marvin Gaye song in its approximately

four-minute version. It's called the single. And it was taken

right off the recording, but it was reduced -- the other

instrumentation that I was told I was not allowed to use was

removed. So this is only the keyboard and only the bass line.

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The same is true with Blurred Lines.

MR. BUSCH: Okay. May I play the

MR. MILLER: Your Honor, there is no foundation that

this is what is in the deposit copy.

THE COURT: You need to establish that.

BY MR. BUSCH:

Q. And is is this audio from Got To Give It Up consistent

with what's in the deposit copy?

A. Yes.

Q. Okay.

THE COURT: It's -- keep -- you need to lay that more

precise, please. Not consistent with.

BY MR. BUSCH:

Q. Is it reflected in the deposit copy lead sheet?

MR. MILLER: Same objection, your Honor.


BY MR. BUSCH:

Q. How is it reflected by what's in the deposit copy lead

sheet?

A. The bass line is very, very similar to all of the notes and

rhythms that are shown in the deposit copy, and the keyboard,

also very similar to what's indicated in the deposit copy. And

also the chords.

MR. BUSCH: Okay. May I play it, your Honor?

MR. MILLER: Your Honor, I would object. There's

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first of all, the testimony is that it's not the same notes;

it's similar. And second of all, there's no explanation of how

it's the keyboard part.THE COURT: Establish again, what is it please

establish what -- please seek to establish the basis the

foundational basis for what you're about to play, beyond just

similar to.The testimony thus far has been that the bass line is

very, very similar, etc., so I need you to establish the

foundation for the recording based on the lead sheet, sheet

music.

MR. BUSCH: Okay.

Q. Do you believe that the audio excerpts that you are -- that

you have prepared are consistent with and reflected in the

deposit copy lead sheet and is a consistent expression of what's

in the deposit copy lead sheet?

MR. MILLER: Objection. Compound.

THE COURT: Yes -- well, those are the same words --

BY MR. BUSCH:

Q. Is what you are about to play consistent with the

expression of what's in the deposit copy lead sheet?

MR. MILLER: Same objection, your Honor.

THE COURT: Same ruling. Sustained. That word was

used before. I want you to ask the witness whether this is what

the deposit copy shows.

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BY MR. BUSCH:

Q. Is this what the deposit copy shows?

A. Yes.THE COURT: That's the witness's opinion. Do you want

to confirm that, please, that is her opinion.

BY MR. BUSCH:

Q. That is your opinion?

A. Yes.

THE COURT: That's fine. Go ahead.

(Whereupon, the audio was played for the jury.)

BY MR. BUSCH:

Q. And that was Got To Give It Up?

A. Yes.MR. BUSCH: And now could we please hear Blurred

Lines.


BY MR. BUSCH:

Q. Would you please explain to the jury what they just heard.

MR. MILLER: Objection. Calls for a narrative.


BY MR. BUSCH:

Q. Were those the first eight bars of both songs?

A. Yes.

Q. Does that keyboard and bass line that we just heard from

both songs run throughout the entirety of both songs?

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A. Yes, it does.THE COURT: And Mr. Busch, again, just to avoid any

ambiguity, the word songs was just used. Please make sure you

are focusing on the sheet music.

MR. BUSCH: Yes.


BY MR. BUSCH:Q. Did you compare the sheet music from Got To Give It Up with

Blurred Lines in order to analyze whether -- why those excerpts

sound as they do?MR. MILLER: Objection, your Honor. It's an extrinsic

test that she's testifying to. How they sound is for the

juryTHE COURT: Yes. Focus on the elements, please.

BY MR. BUSCH:

Q. Did you review -- compare the sheet music of Got To Give It

Up with Blurred Lines to -- as part of your analysis?

A. Yes.Q. Okay. And have you prepared transcriptions of the keyboard

and bass line of Got To Give It Up from the deposit copy lead

sheet compared to Blurred Lines? Have you done that?

MR. MILLER: Objection. Move to strike. The deposit

copy is the lead sheet.

THE COURT: Just a minute.

I think you misstated it. What I mean is I think you

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left out the verb.

MR. BUSCH: Okay.

Q. Did you prepare transcriptions comparing the elements in

the deposit copy lead sheet, the notes, with the comparable

passage from Blurred Lines?

A. Yes.Q. Okay. And have you prepared a demonstrative showing that

comparison?

A. Yes. I believe it's later in this exhibit.

Q. Okay. All right. And we'll go to that next.

The next thing I would like to play, the next thing

I'd like to move to is slide 3, signature phrase, same exhibit.

MR. MILLER: Your Honor, I'll just object for the

record. Again, I don't believe that there is any evidence that

this is based on the deposit copy.

THE COURT: You need to -- before displaying this --

MR. BUSCH: I will.

THE COURT: Please take it down. Before displaying

it, please -- it's not being displayed, excuse me. The

foundational basis for what is on page 3 in terms of the written

music and that it is -- it is what you just asked about.

MR. BUSCH: Okay.


BY MR. BUSCH:

Q. So looking at -- do you have -- you've prepared a

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transcription of the signature phrase in the two compositions;

correct?

A. I did.

Q. Okay. And is the transcription that you provided from Got

To Give It Up from the deposit copy lead sheet?

A. It's reflected -- it's the same as the deposit copy lead

sheet. I've compared them note for note.

Q. Okay. And what do you call the signature phrase?

MR. MILLER: Objection. Vague, your Honor.

THE COURT: No. Overruled.

THE WITNESS: I -- I identified it as the signature

phrase because I see it as an identifying or very recognizable

phrase in both songs. For example, in Got To Give It Up, it's

the first vocal phrase that one hears in the song. And when one

hears it, you would know that this is you're about to hear

Got To Give It Up.

MR. BUSCH: Okay.

MR. MILLER: Objection. Move to strike as

nonresponsive.

THE COURT: No. Overruled.

BY MR. BUSCH:

Q. And, again, what is the signature phrase in Blurred Lines?

A. It's -- well, I -- it would be helpful to have it in front

of me, but it's basically I'm gon' to take a good girl.

Q. And what do you call the signature phrase in Got To Give It

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Up?

A. The words are I like to go out -- I used to go out to

parties. Excuse me.

Excuse me, I misspoke. The exact words I believe for

Blurred Lines is and I'm gon' take a good girl.

Q. Why do you call both of those an identifying phrase?

A. They're recognizable. They have what you would consider a

melodic profile that is recognizable, and in the case of Marvin

Gaye's song, it's the first time you hear Marvin Gaye's singing

voice.

MR. BUSCH: Okay. And so at this time, your Honor, I

would like to publish for the jury slide 3, similarity signature

phrase.

MR. MILLER: Object, your Honor, for the reasons we've

discussed. Just looking at it, I can see it is not music in the

deposit copy.

THE COURT: That's all right. You can cross-examine

on that point.

Again, ladies and gentlemen, what you are going to see

now is not evidence. It's designed to facilitate your

understanding of the testimony of the witness and the opinions

she's expressing.

BY MR. BUSCH:

Q. So that you can explain this to the jury, Ms. Finell,

this at the top you see the signature phrase identifies four

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similar elements.

What are the four similar elements that you found?

A. Yes. In Got To Give It Up and Blurred Lines, there -- a

musical analyst, I should just explain, is taught to look at

musical phrases, for example, and identify

THE COURT: sustained. Excuse me, Ms. Finell.

Restate the question, please.

And, Ms. Finell, if you could focus on the questions,

please. Thank you very much. And if you don't understand a

question, please tell me and I'll have Mr. Busch rephrase it.

THE WITNESS: All right.


Please proceed.

BY MR. BUSCH:

Q. with respect to the four similar elements, what does your

training teach you that allows to you identify these four

similar elements?

A. My training teaches me to look at two melodies in the case

of this kind of situation and compare what I hear in terms of

the -- when I say hear, I mean when I look at sheet music, I can

hear what the music is intended to be to sound like.

So what the notes are in terms of the pitches, which

are the tones, and how long the notes last, which are the

rhythms, and other elements such as whether or not the notes go

up or down, that's called the contour of the melody.

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So all of those -- all of those components are what an

analyst looks at to compare two melodies.

Q. And with respect to the signature phrase, it -- I see here

that you say you found four similar elements. Would you please

explain to the jury those four similar elements with respect to

the two signature phrases?

A. Yes. So I've identified them here with brackets as

elements A, B, C, and o. The most powerful similar element in

my mind is element B, which I'll get to in a moment.

But each phrase begins with repeated notes.

I should also tell you that the numerals above each of

the notes in the diagram that you're looking at refer to what is

called scale degrees. So when an analyst is looking at music, a

scale, for example, in our culture has seven notes so a C

scale -- if you think of all the white notes right adjacent to

one another on a scale, the note C would be 1, the next note up,

0, would be 2, the next note would be E, would be 3, sort of

like the alphabet, and that's how I compare music.

MR. MILLER: Your Honor

THE COURT: Just a minute. Yes?

MR. MILLER: I'm going to object. She is

THE COURT: I understand.

MR. MILLER: It should be a question and answer.

THE COURT: I agree. I understand. Just state your

objection.

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You need to focus -- please ask questions.

want to have a --

MR. BUSCH: A narrative.

THE COURT: -- narrative. So focus that and then,

I don't

just to make it -- just focus your questions, please.

Ms. Finell, again, please focus on each question and

there will be additional questions.

BY MR. BUSCH:

Q. I think we need to do a little background before you start

getting into the four similarities. So would you explain to the

jury what the numbers are -- above the transcription mean.

A. Yes. If you look at the top musical line, you'll see a

series of numbers with brackets above them.

So the first -- thank you. So the first series is 5,

5, 5 with a little bracket that says A. The next group is 5, 6,

1, 2, 1, 5 with brackets showing a B. And underneath are

brackets also. The first six notes underneath have a bracket C,

which will -- I'll talk about in a minute in terms of rhythms.

And then D, the last bracket on the bottom, shows the last

similarity I'm going to talk about.

MR. MILLER: Your Honor, I move to strike. It's

nonresponsive. The question is what the numbers show.

THE COURT: Yes. Just a minute.

Well, this is foundational.

MR. BUSCH: Thank you.

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THE COURT: Restate the -- would you read the most

recent question, please.

(Record Read)

THE COURT: And by the way, Ms. Finell, if you touch

that screen, you can use it to draw.

THE WITNESS: Oh. Thank you.

Do you have the question in mind?THE COURT:

THE WITNESS: Yes. I'm going to talk about the

comparison of the numbers. I'm sorry?

THE COURT: Read just the last part of the question,

please~(Record Read)

THE COURT: Do you have that question in mind?

THE WITNESS: Yes.

THE COURT: Could you respond, please.

THE WITNESS: Thank you.

Yes. The numbers above the transcription indicate the

scale degrees, and that's how an analyst compares melodies.

BY MR. BUSCH:

Q. And what about -- same question with respect to the letters

C and D that you have underneath the transcription.

A. Yes. C and D indicate two of the four similarities I found

in this phrase to do with rhythmic and other musical elements.

Q. Okay.Now let's turn to the four similar elements that you

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found in these two phrases. Would you explain to the jury the

four similar elements that you found.

A. Yes.

Q. Okay.THE COURT: Well, do it one at a time, please.

BY MR. BUSCH:Q. Let's take it -- as the judge requested, let's take it one

at a time.The first similar element, what did you find?

A. That would be element A, and the reason why I found that

similar was that in both songs, they begin with repeated notes.

They aren't the same repeated notes, but the fact that they're

repeated is significant in musicological terms.

And those notes in Got To Give It Up are the repeated

5, 5, 5 for the first three words I used to. And for Blurred

Lines, it's a repeated 3, which for a moment goes down to a 2

sharp but then up to a 3. So the 3, 3, 3s are what I'm

referring to with the A brackets below for the words and

that's -- and then I'm.

Q. Would you also explain to the jury along these lines

whether the melody that goes along with lyrics is important in

your analysis.

A. Yes. Very much so.

Q. And could you explain to the jury why?

A. Well, the -- when I compare melodies, I'm looking for

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similar pitches, meaning the tones, as well as other elements.

How -- how long the tones last or how often they're used. But

the most important element in comparing melodies is whether or

not they have a succession of similar or the same tones.

None of the other considerations beyond that are as

powerful as that.Q. Okay. Let's talk about the second similarity you found,

which I believe you said a moment ago you found to be the most.

striking?A. Yes. The next similarity, which is marked with a bracket B

as in boy, shows a series of really six notes in a row, of which

five are identical in their scale degrees.

So we're talking about what I would consider sort of

the meat of the phrase because it's go out to parties for Got To

Give It Up and it's gon' take a good girl in Blurred Lines,

which is the main musical expression of that phrase as well as

in terms of lyrics. It's what the lyrics are primarily

discussing.Q. And then the third similarity that you found?

A. The third similarity is that in the first six notes of the

same phrase, it's marked as similarity C -- or, I'm sorry,

element c. It has six identical rhythms which are called 8th

notes in each of the two songs.

Q. Okay. And then the fourth similarity within these two

phrases that you found?

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A. The fourth is called a melisma. That's similarity D, like

David, and I could discuss it, if you like.

Q. Yes. Would you explain what a melisma is, please.

A. Yes. Well, in setting vocal music, in other words, songs,

there are two considerations for a composer. One is what notes

those individual words are sung with, an A or B or C, when

you're singing Happy Birthday, for example.

And the other element is how you treat each of those

words. Words are broken up into, say, syllables so the word

happy of happy birthday has two syllables, H -- H-A-P and then

P-Y. So hap-py.A composer setting that to music has to have a note

for each of those syllables. So a composer might have one note

on hap and another note on py.

And the same is true here, or the composer can

decide --MR. MILLER: Your Honor, move to strike. This is not

about a melisma.

THE WITNESS: It -- I --

THE COURT: Excuse me.

MR. MILLER: This is nonresponsive to the question.

THE COURT: Let's move on.

Next question, please.

BY MR. BUSCH:

Q. Do you have examples of what -- how a composer would

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demonstrate a melisma?

THE COURT: Restate the question as to what is a

melisma.

BY MR. BUSCH:

Q. Let's break it down, Ms. Finell. First, what is a melisma?

A. SO a melisma is counter to the individual syllables being

with only one note each. A melisma means that you take one of

those syllables and you sing it over several notes instead.

Q. Do you have examples of melisma?

A. The examples are here in my comparison. For the last

syllable of Got To Give It Up for the last half of the word

parties, T-I-E-S, there are three notes sung there instead of

the normal one that I just explained in happy birthday.

Q. Okay. All right.

Have you prepared audio excerpts to compare these two

signature phrases?

A. Yes, I have.

Q. Okay. And on this particular page, is the audio excerpt

from Got To Give It Up reflective of the lead sheet?

A. Yes.

Q. Okay. And would you explain what is in these two audio

excerpts?

A. This is the vocal phrase from Got To Give It Up from the

individual track so it's just -- I believe this one is just the

voice alone, and the same is true of Blurred Lines from the

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individual vocal track.

Q. Okay. And can you explain what you mean by the individual

vocal track?

A. Yes. When music is recorded, individual vocalists and

instrumentalists are recorded individually, if you will, on what

we call tracks, and then later all of that is blended together

in what is referred to as a mix.

And so when you hear a full-scale recording, you may

hear 16 different tracks going at the same time with the guitars

and the drums and the bass and the voices.

So what we've done in order to help isolate this and

understand where I heard the similarities or where I saw the

similarities, I was able to show you just in the individual

track in this case of the voices from the recordings.

Q. Okay. And I see a notation here about pitchshifting. I

believe you explained that to the jury yesterday, but just to

refresh the jury's recollection about what pitchshiftingmeans,

which is reflected at the bottom of this demonstrative.

A. Yes. This is accepted musicological practice for

transposing two songs that are in different keys into the same

key so you can eliminate that factor and really focus on what

relates between the two songs.

Q. Okay.

Would you please -- may I play the two excerpts,

your Honor?

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MR. MILLER: Your Honor, I would object in that the

expert's testimony is directed to extrinsic similarities. She

has explained those on the slide. There is nothing in the audio

that would demonstrate any objective extrinsic similarity.

THE COURT: Okay. Overruled. However, the

and gentlemen, I told you a few minutes ago that when

ladies

that

certain audio recordings are the basis for opinion only. And

the -- what's admissible evidence is the opinion and not the

recording.And this -- one of the two -- the second recording you

are going to hear has been what has been explained has been

pitchshifted.So accordingly, what is admissible is the opinion of

the expert, not the recording. And here the recording is part

of to understand the basis for her opinion.

Go ahead. You may play the first

BY MR. BUSCH:

Q. So what will be played first?

A. The first is the signature phrase in Got To Give It Up.

Just the vocalist.

Q. Okay. And would you play that.

And then what is the second audio excerpt?

A. It's also the signature phrase in Blurred Lines, only the

vocalist.(Whereupon, the audio was played for the jury.)

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BY MR. BUSCH:Q. Okay. Would you please turn to the next slide. And on the

next slide, we have the same transcription.

Do you see that, Ms. Finell?

A. I'm sorry. There's nothing --

Q. Slide 4.

A. There is nothing here.

Q. I'm sorry. Have you prepared another slide with an audio

example that has the vocal and with the instrumental using a

MIDI synthesizer for the signature phrase?

A. Yes, I did.

Q. And what is the purpose of that?

A. It enables a listener to hear the melodic comparison

without the distraction of the voices or lyrics.

Q. Okay. And is the example with respect to Got To Give It Up

on this next demonstrative consistent with the deposit copy lead

sheet?MR. MILLER: Objection to the form --

THE COURT: Sustained. Not consistent with.

MR. BUSCH: Okay.

Q. Is the Got To Give It Up audio excerpt consistent with the

Got To Give It Up deposit copy lead sheet?

MR. MILLER: Same objection.


MR. MILLER: He is asking whether the notes are --

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THE COURT: I agree. Sustained.

BY MR. BUSCH:

Q. Are the notes reflected by the deposit copy lead sheet?

Yes.A.

MR. BUSCH: All right. We would ask that this be

allowed to be played.

THE COURT: And the second -- are you playing the

first and the second or just the first?

MR. BUSCH: This is the first followed by the second.

THE COURT: And the second has been pitchshifted;

correct?

MR. BUSCH: Yes.

THE COURT: Same instruction, ladies and gentlemen, as

to the second excerpt you will hear.


BY MR. BUSCH:

Q. Would you explain, Ms. Finell, what compositionally we just

heard?

A. What we just heard --

MR. MILLER: Objection, your Honor. Leading.

THE COURT: Please ask for the expert's opinions.

Thank you.

BY MR. BUSCH:

Q. What comparative notes did we just hear?

MR. MILLER: Same objection.

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THE COURT: Sustained. Ask for opinions, please.

BY MR. BUSCH:Q. Okay. What is your opinion of the comparative notes that

we just heard?A. These two phrases are significantly similar, as I say,

because of the four elements that they share but especially

element B.

Q. And what do you mean by element B?

A. Element B contains six of the notes, which is the majority

of the phrase of which five are identical.

Q. Okay. Thank you.Do you have -- now, what is so significant in your

mind about the four similarities within one phrase?

A. Well, you're talking about a phrase here of, you know, very

few notes. I mean, there's 11 notes, I believe, and out of

those, every note is accounted for in one or more similarities.

So that's a great deal of similarity.

And it's also occurring during the playing of the bass

and the keyboard.

Q. And what is the significance of that, in your mind?

A. Well, as I studied the music in this case, I realized that

the there is always more than one similarity occurring at the

one at the same time and that's very unusual.

I believe that because of the way they intersect at

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

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have a similar vocal part and you also have the similar keyboard

while you have something else, that it's -- it coincides in a

way that I see it as a constellation. And this is an example of

why I began to see it that way when I analyzed the music.

Q. And can you explain to the jury what you mean by a

constellation?

A. I use the word constellation because there's more than one

occurring similarity and instead of a consecutive similarity

where you maybe have a signature phrase and then maybe a few

bars later you have some other phrase by itself that's similar

and there may be similar isolated phrases like that or other

kinds of similarities, what you have is often two, three, four

or more similarities all occurring at the same moment in the

music.

And that's -- that was pretty stunning, and that's why

I believe that the similar features interact and relate to one

another in a way that it's a constellation.

MR. MILLER: Your Honor, I'm going to move to strike

these narrative answers.

THE COURT: Well

MR. MILLER: She went far beyond

THE COURT: Just a minute.

I'm going to strike and that's -- that was pretty

stunning and -- from there to the end of the answer, but leave

in from I use the word 'constellation' from all occurring at the

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same moment in the music.

BY MR. BUSCH:Q. Do you have an opinion about whether that constellation in

comparing the two songs is unusual?

MR. MILLER: Objection. Lacks foundation.


BY MR. BUSCH:Q. Have you compared how many songs have you compared for

determining whether there are similarities between the songs in

your career?

A. Over the last 20 --

Q. Yes.

A. 20-plus years?

Q. Yes.

A. Hundreds.Q. Okay. And in your experience, do you find this

constellation of elements appearing similar elements

appearing at the same time in the same way unusual?

MR. MILLER: Objection. Lacks foundation as to the

issue here. There has been no testimony on a constellation.

THE COURT: Overruled.

BY MR. BUSCH:

Q. You may answer.

A. Highly unusual.MR. BUSCH: I would like to play those two audio

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blurred lines trial - transcript exhibit g.pdf

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