12 BM~~~R~~~F5tftr{Ilfution 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT of CALIFORNIA, WESTERN DIVISION

Home , Blurred Lines, Got to Give It Up, Love After War, Paula Patton, Star Trak Entertainment, The Hand Clap

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1 KING, HOLMES, PATERNO & BERLINER, LLP HOWARD E. KING, ESQ., STATE BARNO. 77012 2 STEPHEN D. ROTHSCHILD, ESQ., STATE BARNO. 132514 [email protected] 3 SETHMILLER,ESQ., STATEBARNO. 175130 [email protected] 4 1900 A VENUE OF THE STARS, 25TH FLOOR Los ANGELES, CALIFORNIA 90067-4506 5 TELEPHONE: (31 0) 282-8989 FACSIMILE: (31 0) 282-8903 6 Attorneys for Plaintiffs and Counter- 7 Defendants PHARRELL WILLIAMS, ROBIN THICKE and CLIFFORD 8 HARRIS, JR. and Counter-Defendants MORE WATER FROM NAZARETH 9 PUBLISHING, INC., PAULA MAXINE PATTON individ}l~ly and d/b/a 10 HADDINGTON MUSIC, STAR TRAK ENTERT~NT GEFFEN 11 RECORDS, INTERSCOPE RECORDS, 12 BM~~~R~~~f5tftr{ilfuTION 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

15 PHARRELL WILLIAMS, an CASE NO. CV13-06004-JAK ~AGRx) individual; ROBIN THICKE, an Hon. John A. Kronstadt, Ctrm 50 16 individua~ and CLIFFORD HARRIS, JR., an in ividual, CORRECTED NOTICE OF 17 MOTION AND MOTION OF Plaintiffs, PHARRELL WILLIAMS, ROBIN 18 THICKE AND MORE WATER vs. FROM NAZARETH PUBLISHING, 19 INC. FOR JUDGMENT AS A BRIDGEPORT MUSIC INC., a MATTER OF LAW, 20 Michi§an CODJoration; FRAN:KiE DECLARATORY RELIEF, A NEW CHRI TIAN GAYE, an individual; TRIAL, OR REMITTITUR; 21 MARVIN GAYE lib an individual; NONA MARVISA AYE, an MEMORANDUM OF POINTS AND 22 individual; and DOES 1 through 10, AUTHORITIES inclusive, 23 Date: June 29, 2015 Defendants. Time: 8:30a.m. 24 Ctrm.: 750 25 AND RELATED COUNTERCLAIMS. Action Commenced: August 15, 2013 Trial Date: February 24, 2015 26 27 Ill 28 Ill

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1 NOTICE OF MOTION 2 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: 3 PLEASE TAKE NOTICE that, on June 29, 2015, at 8:30 a.m., or as soon 4 thereafter as the matter may be heard in Courtroom 750 of the above-entitled court, 5 located at 255 East Temple Street, Los Angeles, California 90012, plaintiffs and 6 counter-defendants PHARRELL WILLIAMS and ROBIN THICKE, individually 7 and d/b/a I LIKE 'EM THICKE MUSIC, and counter-defendant MORE WATER 8 FROM NAZARETH PUBLISHING, INC. (collectively, "Counter-Defendants"), 9 will and hereby do move for judgment as a matter of law under Federal Rule of 10 Civil Procedure 50(b) and for declaratory relief, or, alternatively, a new trial under 11 Federal Rule of Civil Procedure 59( a), with regard to the first claim for relief in the 12 respective counterclaims filed by counter-claimants NONA MARVISA GA YE, 13 FRANKIE CHRISTIAN GAYE, and MARVIN GAYE III (collectively, "Counter 14 IS Claimants"), for alleged copyright infringement of "Got to Give It Up" by "Blurred Lines," or for a remittitur of the profits awarded to Counter-Claimants.1 16 The grounds for this motion are that the jury's verdict finding that Counter- 17 18 Defendants infringed "Got to Give It Up" and the damages and profits awarded by the jury are unsupported by any evidence, let alone substantial evidence, and are 19 contrary to law; and evidentiary errors and legal errors in the jury instructions were 20 prejudicial and prevented Counter-Defendants from receiving a fair trial. 21 This motion is based on this Notice of Motion and Motion, the accompanying 22 Memorandum of Points and Authorities, the Declaration of Seth Miller and exhibits 23 thereto filed previously, the Court's files and records in this action, and such other 24 evidence, argument, or other matter as may be presented prior to or at the hearing on 25 the Motion. 26 27 1 This Motion is brought solely on behalf of counter-defendants Williams, Thicke, and More Water From Nazareth. All other counter-defendants prevailed at 28 trial, were found not liable, and do not seek a new trial or any other relief herein.

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1 Counter-Defendants are filing the corrected memorandum that follows in 2 excess of the 25-page limit set forth in Local Rule 11-6 in furtherance of the Court's 3 Order Granting in Part Request of Counter-Defendants Pharrell Williams and Robin 4 Thicke for Permission to File Memorandum in Excess of 25 Pages in Support of 5 May 1, 2015, Post-Trial Motions, Dkt. 383. 6 7 DATED: May 11, 2015 KING, HOLMES, PATERNO & BERLINER, LLP 8 9 10 By: ----\--~-; ~-y(-~ \\ ----"------_) __ 11 HowARD E. KING 12 SETH MILLER Attorneys for Plaintiffs and Counter-Defendants 13 PHARRELL WILLIAMS, et al. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 TABLE OF CONTENTS 2 3 ARGUMENT ...... 1 INSTRUCTIONAL ERRORS MANDATE A NEW TRIAL ...... 2 EVIDENTIARY ERRORS MANDATE A NEW TRIAL ...... 5 A. Ms. Finell's Testimony Was Inadmissible and Prejudicial...... 6 1. Testimony About Theme X Was Inadmissible ...... 9 2. Testimony About the Keyboard Parts Was Inadmissible ...... 11 3. Testimony About the Bass Melody Was Inadmissible ...... 13 4. Testimony About the Signature Phrase Was Inadmissible ...... 14 5. Testimony About Lyrics Was Inadmissible ...... 14 6. Testimony About Edited and Transcribed Versions of the Sound Recording Was Inadmissible ...... 15 B. Testimony About the Gayes' Mash-Ups Was Inadmissible ...... 16 c. Testimony About Press Statements Was Inadmissible ...... 18 D. The Court's Rulings Regarding Evidence of Lay Opinions On Similarity Were Erroneous, Unfair and Prejudicial ...... 19 E. Nancie Stem's Opinions About Infringement Were Inadmissible ...... 20 THE EVIDENCE DOES NOT SUPPORT THE INFRINGEMENT VERDICT ...... 21 A.

B. 61e s~~~~~~Iafsllitri~s~~~~1I~~i::. ..~~~~~~:. ..~.~~~.~~~~~ .. ~~~~~~~~····· 24 THE EVIDENCE DOES NOT SUPPORT THE DAMAGES AWARDS ...... 25 A. The Jury's Actual Damages Award Is Not Supported By Evidence ...... 25 1. Ms. Stem's Testimony Should Have Been Excluded ...... 25 2. Even In Consideration Of Ms. Stem's Testimony, the Actual Damages Award Is Unsupported By Evidence ...... 26

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1 B. The Jury's Profits Awards Are Not Supported By Evidence ...... 28 2 C. At a Minimum, the Court Should Remit the Profits Awards ...... 30 3 CONCLUSION ...... 30 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 TABLE OF AUTHORITIES 2 Cases 3 4 Ad212f.~3~if~~1 cfi:d.. ~i~·. 2o~o).~.~~~~~. ~~~~·.~ ...... 2 5 Estate ofBarabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014) ...... 5, 6, 7, 13, 17 6 Barabin v. Astenjohnson, Inc., 7 700 F.3d 428 (9th Cir. 2012) ...... 6 8 Bro%o ~~fdSf{25a[9th·cf(r~f9J2) ~~~~.".'...... 4 9 Daubert v. Merrell Dow Pharm., Inc., 10 509 u.s. 579 (1985) ...... 6, 7, 8, 13, 15, 17 11 Dr561 ¥.3d981c~r~zci~· {089)"..~~.~~~~~~:...... 3 12 13 FT953 ~23~78~~hici~: 2014) ...... 6 14 Feist Publications, Inc. v. Rural Telephone Service Co., 499 u.s. 340 (1991) ...... 1, 18 15 Harper House, Inc. v. Thomas Nelson, Inc., 16 889 F.2d 197 (9th Cir. 1989) ...... 4, 16 17 Interactive Pictures Cor!!_. v. Infjnite Pictures, Inc., 274 F.3d 1371 (Fed. Cir. 2001) ...... 25 18 Jessen Elec. & Serv. Co. v. Gen. Tel. Co., 19 106 F.3d 407 (9th Cir. 1997) ...... 2, 30 20 L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012) ...... 3 21 Lakeside-Scott v. Multnomah Cty., 22 556 F.3d 797 (9th Cir. 2009) ...... 1 23 Matte!, Inc. v. MGA Entertainment, Inc., 616 F.3d 904 (9th Cir. 2010) ...... 3, 12 24 25 Mc~J~nF~{ls8qe{Jt~'Ci~.1~s·s) ...... 25 26 Molski v. MJ. Cable, Inc., 481 F.3d 724 (9th Cir. 2007) ...... 1 27 Narell v. Freeman 28 872 F .2d 907 (9th Cir. 1989) ...... 14

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1 Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2003) ...... 4, 23 2 Oracle Corp. v. SAP AG, 3 765 F.3d 1081 (9th Cir. 2014) ...... 25, 26, 27

4 0 Pas~g7sF~ir4fo (9~~~i~r19'1) ...... 3 5 6 RatfiaP.3dCJB) o{g~agir~l~~i): ...... 2 7 Sid 5~~~2~ fr5{1l't~a~i19!it~~::.!~~: ..~:.~~::.~~~.~~~~ .. ~~~~·.: ...... 7 8 Smith v. Jackson, 9 84 F.3d 1213 (9th Cir. 1996) ...... 2 10 Swirskv v. Carey, 376 F.3d 841 (9th Cir. 2004) ...... 2, 3 11 Three Boy_s Music Corp. v. Bolton, 12 212 F.3d 477 (9th Cir. 2000) ...... 2, 3, 5, 15 13 un~32 ¥.~1 {292 (F~~cir~1o11T·.: ...... 25 14 VMG Sa/soul, LLC v. Ciccone, 15 2013 WL 8600435 (C.D. Cal. Nov. 18, 2013) ...... 11 16 Yet~~ ¥.3~ fJf·c91fci:.e2ofi)t~~.~~.~~~:.:: ...... 1o, 11 17 18 Statutes and Rules 19 Fed. R. Civ. P. 50(b) ...... 1, 21 20 Fed. R. Civ. P. 59(a) ...... 1, 21 21 Fed. R. Evid. 402 ...... 5, 7, 13 22 Fed.R.Evid.403 ...... 5, 7, 13, 16,17 23 Fed. R. Evid. 702 ...... 5, 6, 16 24 Fed.R.Evid. 703 ...... 5, 7, 13,15,21 25 26 27 28

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 Introduction 3 The jury's verdict awarding $7.4 million m damages against Pharrell 4 Williams, Robin Thicke and More Water From Nazareth Publishing, Inc. ("Counter S Defendants") for infringing "Got to Give It Up" ("GIVE") with their song "Blurred 6 Lines" ("BLURRED") is unfounded, illogical, and a miscarriage of justice. The 7 inconsistent verdict that found liability against Thicke and Williams but exonerated 8 the record company parties plainly shows that the jury did not find that BLURRED 9 was "substantially similar" to GIVE-the only question properly before it. Instead, 10 the defective verdict can be attributed only to prejudicial and irrelevant evidence 11 concerning Thicke' s statements to the press that he wanted to create a song with the 12 same "feel" or "groove" as Marvin Gaye's song, and to erroneous jury instructions 13 that permitted the jury to find infringement based on similarities of "ideas" between 14 the songs, not of protected expression. But copyright law "encourages others to 15 build freely upon the ideas and information conveyed by a work." Feist 16 Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-350 (1991) 17 (emphasis added) (citation omitted). The jury's verdict and its unsupported 18 damages award, which run counter to the fundamental purpose of the Copyright Act 19 and have shaken up the music industry, cannot stand. The Court should grant 20 judgment as a matter of law and declaratory relief in favor of Counter-Defendants, 21 order a new trial, or, a very minimum, remit the damages awards. 22 Argument 23 Judgment as a matter of law ("JMOL") under Fed. R. Civ. P. SO(b) is required 24 where a plaintiff fails to present a legally sufficient basis for a reasonable jury to 25 rule in its favor. Lakeside-Scott v. Multnomah Cty., 556 F.3d 797, 802 (9th Cir. 26 2009). A new trial is appropriate under Fed. R. Civ. P. 59( a) where "'the verdict is 27 against the weight of the evidence, [] the damages are excessive, or [] for other 28 reasons, the trial was not fair to the party moving."' Molski v. MJ. Cable, Inc., 481

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1 F.3d 724, 729 (9th Cir. 2007); Rattray v. City of National City, 51 F.3d 793, 800 2 (9th Cir. 1994) (same, prevent "miscarriage of justice"); Advanced Display Sys., Inc. 3 v. Kent State Univ., 212 F.3d 1272, 1275 (Fed. Cir. 2000) (same, for "prejudicial 4 legal error" in jury instructions). Remittitur is appropriate under Rule 59 where the 5 damages awarded by the jury are not supportable, and the "proper amount of a 6 remittitur is the maximum amount sustainable by the evidence." Jessen Elec. & 7 Serv. Co. v. Gen. Tel. Co., 106 F.3d 407 (9th Cir. 1997). 8 I. INSTRUCTIONAL ERRORS MANDATE A NEW TRIAL 9 Errors in Instructions 42 and 43 misinformed the jury about how to assess 10 copyright infringement. These errors were highly prejudicial, as they permitted the 11 jury to find infringement based on alleged similarities in elements of the Gayes' 12 work that are not protectable by copyright or included in the Gayes' narrow 13 copyright in the deposit copy for GIVE (the "Deposit Copy"), which comprises the 14 full extent of the Gayes' ownership interest in GIVE. (Dkt. 13 9 at 7-11.) 15 "A copyright plaintiff must prove (1) ownership of the copyright; and 16 (2) infringement-that the defendant copied protected elements of the plaintiffs 17 work." Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). A 18 plaintiff "may establish copying by showing that defendant had access to plaintiffs 19 work and that the two works are 'substantially similar' in idea and in expression of 20 the idea." Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996). Substantial 21 similarity is assessed under "an objective extrinsic test and a subjective intrinsic 22 test." Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). "The extrinsic test 23 considers whether two works share a similarity of ideas and expression as measured 24 by external, objective criteria." Id. This test requires "breaking the works 'down 25 into their constituent elements, and comparing those elements for proof of copying 26 as measured by 'substantial similarity."" Id. (quotation omitted). The "intrinsic 27 test is subjective and asks 'whether the ordinary, reasonable person would find the 28 total concept and feel of the works to be substantially similar."' Three Boys Music,

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1 212 F.3d at 485 (quoting Pasillas v. McDonald's Corp., 927 F.2d 440, 442 (9th Cir. 2 1991)). 3 Under both the extrinsic and intrinsic tests, a "finding of substantial similarity 4 between two works can't be based on similarities in unprotectable elements." 5 Matte!, Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 916 (9th Cir. 2010). To "the 6 extent a plaintiffs work is unprotected or unprotectable under copyright, the scope 7 of the copyright must be limited" before assessing substantial similarity. Brown 8 Bag Software v. Symantec Corp., 960 F.2d 1465, 1476 (9th Cir. 1992); L.A. Printex 9 Industries, Inc. v. Aeropostale, Inc., 676 F.3d 841, 849 (9th Cir. 2012) ("we 10 distinguish protectible from unprotectible elements and ask only whether the 11 protectible elements in two works are substantially similar"); Swirsky, 376 F.3d at 12 845 (same). An instruction that invites the jury to consider the "whole work" is thus 13 proper only if "the unprotectable elements [are] identified." Dream Games of 14 Arizona, Inc. v. PC Onsite, 561 F.3d 983, 1446 (9th Cir. 2009). 15 Instruction 43-which explained the Gayes' burden of proving "there is 16 substantial similarity between" the parties' works (Dkt. 322 at 46; Dkt. 339, 69:2- 17 70: 19)-failed to require the jury to limit its assessment of substantial similarity to 18 protected extrinsic elements of GIVE-even though both parties argued it should 19 (see, e.g., Dkt. 244 at 12; Dkt. 244-3 at 7, 9-10). The instruction invited the jury to 20 make a freewheeling assessment of similarity based on any and all elements of the 21 Gayes' work, or the work as a whole, including elements that are not protected by 22 copyright or included in the Deposit Copy. To wit, Instruction 43: 23 • Erroneously told the jury to "consider the elements of each of the works and decide if they are suostantially similar"-without limiting that consideration 24 to only elements in the Deposit Copy and protectable by copyright; 25 • Erroneously instructed the jury that it "must" consider in assessing similarity both "Theme X" and the keyboard part, which are not in the Deposit Copy; 26 • Failed to identify unprotected elements of GIVE-including ones the Court 27 ruled were "unprotected" (Dkt. 139 at 13-21)-or instruct tile jury that it must identify and factor out unprotected elements before assessing similarity; 28

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1 • Erroneously instructed the jWY. that, in applying the extrinsic test, it could disregard similarities in "individual elements" and instead decide "there is 2 enough similarity between a work of the Gaye Parties and an allegedly infringing work of the Thicke Parties to comprise a substantial amount"; 3 • Erroneously instructed the ju~ that similarities between elements need not be 4 "identical" to be "substantial,' an argumentative and unnecessary instruction the Gayes requested that tipped the scales in favor infringement; and 5 • Erroneously instructed the jury to apply the intrinsic test by determining "if 6 an ordinary, reasonable listener woufd conclude that the total concept and feel of the Gaye Parties' work and the Thicke Parties' work are substantiallY 7 similar," without limiting the test to protectable extrinsic elements of GIVE. 8 9 (Dkt. 322 at 46.) These errors improperly permitted the jury to find infringement 10 based on unprotected elements of GIVE and elements not found in the Deposit 11 Copy. As discussed in Section II.A, infra, the Gayes seized on these errors by 12 making such unprotected elements the focus of their case for substantial similarity. 13 These errors mandate a new trial. See Harper House, Inc. v. Thomas Nelson, Inc., 14 889 F.2d 197, 206-208 (9th Cir. 1989) (ordering new trial and holding that 15 instruction that directed jury to "ask yourself whether the ordinary reasonable 16 person would find the total impact and effect of Defendants' work substantially 17 similar to Plaintiffs work" improperly "encouraged the jury to put the two articles 18 next to each other and determine whether they looked alike, not whether defendants 19 copied protectable expression"). 20 Instruction 43 also erroneously instructed the jury that "[i]n considering 21 whether extrinsic or intrinsic similarities are substantial, you may consider whether 22 portions allegedly copied are either qualitatively or quantitatively important to either 23 of the Gaye Parties' works." (Dkt. 322 at 46.) As Counter-Defendants argued (e.g., 24 Dkt. 244 at 12-13; Dkt. 270 at 11-12), this question is relevant only after a jury 25 determines that there are, in fact, similarities under the extrinsic/intrinsic test, in 26 which case the jury must assess if those similarities are trivial and not actionable. 27 See Newton v. Diamond, 388 F.3d 1189, 1195-96 (9th Cir. 2003). By including this 28 "qualitatively or quantitatively" paragraph in the main instruction on the substantial

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1 similarity test, the Court invited the jury to find "substantial similarity" based only 2 on how frequent an element appears in GIVE or how long it lasts. The Gayes took 3 advantage of this error by arguing that the jury should find infringement if it 4 concludes that any one of Ms. Finell's eight alleged similarities-however 5 miniscule in duration-was important to GIVE. (Dkt. 339, 87:20-88:11.) 6 The Court also erred by instructing the jury in Instruction 42, over Counter- 7 Defendants' objections (Dkt. 244, 10:25-11 :6), that for it "to find that the Thicke 8 Parties copied" GIVE, it need not "find that the Thicke Parties consciously or 9 deliberately copied" the song, but rather it is "sufficient if [it finds] that the Thicke 10 Parties subconsciously copied" the song (Dkt. 322 at 45). This instruction should 11 not have been given. The relevant question for assessing actionable "copying" is 12 whether the works are substantially similar based on the extrinsic/intrinsic test-not 13 whether Counter-Defendants "subconsciously copied." As explained in Three Boys 14 Music, the issue of "subconscious copying" concerns whether the defendant had 15 access to a copyrighted work, 212 F.3d at 482-85-a question that was not in 16 dispute here. This instruction was prejudicial based on the improper admission of 17 evidence that Thicke and Williams were influenced by the "groove" and "feel" of 18 GIVE, and by the Gayes' efforts to portray Thicke and Williams as "copiers." 19 If judgment is not entered in favor of Counter-Defendants for the reasons 20 discussed below, then the Court should grant a new trial so the Gayes' claim of 21 infringement of GIVE can be assessed under the proper legal standards. 22 II. EVIDENTIARY ERRORS MANDATE A NEW TRIAL 23 The Court erroneously admitted a number of categories of evidence that 24 should have been excluded under Federal Rules of Evidence 402, 403, 702 and 703. 25 A district court's erroneous failure to admit or exclude evidence is grounds 26 for a new trial where the evidentiary error is prejudicial. Estate of Barabin v. 27 AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir. 2014) (en bane). Where a court 28 erroneously admits or excludes evidence, the "burden [is] on the beneficiary of the

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1 error either to prove that there was no mjury or to suffer a reversal of his 2 erroneously obtained judgment." Id. at 464. The same standard applies to the 3 improper admission of expert testimony after a district court fails to make 4 "appropriate determinations under Daubert and Federal Rule of Evidence 702." Id. 5 at 462; see FTC v. BurnLounge, Inc., 753 F.2d 878, 888 (9th Cir. 2014) (citing 6 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1985)) ("The Supreme 7 Court in Daubert held that 'the trial judge must ensure that any and all scientific 8 testimony or evidence admitted is not only relevant, but reliable."'). Indeed, the 9 "decision to admit or exclude expert testimony is often the difference between 10 winning and losing a case. . . . The potentially significant influence of expert 11 testimony underscores the importance of assiduous 'gatekeeping' by trial judges." 12 Barabin v. Astenjohnson, Inc., 700 F.3d 428,431 (9th Cir. 2012). 13 If the judgment as a matter of law is not granted here, then the Court's 14 erroneous rulings on several material evidentiary issues mandate a new trial. 15 A. Ms. Finell's Testimony Was Inadmissible and Prejudicial 16 The Court should have prohibited the Gayes' primary musicology expert, 17 Judith Finell, from testifying at all, or, at a minimum, should have conducted a 18 Daubert hearing, which would have prevented her misleading and irrelevant 19 opinions. See Estate of Barabin, 740 F.3d at 464 (a "district court cannot abdicate 20 its role as gatekeeper," and "abuse[s] its discretion by admitting the expert 21 testimony without first finding it to be relevant and reliable under Daubert"); Ellis v. 22 Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) ("trial court must ... 23 [make] a preliminary determination that the expert's testimony is reliable"). 24 Ms. Finell's initial expert opinions in the case, including in her Rule 26 25 Report and her deposition in December 2014, were based entirely on alleged 26 similarities between BLURRED and the popular sound recording for GIVE (the 27 "Sound Recording"), which indisputably contains a number of musical and lyrical 28 elements that are not contained in the Deposit Copy. (Dkt. 175-3; Dkt. 175-11.)

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1 Indeed, until late summer of 2014, Ms. Finell had never even seen the Deposit 2 Copy. (Dkt. 350, 9:15-12:14; Dkt. 175-10 at 18 (Finell Tr. 99:19-100:14).) 3 Counter-Defendants moved in limine to exclude Ms. Finell's improper opinions 4 based on the Sound Recording, but the Court denied the motion. (Dkt. 17 4; Dkt. 5 226 at 1.) Counter-Defendants also asked the Court to hold a Daubert hearing to 6 ensure that Ms. Finell' s testimony was relevant and reliable, but the Court declined 7 to do so. (Dkt. 277; Dkt. 332, 92:6-93:19; Dkt. 348, 3:21-4:4.) 8 As a result of the Court's failure to exclude Ms. Finell' s testimony, to hold a 9 Daubert hearing, or to make the requisite findings of reliability and relevance, 10 Barabin, 740 F.3d at 464, Ms. Finell improperly was permitted to testify about a 11 number of purported "similarities" between BLURRED and GIVE that should never 12 have been presented to the jury, including because they were based on elements 13 Ms. Finell admitted are only "implied" from the Deposit Copy but do not actually 14 appear in it, or that allegedly would be "understood" by a musician to be present in 15 it. (Dkt. 350, 82:20-83:16, 84:6-13, 92:21-93:19; Dkt. 334, 13:14-19.) Ms. Finell 16 described the Deposit Copy as "musical shorthand," and admitted that some of the 17 "material" in the Sound Recording was "eliminate[d]" from the Deposit Copy, and 18 that the author of the Deposit Copy had to "pick and choose" which elements of the 19 song to include. (Dkt. 334, 31:4-16, 43:15-19; Dkt. 336, 40:9-14; 102:13-17; Dkt. 20 350, 83:18-84:13, 87:18-25.) Yet the twin pillars of her opinion-the purported 21 "heartbeat" of GIVE (keyboard and bass) and Theme X-are not written in the 22 Deposit Copy, even though they plainly could have been. (See Dkt. 334, 49:14-19, 23 351, 104:5-105:6.) 24 Copyright protection "extends only to the particular expression of the idea" of 25 an artistic work-not to expression that purportedly can be "inferred" or "implied" 26 therefrom or that was "eliminated" from a work before registration. See, e.g., Sid & 27 Marty Krafft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th 28

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1 Cir. 1977). Ms. Finell's opinions based on the Sound Recording were irrelevant and 2 misleading and should have been excluded. Fed. R. Evid. 402, 403, 703. 3 Ms. Finell' s testimony about purported similarities between unprotected 4 elements of the works was unquestionably prejudicial to Counter-Defendants-the 5 Gayes' entire infringement case was built around her testimony, which was easily 6 the longest of any witness's in the case. The Court's decision not to hold a pre-trial 7 Daubert hearing compounded the prejudice by putting Counter-Defendants in the 8 unenviable position of having to object repeatedly to Ms. Finell's testimony until the 9 Court ultimately granted counsel a standing objection on the issue of material not 10 found in the Deposit Copy. (Dkt. 336, 115:14-15, 116:23-24, 123:21-25.) Although 11 many of Counter-Defendants' objections were sustained and much of Ms. Finell's 12 testimony was stricken after it was given, the net effect of this cumbersome process 13 was extremely prejudicial to Counter-Defendants: (1) the jury likely concluded that 14 Counter-Defendants were overly concerned by Ms. Finell's testimony or were 15 desiring to obstruct and delay the proceedings; (2) Ms. Finell was able to present to 16 the jury testimony, demonstratives, and music that the jury never should have seen 17 or heard; and (3) the jury faced an impossible task of having to constantly 18 distinguish between the select parts of what they saw and heard each day that they 19 could consider later in reaching their verdict, and the parts they could not. 2 20 As discussed below, even if Ms. Finell's testimony should not have been 21 precluded entirely, a number of her opinions were improper and should have been 22 excluded. Each of these evidentiary errors was prejudicial and justifies a new trial. 23 24 2 For example, Ms. Finell testified about and showed the jury a chart depicting 25 purported similarities between the "themes in terms of the story lines" the songs share. (Dk. 336, 148:13-149:9.) Counter-Defendants were compelled to object, as 26 Ms. Finell has no basis to opine about literary themes (nor are themes alone 2rotectable by co2yright, since they are mere ideas). Although the Court sustained 27 the objection and struck the testimony, Counter-Defendants had already been prejudiced by the improper disclosure to the jury of this improper "similarity" 28 opinion and oy their need to argue in front of the jury that it should be excluded.

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1 1. Testimony About Theme X Was Inadmissible 2 The Court ruled on summary judgment that the so-called "Theme X"-a four- 3 note melody consisting of scale degrees 3-3-2#-3-does not appear in the Deposit 4 Copy. (Dkt. 139 at 18.) Recognizing (albeit belatedly) that a central part of her 5 expert opinion was rendered irrelevant by the Court's ruling, on February 4, 2015, 6 Ms. Finell filed a declaration stating that "we wanted to clarify that 'my' Theme X, 7 the four note vocal melody represented in the deposit copy lead sheets, is not the 8 same as the Theme X the Court said was not in the lead sheet." (Dkt. 246-2 at 3:2- 9 4.) Ms. Finell thus admitted that the 3-3-2#-3 vocal melody is not "her" Theme X. 10 Ms. Finell attached to her declaration a page from the Deposit Copy on which she 11 had circled "her" Theme X, namely, a four-note melody with scale degrees 5-5-6-5 12 (and with a different rhythm than the 3-3-2#-3 melody the Court had ruled on). (Id. 13 at Exh. A.) On February 18, 2015, Ms. Finell submitted another declaration, this 14 time stating: "I do not disagree with [the Court's] conclusion" that Theme X does 15 not appear in the Deposit Copy for GIVE, Part 1. (Dkt. 271 at 2:23-24, n. 1.) 16 Ms. Finell said nothing at the time about professional musicians being able to 17 discern from the 5-5-6-5 melody that a different 3-3-2#-3 melody should be played. 18 Ms. Finell thus admitted twice before trial that the 3-3-2#-3 melody was not 19 in the Deposit Copy. Nonetheless, at trial, and over Counter-Defendants' vigorous 20 objections, Ms. Finell testified about and played excerpts of the original 3-3-2#-3 21 version of Theme X (i.e., "dancin' lady") that she had stated before trial was not 22 "her" Theme X. She initially testified that Theme X was not in the Deposit Copy 23 and that only a supposed "variant" of Theme X (i.e., "fancy lady," which she 24 admitted has different notes and rhythm) appears in the Deposit Copy. (Dkt. 336, 25 98:18-110:7.) After Counter-Defendants objected again to the admission of 26 testimony about Theme X (Dkt. 336, 110:8-112:3), Ms. Finell changed course and 27 testified that Theme X was, "in [her] opinion," in the Deposit Copy (Dkt. 336, 28 112:18-24). The Court then permitted Ms. Finell to testify about and play Theme X

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1 for the jury. Ms. Finell proceeded to testify to broad purported similarities between 2 Theme X and elements in BLURRED. 3 On cross-examination, Ms. Finell admitted that the Theme X 3-3-2#-3 4 melody she had just played to the jury is not contained in the Deposit Copy. 5 (Dkt. 350 at 86:13-23.) She also admitted that she found Theme X in GIVE only by 6 transcribing the Sound Recording-not by deriving it from the Deposit Copy. (Dkt. 7 350, 78:7-81 :25.) Nonetheless, Ms. Finell maintained that Theme X is "implied" in 8 the Deposit Copy (Dkt. 350, 82:20-83:16), and that professional musicians "would 9 understand" that Theme X is "what's meant here," even though it is not written in 10 the Deposit Copy (Dkt. 350, 84:6-13; see Dkt. 350, 92:21-93:19). 11 Ms. Finell's "implied" Theme X testimony is irrelevant and highly 12 misleading. The Gayes own a copyright in the composition for GIVE as it was fixed 13 in a tangible form in the Deposit Copy-not in the musical interpretation that 14 professional musicians supposedly "would understand" they might play in addition 15 to the specific notes that actually appear in the Deposit Copy. Ms. Finell's claim 16 that there was room for expert "opinion" as to what the Deposit Copy contains was 17 sheer sophistry. The Deposit Copy contains certain notes written on paper-that is a 18 fact. There is no possible "opinion" as to what is contained in the Deposit Copy- 19 the sheet music speaks for itself. The only permissible "opinion" was whether the 20 Deposit Copy is extrinsically similar to BLURRED. Ms. Finell's testimony on 21 Theme X was neither relevant nor reliable and should have been excluded. 22 In addition, Ms. Finell' s opinion that Theme X is "implied" in the Deposit 23 Copy should have been excluded because it was not disclosed at any time before 24 trial, including in her Rule 26 expert report (Dkt. 175-3), at her deposition 25 (Dkt. 175-11), or even in her subsequent declarations (Dkt. 263-1 at 32-33, 'if 56). 26 See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 27 2001) (Rule 37(c) "forbid[s] the use at trial of any information required to be 28 disclosed by Rule 26(a) that is not properly disclosed").

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1 Counter-Defendants were substantially prejudiced by Ms. Finell's testimony 2 about Theme X, which was one of the twin pillars of the Gayes' similarity case. 3 Ms. Finell improperly: (1) played edited sound recordings of Theme X and 4 compared them to melodies in BLURRED; (2) testified that the Theme X 3-3-2#-3 5 melody appeared in more than 25% of BLURRED; (3) testified that there are 6 "identical" notes in both songs; and (4) testified that this similarity is significant 7 because the 2# in Theme X is a purported "broken rule" that makes it a "red flag" of 8 alleged copying. (Dkt. 336, 105:18-19, 113:1-121:5; Tr. Exh. 376, Slides 11, 13- 9 15.) The Gayes' counsel played several of Ms. Finell's Theme X 3-3-2#-3 edited 10 sound recordings for Williams during his cross-examination, and Williams admitted 11 that the 3-3-2#-3 notes sounded similar in GIVE and BLURRED-an admission 12 that was harmful, prejudicial, and irrelevant because the Theme X 3-3-2#-3 melody 13 is not in the Deposit Copy. (Dkt. 338, 124:13-128:6; Tr. Exh. 376, Slides 11-14.) 14 2. Testimony About the Keyboard Parts Was Inadmissible 15 The Court ruled on summary judgment (Dkt. 139 at 21) that the Deposit Copy 16 does not contain a keyboard part, other than the harmony of an A 7 chord, which is 17 not protectable in itself as a matter of law, see VMG Salsoul, LLC v. Ciccone, 2013 18 WL 8600435, at *7-8 (C.D. Cal. Nov. 18, 2013), and that the rhythm of the Sound 19 Recording keyboard is not in the Deposit Copy. Ms. Finell opined in her Rule 26 20 report that the keyboard is not in the Deposit Copy: "the deposit copy (lead sheet) 21 for 'Got to Give It Up' excludes all of the ... instrumental lines, so there is no

22 keyboard .... Only rudimentary chord indications are shown." (Dkt. 175-3 at 33, ~ 23 80.) Ms. Finell testified at her deposition that the voicing (actual notes) and rhythm 24 of the Sound Recording keyboard are not in the Deposit Copy. (Dkt. 277 at 16-18.) 25 Nonetheless, over Counter-Defendants' objections (Dkt. 332, 89:8-93:19; 26 Dkt. 336, 42:6-57:8), Ms. Finell was permitted to testify that the keyboard part in 27 the Sound Recording,. including its rhythm, is similar to the keyboard in BLURRED. 28 She also played edited sound recordings comparing the keyboard from the Sound

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1 Recording to the keyboard in BLURRED. Ms. Finell referred to these keyboard 2 parts as the "heartbeat" of GIVE, and she played them repeatedly for the jury and 3 claimed they were similar to BLURRED. (Dkt. 332, 89:8-91 :24; Dkt. 336, 42:6- 4 51:3, 52:24-57:8, 135:12-137:16, 138:13-142:17; Tr. Exh. 376, Slides 2, 19.) 5 Ms. Finell made it abundantly clear during her testimony that her opinion 6 regarding the keyboard parts was based on a gross extrapolation of the music that 7 actually appears in the Deposit Copy. She prepared the following transcription of 8 the GIVE Sound Recording keyboard part that she claimed is in the Deposit Copy:

9 rbs;tsrzK dr/dlma:: 10 1 11 f~:%!:': 'I! ':iic:':nt: fill.. ':i 12 (Tr. Exh. 376, Slide 19; see Dkt. 336, 135:12-136:16.) Ms. Finell showed the above 13 transcription to the jury and claimed that it (left and right hand parts) is contained in 14 the first four measures of the Deposit Copy, which are set forth below: f ' 3 ~~ f'i$ t;t_,i\r 'i~ iii\i )JJ ;1 •qAJJ:P' fii 17 18 (Tr. Exh. 248; Dkt. 334, 5:25-8:2.) Ms. Finelllater admitted on cross-examination 19 that: (1) the specific notes and rhythms of the Sound Recording keyboard part are 20 not in the Deposit Copy; (2) there a number of different ways to play the A7 chord 21 on a keyboard; and (3) the Deposit Copy does not indicate any keyboard part at all. 22 (Dkt. 334, 8:21-14:13.) As with Theme X, however, Ms. Finell testified that, in her 23 opinion, professional musicians "would understand" to play the keyboard part as she 24 transcribed it, even though it is not in the Deposit Copy. (Dkt. 334, 13:14-19.) 25 What professional musicians supposedly may know to play but that is not 26 fixed in a tangible form is not relevant to copyright infringement. Indeed, that "all 27 professional musicians" supposedly would know to play the keyboard part-even 28 though it is not in the Deposit Copy-shows that the keyboard part is unprotectable

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1 as scenes a faire, and must be available for all musicians to use. See Matte!, 616 2 F.3d at 913. Further, as discussed above with Theme X, that the keyboard is not in 3 the Deposit Copy is not a topic for expert opinion-it is an underlying fact. 3 Ms. 4 Finell's testimony was therefore prejudicial and misleading and should have been 5 excluded. Fed. R. Evid. 402,403, 703; Estate ofBarabin, 740 F.3d at 464.4 6 3. Testimony About the Bass Melody Was Inadmissible 7 Ms. Finell testified that the bass part used in her edited versions of the Sound 8 Recording is found in the Deposit Copy, and that it is part of the "heartbeat" of 9 GIVE that allegedly is similar to BLURRED. (Dkt. 336, 121:7-135:10; Tr. Exh. 10 376, Slides 16-18.) Yet the bass part Ms. Finell testified to and included in her 11 edited sound recording differs from the Deposit Copy in numerous respects, 12 including that the descending bass melody in the Deposit Copy starts on the 4th 13 scale degree, while Ms. Finell' s transcription from the Sound Recording bass part 14 starts on the 5th scale degree-a deliberate choice on her part because the 5th scale 15 degree makes it more similar to the descending bass melody in BLURRED. (Dkt. 16 334, 17:15-23:17; Tr. Exh. 376, Slide 18.) In other words, because the Deposit 17 Copy did not support her similarity claim, Ms. Finell simply chose a bass part from 18 the Sound Recording that was more similar to BLURRED, and played it for the jury 19 in her edited sound recordings. Ms. Finell admitted that her testimony and edited 20 recordings were based entirely on her transcription of "Marvin Gaye playing his 21 own bass" in the excluded Sound Recording. (Dkt. 334, 23:13-17.) Because neither 22 Ms. Finell' s transcriptions nor her edited audio examples of the bass taken from the 23 3 Ms. Wilbur testified that the A 7 chord in GIVE does not indicate any specific 24 instrument, notes or rhythms to play the A 7 harmony (chord) in accompanymg the GIVE vocal melody. (Dkt. 351, 103:15-108:2, 111:8-11, 112:6-18; 113:16-1 16:17.) 25 4 As a clear sign that Ms. Finell's testimony was prejudicial to Counter Defendants and confusing to the jm·x, a juror submitted a wntten question for the 26 Court to pose to Ms. Finell asking: 'In the expert witness's opinion, did she assert that there is only one way to write down a chord when making musical notation so 27 although it imphes several notes are played, it would always be written and implied the exact same way in all music?" (Dkt. 334, 104:22-105:2.) This question was so 28 confounding that the Court declined to even try to answer it. (!d., 105:4-106:11.)

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1 Sound Recording are in the Deposit Copy, the Court erred by permitting her to 2 present them to the jury, particularly without conducting a Daubert hearing first. 3 The prejudice from Ms. Finell's improper testimony about the bass and

4 keyboard-the supposed "heartbea~" of GIVE-was exacerbated by the testimony 5 of the Gayes' other musicologist, Dr. Ingrid Monson, about those same elements 6 (Dkt. 334, 70:24-75:22, 78:10-24.) The bass and keyboard were the only aspects of 7 GIVE that Dr. Monson addressed, thus underscoring their perceived importance. 8 Dr. Monson also played for the jury an audio "mash-up" that consisted solely of the 9 Sound Recording bass and keyboard parts (not found in the Deposit Copy) "mashed 10 up" with the vocal melody from BLURRED. (Dkt. 334, 79:16-83:16.) The Gayes' 11 experts thus improperly and prejudicially made the "heartbeat" of the Sound 12 Recording (along with Theme X) the two pillars of their similarity case at trial. 13 4. Testimony About the Signature Phrase Was Inadmissible 14 Ms. Finell's transcription of the so-called GIVE "Signature Phrase" (a term 15 invented by Ms. Finell) also was based on the Sound Recording, not the Deposit 16 Copy. (Dkt. 350, 38:16-51:8; Tr. Exh. 376, Slide 3.) Her transcription and edited 17 sound recording of the GIVE Signature Phrase-which, as Ms. Finell testified, is 18 how Marvin Gaye sings it on the Sound Recording-differ from the notes in the 19 Deposit Copy in that the last note (f#) as transcribed by Ms. Finell has a different 20 duration than in the Deposit Copy. (Dkt. 350, 38:16-51:8; Tr. Exh. 376, Slide 3.) 21 Ms. Finell should not have been permitted to offer irrelevant testimony about 22 similarities in the Signature Phrase. 23 5. Testimony About Lyrics Was Inadmissible 24 The Court denied Counter-Defendants' motion to exclude Ms. Finell's 25 opinion on purported lyrical similarities (Dkt. 174 at 16-18; Dkt. 226 at 2), and thus 26 permitted her to testify to alleged similarities in the use of the words "up," "down," 27 "shake," and "round" in each song (Dkt. 336, 142:22-147:3; Tr. Exh. 376, Slide 32). 28 These ordinary words are not protected by copyright, and Ms. Finell' s testimony

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1 about them was irrelevant and misleading. See 37 C.F.R. 202.1(a) (single words and 2 short phrases are not protected); Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 3 1989) (same). To compound the prejudice from this irrelevant testimony, Ms. Finell 4 opined that the melodies in both songs went up in pitch on the word "up" and down 5 in pitch on the word "down" (so-called "word painting"), which is simply an 6 unprotected (and unremarkable) idea over which the Gayes surely cannot claim a 7 monopoly. (Id.; Dkt. 322 at 31 (Instruction 30) ("Similarity that is confined to ideas 8 and general concepts is not infringing").) The prejudice from this testimony was 9 further enhanced by the Court's refusal to separately instruct the jury that ordinary 10 words are not protected, as Counter-Defendants requested. (Dkt. 267 at 14.) 11 6. Testimony About Edited and Transcribed Versions of the 12 Sound Recording Was Inadmissible 13 Ms. Finell infused her testimony with her edited versions of the Sound 14 Recording and her transcriptions of the same. (See, e.g., Dkt. 336, 52:24-57:13, 15 59:25-73:15, 77:6-79:6, 99:18-110:7,112:12-117:18,121:19-127:15.) The Court 16 ruled before trial that edited sound recordings could be used for purposes of the 17 intrinsic test, but only if limited to elements in the Deposit Copy. The Court, 18 however, did not conduct a Daubert hearing or make any specific findings that Ms. 19 Finell's recordings were so limited. Fed. R. Evid. 703. And they were not: the 20 recordings included the keyboard part, Theme X, and the Sound Recording bass 21 melody that differs from the Deposit Copy bass. (Dkt. 336, 52:5-57:10, 105:5- 22 116:12; 123:18-127:15; 129:7-131:21; 135:12-137:10, 138:13-142:17; Tr. Exh. 376, 23 Slides 2, 11, 13-14, 16-20.) 24 There was no reason for the Court to expose the jury to edited versions of the 25 Sound Recording. The Court allowed audio examples to be played in response to 26 the Gayes' concern about providing evidence of intrinsic similarity. (Dkt. 231, 4-6; 27 Dkt. 251 at 3-4.) But, as noted above, the intrinsic test turns on whether the 28 "ordinary, reasonable person would find the total concept and feel of the works to be

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1 substantially similar." Three Boys Music, 212 F.3d at 485 (citation omitted). Ms. 2 Finell's edited recordings by their very nature do not depict the "total concept and 3 feel" of GIVE, but instead were cherry-picked to select tiny fragments of GIVE that 4 sounded the most similar to BLURRED-and that were primarily based on elements 5 not found in the Deposit Copy that are wholly irrelevant to the intrinsic test. Harper 6 House, 889 F.2d at 206-208 (similarity cannot be based on unprotected elements). 7 Even if her edited sound recordings could have been useful for the intrinsic 8 test, the Court repeatedly instructed the jury not to consider them but instead to 9 consider only her opinions. (E.g., Dkt. 336, 51:6-52:22, 70:24-71:25, 73:5-15.) 10 This limiting instruction was incredibly confusing-as the Court itself 11 acknowledged. (Dkt. 336, 52:12-19.) It also ensured that the edited sound 12 recordings would not be used by the jury in conducting the intrinsic test, thus 13 negating the Court's sole purpose in allowing them to be played in the first place. 14 Similarly, Ms. Finell should not have been permitted to testify concerning 15 written transcriptions of the Sound Recording. Every transcription that she used at 16 trial was based on the Sound Recording. (Tr. Exh. 376, Slides 3, 16, 18-20 (see 17 timing indications in the Sound Recording below each transcription, e.g., "0:19").) 18 Indeed, the transcriptions she used at trial were the same ones she relied on in her 19 October 17, 2013, preliminary report-before she had ever even reviewed the 20 Deposit Copy. (Compare, Tr. Exh. 376, Slide 3, with Dkt. 175-3, p. 52 of 65 21 {Signature Phrase} and Tr. Exh. 376, Slide 18, with Dkt. 175-3, p. 61 of 65 22 {Descending Bass}.) The Deposit Copy is the copyrighted composition. It is the 23 best evidence of itself. The only reason Ms. Finell transcribed the Sound Recording 24 is because its notes differed from the Deposit Copy and, in her estimation, gave her 25 a better argument on similarity. This evidence should not have been admitted. 26 B. Testimony About the Gayes' Mash-Ups Was Inadmissible 27 The Court also erred by allowing the Gayes' other musicologist, Ingrid 28 Monson, to testify about and play audio "mash-ups" of BLURRED and GIVE. Fed.

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1 R. Evid. 403, 702. The Court denied Counter-Defendants' pretrial motion to 2 exclude the mash-ups and overruled their subsequent objections to their use at trial. 3 (Dkt. 226 at 1; Dkt. 253 at 53-55.) The Court also refused to conduct a Daubert 4 hearing or to otherwise assess whether the mash-ups of GIVE and BLURRED were 5 reliable or helpful to the jury. Barabin, 740 F.3d at 464. These mash-ups were 6 prejudicial and irrelevant and should not have been played to the jury. 7 First, the mash-ups were prepared after the close of expert discovery and thus 8 were not disclosed in Dr. Monson's Rule 26 report or expert deposition. (Dkt. 175- 9 11.) See Yeti by Molly, 259 F.3d at 1106. 10 Second, the mash-ups included the keyboard and bass elements of the GIVE 11 Sound Recording ("accompaniment" parts) that are not in the Deposit Copy. (Dkt. 12 334, 79:16-83:16; see also Tr. Exh. 377, Slide 1; Dkt. 253 at 53-55.) 13 Third, the mash-ups should have been excluded under Rule 403 because any 14 limited relevance-and there was none-was far outweighed by their prejudicial 15 effect. Dr. Monson admitted at trial that "any number of melodies ... could fit over 16 the relatively simple chord pattern of' BLURRED, and that the mash-ups show only 17 that the melodies and harmonies in the two songs are "compatible in some way." 18 (Dkt. 334, 115:3-117:19.) But the "compatibility" of melodies and harmonies is an 19 unprotectable idea, not tangible expression that could be protectable by copyright. 20 Perhaps for this reason, the supposed "compatibility" of the melodies and harmonies 21 in the two songs is not one of Ms. Finell's claimed "extrinsic similarities." The 22 probative value of the mash-ups was thus sorely lacking. On the other hand, to a lay 23 juror, that one song's melody sounds crudely harmonious played over another's 24 songs instrumental would appear to have significance (when it has none), 25 particularly when the jury understood that the Court had sanctioned these mash-ups 26 and when it observed that Counter-Defendants were objecting to them. 27 Finally, the prejudice to Counter-Defendants from the Gayes' mash-ups was 28 compounded by the Court's decision to exclude mash-ups created by Counter-

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1 Defendants' musicologist, Sandy Wilbur, that showed that the vocal melody of 2 GIVE could be "mashed up" with a number of old soul songs, as well as an "Axis of 3 A we some" video showing that numerous popular songs could be played over the 4 same four chords. (Dkt. 272 at 2.) This evidence would have mitigated some of the 5 prejudice to Counter-Defendants by demonstrating, in an audible way, that the 6 concept of "mashing up" one song over another has no bearing on alleged copying. 7 C. Testimony About Press Statements Was Inadmissible 8 The Court ruled on summary judgment that evidence of statements Thicke 9 and Williams made to the press about creating BLURRED "do not constitute direct 10 evidence of copying" because they do not show that Counter-Defendants "copied 11 protected elements of [the Gayes'] compositions, or that they engaged in virtual 12 duplication" of GIVE, and are not otherwise relevant to the "infringement analysis" 13 because Counter-Defendants concede they had access to GIVE. (Dkt. 139 at 12-13.) 14 Nonetheless, the Court denied Counter-Defendants' motion in limine to exclude this 15 evidence. (Dkt. 226 at 2.) Similarly, the Court erroneously permitted the Gayes to 16 present evidence that Marvin Gaye' s name was invoked in the course of publicity 17 for BLURRED. (Dkt. 226 at 2; see Dkt. 169.) Seizing on these rulings, the Gayes 18 made these press statements a central focus of their case-in-chief and argued that 19 there was direct copying. The Gayes' counsel also repeatedly asked questions and 20 made arguments concerning Counter-Defendants' alleged improper use of Marvin 21 Gaye's name in marketing BLURRED. (Dkt. 331,26:21-27:5, 39:23-40:19; 43:1-6, 22 15-19; Dkt. 338, 14:19-26:14; Dkt. 339, 81:19-82:9.) 23 None of this evidence was relevant. As the Court recognized in its summary 24 judgment order, press statements were of limited if any probative value to the case. 25 At most, they showed that Counter-Defendants were inspired by the "feel" or 26 "groove" of GIVE. But striving to emulate a sound, feel, or groove of another song, 27 or to evoke its era or style, is not infringement-in fact it is precisely what the 28 Copyright Act seeks to encourage. See Feist Publications, 499 U.S. at 349-350.

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1 Counter-Defendants' comments on wanting to create a song with the same feel as 2 GIVE-regardless of their truth-are thus legally irrelevant. At the same time, 3 these statements were highly prejudicial because they could be wrongly interpreted 4 as evidence of "copying," particularly in light of the erroneous instructions 5 discussed above, even though the statements-even if true-do not tend to prove or 6 disprove that BLURRED is "substantially similar" to GIVE. The Court should have 7 excluded evidence of press statements. 8 D. The Court's Rulings Regarding Evidence of Lay Opinions On 9 Similarity Were Erroneous, Unfair and Prejudicial 10 The Court correctly granted Counter-Defendants' motion to exclude evidence 11 of lay opinions regarding similarity as irrelevant and prejudicial. (Dkt. 226 at 2.) 12 Yet the Court undermined this ruling by erroneously permitting two lay witnesses- 13 Harry Weinger and Janis Gaye-to testify to that issue. (See id.; Dkt. 251 at 2.) 14 At trial, Ms. Gaye testified that when she first heard BLURRED, she thought 15 it copied the Sound Recording and assumed that GIVE had been licensed for 16 BLURRED; she then contacted the Gayes' music publisher, EMI, and learned there 17 was no license. (Dkt. 349, 11:6-12:16.) She does not read music and does not know 18 what elements ofthe Sound Recording are in the Deposit Copy. (Dkt. 349, 15:4-9.) 19 Mr. Weinger testified that, in his lay opinion, BLURRED was "utterly based 20 on" GIVE. (Dkt. 336, 14:10-19.) Mr. Weinger likewise had never seen the Deposit 21 Copy, has no musical training, cannot read music, worked for a division of UMG 22 that had nothing to do with the creation or distribution of BLURRED, and based his 23 opinion entirely on the Sound Recording. (Dkt. 336, 29:20-30:21; 38:12-17.) 24 These irrelevant lay opinions of similarity were highly prejudicial to Counter- 25 Defendants because they enabled the Gayes to argue that two individuals with 26 experience in the music industry-including Mr. Weinger, who was characterized 27 by the Gayes as a senior executive of the counter-defendants that had distributed 28 BLURRED-had concluded that BLURRED infringed GIVE. The Gayes

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1 emphasized Mr. Weinger' s opinion in their opening statement and closing argument. 2 (Dkt. 331, 41:22-42:25; Dkt. 339, 79:17-18, 80:8-18, 98:1-3.) Because this 3 testimony was irrelevant, confusing, and misleading, it should have been excluded. 4 The Court compounded the prejudice from this testimony by excluding 5 evidence that EMI-which is in the business of pursuing infringement claims for the 6 library of compositions it administers, and which had the exclusive right to sue for 7 infringement of GIVE under its administration agreement with the Gayes-not only 8 determined not to pursue an infringement claim based on BLURRED, but 9 concluded, after consulting an outside musicologist, that it could not do so 10 consistent with Rule 11. (Dkt. 226, 2-3; see also Dkt. 163, 164, 195; see also, Dkt. 11 349, 17:22-18:24.) The Gayes were thus allowed to present the irrelevant lay 12 opinions of Ms. Gaye and Mr. Weinger that the songs sounded similar-based 13 entirely on the excluded Sound Recording-but Counter-Defendants were precluded 14 from presenting the contrary conclusion reached by EMI, the Gayes' own agent 15 authorized to assert infringement claims, or questioning Ms. Gaye about her 16 discussions with EMI on this issue. These rulings were erroneous and prejudicial. 17 E. Nancie Stern's Opinions About Infringement Were Inadmissible 18 Counter-Defendants moved to exclude the testimony of the Gayes' licensing 19 expert, Nancie Stem. (Dkt. 170.) The Court denied the Motion but ruled that "her 20 testimony is limited to her claimed expertise, i.e., the appropriate means of 21 determining licensing valuation, and shall not concern the ultimate issue of 22 infringement." (Dkt. 272 at 2 (emphasis added); Dkt. 226 at 2.) As discussed in 23 Section IV.A, infra, Ms. Stem's testimony should have been excluded entirely. At a 24 minimum, the Court erred by allowing her to testify regarding "similarity." 25 Ms. Stem's opinion is that the Gayes would have requested 50% of the 26 copyright (i.e., 50% of publishing revenue) in the BLURRED composition had a 27 license been sought before the release of BLURRED, and 75% to 100% of the 28 revenue if a license were sought after BLURRED's release. (Dkt. 351, 27:18-

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1 28:22.) Although her opmwn was based entirely on listening to the Sound 2 Recording, she changed course at trial-clearly in response to the Court's pretrial 3 ruling excluding the Sound Recording-and testified that her opinions were based 4 "only" on Ms. Finell's edited sound recordings. (Dkt. 351, 25:20-28:15, 36:10- 5 37:14.) Even if this were the case, her testimony still should have been excluded. 6 First, Ms. Finell's edited sound recordings that Ms. Stem purported to rely 7 upon contain elements (e.g., Theme X, keyboard) not found in the Deposit Copy, 8 and thus are not a reliable source from which Ms. Stem could determine the amount 9 of GIVE (Deposit Copy) that was used in BLURRED. Fed. R. Evid. 703. 10 Second, by purporting to quantify "how much" of GIVE was used in 11 BLURRED, Ms. Stem acted as a (lay) musicologist-contrary to the Court's ruling 12 (Dkt. 272 at 2}--and gave an improper lay opinion on alleged infringement. The 13 only way Ms. Stem could opine to how much of a license fee the Gayes supposedly 14 would have demanded for the use of GIVE in BLURRED was to assess how much 15 of GIVE was in BLURRED. Indeed, she testified that this is how she arrived at her 16 opinion. (351, 25:20-28:15,) She thus gave an unfounded musicology opinion, and 17 her testimony was prejudicial. Telling of the confusion and prejudice her testimony 18 created, the jury sent a note during deliberations asking whether Ms. Stem was an 19 expert on infringement. (Dkt. 313, 1.) 20 III. THE EVIDENCE DOES NOT SUPPORT THE INFRINGEMENT 21 VERDICT 22 The jury's inconsistent verdict answered the question whether Williams and 23 Thicke were "infringers"-but not whether BLURRED infringed GIVE. Because 24 no properly instructed, reasonable juror could find that BLURRED infringes GIVE, 25 and because in any case the jury's infringement finding here is against the clear 26 weight of the evidence, even assuming its admissibility, the Court should grant 27 JMOL or, alternatively, a new trial. Fed. R. Civ. P. 50(b); Fed. R. Civ. P. 59( a). 28 I I I

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1 A. The Verdict Is Not Supported By Legally Sufficient Evidence Of 2 Substantial Extrinsic Similarity 3 There is insufficient evidence of substantial "extrinsic" similarities between 4 BLURRED and GIVE to support the jury's finding of infringement. Of the eight 5 alleged extrinsic similarities Ms. Finell identified, Theme X and the keyboard part 6 are not in the Deposit Copy, as explained above, and the lyrics have no similarities 7 at all-there are not two words in a row in common in both songs. (Dkt. 334, 8 26:18-27:24; Tr. Exh. 376, Slide 35.) The other five similarities claimed by Ms. 9 Finell are belied by the evidence and, even if they exist, plainly not "substantial": 10 1. Signature Phrases: The so-called BLURRED Signature Phrase is 6 Y2 11 beats long and contains 12 notes, of which only 5 notes are the same pitches as in 12 the 10-note so-called GIVE Signature Phrase. These 5 common pitches have 13 different rhythms and placements in each song. The beginning, middle, and ending 14 notes are different. The BLURRED Signature Phrase occurs only twice in the 4:20 15 minute recording, for about 6 seconds. (Dkt. 350, 14:10-38:15.) The claim is thus 16 that six seconds of BLURRED contain a short melodic phrase, sung only twice, that 17 has a few notes within it with the same pitch as the notes in a GIVE phrase, even 18 though the common notes are in different locations and rhythms. 19 2. Hooks: The GIVE "hook" is 4 notes, 3 of which are the same pitch as 20 3 of the 12 notes in the BLURRED Signature Phrase (discussed above). The 21 rhythms and placement of the 3 common notes are different. The most important 22 note in GIVE (2nd scale degree) is not in BLURRED. The GIVE hook appears only 23 twice in BLURRED, and only in its Signature Phrase. (Dkt. 350, 67:17-78:6.) The 24 entire claim is that a phrase that occurs for six seconds in BLURRED has a few 25 notes within it that have the same pitch as a few notes in the hook phrase in GIVE. 26 3. Bass Melody: There are only 3 notes in common between the 25-note 27 bass part in BLURRED and the 21-note "bass intro" in the Deposit Copy of GIVE. 28 Those 3 common notes are merely the root, or 1st scale degree-the most common

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1 bass note in popular music. In contrast, GIVE has a distinctive, repeated use of the 2 7th scale degree not found in BLURRED. (Dkt. 351, 146:18-161 :10; Tr. Exh. 389.) 3 4. Word Painting: The claimed similarity is that the words "up," 4 "shake," "down," and "round" appear in the break sections in each song, and the 5 melody goes up in pitch on the word "up" and down in pitch on the word "down." 6 These ordinary words are not protected by copyright. They are sung to different 7 melodies, lyrics, word orders, and rhythms in each song, and appear only once for a 8 few seconds in BLURRED. The claim that both songs go up in pitch on "up" and 9 down in pitch on "down" (so-called "word painting") is an unprotectable idea, and 10 the actual expression differs. (Dkt. 334, 27:25-28:14; Tr. Exh. 376, Slide 32.) 11 5. Rap v. Parlando: There are no similarities between the expressions of 12 the "rap" in BLURRED and the so-called "parlando" in GIVE. The only claimed 13 similarity is that both sections start at the same measure (Dkt. 336, 151:13-154:24), 14 but the Gayes do not own the "idea" of where in a song a new section should start. 15 Moreover, Clifford Harris, Jr., performed the rap section of BLURRED months after 16 Thicke and Williams created the song, and he chose where to place it. (Dkt. 338, 17 112:10-23.) The jury's verdict was in favor of Harris, thus reflecting its finding that 18 the rap section was not substantially similar to the parlando in GIVE. 19 In sum, Ms. Finell's opinion of similarity boils down to the following: 20 • A 3-second vocal melody sung twice in BLURRED with a few pitches (but not their rhythm or placement) in common with two phrases in GIVE; 21 • A bass part that plays the root, or most common bass note in popular music, 22 in the same place in only 3 out of 25 notes over an 8 measure phrase; and 23 • Both songs have dissimilar vocal sections that start at the same measure. 24 These purported similarities are "de minimis" and not substantial. See 25 Newton, 388 F.3d at 1193 (use is de minimis "if the average audience would not 26 recognize the appropriation"). BLURRED is over four minutes long. A few 27 seconds of vocal melody with only a fraction of its notes in common, or 3 out of 25 28 notes in a bass part playing the root at the same time, or a particular vocal section

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1 that starts at the same measure--even if considered as a "constellation" of 2 similarities-is not substantial extrinsic similarity. If it were, the extrinsic test 3 would be meaningless, as virtually any two songs will have a few disparate notes in 4 common. The Court should grant JMOL or order a new trial. 5 B. The Verdict Is Not Supported By Legally Sufficient Evidence Of 6 Substantial Intrinsic Similarity 7 There is likewise insufficient evidence of substantial "intrinsic" similarities 8 between BLURRED and GIVE to support the jury's finding of infringement. 9 The intrinsic test here turns on whether a reasonable observer would conclude 10 that the "total concept and feel" of the parties' works are substantially similar based 11 on the protectable extrinsic elements of GIVE discussed above. To conduct this 12 test, the jury would have to compare BLURRED (Ex. 529) to the Deposit Copy of 13 GIVE. The only admissible evidence of what the Deposit Copy sounds like is Ms. 14 Wilbur's recording of GIVE in Exhibit 141. A comparison of Exhibits 529 and 141 15 shows that these works are not remotely similar. They are different songs, with 16 different lyrics, melodies, musical parts, chord patterns (harmony), and structures. 17 While no reasonable juror could have found substantial intrinsic similarity, 18 the jury here never even conducted the intrinsic test. The jury was not instructed on 19 the intrinsic test until after the close of evidence. Hence, during trial, the jury had 20 no idea what it would be asked to do with the music it heard. In deliberations, the 21 jury never asked to hear any music, despite being told it could upon request. (See 22 generally Dkt. 313-338, 339.) The jury had been led to believe, based on the 23 prejudicial evidence and erroneous jury instructions, that it could find infringement 24 simply if it determined that Williams and Thicke sought to emulate the ideas 25 ("groove" or "feel") of Marvin Gaye's work, even if "subconsciously." The jury 26 likely also was misled and confused by the Court's repeated instructions that what 27 mattered was the experts' opinions-not the music it had heard. (Dkt. 336, 51:6- 28 52:22, 70:24-71:25, 73 :5-15.) For the intrinsic test, that is contrary to law.

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1 The songs are not remotely similar based on their "total concept and feel." 2 Judgment as a matter of law or a new trial should be granted for this reason too. 3 IV. THE EVIDENCE DOES NOT SUPPORT THE DAMAGES AWARDS 4 The jury awarded actual damages of $4 million and infringer's profits of 5 $1,768,191.88 against Thicke and $1,610,455.31 against Williams. The damages 6 awards are not supported by evidence, and thus JMOL or a new trial is warranted. 7 A. The Jury's Actual Damages Award Is Not Supported By Evidence 8 The jury's award of $4 million in actual damages is grossly excessive and not 9 supported by any admissible evidence. 10 1. Ms. Stern's Testimony Should Have Been Excluded 11 The sole evidence of actual damages was Ms. Stem's testimony about a 12 hypothetical lost license fee. In conducting a hypothetical license evaluation, an 13 expert must link any proposed license rate "to the relevant facts and circumstances 14 of the particular case at issue and the hypothetical negotiations that would have 15 taken place in light of those facts and circumstances at the relevant time." Uniloc 16 USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1318 (Fed. Cir. 2011). The failure to 17 conduct such analysis renders the expert testimony "arbitrary, unreliable, and 18 irrelevant," such that it "fails to pass muster under Daubert and taints the jury's 19 damages calculation," requiring a new trial. !d.; see also McGlinchy v. Shell Chern. 20 Co., 845 F.2d 802, 806-07 (9th Cir. 1988). Importantly, a negotiation "must be 21 hypothesized as of the time infringement began," so that the license fee is based on 22 "sales expectations at the time when infringement begins, ... as opposed to an after- 23 the-fact counting of actual sales." Interactive Pictures Corp. v. Infinite Pictures, 24 Inc., 274 F.3d 1371, 1384-85 (Fed. Cir. 2001); see Oracle Corp. v. SAP AG, 765 25 F.3d 1081, 1087 (9th Cir. 2014) (applying standard in copyright case). 26 Here, Ms. Stem did not conduct any analysis at all regarding a hypothetical 27 licensing negotiation. Instead, she briefly listened to the two songs and concluded 28 (based on her lay opinion of similarity) that the Gayes would have requested 50% of

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1 the publishing revenues from BLURRED if a license had been sought before the 2 release of BLURRED and 75% to 100% after the release. (Dkt. 351, 27:18-28:22.) 3 Her opinions were unreliable and should have been excluded for several reasons. 4 First, "the touchstone for hypothetical-license damages is 'the range of [the 5 license's] reasonable market value." Oracle Corp, 765 F.3d at 1088. Ms. Stem 6 made no attempt at all to identify the "reasonable market value" for the portions of 7 GIVE in BLURRED. Her opinion should have been excluded for this reason alone. 8 Second, as discussed above, Ms. Stem's opinion about the copying of GIVE 9 in BLURRED is unreliable because she is not a musicologist, and was precluded by 10 the Court from opining to the infringement of GIVE in BLURRED (i.e., how much 11 of GIVE is in BLURRED), and her opinion improperly was based on the Sound 12 Recording and Ms. Finell's edited recordings that have elements such as keyboard 13 and Theme X that are not in the Deposit Copy. (Dkt. 351, 25:20-28:15; 36:5-37:14.) 14 Third, and significantly, Ms. Stem's licensing opinions were neither relevant 15 nor reliable because they were premised on her estimation of a license fee that 16 would have resulted after BLURRED's release-i.e., post-infringement. Ms. Stem 17 testified in support of her excessive (75% to 100%) license fee opinions that after 18 the release of a song, "it becomes an infringement issue. So you lose your 19 negotiation power." (Dkt. 351, 24:24-25:1). But the damages issue is not what an 20 infringer might pay if caught red-handed (an issue on which she could not opine, 21 anyway). The issue is a negotiated fair market fee. Oracle Corp, 765 F.3d at 1088. 22 Ms. Stem's testimony should have been excluded entirely. Because Ms. 23 Stem's inadmissible testimony was the only evidence of damages, the damages 24 award was entirely unsupported by evidence. 25 2. Even In Consideration Of Ms. Stern's Testimony, the Actual 26 Damages Award Is Unsupported By Evidence 27 Even if Ms. Stem's actual damages opinions were properly admitted, the 28 jury's award of $4 million is grossly excessive and not supported by evidence.

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1 The parties stipulated that Counter-Defendants' total publishing revenues 2 from BLURRED were $5,697,693. (Tr. Exh. 1766, 2:6-7, 9-10.) Ms. Stem testified 3 that the industry standard for negotiating the percentage of a new composition that 4 the owner of an older composition should receive for its use in the new song is to 5 allocate 50% of the copyright (i.e., publishing revenue) to lyrics and 50% to music, 6 and to negotiate from there. (Dkt. 351, 22:7-18.) Even though Ms. Stem 7 acknowledged that the lyrics of BLURRED did not infringe (Dkt. 351, 32:4-33:11), 8 she nonetheless concluded that the Gayes would have asked for 50% of the revenues 9 from BLURRED had a license been sought prior to the release of BLURRED, and 10 75% to 100% of the revenues if the negotiation was after BLURRED's release. 11 (Dkt. 351, 27:18-28:22.) Since 50% of the copyright is the music and there were no 12 lyrical similarities here, Ms. Stem effectively opined that 100% of the music (50% 13 of the copyright) in BLURRED came from GIVE-a claim wholly at odds with the 14 musicology evidence (discussed above). Yet the jury awarded $4 million in 15 damages, which amounts to an approximate 70% licensing fee. 16 Even under Ms. Stem's own analysis, the jury's award of $4 million in actual 17 damages is excessive for a song that has no lyrical similarities with GIVE and, at 18 most, has only fragmented musical similarities (e.g., a so-called Signature Phrase 19 and hook from GIVE that appear only twice for six seconds total in BLURRED). 20 The award also is excessive (and, as noted above, contrary to law), because it 21 approximates Ms. Stem's estimation of a license fee that would have resulted from a 22 hypothetical negotiation occurring after BLURRED's release, when Counter- 23 Defendants would have "lost their negotiation power." Furthermore, the award is 24 speculative because it is not based on any evidence of any previous license for 25 GIVE or about the value of GIVE itself, because Ms. Stem did not offer any such 26 evidence, or any evidence of any prior license of any other Marvin Gaye song, or 27 any R&B song, or any license at all. (See Dkt. 351, 17:12 -39:2); see Oracle, 765 28

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1 F.3d at 1093 ("Oracle failed to provide sufficient objective evidence of the market 2 value of the hypothetical license underpinning the jury's damages award"). 3 There is thus no admissible evidence of the Gayes' actual damages, let alone 4 any evidence that supports an award of 70% of the publishing revenues of 5 BLURRED. The Court should enter JMOL or a new trial on actual damages. 6 B. The Jury's Profits Awards Are Not Supported By Evidence 7 The jury's awards of $1,768,191.88 in profits against Thicke and 8 $1,610,455.31 against Williams-200% of his stipulated profits!-also are 9 unsupported by any evidence. 10 To avoid impermissible double-counting of damages between actual damages 11 and profits, the Court instructed the jury that, in calculating actual damages, it 12 should take into consideration the "approximately $8 million" in publishing revenue 13 received by the writers of BLURRED, but that in awarding profits, the jury "should 14 not take into consideration the same $8 million." (Dkt. 314 at 2.)5 The parties 15 stipulated that Williams' non-publishing profits were $860,333 and Thicke's non- 16 publishing profits were $4,253,645. As a matter of law, however, the jury's awards 17 or profits had to be limited to "any profits of the defendant attributable to the 18 infringer." (Dkt. 322 at 41 (Instruction No. 38); Dkt. 314 at 2.) 19 Here, the maximum profits attributable to infringement were low. At most, 20 and even assuming the admissibility of the Gayes' expert musicology testimony, 21 only a small portion of the copyrighted musical expression of GIVE appears in 22 BLURRED. Moreover, the evidence shows that the financial success of BLURRED 23 is attributable in large part to factors that have nothing to do with any elements of 24 GIVE that may have been used in BLURRED-including, primarily, the music 25 video that went viral, the performances, promotional appearances, product tie-ins, 26 27 5 The Court's reference to "approximately $8 million" was grossly: inaccurate; the stipulated amount of publishmg revenue was $6,377,055 for all three writers 28 (Thicke, Williams, and Harris). (Tr. Exh. 1766, 2:3-12.)

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1 the performers, the massive financial investment in marketing and promotion, the 2 "star power" of the performers, and Williams' production. (Dkt. 352, 85:3-102:13; 3 Dkt. 338, 27:11-51:20; Tr. Exhs. 52, 55, 58, 126, 128-131, 293,458, 1003.) 4 As to the music itself, Ms. Wilbur testified that the elements of GIVE claimed 5 to have been copied amount to less than 5% of the BLURRED composition. (Dkt. 6 337, 16:21-17:13.) In addition, the sound recording elements of BLURRED, which 7 are protected by a separate copyright, as Ms. Stem admitted, were not at issue. Ms. 8 Stem testified that her opinion as to a license fee was strictly for a portion of the 9 BLURRED composition, and that the Gayes would have received zero percent of 10 the copyright in the BLURRED sound recording. (Dkt. 351, 31:4-32:1.) Given the 11 two copyrights in the BLURRED recording, and that no more than half of its 12 success is attributable to the composition (Dkt. 338, 32:21-34:23), and given that the 13 composition copyright is typically attributed half to the lyrics (id.), the profits 14 attributable to the infringement could not possibly approach what the jury awarded. 15 There was no contrary evidence at trial on these apportionment issues. 16 Nonetheless, the jury awarded 200% of Williams' profits and 41.6% of Thicke's. 17 (Dkt. 320, 2:18; Tr. Exh. 1766, 2:6.) These percentages clearly are contrary to the 18 facts and law because they are not the same-whatever the percentage of earnings 19 from BLURRED attributable to the copying of GIVE, that percentage has to be the 20 same for both Thicke and Williams. The inconsistent percentages here reflect a 21 verdict based on who the jury disliked most and not on the jury instructions. There 22 is a complete absence of evidence that would support an "apportionment" of 200% 23 of Williams' profits and 41.6% of Thicke's earnings. Moreover, the profit awards 24 also are grossly excessive. GIVE earned only half a million dollars in the five-year 25 period from 2009 to 2013. (Tr. Exhs. 254, 1765.) Yet the jury attributed more than 26 $3 million in BLURRED profits to the few fragments of vocal or bass melodies 27 supposedly similar to GIVE. These awards are excessive and unsupported. 28

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1 c. At a Minimum, the Court Should Remit the Profits Awards 2 If the Court is not inclined to order JMOL or a new trial, then, at a bare 3 minimum, the Court has a duty to remit the unsupported profits awards to "the 4 maximum amount sustainable by the evidence." Jessen Elec. & Serv. Co., 106 F.3d 5 at *2. While both profits awards are unsustainable, the award of double the amount 6 of Williams' profits stipulated to by the parties clearly is contrary to the evidence 7 and law and must be remitted. Ms. Wilbur testified that the handful of elements in 8 GIVE claimed to be copied in BLURRED, even if credited, amount to no more than 9 5% of BLURRED. There was no contrary apportionment opinion by Ms. Finell, nor 10 did Ms. Finell take the stand to rebut any of Ms. Wilbur's testimony. Ms. Wilbur's 11 opinion, of course, does not reflect an apportionment analysis or take into account 12 evidence of the marketing efforts, music video, and other factors in BLURRED's 13 success. The Court should remit the profits awards to no more than 5% of the actual 14 non-publishing profits ofThicke and Williams stipulated to at trial. (Tr. Exh. 1766.) 15 Conclusion 16 For the above reasons, the Court should grant this motion and enter JMOL 17 and declaratory relief in favor of Counter-Defendants, order a new trial on liability 18 and damages, or, at a minimum, order a remittitur of the award of profits. 19 20 DATED: May 11, 2015 KING, HOLMES, PATERNO & BERLINER, LLP 21 22 23 By: ~.fu rt\lr HowARD E. KING 24 SETH MILLER Attorneys for Plaintiffs and Counter-Defendants 25 PHARRELL WILLIAMS, et al. 26 27 28

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1 CERTIFICATE OF SERVICE 2 I hereby certify that on May 11, 2015, I electronically filed the foregoing 3 CORRECTED NOTICE OF MOTION AND MOTION OF PHARRELL 4 WILLIAMS, ROBIN THICKE AND MORE WATER FROM NAZARETH 5 PUBLISHING, INC. FOR JUDGMENT AS A MATTER OF LAW, 6 DECLARATORY RELIEF, A NEW TRIAL, OR REMITTITUR; 7 MEMORANDUM OF POINTS AND AUTHORITIES with the Clerk of the 8 Court by using the CMIECF system. I certify that all participants in the case are 9 registered CMIECF users and that service will be accomplished by the CM/ECF 10 system. 11 12 Dina Webb 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Renewal I G] I v / I '• .. .. ' .1 Page 2 Case 2:13-cv-06004-JAK-AGR Document 91-1 Filed 07/22/14 Page 63 of 74 Page ID #:1116

EXHIBITB Case 2:13-cv-06004-JAK-AGR Document 91-1 Filed 07/22/14 Page 64 of 74 Page ID #:1117

LYRICS AND SONG STRUCTURE

"BLURRED LINES" Robin Thicke & Pharrell Williams *

INTRO - Pharrell

Everybody get up Everybody get up Hey, hey, hey Hey, hey, hey Hey, hey, hey

VERSE 1 - Robin Thicke

If you can't hear what I'm trying to say If you can't read from the same page Maybe I'm going deaf, Maybe I'm going blind Maybe I'm out of my mind [Pharell:] Everybody get up

PRE-CHORUS -Robin Thicke

OK now he was close, tried to domesticate you But you're an animal, baby, it's in your nature Just let me liberate you Hey, hey, hey You don't need no papers Hey, hey, hey That man is not your maker Hey, hey, hey

CHORUS -Robin Thicke

And that's why I'm gon' take a good girl I know you want it I know you want it I know you want it You're a good girl Can't let it get past me You're far from plastic Talk about getting blasted

I hate these blurred lines I know you want it I know you want it I know you want it But you're a good girl The way you grab me Must wanna get nasty Go ahead, get at me

Pharrell:] Everybody get up

VERSE 2 - Robin Thicke Case 2:13-cv-06004-JAK-AGR Document 91-1 Filed 07/22/14 Page 65 of 74 Page ID #:1118

What do they make dreams for When you got them jeans on What do we need steam for You the hottest bitch in this place I feel so lucky Hey, hey, hey You wanna hug me Hey, hey, hey What rhymes with hug me? Hey, hey, hey

PRE-CHORUS -ROBIN THICK OK now he was close, tried to domesticate you But you're an animal, baby it's in your nature Just let me liberate you Hey, hey, hey You don't need no papers Hey, hey, hey That man is not your maker Hey, hey, hey

CHORUS -Robin Thicke And that's why I'm gon' take a good girl I know you want it I know you want it I know you want it You're a good girl Can't let it get past me You're far from plastic Talk about getting blasted [Pharell:] Everybody get up

I hate these blurred lines I know you want it I hate them lines I know you want it I hate them lines I know you want it But you're a good girl The way you grab me Must wanna get nasty Go ahead, get at me

RAP-TI One thing I ask of you Let me be the one you back that ass to Go, from Malibu, to Paris, boo Yeah, I had a bitch, but she ain't bad as you So hit me up when you passing through I'll give you something big enough to tear your ass in two Swag on, even when you dress casual I mean it's almost unbearable

Then, honey you're not there when I'm With my foresight bitch you pay me by Case 2:13-cv-06004-JAK-AGR Document 91-1 Filed 07/22/14 Page 66 of 74 Page ID #:1119

Nothing like your last guy, he too square for you He don't smack that ass and pull your hair like that So I just watch and wait for you to salute But you didn't pick Not many women can refuse this pimpin' I'm a nice guy, but don't get it if you get with me

BRIDGE- Robin Thicke Shake the vibe, get down, get up Do it like it hurt, like it hurt What you don't like work?

VERSE 3 - Robin Thicke

Baby can you breathe? I got this from Jamaica It always works for me, Dakota to Decatur, uh huh No more pretending Hey, hey, hey Cause now you winning Hey, hey, hey Here's our beginning

CHORUS -Robin Thicke

I always wanted a good girl (Pharell: Everybody get up) I know you want it I know you want it I know you want it You're a good girl Can't let it get past me You're far from plastic Talk about getting blasted

I hate these blurred lines (Pharell: Everybody get up) I know you want it I know you want it I know you want it But you're a good girl The way you grab me Must wanna get nasty Go ahead, get at me

OUTRO- Pharrel Williams

Everybody get up Everybody get up Hey, hey, hey Hey, hey, hey Hey, hey, hey Case 2:13-cv-06004-JAK-AGR Document 91-1 Filed 07/22/14 Page 67 of 74 Page ID #:1120

EXHIBITC Case 2:13-cv-06004-JAK-AGR Document 91-1 Filed 07/22/14 Page 68 of 74 Page ID #:1121

"Got To Give It Up"

VERSE 1

I used to go out to parties And stand around 'Cause I was too nervous To really get down

But my body yearned to be free So I got up on the floor and found Someone to choose me

VERSE2

No more standin' along the side walls Now I've got myselftogether, baby And I'm havin' a ball

Long as you prove it There's always a chance Somebody watches I'm gonna make romance

VERSE3

Move your body, ooo baby, and dance all night To the grooving, I feel all right Havin' a party, ooh, invite all your friends But if you see me stop by, let me in.

Baby just party all night long Let me slip into your erotic zone

BREAK

Ooh move it up, ooh Shake it down, ooh You an bump me when you want to, babe This is such a groovy party baby dancin' face to face And everybody's screamin' it's such a groovy place All the young ladies are so fine

VERSE 4 (harmonically last half of verse)

You're movin your body leaves me with no doubt Know what you're thinkin, want to turn me out. Think I'm gonna let you do it

HOOK

[repeat and fade on seventh repeat:] Keep on dancin' ooh Got to give it up Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 1 of 65 Page ID #:4461

EXHIBIT C Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 2 of 65 Page ID #:4462

Judith Finell MusicServices Inc. CONSULTING • RESEARCH • MUSIC COPYRIGHT MATTERS • MUSIC INDUSTRY SUPPORT

October 31, 2014

Full Comparison of "Got to Give It Up" with "Blurred Lines"

Materials Reviewed

1. The following recordings were acquired for review:

a. "Got to Give It Up (Single)" from the album Every Great Motown Hit of

Marvin Gaye, released 1983 ® 2000 Universal Motown Records, a division ofUMG

Recordings, Inc.

b. "Blurred Lines (feat. T.l. & Pharrell) from the album Blurred Lines (Deluxe

Version), released July 30, 2013 ® 2013 Star Trak, LLC.

c. "After the Dance" from the album I Want You, released March 16, 1976 ®

2000 Universal Motown Records, a division ofUMG Recordings, Inc.

d. "Love After War" from the album Love After War (Deluxe Version), released

December 6, 2011 ® 2013 Star Trak, LLC.

2. The following sheet music was obtained for reference:

2005) Jobete Music Co., Inc.

b. "Blurred Lines," Words and Music by Robin Thicke and Pharrell Williams,©

2013 EMI April Music, Inc. I More Water From Nazareth Publishing, Inc.

81 PONDFIELD ROAD • SUITE 246 • BRONXVILLE • NY • 10708 Tel: (914) 779-8881• Fax: (914) 779-8883 • Email: [email protected] www.jfmusicservices.com Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 3 of 65 Page ID #:4463

c. "After the Dance," Words and Music by Leon Ware, Marvin Gaye, and Arthur

FCG Music

3. The following documents and materials were provided by King & Ballow for review:

a. "Williams v. Bridgeport- Motion for Summary Judgement"

b. "Williams v. Bridgeport- Wilbur Declaration"

c. Audio Exhibit: "CD filed with MSJ"

d. "Williams v. Bridgeport- Stockett Declaration"

e. Multi-tracks from recording of "Blurred Lines," provided by the plaintiffs

f. Multi-tracks from recording of "Got to Give It Up," PCD 4205 provided by

King & Ballow

4. The musical works discussed below will be referred to as follows:

a. "Got to Give it Up," by Marvin Gaye

b. "Blurred Lines," by Robin Thicke, Pharrell Williams and Clifford Harris

c. "After the Dance," by Marvin Gaye and Leon Ware

d. "Love After War," by Robin Thicke and Paula Patton

5. References:

a. The Motion for Summary Judgement will be referred to in the report below as

the "MSJ."

b. The Declaration of Sandy Wilbur will be referred to below as the "Wilbur

Declaration." It will be cited as "WD," followed by the paragraph number.

c. My preliminary report of October 17, 2013 will be referred to as "Finell

Preliminary Report," I hereby incorporate that report and attach it hereto.

2 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 4 of 65 Page ID #:4464

d. My declaration of October 20, 2014 will be referred to as "Finell

Declaration," I hereby incorporate that report and attach it hereto.

Results of Full Examination Comparing "Got to Give It Up"

and "Blurred Lines"

6. Since my preliminary evaluation and report of October 17, 2013, a further

examination of"Got to Give It Up" compared to "Blurred Lines" has revealed significant new

similarities, as well as expansions of the similarities first discussed in the Finell Preliminary

Report. That preliminary report identified primary similar compositional features between "Got

to Give It Up" and "Blurred Lines," and focused on the most obvious reasons why the songs are

so substantially similar.

7. A "Constellation of 8 Substantially Similar Features," resulting from the way in

which the similarities coincide and intersect throughout each song, was identified. [Finell

Preliminary Report, ,-[6.] The initial review focused on single iterations of the eight substantially

similar features in each song.

8. These substantial similarities remain unchanged. In-depth examination has now

revealed three categories of further similarities which will be discussed below:

A. Similarities already discussed in my preliminary report on a single basis were

reviewed in terms of their own development and recurrence within each song to determine the

significance of the similar material to both songs. These are discussed in Section A below.

Exhibit A also illustrates the magnitude of the similar material embedded within nearly every

bar of"Blurred Lines."

B. Newly uncovered similar features, identified since the preliminary report,

were evaluated. These new similarities are discussed in Section B below.

3 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 5 of 65 Page ID #:4465

C. Similarities newly uncovered that imply that "Got to Give It Up" served as a

template for the design and character of "Blurred Lines" were assessed. These new similarities

are discussed in Section C below.

Conclusions

9. My full review of "Blurred Lines" compared with "Got to Give It Up" has led to the

following conclusions:

A. "Blurred Lines" virtually exudes "Got to Give It Up." This is due to the many

tangible shared similar compositional features, but also to a subtle but very distinctive way in

which these features are combined in a final artistic whole in both songs.

B. "Blurred Lines" is even more tethered to "Got to Give it Up" than initially

found in my Preliminary Review.

C. Detailed examination has revealed more subtle similarities than were obvious

upon initial review, and these further demonstrate how influential "Got to Give It Up" was in

the creation and design of "Blurred Lines."

D. With a more comprehensive review of"Blurred Lines" as a whole, there

emerges a virtual mosaic of elements descending from "Got to Give It Up." The link between

the two works is undeniable - especially considering the multitude of tiny creative details that

blend to form the completed work.

Section A. Enlarged Constellation of Similarities

10. My Preliminary Report of October 17, 2013 demonstrates brief musical examples of

eight similarities. These eight similar features are not isolated, but are the musical seeds from

which both songs grow and develop from beginning to end. Their presence and significance in

each work will be discussed below in their broader impact on the songs as a whole.

4 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 6 of 65 Page ID #:4466

Similarity 1: Signature Phrase in Main Vocal Melodies

11. As stated in my Preliminary Report, [Finell Preliminary Report, ~~13, 14], much of

the main vocal melody in "Got to Give It Up" evolves from its own Signature Phrase, using the

same scale degrees and other similar elements. This is found throughout all verse sections as

well as in the outro, or ending section.

12. Regarding the verse sections, most phrases of the verse refer back to the initial

Signature Phrase in "Got to Give It Up." See Table 1 below for an example of this as it occurs

in the first verse of"Got to Give It Up." This Signature Phrase is substantially similar to

"Blurred Lines," both in its own Signature Phrase and its embedded hook ("take a good girl").

Table 1: "Got to Give It Up" Signature Phrase Development

Verse 1, Phrases 1-8

Phrase Bar Lyrics Scale Degrees Nos. 1 8-9 "I used to go out to parties" 5-5-5-5-6-1-2-1-5-6 2 10-11 "and stand around" 6-2-1-6-5 3 12-13 '"Cause I was too nervous" 5-5-6-1-2-1-5-6 4 14-15 "to really get down" 6-1-6-1-6-5 5 16-17 "But my body" 6-1-2-1-5-6 6 18-19 "yearned to be free" 1-5-5-1-5-1-5 7 20-21 "I got up on the floor boy" [different] 8 22-23 "and somebody to choose me" 5-6-1-6-5-1-5-1

13. As shown above in Table 1, nearly the entire section ofVerse 1 in "Got to Give It

Up" is a melodic outgrowth of the Signature Phrase.

The significance of the above outgrowth is that the similar material in "Blurred Lines" is found

in the entirety of the verse of"Got to Give It Up," and not only in one isolated phrase.

Consequently, this similarity with "Blurred Lines" and "Got to Give It Up" exceeds well

5 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 7 of 65 Page ID #:4467

beyond a single phrase in "Got to Give It Up," but rather extends into the first large section of

the song in which this phrase develops.

14. Similar development of the Signature Phrase continues throughout all the verses of

"Got to Give It Up," found in Bars 8-63 and 88-95 (the verse sections occupy a total of 64 bars,

more than half of the song).

15. The hook of"Got to Give It Up," sung to the lyrics "keep on darrein'," is also an

outgrowth of the song's own Signature Phrase, and this hook is found repeatedly (28 times) in

the outro section of"Got to Give It Up," found in Bars 96-124. The scale degrees here are 6-1-

2-1.

16. Just as in "Got to Give It Up," the hook of"Blurred Lines" is also located within the

song's own Signature Phrase (as stated in my Preliminary Report).

17. The outro section in "Got to Give It Up" contains an additional outgrowth phrase,

sung to the title lyrics "got to give it up." The scale degrees of the first occurrence of this phrase

(at 3:33) are 1-6-2-1-1, and its recurrence (at 3:40) contains scale degrees 1-6-2-1-6.

18. The Signature Phrase and its outgrowths always occur simultaneously with the

similar bass melodies, keyboard parts, and most often hi-hat in "Blurred Lines."

Similarities 2 and 3: Hooks and Hooks with Backup Vocals

19. As stated in my Preliminary Report, the hook in "Got to Give It Up" using the lyrics

"keep on darrein'," repeats seven times at four-bar intervals, 28 times in total. It occupies a large

portion of the outro (ending) section of the song from 3:12 to 4:06, and is a distinctive passage.

Both songs' hooks convey their respective main messages.

20. In "Blurred Lines," the hook first occurs within the song's own Signature Phrase at

the beginning of the chorus section (:49), using the lyrics "take a good girl," as shown in the

6 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 8 of 65 Page ID #:4468

musical examples of the preliminary report. The hook is thereafter repeated numerous times in

various forms. The "Blurred Lines" hook has these defining features: (a) lyrics, (b) rhythms and

rhythmic placement, (c) scale degrees, and (d) distinctive accompanying backup vocals. The

hook variations always retain at least two of the hook's defining features and vary the others.

These variations occur frequently - and include the lyrics variation "blurred lines" - again

conveying the song's main message. As can be seen in Table 2 below, the words preceding "a

good girl" vary in length and melodic content, but the words "a good girl" are consistent. The

hook and its variations occur a total of 12 times in "Blurred Lines" and are substantially similar

to the melody of the hook of"Got to Give It Up," as discussed in my Preliminary Report.

[Finell Preliminary Report, ,-r,-riS-20.]

Table 2: Occurrences of Hook and Variations in "Blurred Lines"

Bar Nos. Lyrics Scale Degrees Similarity to "Got to Give It Up" 24-25 "take a good girl" 6-1-1-1 Signature Phrase; Hook "Keep on dancin "' with Backup Vocals 1 56-57 "take a good girl" 6-1-1-1 same as above 28-29 "You're a good girl" 5-#4-5-5 Backup hook Theme X ("Dancin' lady"); Hook with Backup Vocals 60-61 "You're a good girl" 5-#4-5-5 same as above 108-109 "You're a good girl" 5-#4-5-5 same as above 36-37 "But you're a good girl" 5-5-#4-5-5 same as above 68-69 "But you're a good girl" 5-5-#4-5-5 same as above 116-117 "But you're a good girl" 5-5-#4-5-5 same as above 104-105 "[I always wanted] 5-1-1 Hook with Backup Vocals a good girl" 32-33 "I hate these blurred lines" 5-5-4-5-5 same as above

1 The first iteration of the hook in "Blurred Lines" ("take a good girl") is similar to 2 locations in "Got to Give It Up": (a) first found within the Signature Phrase for the lyrics "out to parties," and (b) also found later with the lyrics "keep on dancin' ," as discussed in my Preliminary Report. The same scale degrees in "Got to Give It Up" for both of these occurrences are 6-1-2-1, and the scale degrees in this iteration of the "Blurred Lines" hook are 6-1-1-1, as discussed in detail in my Preliminary Report. [Fine!! Preliminary Report, ~~14, 18, 19.]

7 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 9 of 65 Page ID #:4469

64-65 "I hate these blurred lines" 5-5-4-5-5 same as above 112-113 "I hate these blurred lines" 5-5-4-5-5 same as above

21. The hook always occurs simultaneously with the similar bass melodies and keyboard

parts in "Blurred Lines."

Similarity 4: Core Theme in "Blurred Lines" and Backup Hook in "Got to Give It Up"-

Theme X in Both

22. The similarity has already been described between Theme X in "Blurred Lines" and

in "Got to Give It Up" (with the lyrics "darrein' lady"), including many variations. [Finell

Preliminary Report, ~~21-27.] Below are the areas in "Blurred Lines" where these similar

phrases abundantly occur.

Table 3: Theme X and Variants in "Blurred Lines"

Section in Bar Nos. Lyrics Scale Degrees "Blurred Lines" Verse 1 9 "If you can't hear" 3-#2-3-3 Verse 1 11 "If you can't read" 3-#2-3-3 Verse 1 13 "maybe I'm going deaf' 5-5-#4-5#4-5 Verse 1 14 "maybe I'm going blind" 5-5-#4-5#4-5 Verse 1 15 "maybe I'm going out of my 5-5-#4-5#4-5 [mind]" Verses 2 and 3 17 and 49 "Okay, now he was close" 3-3-#2-3-#2-3 Verses 2 and 3 19 and 51 "But you're an animal" 3-3-#2-3-#2-3 Verses 2 and 3 21 and 53 "just let me liberate you" 2-#1-#1-2-#1-2-XL Verses 2 and 3 22 and 54 "you don't need no papers" 2-#1-2-#1-2-X Verses 2 and 3 23 and 55 "that man is not your maker" #1-2-#1-2-#1-2-X Verse 4 99 "It always works [for me]" #2-3-#2-3 Verse 4 101 "no more pretending" #3-4-#3-4-#3 Verse 4 102 "cause now you're winning" #3 -4-#3 -4-#3 Verse 4 103 "here's our beginning," #3-4-#3-4-#3 Chorus 28-29, 60-61, 108-109 "You're a good girl" 5-#4-5-5

2 In Table 3 above, an "X" in the Scale Degrees column indicates that this lyric is not a sung tone.

8 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 10 of 65 Page ID #:4470

Chorus 36-37, 68-69, 116-117 "But you're a good girl" 5-5-#4-5-5

23. All variants of Theme X above contain similarity to the distinctive melodic pattern

discussed in my Preliminary Report. Theme X is the core material of the verse in "Blurred

Lines," as well as being an important element throughout the chorus section.

24. Theme X always occurs simultaneously with two or more of the following

similarities: Backup Hook, bass melodies, keyboard parts, and hi-hat.

Similarity 5: Backup Hooks

25. This material is a defining element in both songs. In "Got to Give It Up," it uses the

lyrics "darrein' lady" and in "Blurred Lines," it uses the lyrics "hey, hey, hey." In "Got to Give

It Up," the Backup Hook recurs 28 times consecutively. Further analysis reveals that in addition

to this, its precursor occurs earlier in the backup vocal parts in "Got to Give It Up" at 2:10 (with

the lyrics "hop, fop, fop, doo-wop, hop"), thus occupying more of "Got to Give It Up" than

previously recognized. This new finding of similarity is discussed in Section B below.

26. The Backup Hook "Hey, hey, hey" in "Blurred Lines" occurs in its introduction, all

verse sections, interlude, and (ending section). See Table 4 for details.

Table 4: Backup Hook of "Blurred Lines" Occurrences

Section in Bar Nos. Lyrics/ Scale Degrees Similarity to "Got to "Blurred Lines" Give It Up" Intro 4-7 "Hey, hey, hey"/4-#4-5 Backup Hook - Theme x3 Verse 1 13-16 "Hey, hey, hey"/4-#4-5 Backup Hook - Theme X Verse 2 21-24 "Hey, hey, hey"/4-#4-5 Backup Hook - Theme X Interlude 45-48 "Hey, hey, hey"/4-#4-5 Backup Hook - Theme X Verse 3 53-56 "Hey, hey, hey"/4-#4-5 Backup Hook - Theme X Verse 4 101-104 "Hey, hey, hey"/4-#4-5 Backup Hook - Theme X

3 Contains the lyrics "dancin' lady" in "Got to Give It Up," previewed melodically by the earlier backup section "hop, fop, fop, doo-wop, hop" at 2:10.

9 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 11 of 65 Page ID #:4471

Outro 124-127 "Hey, hey, hey"/4-#4-5 Backup Hook- Theme X

27. In "Blurred Lines," the Backup Hook always occurs simultaneously with the similar

keyboard parts, hi-hat, and often Theme X.

Similarity 6: Bass Melodies

28. The similar bass melody in Bars 1-4 of"Got to Give It Up," depicted in Musical

Example 6A of my Preliminary Report, [Finell Preliminary Report, ,-r,-r29-31], is the melodic

foundation for a great deal of the bass material throughout "Got to Give It Up"4 This is

indicated on the deposit copy lead sheet in Bar 8, marked "BASS SIMILE," meaning that after

Bar 8, the bass melody continues as an outgrowth of Bars 1-8, as a feature of the underlying

composition. The recurring bass melody first heard in Bars 1-4 of "Blurred Lines" is

substantially similar to material in "Got to Give It Up," far beyond the initial four bars of "Got

to Give It Up." See the musical examples below to compare Bars 1-4 of "Blurred Lines" to a

limited selection of this additional similar material as found in "Got to Give It Up." In Musical

Examples 1 and 2, identical rhythms for both pitches and rests are indicated with "x," and

identical scale degrees are indicated with arrows:

Musical Example 1: "Blurred Lines" Bass Line Bars 1-4

X X X X X X X X X X X 1 1 1 4 1 1 5 ~7 1 1 5 !J=#nlll J t J 'i ;q J)y J :02 ascending leap

4 Musical Example 6A in my Preliminary Report shows the final note in Bar 1 as scale degree I; however, further examination of the multi-tracks for "Got to Give It Up" reveal that this note is instead scale degree flat-7.

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Musical Example 2: "Got to Give It Up" Bass Line Bars 5-8

+X X ++X +X X X X +X X X X 1 ~7 1 1 1 ~7 ~7 1 4 ~3 1 ~7 7 1 !J=Innl J I I~}B II I ;'l~JI )I I )I I ll£] II I I~J-D I :13 F ascending leap

29. In the above comparison of Musical Examples 1 and 2, only shared scale degrees

that occur in consecutive order are indicated with arrows. However, both songs in the above

examples also share an ascending leap from scale degree 1 to 4, with 4 being the highest tone in

both- and this is a distinctive additional similarity.

Musical Example 3: "Got to Give It Up" Bass Line Bars 9-12

~7 1 1 ~7 ~7 1 1 ~7 1

:21

Musical Example 4: "Got to Give It Up" Bass Line Bars 13-16

1 1 ~7 1 1 1 ~7~7 7 1 1 1 ~7 1 5 4 ~3 • !J=#ntl )I J"I I~)RI I I J)~J w.w J II I J J~J Jl IV~f~- I ~pilJI I :28

30. Musical Examples 3 and 4 above demonstrate further outgrowths of Bars 1-4 of the

bass melody in "Got to Give It Up," as well as the similar descending bass melody discussed in

my preliminary report (shown in Bars 12 and 16 above).

31. Together, the two bass melody similarities discussed above are found in 77 out of

130 bars in "Blurred Lines," or nearly 60 % ofthe song.

32. The similar bass melodies in "Blurred Lines" always occur simultaneously with the

similar keyboard parts and hi-hat, as well as often with either the Signature Phrase, Hook with

Backup Vocals, Theme X, or Backup Hook.

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Similarity 7: Keyboard Parts

33. As stated in the preliminary report, "Blurred Lines" alternates between two chords,

with each chord repeated consecutively for four bars at a time, for the entirety of the song.

[Finell Report, ~32.] Both chords in "Blurred Lines" are also found in "Got to Give It Up," as

previously reported- these chords are found in the upper part (normally performed with the

right hand).

34. Further examination has revealed that the similarities extend beyond this: there is a

lower (left hand) part with identical rhythms and primary scale degrees in both songs (not

discussed in my Preliminary Report).

See Musical Examples 5 and 6 below to compare the first chord in "Blurred Lines" to "Got to

Give It Up." Chord designations are shown above the staff. 5

Musical Example 5: Chord 1 in "Got to Give It Up" Fender Rhodes Bars 1-4

rhythmic rhythmic suspension suspension A7 I

5 Regarding Musical Example 5 of"Got to Give It Up," some of the iterations of this passage are performed so that the chord with rhythmic suspension ends slightly earlier than at the very end of the bar, which is more similar to "Blurred Lines." Musical Example 6 of"Biurred Lines" contains a correction from my Preliminary Report, in which the rhythmic suspension occurs first in Bar 4, rather than in Bar 1 as previously reported. In "Got to Give It Up," the rhythmic suspension occurs first in Bar 2 (as previously reported) as well as in Bar 4 (as shown here). My conclusion remains the same: both songs share the same distinctive rhythmic feature, in the same location. Chord designation A refers to an A major chord. A7 means there is an additional note (pitch G) added to the A major chord.

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Musical Example 6: Chord 1 in "Blurred Lines" Fender Rhodes Bars 1-4

rhythmic suspension A

See Musical Examples 7 and 8 below to compare the most similar occurrence of Chord 2 in

"Blurred Lines" to "Got to Give It Up":6

Musical Example 7: Chord 3 in "Got to Give It Up" Fender Rhodes Bar 18

2 E7: 7 4 h~~ l k

i.j• .. .. {~, oJ. ... !I' 5 7

Musical Example 8: Chord 2 in "Blurred Lines" Fender Rhodes Bar 7

2 E: 7 4 fl Jj, ++ l {~, ...... 5 5

In "Got to Give It Up," Chords 1 and 3 are found in over 2/3 of the song. In "Blurred Lines,"

Chords 1 and 2 account for all the keyboard material in the song.

6 In Musical Example 8 of"Blurred Lines," the upper (right hand) part is transposed an octave higher for ease in reading the musical notation.

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35. In "Blurred Lines," the similar keyboard parts always occur simultaneously with the

similar bass melodies and/or hi-hat, as well as with either the Signature Phrase, Hook with

Backup Vocals, Theme X, or Backup Hook.

Section B. Additional Similarities beyond the Constellation of Substantially

Similar Features

36. Closer examination ofthe two songs and their associated multi-tracks have revealed

significant additional similarities beyond those discussed in the Preliminary Report.

3 7. Shared musical fingerprint

A shared musical "fingerprint" has been uncovered. Specifically, both songs express a

high-pitched vocal exclamation, a nonsense syllable, namely "woo" in repeated locations. This

trait was acknowledged by Sandy Wilbur in her declaration. [WD, ~245.] It was not yet

discussed in my Preliminary Report.

38. I refer to this element as a "musical fingerprint" because it is a highly provocative

musical detail. It appears so often and prominently in "Blurred Lines" that it becomes a very

significant similar feature. It is an indicator that "Got to Give It Up" was virtually "present"

during the creation and execution of "Blurred Lines," strongly rooted within its creative

expression. To deny this influence and appropriation would be tantamount to accepting the

denial of a suspect's presence after his fingerprint has been found at a crime scene.

39. The identical and substantially similar elements of this feature are:

a. Identical syllable "woo"

b. Identical, unusual rhythmic placement: on the second half of beat 3

c. In "Got to Give It Up," this appears both in a male voice in a high register

outside the normal male vocal range (found at 1 :44), as well as in a female voice (at 2:09)

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d. In "Blurred Lines," this occurs in every other bar throughout the entire song

(with three exceptions), 62 times in total. It is adopted into the continual musical

accompaniment of the song.

"Got to Give It Up"- "Woo" by high male voice at (1:44),

with the following rhythmic placement:

2 3 + 4 IBeab Woo

"Got to Give It Up"- "Woo" by background female voice (2:09), with the following

rhythmic placement:

2 3 + 4 IBeab Woo

"Blurred Lines" - "Woo" by high male voice, in every other bar of entire song, with the

following rhythmic placement:

2 3 + 4

Woo

40. The selection of the second half of beat 3 is an unusual creative choice rhythmically,

and a shared one between and "Got to Give It Up" and "Blurred Lines." Further, in "Blurred

Lines," the "woo" feature echoes the rhythmic suspension feature in the keyboard part,

occurring at the same location in Bars 4, 12, 20, and so forth. Here in "Blurred Lines," the

accompanying harmony is an A chord, which is similar to the accompanying harmony of an A 7

chord in "Got to Give It Up" at (1 :44).

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41. Shared hand clap rhythms

The hand clap rhythms and their shared function are substantially similar in "Blurred

Lines" and "Got to Give It Up." This feature was not yet discussed in my Preliminary Report.

In both songs, the hand claps function as would any other percussion instrument. Both songs

contain the following two hand clap rhythms, repeated throughout the songs:

Rhythm A:

Hand claps --1111~-----+~ ~t--*"J------4!t.___*J_--+

RhythmB:

42. Backup vocals "Doo-Wop" passage in "Got to Give It Up"

Closer examination has revealed a substantial similarity in the backup singers' "doo

wop" passage at 2:10 in "Got to Give It Up" as compared with Theme X in "Blurred Lines." As

discussed in my Preliminary Report, Theme X in "Blurred Lines" is the core melody of the

verse section, first heard with the lyrics in Verse 1,"Ifyou can't hear," and in Verse 2, "Okay,

now he was close." [Finell Preliminary Report, ~~21-27.] In "Got to Give It Up," the "doo

wop" passage occurs during the bridge section of the song, where the lead vocal part contains

the lyrics "Move it up."

43. Further study has revealed that the "doo-wop" passage in "Got to Give It Up" is a

precursor to the Backup Hook (Theme X) in its own song, meaning that the melody heard in the

"doo-wop" passage is again found later within "Got to Give It Up" itself, as the Backup Hook

(Theme X) sung to the lyrics "darrein' lady." In the "doo-wop" passage first appearing at 2:10-

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2:26, the backup chorus has a lower singing part using the same scale degrees as heard

subsequently in the Backup Hook (Theme X) of"Got to Give It Up," namely scale degrees 3-3-

#2-3. These same scale degrees in the lower backup singing part are indicated in the musical

example below with a bracket. This "doo-wop" passage was not discussed in my Preliminary

Report.

44. The significance of this additional similarity within "Got to Give It Up" is that the

substantial similarity with "Blurred Lines" is even more pervasive than initially found and

discussed in the Preliminary Report.

Musical Example 9: "Got to Give It Up" "Doo-wop" Passage

5 5 5 5 5 5 5 5 5 5 5 5 '###I "1 J 'J Jl Jl "1 J 1¥ J IJ J;J ll "1 J 2:10 hop fop fop doo-wop, hop hop fop fop doo-wop, hop

45. Substantial Similarities in Lyrics and Story Line

Further examination has revealed similarities in lyrics and story lines that were not yet

reviewed or discussed in my Preliminary Report.

A. Similar story lines

The lyrics and scenarios expressed in "Got to Give It Up" and "Blurred Lines"

bear some notable similarities. Both songs' lyrics describe:

(a) behavioral transformation of self or other

(b) physical/sexual/emotional liberation from restraint, and

46. In "Got to Give It Up," the narrator describes transforming himself from a shy "wall

flower" into an active social participant able to attract women:

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"I used to go out to parties and stand around (verse 2: 'stand upside the wall')

'cause I was too nervous to really get down.

But my body yearned to be free

I got up on the floor boy

So somebody could choose me"

4 7. The above narrator expresses how he worked on transforming himself in order to

attract women:

"Somebody watchin'

might wanna make romance"

He also describes a desire to free himself of anxiety, enjoy himself, "give it up," and "keep on

dancin' ."

48. Similarly, in "Blurred Lines," the narrator attempts to seduce the repressed "good

girl" to whom he sings, urging her to change her behavior to reflect her inner freer sexualized

self.

"But you're an animal; baby

it's in your nature

Just let me liberate you.

And that's why I'm gon' take a good girl

I know you want it. .. you're a good girl.

Baby, can you breathe? I got this from Jamaica, It always works for me "

This story theme is amplified in the rap section of "Blurred Lines."

B. Similar Lyrics

Both songs' narrators are courting a potential paramour, and in this way "Blurred

Lines" echoes "Got to Give It Up," written at a time when the language was more subdued, and

the sexuality described more discretely:

a. "Got to Give It Up":

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"You can bump me when you want to, babe" and "Let me slip into your erotic zone"

b. "Blurred Lines":

"Let me be the one you back that ass into" and "I'll give you something big enough to tear your

ass in two" (rapped)

49. These themes are broadened particularly in the rap section of "Blurred Lines" as

well as in the background party chatter (talking) that is nearly constant in "Got to Give It Up."

In "Got to Give It Up," for example, members of the party crowd respond directly to the lyrics

on a conversational level as the song progresses, particularly when the lyrics are flirtatious or

provocative ("let me slip into your erotic zone" to which a woman in the crowd says

confrontationally "I heard that") in "Got to Give It Up."7

50. Another substantial similarity has been uncovered in a series of three short phrases

containing the words "up," "(a-)round," "shake," and "down" in the lyrics of both songs. See

Musical Examples 10 and 11 below:

Musical Example 10: "Got to Give It Up" Lyrics "up"/"'round"/" shake"/"down"8

~7 ~7 1 ~7 ~7 1 3 5 q3 4 q3 1 $•n#z - 7~) j)l - - 2~} i ; - l2 pl 7 )qjjjiJ' - ~ 2:13 Move it up, turn it 'round, ooh, shake it down._

Musical Example 11: "Blurred Lines" Lyrics "up"/ "around"/" shake"/"down"

1 ~7 1 1 1 2 3

~ ~ ,~##I J ~J J l l 7 Jl J 7 l J 7 [II$ 7 J - 2:57 Shake a-round, get down, get up,

7 This comment by the background party crowd member is actually shown in the deposit copy lead sheet, though the first word in the phrase is notated as "we" instead of"I" ["heard that"]. [Stockett Declaration, Deposit Copy of"Got to Give It Up," p. 3] This is highly unusual to include a non-musical crowd element in a lead sheet. 8 The middle note ofthe first two phrases in this example was transcribed as a G-natural, as also shown on the deposit copy. However, the singer is inexact as he "slides" upward from G to A, and some listeners may hear the middle note as a G-sharp in this passage.

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The above musical examples show the following:

a. Both songs use "up," "(a-)round," "shake," and "down" in the same falsetto

vocal range, in a similar 3-part series

b. 3 out of the 4 scale degrees in "Blurred Lines" are found in "Got to Give It

Up": scale degrees 1, flat-7, and 3

c. Both songs end the "down" phrase on scale degree 1, on a downbeat

d. Both songs ascend melodically by one scale step to the lyric "up"

e. In both songs, these passages share the same musical function as a "bridge"

section transitioning between the main sections in each song. In "Got to Give It Up," they occur

immediately preceding the chant-like parlando section (discussed below). In "Blurred Lines,"

they occur immediately following the rap section which is parallel to the parlando section of

"Got to Give It Up" (discussed below).

51. Roots of Backup Hook "Hey, Hey, Hey" in "Blurred Lines" found Similarly

Expressed in "Got to Give It Up"

A predecessor to the distinctive, recurring Backup Hook in "Blurred Lines," the phrase

"hey, hey, hey" has been found in "Got to Give It Up." Further study of the background party

chatter that permeates "Got to Give It Up" has revealed frequent use of the word exclaimed as

"hey," singly and in repetition. In both songs, this first occurs in the introduction section.

a. The multiple iterations ofthe word "hey" in "Got to Give It Up" include:

0:01-0:09 (in the background voices evoking a party scene) 0:11-0:12 ("Hey Clayton! Clayton!") 0:16-0:18 ("Hey Clayton! Clayton!") 1:06-1:08 ("Hey! Hey!") 2:16 ("Hey!")

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b. This element is emblematic of "Blurred Lines," so much so that a single

iteration of it, always sung in 3 repeats to the same ascending chromatic scale degrees, is

immediately recognizable as part of"Blurred Lines."

53. Bass Melody in "Blurred Lines" Substantial Similarities to Tom-Tom in "Got

to Give It Up"

The bass melody in "Blurred Lines" contains substantial rhythmic similarity to the tom-

tom (drum) part in "Got to Give It Up," in identical locations. See Musical Examples 12 and 13

below, where arrows indicate identical rhythms in Bars 1-4 ofboth songs:

Musical Example 12: "Got to Give It Up" Tom-Tom Part Bars 1-4 + + + + + + Toms nt J ~ ~ 7 ~b I~ ' ' 7 ~b I J ~ ~ 7 ~b I~ ~ ~ 7 ~b 1 Musical Example 13: "Blurred Lines" Bass Line Bars 1-4 + + + + + + I I . !J=I#lfJ J I I ¥ J1 Jl¥ I ¥ ¥ )I )x I I j] I J1¥ I I J)l :02 ~

Section C. Similarities in Structure and Design Template between "Got to

Give It Up" and "Blurred Lines"

54. Further review has revealed that "Blurred Lines" is substantially similar to

distinctive structural properties in "Got to Give It Up." The nature of these similarities implies

that "Got to Give It Up" served as a template for distinctive design and format features in

"Blurred Lines." Sections A and B above and Exhibit A, as well as my Preliminary Report, all

discuss the specific similar compositional content, in terms of comparisons of melodies,

rhythms, harmonies, vocal and instrumental lines.

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55. This section will discuss the two songs in terms of distinctive designs and structural

similarities that constitute substantially similar creative choices made by the creators of

"Blurred Lines" as compared to "Got to Give It Up."

56. Similar Deviation

A structural idiosyncrasy has been identified as substantially similar in the two songs. It

suggests that "Blurred Lines" was modeled after the architecture of"Got to Give It Up." Of

special interest is that this idiosyncrasy occurs in the identical location in the two songs, at

Bars 73-88; and at precisely the same timing, counters 2 minutes, 26 seconds to 2 minutes, 57

seconds in each song. This parallel timing is highly unusual, even in a music copyright case. At

this identical location in both songs, the following occurs:

a. In "Got to Give It Up," the lyrics here begin with "Oh, you can bump me

when you want to, Babe." In "Blurred Lines," the lyrics begin with: "One thing I ask of you: let

me be the one you back that ass into." These lyrics are similar.

b. Of greater importance, though, is that both songs depart here from the

established vocal melodic material already in progress in similar ways.

57. This shared departure is found similarly in the parlando9 section of"Got to Give It

Up" and the rap section of"Blurred Lines."

a. To explain, in both songs, these comparable sections represent a deviation

from more melodious portions of each song, particularly noticeable and distinctive in "Blurred

Lines," where there is an abrupt change from singing to speaking. The change is more subtle

and understated in "Got to Give It Up." In "Got to Give It Up," the parlando section presents

9"Parlando" refers to a spoken delivery of a lyric. In singing, a speech-like style, with one syllable for each note. Oxford Music Online. Oxford University Press, accessed October 22, 2014, http://O- www. oxfordmusiconline. com .library.juilliard.edu/ subscriber/ article/ opr/t 114/e49 87

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chanted lyrics by Marvin Gaye interrupting the song's more melodious procession up to that

point.

b. Similarly, the rap section- which is rhythmical speech with no pitch- of

"Blurred Lines" is a departure from the melodious sections that precede and succeed it.

c. From a musicological perspective, this similar deviation from the prior and

subsequent melodic passages of each respective song is something quite notable.

d. Parlando and rap are both speech-like music techniques. In bothparlando and

rap, the syllabic rhythm and texture of the words are given prominence over melody. Musically,

the effect is to emphasize the verbal message, and create a distinct contrast with any more

melodic or sung material that may precede or follow such passages of parlando/rap.

e. In the context of the 1970s when "Got to Give It Up" was released, rap music

was still a nascent development. Rap as it is used today was not a part of Marvin Gaye's

musical language or context, at least not in the form that Thicke, Williams, and Harris use it in

"Blurred Lines." Yet, because of the similar contrast that these interrupting parlando/rap

sections represent, both constitute substantially similar creative choices - and they do so in

precisely the same location in each song.

f. Of importance, too, is that both songs continue in their respective parlando

and rap sections with the same instrumental similarities in the bass, keyboards, hi-hat, and hand

claps as found before and after these sections, and in this way, perpetuate the similarities in the

two songs already found in the "Constellation of 8 Substantially Similar Features" discussed in

my Preliminary Report and in Section A of this report. 10

To compare corresponding sections in each song:

10 In "Got to Give It Up," the harmony changes to minor rather than major chords, affecting some of the pitches in the keyboard material; however, the relationships to the Constellation remain intact and obvious.

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Table 5: Comparison of Parlando Section of "Got to Give It Up" with Rap Section of "Blurred Lines"

Shared Location/Function "Got to Give It Up" "Blurred Lines" Occur in identical sections in Parlando segment is featured from Rap segment is featured from both songs, precisely the same Bar 73 [2mn26s] to Bar 88 Bar r 73 [2mn26s] to Bar 88 measure number and timing. [2mn57s] [2mn57s] The parlando/rap has a structural purpose and musical/emotional effect that achieves a very similar impact.

58. Phrase Construction Similarities

Upon further examination, a new substantially similar structural trait has emerged that

represents additional distinctive expressive choices shared in both songs. In the verse of "Got to

Give It Up," the phrases are structured in "question" and "answer" phrasing. In musical

analysis, this is termed "antecedent" and "consequent" phrases. This compositional method

describes a pair of phrases that are co-dependent on one another, and act as a musical

"question" and "answer." This means that Phrase 1 finishes in an incomplete, umesolved

fashion requiring Phrase 2 to complete it. In this context, "incomplete" refers both to the

musical properties that can include unresolved harmonies and/or melodies, and to the lyrical

qua1 1t1es. . o f an mcomp . 1 ete sentence or c1 ause. 11

59. Both "Got to Give It Up" and "Blurred Lines" contain series of "question" and

"answer" phrases throughout their respective verse sections. These question/answer phrases do

not share the same pitches, but they are structured in a similar distinctive way. The decision to

structure a musical passage in question and answer phrases represents a creative choice, and in

addition to many other distinctive elements, these two songs share this creative choice.

11 Melodic phrases are similar to individual sentences within a longer paragraph. When phrases are structured in a "question/answer" manner, a musical "dialog" results between the first and second phrase, which are usually co-dependent melodically and lyrically. The "question" phrase usually ends with an unresolved melodic note or chord, and implies musically that more is to follow. In some vocal works, this incompleteness coincides in the lyrics, in which only the first half of a sentence is stated (the "question"), awaiting the "answer" for completion. In sum, the two phrases complete one another.

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60. For example, in "Got to Give It Up," we find four pairs of questions and answers

comprising Verse 1. The question/answer structure ofthe verse of"Got to Give It Up" is

mirrored in the first four phrases of the verse of"Blurred Lines," organized in two pairs of

alternating question/answer melodies. This question/answer structure continues in every verse

section of both songs. See Tables 6 and 7 below for details.

Table 6: "Got to Give It Up" Verse l, Structure of Question/Answer Phrases

Phrase Question/Answer Lyrics Bar Nos. 1 Q "I used to go out to parties" 8-9 2 A "and stand around" 10-11 3 Q '"cause I was too nervous" 12-13 4 A "to really get down" 14-15 5 Q "but my body" 16-17 6 A "yearned to be free" 18-19 7 Q "I got up on the floor boy" 20-21 8 A "so somebody could choose me" 22-23

Table 7: "Blurred Lines," Verse l, Structure of Question/Answer Phrases

Phrase Question/Answer Lyrics Bar Nos. 1 Q "If you can't hear" 9 2 A "what I'm tryna say" 10 3 Q "if you can't read" 11 4 A "from the same page" 12

This is an additional example that shows substantial similarity in structural features

within "Blurred Lines" and "Got to Give It Up," especially in sharing a distinctive creative

compositional choice. The scale degrees of the above examples are discussed separately in

Section A above.

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61. Coinciding Similar Vocal Features

Another similarly distinctive design/structure has emerged upon further study which

suggests that "Got to Give It Up" was the model for "Blurred Lines." Simultaneously with the

"doo-wop" feature in "Got to Give It Up," a distinctive 3-note melody is sung to the lyrics

"move it up," then "tum it 'round." This combination of two distinctive vocal features is very

similar to the combination of two distinctive vocal features in "Blurred Lines," where Theme X

and the Backup Hook "hey, hey, hey" intersect. Both songs contain the following simultaneous

elements here:

A. One vocal melody containing a rebounding chromatic feature ("fop doo-wop"

in "Got to Give It Up"; Theme X in "Blurred Lines")12

B. A coinciding 3-note, ascending vocal melody that occurs at the end of the bar

in eighth note rhythms ("move it up" and "tum it 'round" in "Got to Give It Up"; "hey, hey,

hey" in "Blurred Lines").

See Table 8 below for an illustration of the first occurrence of this similar feature in both songs,

where the lyrics sung to rebounding chromatic tones are underlined.

Table 8: Coinciding Similar Vocal Features in "Got to Give It Up" and "Blurred Lines"

"Got to Give It Up" (2:12) "Blurred Lines" (0:25)

Beat 1 + 2 + 3 + 4 + 1 + 2 + 3 + 4 + 1

A hop fop .fm2 doo wop maybe I'm gQ.: ing deaf

B move It up hey Hey hey

12 "Rebounding chromatic" tones are 2 tones one-half step apart that alternate. In Table 8, the rebounding tones in "Got to Give It Up" are scale degrees 3-#2-3; in "Blurred Lines" they are 5-#4-5-#4-5. The melodies here are previously discussed in the report above in paragraphs 22-24 and 42-44.

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Section D. "After the Dance" I "Love After War"

62. A preliminary examination was conducted of "After the Dance" and "Love After

War." These songs contain substantially similar material in their choruses, including in the

melodies sung to their hook lyrics. Each song uses its hook melody and variations throughout

most of its own chorus, rather than moving from one contrasting theme to another.

63. Consequently, due to the way that the choruses are based throughout on the hooks,

there is a higher proportion of substantially similar material than might ordinarily be the case in

comparing two songs.

64. The first iteration of the main hook in "After the Dance" is sung to the lyrics, "I

want you." In "After the Dance," the hook lyrics are performed with two or more voices singing

simultaneously in harmony. In the recurring and varied appearances of the hook

throughout "After the Dance," the voice that is heard most prominently shifts so that sometimes

it is the highest voice, and sometimes a lower voice that predominates. Two of the more

prominent voices are (a) one in a higher register, singing the scale degrees 1-2-3, and (b)

another found simultaneously in a lower register, singing the scale degrees 4-5-3. The second

iteration of the hook, sung to the lyrics, "And you want me," contains the scale degrees 5-4-5-3

in the lower- register voice. It is this lower register vocal line of the hook in "After the Dance"

that "Love After War" resembles in its own hook.

65. In "Love After War," the hook is sung to the lyrics, "love after war." As in "After

the Dance," several simultaneous voices create the hook. In the most prominent voice, the scale

degrees in "Love After War" are 5-4-5-3, which are also found in "After the Dance."

66. The ordinary listener would be able to hear this similar material in the lower register

27 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 29 of 65 Page ID #:4489

voice where it is more prominent on the recording. For example, the lower voice in "After the

Dance" is more prominent at 2:55, where it occurs in varied form.

67. The songs also share a number of other similar elements:

(a) Both songs share unusual and distinctive harmonies accompanying their

hooks, this is an important shared feature that contributes to their sounding similar.

(b) Both songs also share a distinctive (syncopated) rhythm on the last note of

their hooks.

the similarities are of greater importance than otherwise might be the case.

Section E: Wilbur Declaration

68. The findings and conclusions of the Wilbur Declaration are flawed as they are based

on faulty premises and methodology.

69. The Wilbur Declaration neither credibly nor accurately responds to the substantial

similarities already discussed in my Preliminary Report, nor does it fully address the overriding

basis for my conclusion of substantial similarity. This conclusion is based on my finding that

the similar features operate in combination with one another -intersecting and co-existing

and they permeate "Blurred Lines." The similar features are undeniably linked to "Got to Give

It Up." "Blurred Lines" simply would not be recognizable without them.

70. The aggregation of similar features in "Got to Give It Up" and "Blurred Lines"

28 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 30 of 65 Page ID #:4490

results in their two substantially similar "Constellations." This "Constellation" is greater and

more significant than any of the individual, substantially similar features.

71. Since writing my Preliminary Report, I have further examined "Got to Give It Up"

and "Blurred Lines," including the full recordings and individual multi-tracks for each

recording. These further reviews have uncovered additional new similarities between the works

as discussed above. Examination of additional iterations of the material within the initial

"Constellation of 8 Features" has demonstrated how the substantially similar material permeates

nearly every bar of "Blurred Lines." This high quantity of similar material throughout "Blurred

Lines" is illustrated in the accompanying Exhibit A, which shows that all but 3 bars of "Blurred

Lines" contain material that is substantially similar to "Got to Give It Up."

72. Nothing in the Wilbur Declaration has changed my opinion that "Blurred Lines" is

substantially similar to "Got to Give It Up." Rather, further examination of the two works has

shown that even the structure and design of "Blurred Lines" is so substantially similar to

distinctive elements of"Got to Give It Up" as to suggest that Gaye's song served as a template

for the creators of "Blurred Lines."

73. The Wilbur Declaration distracts from the collective similarity that I identify in my

Preliminary Report, and instead focuses myopically on isolated individual elements. The

"Constellation" is mischaracterized as a random assembly of individual features, and the Wilbur

Declaration overlooks the magnitude of the similar musical content embedded in "Blurred

Lines." This is largely a result of an inappropriate methodology that drives the Wilbur

Declaration. As discussed below, this methodology attempts to deny the similarities by the

following means:

a. To deconstruct and microscopically dissect the individual similar features in

29 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 31 of 65 Page ID #:4491

isolation, outside the context of the overall musical work

b. To dismiss and obscure the individual similarities by applying irrelevant and

inappropriate criteria to the comparison process

c. To define as ideas rather than expression the musical content of the works

d. To mischaracterize the similar musical features as collections of commonplace

"devices"

e. To mislead by disregarding the continuous integrated presence of the

similarities and their significance to "Blurred Lines"

f. To separate the deposit copy from the recording of "Got to Give It Up,"

attempting to disqualify the recording from the comparison process 13

g. To cite irrelevant prior art that:

i. does not meet the comparison criteria and standards that the Wilbur

Declaration applies to the two songs at issue, and

ii. lacks the collective similarities present in these songs.

74. This flawed methodology was discussed in greater detail in my Declaration. [Finell

Declaration,~~ 13-99.]

Section F: Deposit Copy

75. The recording of"Got to Give It Up" represents the work in its most complete form.

I did not have access to the deposit copy in conducting my preliminary review. However,

having reviewed it as attached to the Stockett Declaration, nothing in the deposit copy changes

my findings or conclusions.

76. As a musicologist, I rarely if ever find that a deposit copy fully defines the entire

13 This report refers to the deposit copy for "Got to Give it Up (PART 1)" as found in item 3d above: "Williams v. Bridgeport Stockett Declaration." "Got to Give It Up (PART 1)" correlates to the recording I reviewed in my Preliminary Report of October 17, 2013.

30 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 32 of 65 Page ID #:4492

composition. It is normally termed a "lead sheet," and it is not intended to represent fully the

composition. At best, it is a skeletal representation or sketch, and usually shows only the most

basic vocal melodies, typically only a single iteration of the beginning sections, some beginning

lyrics, and chord indications. I have never relied solely on a lead sheet in any copyright

infringement case, and certainly not for my analysis or evaluation.

77. In the present popular music industry environment, lead sheets have become

obsolete for the most part. Music is rarely created with a written score within the popular

genres, but rather composed in a recording studio, and musical works are often the result of

audio experimentation, and trial and error. Any written manifestation of the musical sounds,

other than the lyrics, usually occurs after the music has been created, if ever, and is rarely

transcribed by the creators themselves. This is due to a number of factors. Very few popular

music composers and song writers have formal music training, or even read music today. In his

deposition, Pharrell Williams denied the ability to read music, and described his own studio

production process that did not involve any written documentation of the musical works that he

has created. Technology has enabled musicians to work in an audio environment and create

music directly to a recording, and edit pre-recorded material, without the intervening step of

writing it down at all.

78. At the time of Marvin Gaye's "Got to Give It Up" (1977) and "After the Dance"

(1976), the music industry was already headed in this direction. Technological developments in

the interim have empowered musicians to become composers in the recording studio without

the benefit of paper and pencil as never before in music history. Because of this, and the shift

away from formal music education, writers of popular music have seen a full transition from

written to recorded musical composition. In other words, what was once considered a

manuscript or first "edition" of a musical work, which was the basis of a "deposit copy," is now

digitally accomplished directly to a recording.

When Marvin Gaye composed "Got to Give It Up," most often, lead sheets were notated

after the composition was completed and recorded, in order to fulfill music copyright

31 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 33 of 65 Page ID #:4493

registration requirements. They were often notated by music copyists employed by the music

publishers rather than by the artists themselves. It was the norm that most of the musicians in

the popular genres of the time could not read musical notation with proficiency. Certainly in

this case, the recording itself is a fuller manifestation of "Got to Give it Up" as a composition,

and the most complete and appropriate means for comparing the work to the "Blurred Lines"

recording. 14 I am unaware of a lead sheet deposit copy for "Blurred Lines." The same is true of

"Love After War" and its comparison to "After the Dance."

79. While the deposit copy of"Got to Give It Up" does verify many ofthe similarities

already noted and transcribed from the recording in this report and my Preliminary Report, this

deposit copy lead sheet is only a partial and incomplete sketch of the fuller work as embodied in

the recording. 15 For example, there is an indication on the deposit copy lead sheet in Bar 8,

marked "BASS SIMILE," meaning that after Bar 8, the bass melody continues as an outgrowth

of Bars 1-8. This demonstrates that the entire bass melody is a feature of the underlying

composition; however, the limitations of the single-line notation format used for the lead sheet

result in this abbreviation for the deposit copy.

80. Likewise, the deposit copy (lead sheet) for "Got to Give It Up" excludes all of the

backup vocal melodic material and instrumental lines except the bass melody in Bars 1-7, so

there is no keyboard, drums, cow bells, and other percussion. Only rudimentary chord

indications are shown. The recording of "Blurred Lines" corresponds more closely with the

recording of "Got to Give it Up," thus allowing the more informative and complete comparison

of the two.

81. The opposing expert Sandy Wilbur's claim that the deposit copy alone qualifies as

14 Upon further examination, the deposit copy does include some of the party chatter in "Got to Give It Up," including the dialog described above in ~49 when a woman responds to the lyrics "your erotic zone" by saying "We heard that," which is shown on the lead sheet, page 3, though the "We" on the recording is "I." I do not recall having seen another deposit copy lead sheet that includes background commentary as this does, and this gives further substantiation to this song being a precursor to the rap section of"Blurred Lines" as discussed above in ~57. 15 A transcription is a written representation of the sounds heard in a musical performance. To the extent that the sounds are unclear or inaudible, this will be reflected in the transcription.

32 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 34 of 65 Page ID #:4494

the composition does not accurately acknowledge the material in the underlying song. She

states: "The Copyright Deposit for GIVE is the composition: the Copyright Deposit contains

the melody, rhythm, harmony, structure, and lyrics of GIVE." [WD, ~30.] While the deposit

copy does contain some melodic features, it is incomplete because it does not include all of the

compositional properties essential to "Got to Give It Up." Ms. Wilbur also contradicts herself

when she states that one must rely only upon the deposit copy, but in an effort to point out

differences in harmony and structure between "Blurred Lines" and "Got to Give It Up," she

refers to the recording of"Got to Give It Up," for example. [WD, ~39-42 and ~48-49.]

In discussing "After the Dance" as compared to "Love After War," the MSJ states:

"Defendants' copyright in DANCE is limited to the material reflected in the copyright deposit

sheet music." [MSJ, p. 23, lines 21-22.] While I already discussed the problematic issues with

this approach above regarding "Got to Give It Up," the same applies to "After the Dance."

82. In the case of"After the Dance," the elimination of the recording is a critical

mistake and entirely inappropriate towards accurately defining the underlying song. In "After

the Dance," the simultaneous lead and backup vocal melodies intertwine in a way that they

function as a unit, alternating in their prominence, and blending together in their roles as

primary and secondary melodic lines. This differs from the more standard domination of the

lead vocals and subordination of the backup vocals.

83. This is especially important in the case of"After the Dance" because the deposit

copy represents only one vocal melody at a time. It does not at all reflect the complexity of the

true underlying material of the song. When Sandy Wilbur only used the deposit copy to arrive

at her conclusions, she dismissed vocal material found on the recording that is integral to the

composition. The result is that her findings and conclusions are based on incomplete materials.

33 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 35 of 65 Page ID #:4495

Section G: Audio Exhibit: Mashups Demonstrating Similarities in

"Got to Give It Up" and "Blurred Lines"

84. I have listened closely to the audio examples prepared by Thomas Court and Ron

Aston as exhibits to the response to the Motion for Summary Judgment. I have also reviewed

Mr. Court's and Mr. Aston's descriptions of the way in which they created the audio examples,

and their process in preparing them. 16 I have also spoken with Mr. Court and Mr. Aston

numerous times during the recording process in order to ensure fully that the materials prepared

by them were trustworthy and that they accurately reflected elements from both "Blurred Lines"

and "Got to Give it Up." I am more than satisfied that these audio examples do accurately

reflect the music of "Got to Give it Up" and "Blurred Lines," and that any minor adjustments

made are within acceptable musicological practice. 17

85. The three examples show that when the similar vocal melodies in "Blurred Lines"

are merged with the similar instrumental melodies in "Got to Give it Up," the material sounds

like a perfect, natural match because it blends sonically. The same natural congruence occurs

when the similar vocal melodies in "Got to Give It Up" are merged with the similar

instrumental melodies in "Blurred Lines."

86. These mashups demonstrate the undeniable substantial similarity between the two

compositions. It is significant that the two songs are so effortlessly overlaid. As the mashups

16 Examples 1-3 are referred to as "mashups" within music industry tradition because they simultaneously combine passages from two different recordings. 17 In Example 1, where the "Blurred Lines" vocals are combined with instrumental accompaniment from "Got to Give it Up," "Got to Give it Up" is transposed down one whole step, to the key of "Blurred Lines." This is the audio equivalent of what a musicologist does in comparing musical works, described in paragraph 68 and the corresponding footnote in the Fine!! Declaration. In Examples 1-3, the tempos are adjusted very slightly, so that the songs can be synchronized to be heard in the same time frame. According to the Wilbur Declaration, both songs are in the tempo range of 120-128 beats per minute, meaning that the tempo adjustments for these examples are minimal and have no impact whatsoever in the content compared between the two songs. This procedure embodies standard musicological practice, as the tempo is not a factor in comparing musical works for their underlying melodic, harmonic, and other compositional similarities.

34 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 36 of 65 Page ID #:4496

show, each song's vocal line can be played interchangeably-and on a sustained basis -with

the instrumental accompaniment of the other. In this case, this is because the compositions

contain a multitude of similar compositional features.

87. The above is demonstrated in Example 1, which contains approximately the first

minute and 20 seconds of the vocal material in "Blurred Lines" superimposed over

approximately the first minute and 20 seconds of the instrumental material of "Got to Give It

Up." In this example, the similarities from the respective parts in both songs occur

simultaneously, interlocking and synchronizing in the same way as does the vocal material with

its own instrumental material in the commercially released recordings of "Blurred Lines" and

"Got to Give It Up."

88. The same is true in Example 2, in which the vocal material in "Got to Give It Up" is

superimposed over the instrumental material in "Blurred Lines."

89. The ongoing sequence of vocal melodies of"Blurred Lines" superimposed over the

ongoing instrumental material of"Got to Give It Up" also shows how continuous the similar

materials are within their own respective songs. Further, the ongoing sections (introduction,

verse, chorus) of "Blurred Lines" in their original form need no reorganization to co-exist

seamlessly with the instrumental parts of"Got to Give It Up." The same is true of the vocal

melodies of "Got to Give it Up" as superimposed over the instrumental material of "Blurred

Lines" in these audio examples.

90. All eight similarities in the "Constellation of Similarities" discussed in my

Declaration above are demonstrated in Audio Examples 1-3. Specifically:

a. Example 1 demonstrates Similarities 1, 2, 3, 4, and 5 in "Blurred Lines,"

combined with simultaneous Similarities 6, 7, and 8 in "Got to Give it Up," transposed

35 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 37 of 65 Page ID #:4497

to the key of"Blurred Lines."

b. Example 1 begins at counter :02 with Similarities 6 (bass melody), 7

(keyboard parts), and 8 (percussion) in "Got to Give it Up." All of these similarities

occur simultaneously with Similarity 5 of "Blurred Lines" (the backup hook with lyrics

"hey, hey, hey") at counter :11, followed by Similarity 4 of"Blurred Lines" (Theme X,

lyrics "If you can't hear") at counter : 16, and Similarities 1, 2 and 3 of "Blurred Lines"

(Signature Phrase, "And that's why I'm gon' take a good girl") at counter :45. The

songs' similarities merge together in this mashup and clearly show the substantial

similarities between "Blurred Lines" and "Got to Give It Up."

c. Example 2 merges the vocals in the verse of "Got to Give It Up" with

the instrumental accompaniment of"Blurred Lines." Here, Similarity 1 (Signature

Phrase) and its outgrowth material in "Got to Give It Up" are combined seamlessly with

simultaneous Similarities 6, 7, and 8 in "Blurred Lines."

d. Example 3 merges the vocals in the hook of "Got to Give it Up"

(starting at 3: 12 of the original recording), with the instrumental accompaniment of

"Blurred Lines." Specifically, Example 3 contains Similarities 2 (hook, "Keep on

dancin"'), 3 (hook with backup vocals), 4 and 5 (backup hook/Theme X, lyrics:

"dancin' lady") in "Got to Give it Up," combined with simultaneous Similarities 6, 7,

and 8 in "Blurred Lines."

e. Example 4 contains the commercially released recordings of "Got to

Give It Up" and "Blurred Lines," played in succession.

36 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 38 of 65 Page ID #:4498

Summary of Audio Examples 1-4

Example No. "Got to Give it Up" "Blurred Lines"

1 Similarities 6, 7, and 8 Similarities 1, 2, 3, 4, and 5

2 Similarity 1 (Signature Phrase) Similarities 6, 7, and 8

and its outgrowth material

3 Similarities 2, 3, 4, and 5 Similarities 6, 7, and 8

4 Full song Full song

Significant newly uncovered similarities as of this report are also heard on the Audio Examples.

91. The Wilbur Declaration exaggerates the minor dissimilarities between the two

works, including their chords (where they actually contain the same basic chords, embellished

in "Got to Give it Up"), slight rhythmic position shifting, and intervening passing tones (such as

in the shared melisma in Similarity 1). None of these minor differences, however, detract from

the effortless blending of vocals of"Blurred Lines" with instrumentals of"Got to Give it Up,"

and the reverse with the vocals of "Got to Give it Up" with the instrumentals of "Blurred

Lines," in these audio examples. This is because their overriding similarities surpass their less

significant differences.

92. Examples 1-3 also expose the faulty methodology and conclusions ofMs. Wilbur

who stressed the lesser differences, and even discounted pitches that were identical (such as in

Similarity 1) as "different," acknowledging only one same note instead ofthe five identical

notes found in comparing the Signature Phrases of both songs.

93. Examples 1-3 further discredit Ms. Wilbur's mischaracterization of the similar

features as mere "ideas" or "devices," as these melodies, rhythms, harmonies, and instrumental

material are clearly the identifying features of both songs that coincide in these mashups.

37 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 39 of 65 Page ID #:4499

94. The obvious blend of the vocals of one song with the instrumentals of the other as

presented in Examples 1-3 reinforces in a dramatic way my conclusions that "Blurred Lines" is

substantially similar to "Got to Give It Up." Section H: Exhibit A: Schematic Diagram of "Blurred Lines" - Constellation of 8 Similarities with "Got to Give It Up"

95. The attached chart, Exhibit A, illustrates the "Constellation of 8 Substantially

Similar Features" discussed in my Preliminary Report, my Declaration, and this report.

96. It is designed as a musical "roadmap," in which every bar is included from "Blurred

Lines" and the features found to be similar to "Got to Give It Up" in my preliminary review are

included. The more detailed development, outgrowth, and variations of the Constellation of 8

Similar Features are exhibited here, and discussed in Section A ofthis report. Variants of

themes are shown with a "v" in the bar.

97. Exhibit A corresponds to the bar numbers in "Blurred Lines" and the timing counter

numbers in the recording. At the bottom of the each system of 8 similarities is a black

horizontal line that shows the summation of similarities in each bar.

98. This chart was designed as a schematic representation of the musical material in

"Blurred Lines." To the extent that a feature occupies a portion of a bar, it is represented by

indicating in which half of the bar it occurs. In the event of an element extending over the bar

line into a subsequent bar, this is notated across the bar line.

99. Exhibit A illustrates the following findings:

a. Nearly every bar has at least one similarity, and most contain multiple

simultaneous similarities. 18

b. Only 3 bars out of a total of 130 bars in "Blurred Lines" lack any material that

18 Note that the hook (Similarities 2 and 3) is located within the Signature Phrase (Similarity 1). There is also a case in which Similarities 2 and 4 intersect, meaning that this is one phrase, containing 2 elements of similarity, thus shown in both red and blue coloring. This occurs in Bars 28-29,36-37,60-61,68-69, 108-109, and 116-117.

38 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 40 of 65 Page ID #:4500

is substantially similar to "Got to Give It Up."

100. This simultaneity of similar features is why I refer to it as a "Constellation" in my

Preliminary Report.

101. The newly found similarities discussed in Section Band C of this report are not

included. If those additional similarities were included, the chart would be much more heavily

populated. 102. Also attached is a Guide to Exhibit A, showing the musical material found in each

of the 8 Similarities represented in the chart, as illustrated previously in my Preliminary Report.

Section 1: Importance of Listening Comparison with the Full Recordings

103. The composition of "Got of Give It Up" is embodied in its melodies, lyrics, and

specific features as heard on the recording. Some of the composition, but not all of it, is

represented by the lead sheet. The distinctive manner in which all of the melodic and harmonic

material intertwines with the musical and lyrical messages of the song is demonstrated most

accurately and authentically by the recording. While the lead sheet provides a hollow guide to

the true song, it does not convey the full composition, nor the composer's intentions.

104. As a musicologist and former music librarian for many years, I am familiar with

fully notated classical musical scores, in which every intention of the composer is

communicated, including the phrasing, bowing (string instruments), and way of striking the

instrument (such as staccato, and so on). 19 On symphonic scores by Mozart, for example, the

composer's intention is very detailed and specific, leaving little to chance. With modem popular

music, though, lead sheets were never meant to be the fullest manifestation of the music, nor are

most popular music composers equipped to prepare such a detailed score. Because of this, the

19 I have performed music librarianship duties at the American Music Center manuscript collection in New York, the University of California at Berkeley, and the University of California at Los Angeles. I have also been a music editor for music publishers, interpreting the manuscripts of composers for publication. I have been a guest moderator at panels of the Music Library Association on issues involving music manuscripts and publication.

39 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 41 of 65 Page ID #:4501

lead sheet is an inadequate representation of "Got to Give It Up."

105. Likewise, if one were to play simply the main vocal melody of "Blurred Lines" on

a piano, in a distilled format typical of a lead sheet, it would hardly be identifiable to a lay

listener. It would be void of the many specific features that make "Blurred Lines" the song as

we recognize it.

Section J: Deposit Copy of "Got to Give It Up" - Regarding Omitted Items

from the Deposit Copy Protectable List in Judge Kronstadt's Order of

October 30, 2014

106. Judge Kronstadt's order, in distinguishing between protectable and non-protectable

items used the deposit copy as a guide. There are some misinterpretations of the content of the

"Got to Give It Up" deposit copy:

a. P. 20 (ii). Descending bass line. The order states that the bass line descending

melody does not appear in the deposit copy. This is incorrect. It appears in both bars 4 and 7.

b. In addition, the deposit copy indicates that the bass line melody should

continue throughout the remainder ofthe song, when it is marked "simile," which means "in the

same manner" on a musical score.

c. Pp. 20-21 (g). Keyboard parts. The order also allows the similar chords that

the keyboard part plays, but not their rhythms, which the order states are missing from the

deposit copy. However, the newly reported (for the first time in this report) lower left hand part

of the keyboard is parallel to the bass introduction, and this indicates the rhythm which is

clearly shown on the deposit copy. This is shown in the present report, paragraph 34, Musical

Example 5.

40 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 42 of 65 Page ID #:4502

d. While the other instruments on the recording are not indicated on the lead

sheet, this is normally the way that lead sheets of the Gaye era were done. They rarely showed

the parallel accompanying parts, or listed the scoring of specific instruments, and were usually

confined to a single musical stave per bar, rather than a more complicated full score with

multiple staves would be the case in music involving a larger ensemble and conductor.

e. P. 21 (h). Percussion. Regarding the hi-hat, which occurs on the second half of

beat 4, there are many parallels for that rhythm in the deposit copy, for example in the bass

melody, Bars 3 and 5, and in the vocal line, Bars 8, 12, 18, and 20. The hi-hat is a non-pitched

instrument, so only the rhythm is applicable, not the pitches of the related bass and vocal lines

outlined here.

107. In sum, the deposit copy of "Got to Give It Up" includes features found in the

"Constellation of 8 Substantial Similarities" as follows:

a. The Signature Phrase and hook

b. The descending bass melody as shown in Musical Example 6C of my

Preliminary Report, in Bars 4-5 and 7-8

c. The indication "bass simile" in Bar 8 to mean that the bass melody is

represented throughout the entire deposit copy

d. The chord indications indicate the pitches played by the keyboard part

e. The keyboard material is further represented in the following ways:

i. The bass intro in Bars 1-8 are parallel to the lower keyboard (left hand)

part discussed in paragraphs 34-35 and Musical Example 5, in Section A above. The pitches

shown on the deposit copy are performed in the keyboard part, with similar rhythms.

41 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 43 of 65 Page ID #:4503

ii. The hi-hat rhythms are represented in many locations in the deposit

copy, for example in Bars 3 and 5 of the bass melody, and in the vocal melody such as in Bar 8

(lyric "par-" of the Signature Phrase), Bar 12 (lyric "ner-), Bar 18, (lyric "be"), and Bar 20 (lyric

"floor"), where the rhythms are identical to the hi-hat on the second half of beat 4.

Report submitted on October 31, 2014 by:

Judith Finell, Musicologist and President Judith Finell MusicServices Inc.

42 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 44 of 65 Page ID #:4504

Exhibit A: "Blurred Lines" - Constellation of 8 Similarities with "Got to Give It Up"

Timing [min:sec] 10:02 0:18 0:34 0:50 1:06 1:22 1:38 1:54 Bar I: Signature Phrase 2: Hook 3: Hook with Backup Vocals 4: Theme X 5: Backup Hook 6: Bass Melodies 7: Keyboard Parts 8 Hi-hat

Composite of Similarities 1-8

Timing [min:sec] Bar Signature Phrase 2 Hook 3 Hook with Backup Vocals 4: Theme X 5: Backup Hook 6: Bass Melodies 7: Keyboard Parts 8 Hi-hat

Composite of Similarities 1-8·1

Judith Finell MusicServices Inc. Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 45 of 65 Page ID #:4505

Exhibit A: "Blurred Lines" - Constellation of 8 Similarities with "Got to Give It Up"

Timing (min sec] 14·16 Bar 112511261127 1281129 11 30 I: Signature Phrase 2: Hook 3: Hook with Backup Vocals 4 Theme X 5 Backup Hook 6: Bass Melodies 7: Keyboard Parts 8: Hi-hat I . I . I .__, Composite of Similarities 1-8 -

*v = variant

Judith Finell MusicServices Inc. 2 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 46 of 65 Page ID #:4506

Guide to Exhibit A: "Blurred Lines"- Constellation of Similarities with "Got to Give It Up"

1. Signature Phrase "Blurred Lines" Signature Phrase

b b + + + ~ I 5 4 3 J 3 J r-a J 1 J--;J 1 ~ :47 And that's why I'm gon' take a good girl ____

C (rhythms) d(melisma)

2. Hook "Blurred Lines" Hook + + + 6 I I J 53 I I J :49 rake a good girl

3. Hook with Backup Vocals "Blurred Lines" Hook with Backup Vocals I ... 1 ... 6 6 5 ... 5 ... 6 ..1 3 3 J g 1¥ ¥ :49 ralu good girl

4. Theme X

"Blurred Lines" Theme X (Verse 1, Phrases 1 and 3)

in reverse order in reverse (lrder 'R R R R' 'R R R R' + + + + + + + + ,.unz r 3 #2 3 3 3 #2 3 J;J J J ll JJJ J J :18 If you cm1'r hear If you can't .-.ad

"Blurred Lines" Theme X (Verse 2, Phrases 1 and 3) + + + + :+ +: + + + + :+ +: :i# 33#23#23 33#23#23 s:ll•uz· 1 ;papJ 1 1· 1 ;p J#) J I :34 0- kay~ rzow he was close Bw you're an a11 - i -mal

"Blurred Lines" Theme X (as found in Signature Phrase) + + + + 3 3 #2 1 rp 1 :47 And rhar's why I'm

"Blurred Lines" Theme X (Hook Variation)

J J ;JJ J 1:12 Bm you're a good girl

Judith Finell MusicServices Inc. 1 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 47 of 65 Page ID #:4507

5. Backup Hook "Blurred Lines" Backup Hook ,.--,,.....,half steps ,.--,,.....,half steps ,.--,,.....,half steps 4 #4 5 4 #4 5 4 #4 5 J;JIJ • t t FpiJ• ~ 'w'J'' :09 Hey, hey, hey Hey, hey, hey Hey, hey, hey

6. Bass Melodies "Blurred Lines" Bass Line Bars 1-4 ~ ~ ~ ~ x~xxx xxxx 1 1 1 4 I 1 5 p7 1 1 5 H11 11 2 J ' u1 ;;pq ·~uq h;; ]JI l•o; J)ly :02

"Blurred Lines" Descending Bass Melody (+) + (+) + (~) ~ + 5 5 4 4 3 3 j J J J J J J 3 :16

7. Keyboard Parts "Blurred Lines" Keyboard Bars 1-2 rhythmic !luspension

~5 ~5 ~5 ~5 ~5 I~ 5 I ~3 ~3 ~3 ~3 ~3 ~3 I I I 1 1 1 &'11n2 • l l l ll l l l :02

8. Hi-hat "Blurred Lines" Hi-hat

]No notated example.]

Note: The Hi-hat sounds on the second half of the fourth beat.

Judith Finell MusicServices Inc. 2 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 48 of 65 Page ID #:4508 Judith Finell MusicServices Inc. CONSULTING • RESEARCH • MUSIC COPYRIGHT MATTERS • MUSIC INDUSTRY SUPPORT

October 17, 2013

Preliminary Report: Comparison of "Got to Give It Up" and "Blurred Lines"

Materials Reviewed and Methodology

1. The following recordings were acquired from iTunes for review:

a. "Got to Give It Up (Single)" from the album Every Great Motown Hit of

Marvin Gaye, released 1983 ® 2000 Universal Motown Records, a division ofUMG

Recordings, Inc.

b. "Blurred Lines (feat. T.I. & Pharrell) from the album Blurred Lines (Deluxe

Version), released July 30, 2013 ® 2013 Star Trak, LLC.

2. The following sheet music was obtained for reference:

2005) Jobete Music Co., Inc.

b. "Blurred Lines," Words and Music by Robin Thicke and Pharrell Williams,©

2013 EMI April Music, Inc./ More Water From Nazareth Publishing, Inc.

3. A preliminary analysis and comparison was conducted of the above recorded musical

works. Transcriptions of portions of both songs were prepared for the purposes of comparison. A

transcription is a written representation of the sounds heard in a musical performance.

4. Regarding key, the tonal center of"Got to Give It Up" is A, while in "Blurred Lines" 81 Pondfield Road • Suite 246 • Bronxville • NY 10708 Telephone: (914) 779-8881 • Fax: (914) 779-8883 • E-mail: [email protected] Web site: www.jfmusicservices.com Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 49 of 65 Page ID #:4509

the tonal center is G. 1 Both songs contain tones of the major scale as well as tones outside of the

major scale (such as the lowered third and seventh scale steps and the raised fourth scale step,

often associated with the "blues" scale). However, we follow common practice in the report

below, by showing both songs in the context of the key of A major (based on the tonal center of

"Got to Give It Up"), for ease in comparison.2

5. The above recorded works will be referred to in the report below as "Give It Up" and

"Blurred," respectively.

Preliminary Conclusions

6. A preliminary review comparing "Give It Up" and "Blurred" has revealed a

constellation of eight substantially similar features thus far, although a more comprehensive

review would likely identify additional significant and substantial similarities between the works.

Their substantially similar elements in both their vocal melodies and instrumental

accompaniments occur simultaneously in each work, coinciding to form a similar "constellation"

of features.

7. The two songs' substantial similarities surpass the realm of generic coincidence,

reaching to the very essence of each work.

8. In listening to these two songs, the ordinary "lay" listener would likely recognize the

substantial similarities between them.

9. Both songs are comprised of multiple vocal and instrumental themes. The primary

vocal melodic themes in "Blurred" are as follows: the signature phrase (sung to the lyrics "And

that's why I'm gon' take a good girl"), the hook ("take a good girl," "You're a good girl," and so

1 "Key" refers to the tonal center or primary pitch of a musical composition, and to the scale or series of pitches that create the melodic and harmonic material of the music. Whether a key is "major" or "minor" is determined by the series of pitches in the scale. Within the tradition of music in our Western culture, the most common scales are called "major scale" and "minor scale," each containing seven tones. The first tone is the foundation of the scale, and is also referred to as the "tonic" or "home." 2 In the key of A major, the pitches (tones) are A, B, C-sharp, D, E, F-sharp and G-sharp. The lowered third scale step is C natural, the lowered seventh scale step is G-natural, and the raised fourth scale step is D#. 2 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 50 of 65 Page ID #:4510

forth), the core theme of the verse (beginning with "If you can't hear"), and the backup hook

("Hey, hey, hey").3 The primary instrumental themes in "Blurred" are found in its bass lines and

keyboard parts. Additional identifying elements are found in the percussion parts. All of these

elements are found similarly, in various locations, throughout "Give It Up."

Context of Shared Creative Choices

10. The composer of a musical work makes a series of creative choices that result in the

final composition- its character, identity, and all of the sounds heard by the listener. When the

composers of two songs each make many of the same creative choices -particularly of primary

identifying elements -then the songs often sound substantially similar to one another.

11. This is the case in comparing "Blurred" with "Give It Up." The composers of

"Blurred" made a number of the same fundamental creative choices regarding identifying

elements as did the composer of "Give It Up," resulting in substantially similar features.

Preliminary Findings

12. The particular features thus far identified as similar are discussed below.

Similarity 1: Signature Phrase in Main Vocal Melodies

13. "Give It Up" and "Blurred" contain very similar signature phrases.4 In "Blurred," this

similar signature phrase is sung to the lyrics "And that's why I'm gon' take a good girl." In

"Give It Up," this similar signature phrase is sung to the lyrics "I used to go out to parties."

In both songs, this signature phrase is positioned similarly, heralding a new section ofthe song,

and is one ofthe crucial elements of the song's identity.

3 A "hook" is the term used in popular and commercial music for the most important melodic material of the work, that which becomes the memorable melody by which the song is recognized. In the case of songs, it is usually the passage in the chorus in which the title lyrics are sung, such as in the hit recording "Girls Just Want to Have Fun" (1979, recorded by Cyndi Lauper). In instrumental music, it is the signature theme by which the listener recognizes which song is being performed. 4 A phrase is a passage within a longer melody, similar to a sentence within a paragraph or a line within a poem. In vocal music, phrases are often determined by the pauses between lyric lines as the singer takes a breath. The signature phrase is a primary identifying feature of a song and one of its most memorable elements. 3 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 51 of 65 Page ID #:4511

14. In comparing the first occurrences of the signature phrases (found at :19 seconds in

"Give It Up" and at :47 seconds in "Blurred"), both songs share the following identifying

elements:

a. Both repeat their starting tone several times

b. Both contain the identical scale degree sequence of 5-6-1 followed by 1-5 5

c. Both contain identical rhythms for the first six tones6

d. Both use the same device of a melodic "tail" (melisma) on their last lyric,

beginning with the scale degrees 1-5 7

e. Both contain substantially similar melodic contours (melodic outlines/design).8

See Musical Examples 1A and 1B below, where brackets show the above similar elements a, b,

c, and d, and identical scale degrees are indicated with arrows.9

5 "Scale degrees" refer to the position in a particular scale of each tone. The traditional scale contains seven consecutive tones, and, for example, in the scale of C major, the tone C is scale degree 1, Dis scale degree 2, E is scale degree 3, and so on. Two melodies containing a similar series of scale degrees with similar rhythms usually sound similar. 6 Rhythm describes the duration of one tone or rest (silence) followed by the next. Rhythms are defined by the length of beats they occupy. For example, a quarter note usually occupies one beat, an eighth note a half beat, a sixteenth note a quarter beat, and so on. 7 A "melisma" describes a vocal melody in which one syllable or lyric is held while sung with several successive pitches, rather than a single pitch for each syllable. 8 Melodic "contour" describes the overall "shape" of a melody, whether it rises or lowers in register (going up to a higher note or down to a lower note) as it progresses on its course from one note to the next. 9 In all musical examples in this report, "Blurred" (in the key ofG major on the recording) is transposed to the key of"Give It Up" (A major) for the purposes of comparison. "Transpose" refers to the process of changing a melody line (or chords) to another key. This does not change the recognizability nor internal relationships between notes. In other words, a transposed melody sounds virtually the same as its original version. Transposition is a necessary and musicologically valid process required when musically comparing two different melodies.

4 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 52 of 65 Page ID #:4512

Musical Example lA: "Give It Up" Signature Phrase

b b I+ +I a + + + 5 5 5 5 6 1 2 1 5 6 'Mn#z I } J J 3 J J Jar· 4LJw J l :19 I used to go out to par ties -- c (rhythms) d (melisma)

Musical Example lB: "Blurred" Signature Phrase

b b a a + + + + + 3 3 #2 7 5 6 1 1 1 5 4 3 ,.##2 I 3 J ) J #J J J J IJ l :47 And that's why I'm gon' take a good girl~

c (rhythms) d (melisma)

15. The above musical examples show that both songs combine their shared identifying

elements in similar ways. The result is that the two songs are similar in their signature phrases.

16. This signature phrase in "Give It Up" is very significant to the song and provides the

basis upon which much of the song's subsequent vocal material is developed. It is the first vocal

phrase, introducing the song, and it enables the listener to recognize the song immediately. Much

of the main vocal melody in "Give It Up" is an outgrowth of this signature phrase, using the

same scale degrees and other similar elements. 10 This outgrowth material is found in the main

10 In music, melodies are often varied for color and interest after they are initially stated. This can be done by shifting the order of pitches, adding repetition, or modifying rhythms or phrase endings, for example. These variations of the initial theme are described as "outgrowths," as their origins are clearly in the first statement of the theme. Composers use this technique to create continuity, and maintain interest, while prolonging their works. 5 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 53 of 65 Page ID #:4513

vocal melody throughout Bars 8-56 and 80-113 (out of 118 bars in total) in "Give It Up."11

17. In "Blurred," the main vocal melody also contains phrases that are outgrowths of this

similar material, such as the melodies sung to the lyrics "What do they make dreams for, when

you got them jeans on, what do we need steam for?" (at 1 :21) and "I got this from

Jamaica ... Dakota to Decatur" (at 3:15), where many of the identical scale degrees are found in

reverse order as compared to "Give It Up."

Similarity 2: Hooks

18. The first occurrence of the hook in "Blurred," located within its signature phrase

(described above), is sung to the lyrics "take a good girl." This melody in "Blurred" is very

similar to one of the hook phrases in "Give It Up," sung to the lyrics "Keep on darrein'."

19. In "Blurred," this first hook occurrence is heard at :49 and is repeated later in the

song. In "Give It Up," this hook is repeated seven times at four-bar intervals starting at 3:12.

See Musical Examples 2A and 2B below for a comparison of these hooks, where identical scale

degrees are indicated with arrows.

11 Musical pieces are divided into groups of beats, and each group is referred to as a "bar" or "measure." In describing a musical piece, one usually refers to the location within a piece by bar number. The number of beats per bar is usually two, three, four, or six. In musical notation, bars are separated by vertical lines called "bar lines."

6 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 54 of 65 Page ID #:4514

Musical Example 2A: "Give It Up" Hook

~ ~ ~ 6 1 2 1 J J I r· J. 3:12 Keep on dan - in'

Musical Example 2B: "Blurred" Hook

~ ~ 6 1 1 + 1 pa J ) IJ J

:49 take a good girl

Similarity 3: Hooks with Backup Vocals

20. In both songs' hooks as described above, backup vocal parts are sung simultaneously

with the main vocal melodies. In "Blurred," this multi-part backup chorus- with its bright

anthem-style setting- highlights the key words "good girl." This material is substantially similar

to the pairing of the main vocal and backup vocal melodies in the hook in "Give It Up" sung to

the lyrics "Keep on dancin' ."

See Musical Examples 3A and 3B below for a comparison of the first occurrences of these hooks

combined with backup vocals. Scale degrees are stacked vertically above tones that are sung

simultaneously, and arrows indicate identical scale degrees.

7 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 55 of 65 Page ID #:4515

Musical Example 3A: "Give It Up" Hook with Backup Vocals

~6 ~1 2 ~1 3 5 ~6 ~5 &-n#z J I F: F: 3:12 i ~ Keep on dan - in'

Musical Example 3B: "Blurred" Hook with Backup Vocals

1 ~1 ~6 6 5 ~5 ~6 ~1 3 3 F ,~##I J J if :49 take a good 1girl

Similarity 4: Core Theme in "Blurred" and Backup Hook in "Give It Up"

21. In "Blurred," the core material of the song's verse (Theme X) is substantially similar

to the backup hook (Theme X) in "Give It Up."12

22. Theme X in "Give It Up" is sung 28 times in the backup vocals to the lyrics "Dancin'

lady," starting at 3:13. In "Blurred," Theme X is introduced as the first phrase ofthe verse

section (at :18) with the lyrics "If you can't hear," and it serves as the melodic core from which

much of the remaining vocal material throughout the entire song is developed.

23. In comparing Themes X in "Give It Up" and "Blurred," the songs share the following

substantially similar elements:

a. Scale degrees: In "Give It Up," Theme X contains scale degrees 3-3-#2-3. In

"Blurred," the same scale degrees are found in numerous phrases in various ways, including in

12 Musical works are divided into smaller sections, much as books are divided into chapters. In popular songs, these sections are often alternating "choruses" and "verses," as well as transitional sections such as "bridges" and "interludes," and ending sections called "codas" or "outros." 8 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 56 of 65 Page ID #:4516

the exact reverse order, 3-#2-3-3, as well as in the same order as "Give It Up," with the final

pitches repeated, such as 3-3-#2-3-(#2-3) sung to the lyrics "Okay, now he was close."

b. Some identical rhythms are shared.

c. A distinctive melodic pattern: both descend, then ascend a half step to a non-

scale tone. 13 This is preceded by a repeated pitch in "Give it Up" and the exact opposite

(followed by a repeated pitch) in "Blurred."14 The shared use of a non-scale tone is significant in

that each song deviates from the traditional scale in the same way, using a chromatic feature. 15

24. In "Give It Up," Theme X occurs 28 times in 28 consecutive bars in (starting at 3:13).

25. In "Blurred," Theme X is the core of the entire verse as well as other significant vocal

phrases throughout the song. This substantially similar note sequence occurs many times

throughout "Blurred"- while lyric and pitch variations do occur, the fundamental shared

elements of Theme X are intact and contribute to the songs' sounding similar.

See Musical Examples 4A, 4B, and 4C below for a comparison of the first three repeats of

Theme X (backup hook) in "Give It Up," with Theme X in Phrases 1 and 3 in Verse 1, and

Phrases 1 and 3 of Verse 2 in "Blurred." Identical scale degrees are indicated with arrows, while

"R" above the arrows indicates that shared scale degrees are found in reverse order, and brackets

indicate identical scale degrees that are repeated.

13 Half steps describe the movement in a melody to the nearest adjacent tone, either higher or lower. For example, moving from the tone F to F-sharp describes moving a half-step higher; moving from B to B-flat describes moving a half-step lower. A series of half-step movements in a melody are often described as "chromatic" tones. 14 The technique of reversing the order of musical pitches in a melody is termed "retrograde." 15 A chromatic series of pitches is one in which the pitches immediately adjacent to one another are sounded, and as such deviate from the standard series of pitches in a scale. For example, a chromatic scale played on the piano would be performed by striking consecutive black and white keys in succession, such as C-C-sharp (#), D-D#-E, and so on. The pitches in "Blurred" are not always sung precisely. Sometimes the chromatic feature in Theme X of"Blurred" is less pronounced. 9 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 57 of 65 Page ID #:4517

Musical Example 4A: "Give It Up" Backup Hook- Theme X

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 3 3 #2 3 3 3 #2 3 3 3 #2 3 &-~~~ J J J#J J t It J J#J J t It J J#iJ t 3:13 Dan- cin' la - dy Dan- cin' la - dy Dan-cin' la - dy

Musical Example 4B: "Blurred" Theme X

in reverse order in reverse order IR R R Rl IR R R Rl ~ ~ ~ ~ ~ ~ ~ ~ 3 #2 3 3 3 #2 3 3 '###I i l#J J J It J#J J J :18 If you can't hear If you can't read

Musical Example 4C: "Blurred" Theme X (Verse 2, Phrases 1 and 3)

~ ~ ~ ~ {~ ~} 3 3 #2 3 #2 3

I y J 1 #J liJ J I :34 0-kay, now he was close But you're an an - i- mal

26. Theme X also occurs within the signature phrase of"Blurred," (shown above in

Musical Example IB) sung to the lyrics "And that's why I'm" (at :47). See Musical Example 4D

below.

Musical Example 4D: "Blurred" Theme X (as found in Signature Phrase)

~ ~ ~ ~ ,,##I , 3 3 #2 3 J J #J J :47 And that's why I'm

16 In Musical Example 4B, Theme X in "Blurred" is transposed down one octave for the purposes of comparison. 10 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 58 of 65 Page ID #:4518

27. Additionally, Theme X in "Blurred" is the melody used for subsequent variations of

the song's hook found in the chorus section, such as at 1:12 with the lyrics "But you're a good

girl." (Here, the melody is transposed to a different starting pitch so that the actual scale degrees

are 5-5-#4-5, but it is the same melodic structure as shown above.) 17 See Musical Example 4E

below.

Musical Example 4E: "Blurred" Hook Variation

5 5 #4 5 5 &*n#a##l J J #J I; J 1:12 But you're a good girl

Similarity 5: Backup Hooks

28. Another very important theme in "Blurred" is found in the backup vocals- it is so

significant to the song that it will be referred to as the "backup hook." This is set to the lyrics

"Hey, hey, hey." The backup hook in "Blurred" is similar to the backup hook (Theme X) in

"Give It Up" in that both songs share the feature of distinctive chromatic (half step) sequences,

and both do this specifically within the function of the backup hook. The backup hook set to the

lyrics "Hey, hey, hey" in "Blurred" first occurs at :09 and is repeated a total of21 times

throughout the song.

See Musical Examples 5A and 5B below for a comparison of the backup hook (Theme X) in

"Give It Up" and the backup hook in "Blurred."

17 In this hook variation of"Blurred," the similar melody is transposed to a different starting pitch. Because of this, the scale degrees differ in comparison to "Give It Up"; however, the melodies sound similar because the internal relationships between the notes are intact. Musical Example 4D shows the phrase "But you're a good girl" with the same starting pitch as in Musical Examples 4A-4C, for the purposes of comparison. In order to show this accurately within the context of a key, Musical Example 4D is shown in the key ofF# major. 11 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 59 of 65 Page ID #:4519

Musical Example SA: "Give It Up" Backup Hook- Theme X

half steps half steps half steps .-----, r-----1 .-----, r-----1 .-----, r-----1 3 3 #2 3 3 3 #2 3 3 3 #2 3 J J#iJ J J J#iZl J I~ J 1#i1 * 3:13 Dan- cin' la - dy Dan- cin' la - dy Dan-cin' !a - dy

Musical Example SB: "Blurred" Backup Hook18

half steps half steps half steps r----1 r------1 r--lr------1 r---lr-----1 4 #4 5 4 #4 5 4 #4 5 'j#nun#t Jf)IJ¥ J J qJ #J 1;¥ J J qJ #J 1;¥ J - :09 Hey, hey, hey Hey, hey, hey Hey, hey, hey

Similarity 6: Bass Melodies

29. The bass lines in Bars 1-4 of both songs are similar in their scale degrees and

rhythms. 19 Although not identical, they share many of the same distinctive syncopated rhythms,

in the same locations and often with identical scale degrees, which makes them sound very

s1m1. "1 ar. 20

See Musical Examples 6A and 6B below, where identical rhythms for both pitches and rests are

indicated with "x," and identical scale degrees are indicated with arrows. 21

18 The similar melodies, Theme X in "Give It Up" and the backup hook in "Blurred," differ in scale degrees. The similarity due their shared use of chromatic tones is heard nonetheless. Musical Example 5B shows the phrase "Hey, hey, hey" with the same ending pitch as in Musical Example 5A, for the purposes of comparison. In order to show this accurately within the context of a key, Musical Example 5B is shown in the key ofF# major. 19 "Blurred" also contains a pre-intro bar, Bar 0, heard at :00-:02 on the recording. 20 "Syncopation" refers to a disturbance of the normal pulse within the music, which creates an uneven effect, such as a short rhythm, followed by a long rhythm. This is found in such songs as George Gershwin's "I Got Rhythm." 21 A rest is a period of silence within a melody. Rests are assigned specific rhythmic values, just the same as if they were notes. Consequently, a whole rest in a traditional four-beat bar would last four beats, a half rest two beats, a quarter rest one beat, and so on. The rests are one of the distinctive features in both songs' bass lines here. 12 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 60 of 65 Page ID #:4520

Musical Example 6A: "Give It Up" Bass Line Bars 1-422

XX XX XXXXX XX XX X X 1 l>7 1 l>7 1 l>7 1 4 l>3 1 2=•t~#~ w , 7~J7 ;11, , 7~J7 J11, , , ~n 1, , rgJ 1J17 :05

Musical Example 6B: "Blurred" Bass Line Bars 1-4

X X X X X X X X ·x X X X X X X 1 1 1 4 1 1 5 l>7 1 1 5 5

!J=I##I J # 1 2 ;1 1 ;12 t 2 ~ 2 ;1 I ;12 t t jJ I J~7 t t lJ I ;2 :02

30. The above material is heard prominently in the instrumental introduction of"Give It

Up," and is subsequently varied throughout the song. In "Blurred," this similar material is also

heard prominently in the instrumental introduction, and is subsequently repeated at 8-bar

intervals throughout the entire song (i.e. in Bars 1-4, 9-12, 17-20, and so forth).

31. Additionally, both songs combine the above similar features in their bass lines with a

substantially similar descending melody, also in their bass lines, from scale degrees 5 to 1. This

similar descending bass melody recurs intermittently throughout the verse of"Give It Up" (with

variation) and at every eighth bar in "Blurred" (Bars 8, 16, and so forth). This descending

melody serves an important structural feature in "Blurred," as it occurs at the end of each section

to herald the beginning of a new portion of the song.

See Musical Examples 6C and 6D below, for a comparison of one of the variations of the

descending bass melody in "Give It Up," with "Blurred." Solid arrows indicate identical scale

degrees, hollow arrows indicate nearly identical scale degrees, and parentheses indicate scale

degrees that are repeated in a different register.

22 The bass line in "Give" is transposed one octave higher than heard on the recording, for comparison purposes. 13 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 61 of 65 Page ID #:4521

Musical Example 6C: "Give It Up" Descending Bass Melody + + ~ + 5 4 ~3 1 ~ ? ...... !}=l~t~ p. (j ~IJ) 7 ) 7 :28

Musical Example 6D: "Blurred" Descending Bass Melody (+) + (+) + (~) ~ + 5 5 4 4 3 3 2 2 1 J :J=It~t~ j J J J J~ i :16 J J J

Similarity 7: Keyboard Parts

32. The keyboard parts in both songs are very similar, containing chords in rhythms that

emphasize the offbeats, performed with staccato articulation.23 Additional similar elements

include:

a. Shared pitches: the keyboard part in "Blurred" alternates between two chords,

with each chord repeated consecutively for four bars at a time, for the entirety of the song. In

Chord 1 of"Blurred," two out of three pitches in each iteration are identical to the first chord in

"Give It Up" (first heard in consecutive repetition in Bars 1-16 of the song). In Chord 2 of

"Blurred," two out of three pitches in each iteration are identical to the third chord of"Give It

Up" (first heard in Bar 18).

b. Both songs contain a distinctive rhythmic feature in which the keyboard stops

23 Musical phrases are divided into groups of beats, which alternate between strong and weak beats. The "offbeat" represents a tone that is struck after the main part of the beat and is considered to be in a weaker position than if it were to occur immediately on the beat. This technique often results in a distinctive rhythm, as is the case here. In music performance, articulation refers to the manner in which a particular note or group of notes is physically performed; for example, short, with a sharp attack ("staccato"); smoothly connected ("legato"); long but separated, and so on.

14 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 62 of 65 Page ID #:4522

playing on beat 4, creating a rhythmic suspension until the following bar. This first occurs in Bar

2 in "Give It Up," and in Bar 1 (followed by Bar 2) in "Blurred."

See Musical Examples 7A and 7B below for excerpts comparing the keyboard parts in Bars 1-2

in "Blurred" (Chord 1) and Bars 1-2 in "Give It Up." Scale degrees are stacked vertically above

tones that are played simultaneously; arrows indicate identical scale degrees, and brackets

indicate repeated scale degrees.

Musical Example 7A: "Give It Up" Keyboard Bars 1-2

rhythmic suspension

{ .... 5} .... 5 .... 5 .... 5 .... 5 .... 5 1..,_ 5 .... 3 .... 3 .... 3 .... 3 {: ~} .... 3 .... 3 .... 3 ~7 ~7 ~7 ~7 ~7 ~7 ~7 ~7 ,-"~1 j j 7 7 7 l2 7 7 g :05 q I I I ql I

Musical Example 7B: "Blurred" Keyboard Bars 1-2

rhythmic suspension .... 5 .... 5 .... 5 .... 5 .... 5 1..,_ 5 .... 3 .... 3 .... 3 .... 3 .... 3 .... 3 1 1 1 1 1 1 '##~I 7 l 7 l 7 l t l2 l 7 l 7 l t :02

Similarity 8: Unusual Percussion Choices

33. Both songs contain two very prominent percussion lines with distinctive sonorities, as

described below:24

a. Cowbell part: both songs contain syncopated rhythms played by

24 "Sonority" refers to the quality of a sound, such as that of a particular instrument, and is one element that contributes to the distinctiveness of a given recording. 15 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 63 of 65 Page ID #:4523

cowbell.25 Although their cowbell parts are not identical, this feature performs the same function

in both songs, adding a very specific color and identity to the rhythm section. The cowbell part is

a shared deviation from the standard drum set instrumentation, and it is an indispensable feature

in both songs' identities.

b. Open hi-hat playing on the second half of beat 4 occurs in both songs?6

In "Give It Up," the open hi-hat is introduced prominently even before the bass and keyboard

enter, launching the instrumental introduction, and it appears repeatedly throughout the song. In

"Blurred," the open hi-hat appears prominently in every second bar throughout the song. In both

songs, this open hi-hat rhythm is placed on the weakest beat of the bar, creating a distinctive

"splash" that is in sharp contrast to the stable rhythms of the drums. This identical open hi-hat

rhythm is crucial to the character of both songs.

34. The above similarities are somewhat unusual and represent the same specific creative

choices made by the composers of both songs.

Constellation of 8 Similar Features

35. In both "Give It Up" and "Blurred," Similarities 6-8 (found in the instrumental

accompaniment) function as a group of simultaneously occurring features, repeated continuously

throughout both songs. These similar features combine to drive both works. Similarities 1-5 are

the defining phrases in the vocal melodies of"Give It Up" and "Blurred." When they occur, they

always appear simultaneously with the group of features, Similarities 6-8.

Additional Distinctive Similarities

36. The scoring and arrangement choices represented in the recordings enlarge the circle

25 A cowbell is a metal percussion instrument with a distinctive sound. 26 A hi-hat is one of the instruments found in a standard drum set. It is constructed of two cymbals placed horizontally on a stand and connected to a pedal, that when pressed and released, opens and closes the two cymbals against each other to create a muted percussive sound. It can also be played by striking it with a drumstick or brush, either with the cymbals brought together ("closed") or kept apart ("open"), as is the sound represented here. 16 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 64 of 65 Page ID #:4524

of similarities to the listener. For example, the songs both use the same instrumentation and

sonorities for their similar instrumental material.

37. Both songs use distinctive falsetto in their vocal parts?7

38. Both songs deviate from the norm in their instrumental scoring by omitting a guitar.

39. Both songs contain party noises as one of the accompanimental elements throughout

the song.

40. The above traits enhance the perception of similarity between "Give It Up" and

"Blurred" and represent additional shared creative choices made by the composers of both songs.

Summary

41. "Give It Up" and "Blurred" both contain substantially similar constellations of

defining features.

42. The substantial similarities found in "Give It Up" and "Blurred" surpass the

similarities that result from their shared geme, and are the result of many of the same deliberate

creative choices made by their respective composers. Consequently, rather than merely

resembling one another stylistically, these two works sound substantially similar in many of their

most distinctive features.

43. Many ofthe main vocal and instrumental themes of"Blurred" are rooted in "Give It

Up," particularly the signature phrase, vocal hook, backup vocal hook, their variations, and the

keyboard and bass lines in "Blurred" as discussed above. In addition, the shared departures from

convention, such as the unusual cowbell instrumentation, omission of guitar, and use of male

falsetto, all contribute further to the finding of substantial similarity here.

44. In listening to these two songs, the ordinary or "lay" listener would likely recognize

27 Falsetto is a singing technique in which a singer vocalizes outside his or her normal vocal range. In this case, the male singer sings in the high register of a female voice, which is distinctive. 17 Case 2:13-cv-06004-JAK-AGR Document 175-3 Filed 01/07/15 Page 65 of 65 Page ID #:4525

similarities between them.

45. This is a preliminary report comparing "Give It Up" and "Blurred." The substantial

similarities include, but are not necessarily limited to, the features compared here. Further study

would likely identify additional important similarities between these two works.

46. I have listened independently to the works compared in this report. I believe that the

ordinary observer would recognize the substantial similarities between these songs. I have also

read of the many opinions regarding this case on the internet, and understand why so much of the

lay public finds the two songs so similar.

47. It is improbable that a single third-party work could be found that would contain all

of these similar features coinciding in a similar "constellation" as described above. Our

preliminary conclusion is that it is that "Blurred" was not created independently of"Give It Up."

Report submitted on October 17, 2013 by:

Judith Finell, Musicologist and President Judith Finell MusicServices Inc.

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DECLARATION OF SANDY WILBUR Case 2:13-cv-06004-JAK-AGR Document 91-1 Filed 07/22/14 Page 2 of 74 Page ID #:1055

1 DECLARATION OF SANDY WILBUR 2 I, Sandy Wilbur, declare as follows: 3 1. I am over the age of 18 and not a party to this action. I have personal 4 knowledge of the facts set forth herein, which are known by me to be true and 5 correct, and if called as a witness, I could and would competently testify thereto. 6 2. I have worked extensively as a forensic musicologist for over 25 years. 7 My background and qualifications are discussed below at Paragraphs 313-318. 8 3. A Glossary of Commonly Used Musical Terms I prepared that defines 9 certain musical terms used in this Declaration is attached hereto as Exhibit A. 10 A. SUMMARY OF WORK PERFORMED IN THIS ACTION 11 4. I have performed a musicological analysis of the four compositions and 12 sound recordings at issue in this lawsuit, as follows: 13 (a) “Blurred Lines” (“BLURRED”) and “Got to Give It Up” (“GIVE”) 14 obtained from the following albums: “Blurred Lines” by Robin Thicke 15 (featuring T.I. & Pharrell) on the Robin Thicke album entitled “Blurred 16 Lines (Deluxe Edition)” released in 2013, and “Got To Give It Up” by 17 Marvin Gaye from the Marvin Gaye album entitled “Every Great 18 Motown Hit of Marvin Gaye” released by Motown in 1983; and, 19 (b) “After the Dance” (“DANCE”) and “Love After War” (“WAR”) 20 obtained from the following albums: “After the Dance (Vocal 21 Version)” from the 1976 Marvin Gaye album entitled “I Want You,” 22 and “Love After War” from the 2011 Robin Thicke album entitled 23 “Love After War (Deluxe Version).” 24 5. I also have reviewed sheet music for “Got to Give It Up” and “After the 25 Dance” that I understand was obtained from the Library of Congress and is a true 26 copy of the copyright deposit submitted to the United States Copyright Office when 27 the copyrights in the compositions “Got to Give It Up” and “After the Dance” were 28 registered on behalf of Marvin Gaye (the “Copyright Deposit” for GIVE/DANCE). KING, HOLMES, PATERNO & BERLINER, LLP

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1 6. I also have reviewed the Preliminary Report of Judith Finell (“Finell 2 Report”) attached to the Counter-Claims filed by the Defendants in this action. 3 B. SUMMARY OF MUSICOLOGICAL CONCLUSIONS 4 7. There is no substantial similarity between the composition GIVE and 5 the composition and sound recording BLURRED. There are no substantial 6 similarities in melody, harmony, rhythm, lyrics, or structure between the two songs. 7 8. The purported similarities between BLURRED and GIVE described in 8 the Finell Report are either not similar or are commonplace or insubstantial, as set 9 forth in more detail below. 10 9. There is no substantial similarity between the composition DANCE and 11 the composition and sound recording WAR. There are no substantial similarities in 12 melody, harmony, rhythm, lyrics, or structure between the two songs. 13 C. DEFINITION OF A MUSICAL COMPOSITION 14 10. Generally, the elements of a musical composition are melody, rhythm, 15 harmony, structure, and lyrics (if they are included in the musical composition). 16 11. Musical notes have two components: pitch and duration. 17 12. A melody is a horizontal succession of single pitches and rests, each 18 with a specific duration. 19 13. Melodic rhythm refers to the duration and accent patterns of the notes 20 and rests in relation to one another, including their position in the measure. 21 14. A melodic phrase is a grouping of notes and rests, with a specific 22 melodic rhythm, into a unit or statement with a specific beginning and end. 23 15. The composition of a song typically contains a number of different 24 melodic phrases organized to form sections of the song (verse, chorus, bridge, etc.). 25 16. The structure of a composition consists of its organization into different 26 sections (verse, chorus, bridge, break, etc.), and the respective length of each 27 section. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 D. MUSICOLOGICAL METHOD FOR COMPARING WORKS 2 17. In comparing two musical works for substantial similarity, I look for 3 any similarities between the melodies, harmonies, rhythm, lyrics, and structures of 4 the two works and compare and contrast those similar elements. I also look for the 5 important weighted notes in melodic phrases, i.e., those notes that stand out and are 6 the most important to the listener. 7 18. In comparing melodies, it is critical to look at their harmonic context. 8 The relationship of a note (pitch) to the chord(s) over which it is played (harmony) 9 can significantly alter the melodic impact of that note. 10 19. For example, melodies typically use both stable notes and notes that 11 create tension. The relationship of a note (pitch) to its harmonic context and its 12 rhythmic emphasis can make a big difference to whether the note is stable or creates 13 tension that wants to resolve. 14 20. In comparing melodic rhythms, the placement in the measure where a 15 series of notes occurs affects and in part defines the melodic rhythm of the phrase. 16 21. In 4/4 time, the first beat usually is the strongest beat of the measure 17 (the most rhythmic emphasis). The third beat usually is the second strongest beat. 18 22. A sequence of notes in a melody will have a different “feel” depending 19 upon its placement relative to the beats in the measure and its placement in the 20 larger melodic phrase, if any. 21 23. The five elements of a musical composition – melody, rhythm, 22 harmony, structure, and lyrics (if included) – are what a musicologist looks at to 23 determine whether original material from one composition is substantially similar to 24 that found in another composition or sound recording. All five elements must be 25 compared in order to fully and accurately analyze whether any substantial similarity 26 exists. The degree and importance of the similar elements also must be taken into 27 consideration. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 E. BLURRED AND GIVE ARE NOT SUBSTANTIALLY SIMILAR 2 24. I have summarized below the conclusions I have drawn from my 3 comparison of BLURRED and GIVE. 4 25. As a preliminary observation, BLURRED and GIVE are written in 5 different keys. BLURRED is in the key of G. GIVE is in the key of A. 6 26. Following generally accepted musicological practice, I have transposed 7 BLURRED to the key of A for purposes of comparing it to GIVE. All references to 8 notes, pitches, and chords in BLURRED herein and all transcriptions of BLURRED 9 herein are in the key of A. All other music examples from other works have been 10 transposed to the key of A, as well. In the key of A, the notes may be referred to by 11 their pitches (a-b-c#-d-e-f#-g#) or by their respective scale degrees (1-2-3-4-5-6-7). 12 For example, the 1st scale degree in the key of A major is the pitch “a,” the 2nd scale 13 degree is the pitch “b,” etc. In my discussion of BLURRED and GIVE below, if 14 two notes have the same pitch in each song, they also have the same scale degree, 15 and vice versa, because I have transposed BLURRED to the key of A herein. 16 (i) The Melodies of BLURRED and GIVE Are Not Similar 17 27. There is no substantial similarity between the melodies of BLURRED 18 and GIVE. 19 28. There is no melodic phrase in GIVE that also appears in BLURRED. 20 (ii) The Rhythms of BLURRED and GIVE Are Not Similar 21 29. There is no substantial similarity between the rhythms of BLURRED 22 and GIVE. 23 30. The Copyright Deposit for GIVE is the composition: the Copyright 24 Deposit contains the melody, rhythm, harmony, structure, and lyrics of GIVE. 25 31. The only rhythm in the Copyright Deposit is the melodic rhythm of the 26 lead vocal and the bass, which are not substantially similar to any rhythm in 27 BLURRED, as discussed in more detail below in my response to the Finell Report. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 32. The sixteenth note rhythms that are prominent in BLURRED are quite 2 different from the mainly eighth note rhythm in GIVE. 3 33. The bass pattern of GIVE emphasizes the offbeat (or “+”) of the fourth 4 beat of the measure. In BLURRED, the bass plays on the first beat of every 5 measure. The bass rhythm in BLURRED is on the beat, whereas it is generally off 6 the beat in GIVE. 7 34. Other rhythmic differences can be found throughout the two songs. 8 (iii) The Harmonies of BLURRED and GIVE Are Not Similar 9 35. There is no substantial similarity between the harmonies of BLURRED 10 and GIVE. 11 36. The chord patterns of BLURRED and GIVE are entirely different. 12 37. There is no sequence of two chords played in the same order and for 13 the same number of measures (duration) in GIVE and BLURRED. 14 38. There are no three chords in common in GIVE and BLURRED. 15 39. BLURRED has two chords, both major, with no dominant sevenths. A 16 dominant seventh chord adds a fourth note to the three note chord. The A major 17 chord (A) uses the notes a, c#, and e, while the A dominant seventh chord (A7) uses 18 the four notes a, c#, e, and g. 19 40. GIVE has six chords, two minor, four major, all sevenths. 20 41. The chord pattern in BLURRED consists of 4 measures of A major 21 followed by 4 measures of E major. 22 42. The chord pattern in GIVE consists of 8 measures of A7 followed by 23 one measure each of D7, E7, A7, B7, D7, E7, A7, and B7. In addition, GIVE has a 24 24 measure break section that, after 8 measures of A7, contains 4 measures of A 25 minor seventh (Am7), followed by 8 measures of D minor seventh (Dm7), followed 26 by 2 measures of Am7, followed by 2 measures of A7. The ending of GIVE is a 27 repeated A7 chord (which last for 28 measures in the sound recording of GIVE). 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 43. Below is a chart comparing the chord patterns of BLURRED and GIVE 2 for the first sixteen measures (after the eight measure instrumental introduction in 3 GIVE) of each of the two works (this chart does not include the 24 measure break 4 section of GIVE, which uses minor chords, as described in more detail below). 5 6 7 8 9 44. The bass pattern and melodies in GIVE each contain minor thirds, and 10 the break section of GIVE consists of 14 of the 24 measures of minor chords (Am7, 11 Dm7). This use of minor thirds and minor chords provides a minor or bluesy sound 12 to GIVE. 13 45. BLURRED has no minor thirds or minor chords. It does contain a 14 sharp 2nd scale degree that alternates with the 3rd scale degree as part of a chromatic 15 note pattern in certain parts of the BLURRED vocal melody, but the emphasis in 16 these patterns is on the major 3rd scale degree. BLURRED has a major sound. 17 (iv) The Structures of BLURRED and GIVE Are Not Similar 18 46. There is no substantial similarity between the structures of BLURRED 19 and GIVE. 20 47. After an introduction, the structure of BLURRED consists of a verse, 21 pre-chorus, and chorus, which sections are then repeated a second time, followed by 22 a rap and break, and then another verse and chorus, and a coda (ending section). 23 48. After an introduction, the structure of GIVE consists of a two-part 24 verse, consisting of two eight-bar sections with different content, repeated three 25 times, with an extra half-verse the third time, followed by a lengthy break, then 26 another half-verse, and then a four-bar hook section that repeats (seven times in the 27 GIVE sound recording). 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 49. Below is a chart comparing the structures of BLURRED and GIVE as 2 they are performed in the respective sound recordings of the two songs. 3 4 5 6 7 8 9 10 11 12 13 14 50. The chorus of BLURRED (“You’re a good girl”) appears early in the 15 song, after the first verse and pre-chorus, and the chorus is repeated several times 16 after each intervening verse and pre-chorus. This is a traditional pop song structure. 17 51. The hook of GIVE (“Keep on dancing, got to give it up”) does not 18 appear until the very end of the song (3:13 minutes into the sound recording), and 19 only after all of the verses and the break. The GIVE structure is very unique. 20 (v) The Lyrics of BLURRED and GIVE Are Not Similar 21 52. There is no substantial similarity between the lyrics of BLURRED and 22 GIVE. They have no lyrical phrases in common. 23 53. True and correct copies of the lyrics to BLURRED and GIVE are 24 attached hereto as Exhibits B and C, respectively. 25 (vi) In Sum, BLURRED and GIVE Are Not Substantially Similar 26 54. None of the five elements of a musical composition – melody, rhythm, 27 harmony, structure, and lyrics – are substantially similar in BLURRED and GIVE. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 55. The so-called similarities between BLURRED and GIVE identified in 2 the Finell Report either are not similarities or are not substantial, and are not original 3 to GIVE, and moreover are not significant elements in BLURRED. 4 F. THE “CONSTELLATION OF EIGHT SUBSTANTIALLY 5 SIMILAR FEATURES” IDENTIFIED IN THE FINELL REPORT IS 6 NOT A SUBSTANTIAL SIMILARITY BETWEEN THE SONGS 7 56. The Finell Report identifies a “constellation” of eight (8) purported 8 similarities, denoted Similarities 1 through 8, between BLURRED and GIVE. 9 57. The eight purported Similarities between the two songs that are 10 identified in the Finell Report (see pages 3-16 of the Finell Report) are: 11 Similarity 1: Signature Phrase in Main Vocal Melodies -- A signature phrase that repeats its starting tone several times, contains the 12 scale degree sequence 5-6-1 followed by 1-5, contains identical rhythms (six eighth notes in a row) for the first six tones, contains a 13 melisma on the last lyric beginning with scale degrees 1-5, and has a melodic contour that rises and falls over the course of the phrase; 14 Similarity 2: Hooks -- Hook phrases with some similar notes (though 15 with different durations, rhythms, and placement in the measures);

16 Similarity 3: Hooks with Backup Vocals – Hook backup vocals (though they do not have the same harmonic voicing, melodic rhythm, 17 or overall sound);

18 Similarity 4: Core Theme In BLURRED and Backup Hook in GIVE and Similarity 5: Backup Hooks – Melodic phrases that 19 contain movement up and down by a half step;

20 Similarity 6: Bass Melodies -- A bass pattern with some similar rhythmic elements and scale degrees (1 and b7, the root and flatted 21 seventh scale degrees), and a descending bass pattern (though with different notes and rhythm) at the end of the eight measure bass phrase; 22 Similarity 7: Keyboard Parts -- A keyboard part that plays chords on 23 some offbeats; and,

24 Similarity 8: Unusual Percussion Choices -- A cowbell. and an open high-hat sound on the “+” of the fourth beat. 25 26 58. The eight Similarities are primarily melodic. 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 59. There are no two consecutive notes in any of the melodic examples in 2 the Finell Report that have the same pitch, the same duration, and the same 3 placement in the measure. This is highly unusual in a claim of substantial similarity. 4 60. Five of the eight Similarities (Similarities 3-5, 7-8), and a portion of 5 Similarity 6 (Musical Example 6C), and also the purported “Additional Distinctive 6 Similarities” discussed at pages 16-17 of the Finell Report, concern elements in 7 GIVE that are not contained in the Copyright Deposit for GIVE. 8 61. Similarities 1 through 8 are discussed in detail below. None of those 9 eight Similarities are substantial similarities between BLURRED and GIVE. 10 62. Similarities 1 through 8 do not reflect material that is original to GIVE. 11 63. Similarities 1 through 8 do not reflect material that is significant to 12 BLURRED. 13 64. The “constellation” of those eight Similarities, taken together, does not 14 comprise any substantial similarity between BLURRED and GIVE. 15 65. As discussed in detail in the next section, below, there is no substantial 16 similarity between any elements of BLURRED and GIVE with respect to their 17 actual notes, meaning the pitch and duration of their respective notes, their 18 placement in the measure, their melodic rhythms, or any similarity in the harmonies, 19 structure, or lyrics of BLURRED and GIVE. It bears repeating that there are no two 20 consecutive notes in any of the melodic examples in the Finell Report that have the 21 same pitch (scale degree), the same duration, and the same placement in the 22 measure. 23 66. The “constellation” of Similarities, therefore, simply extends to 24 compositional devices or ideas, not the specific expression of those devices or ideas. 25 67. The compositional devices and ideas reflected in the eight Similarities 26 are all commonplace and generic and available to all composers to employ. 27 68. The history of Western music going back centuries, as well as popular 28 music over the past one hundred years, is full of examples of compositions that have KING, HOLMES, PATERNO & BERLINER, LLP

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1 one or more of the following elements identified in the Finell Report: a repeated 2 starting tone, six eighth notes in a row (identical rhythm for first six starting tones), 3 a melodic contour that rises and falls over the course of a melodic phrase, the scale 4 degree sequence 5-6-1, a melisma on the last syllable of a vocal melody, melodic 5 phrases that share some of the same pitches (but not in the same rhythm, duration, or 6 placement in the measure, and with other non-similar notes in-between), backup 7 vocals, melodic phrases that contain movement up and down by a half step, a 8 cowbell, an open hi-hat sound on the “+” of the fourth beat, a keyboard playing on 9 some offbeats, or a bass pattern that emphasizes the root and flatted seventh scale 10 degrees (1 and b7) and plays the root on or before the first beat of the measure. 11 69. These so-called similar elements are simply a few of the basic building 12 blocks of musical composition that are present, if not inevitable, in many songs. 13 70. The “constellation” of eight Similarities together does not define in any 14 meaningful way what a composition will sound like. A composition that contains 15 all of the above elements could very easily sound nothing like GIVE. As just one 16 example, BLURRED does not sound like GIVE. The songs are different. 17 71. The above elements – individually or in combination – do not 18 determine what a piece of music necessarily will sound like. 19 72. The eight Similarities identified in the Finell Report and discussed in 20 detail below can be found in songs that predate GIVE and are not original to GIVE. 21 73. For example, “Low Rider” by War from 1975 contains a prominent 22 cowbell part, electric piano that emphasizes chords on the offbeats (“+”), a bass 23 pattern that emphasizes the root and the flatted seventh scale degrees, and a melodic 24 phrase that goes down and up in half step intervals (“take a little trip,” at 2:35 in the 25 original recorded version by War of “Low Rider”). “Low Rider” also has as its 26 “hook” an instrumental melody that repeats its starting tone several times, contains 27 six eighth notes in a row, and has a melodic contour that goes up and then down 28 KING, HOLMES, PATERNO & BERLINER, LLP

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1 over the course of the melodic phrase – many of the same features found in the 2 Signature Phrase of GIVE. 3 74. Below is a transcription of the first two measures of the instrumental 4 melody in “Low Rider” (transposed from its original key of E to the key of A for 5 comparison purposes), which is a hook or signature phrase of “Low Rider,” along 6 with the Signature Phrases of BLURRED and GIVE. As is evident from the below 7 transcription, all three phrases contain six eighth notes in a row, repeated starting 8 tones, and an overall melodic contour that rises and falls over the phrase. 9 10 11 12 13 14 15 16 75. Below is a transcription of the first eight measures of “Low Rider,” as 17 transposed into the key of A, that shows the cowbell part, piano chords played on 18 the offbeats (“+”), and the bass pattern that emphasizes the root and the flatted 19 seventh scale degrees, all of which are highlighted in yellow in the below chart. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 76. The 1972 song “Superfly” by Curtis Mayfield contains falsetto vocals, 21 the use of a cowbell and an open hi-hat on the “+” of the fourth beat, and a bass 22 pattern that plays the root of the chord on the downbeat – all elements that appear in 23 BLURRED and that are defined as Similarities to GIVE in the Finell Report. 24 77. The 1980 song “Funkytown” by Lipps Inc. has a cowbell part, repeated 25 starting tones in the vocal and instrumental melodies, a melodic phrase that contains 26 six (or more) eighth notes in a row, a bass pattern that emphasizes the root and 27 flatted seventh of the chord, and a descending bass pattern with alternating octave 28 notes. KING, HOLMES, PATERNO & BERLINER, LLP

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1 78. The presence of a “constellation” of these commonplace elements in 2 GIVE is neither original nor an indication of substantial similarity between GIVE 3 and BLURRED or any other songs that share one or more of these elements. 4 79. The elements in the Finell Report that are considered to be significant 5 are all compositional devices or ideas that are available to anyone and moreover are 6 not significant elements in BLURRED, as further discussed in detail below. 7 80. Substantial similarity of melodic content depends upon the scale degree 8 and melodic rhythm and placement in the measure of the actual notes. 9 81. There is no substantial similarity between BLURRED and GIVE. 10 G. NONE OF THE EIGHT “SIMILARITIES” IDENTIFIED IN THE 11 FINELL REPORT ARE SUBSTANTIAL, LET ALONE SIMILAR 12 (i) “Similarity 1: Signature Phrase in Main Vocal Melody” Is 13 Not a Substantial Similarity (see transcription at ¶ 84 below) 14 82. Similarity 1 is discussed at pages 3-6 of the Finell Report. 15 83. Page 5 of the Finell Report has a transcription of the two-measure 16 portions of BLURRED and GIVE that the Finell Report refers to as the “Signature 17 Phrase” of each song. For discussion purposes, I will adopt this terminology. 18 84. Below is a transcription of the two Signature Phrases. The yellow 19 highlighting in the transcription indicates the one note in both Signature Phrases that 20 has the same pitch and placement (but not the same duration) in both songs. No 21 other notes in the Signature Phrases have the same pitch and placement. 22 23 24 25 26 27 85. The two Signature Phrases are not substantially similar. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 86. There is not a single note in the two Signature Phrases that has the 2 same pitch, duration, and placement in the measure in both Signature Phrases. 3 87. There is only one note in the two Signature Phrases that has the same 4 pitch (scale degree) and placement (but not the same duration) in both songs. 5 88. Below is a chart that indicates by measure (“M”) and beat (“B”) where 6 each note falls in the GIVE (“G”) and BLURRED (“BL”) Signature Phrases. The 7 notes in the chart are identified by their respective scale degrees (1, 2#, 3, etc.). The 8 one note that has the same scale degree and placement in both songs is highlighted. 9 10 11 12 13 89. Below is a chart that compares by measure (“M”) and beat (“B”) the 14 Signature Phrases in GIVE (“G”) and BLURRED (“BL”), this time with the chords 15 (highlighted in yellow) and lyrics also added in, both of which are different. 16

23 24 90. The notes in the Signature Phrases are substantially different. 25 91. For example, the first four notes of the GIVE Signature Phrase are the th 26 5 scale degree (e). In the BLURRED Signature Phrase, the first four notes are the rd nd rd 27 3 scale degree (c#), the sharp 2 scale degree (b#), and the 3 scale degree (c#). 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 92. As another example, the last note in the first measure (or seventh note 2 in the melodic phrase) in the GIVE Signature Phrase is the 2nd scale degree (b) and 3 is held (sustained by the singer) for two full beats into the first half of the second 4 measure. This 2nd scale degree (b) thus is emphasized in GIVE. 5 93. The 2nd scale degree (b) does not appear in the BLURRED Signature 6 Phrase. 7 94. The harmonies in the two Signature Phrases are different. In GIVE, 8 both measures of the Signature Phrase are A7. In BLURRED, the first measure is E, 9 and the second measure of the Signature Phrase is A. 10 95. The rhythms of the Signature Phrases are different. The seventh note 11 of the GIVE Signature Phrase falls on the offbeat or “+” of the fourth beat in the 12 first measure of the Phrase and is placed before the first beat of the second measure. 13 That note then is held (sustained) for the first 1½ beats of the second measure. 14 96. In the BLURRED Signature Phrase, the seventh note is not held, and 15 then additional notes are played on the first and second beats of the second measure. 16 97. The seventh note of the GIVE Signature Phrase is the most important 17 note in the Phrase and receives the most melodic emphasis. This is because the 18 seventh note creates: (a) harmonic tension, because the 2nd scale degree (b) is not a 19 stable note; and (b) rhythmic tension, because the seventh note is played before the 20 first beat of the second measure and then is held in duration for another 1½ beats. 21 The 2nd scale degree is the highest note and is a highlight and an important note in 22 the GIVE Signature Phrase. 23 98. BLURRED, by contrast, has a note played on the first and second beats 24 of the second measure, which note is the 1st scale degree (a), the most stable note. 25 99. The Finell Report, at page 5, contains a transcription of the Signature 26 Phrases, which is set forth below, and which has been annotated to show with 27 yellow highlighting the sustained 2nd scale degree on the offbeat in GIVE versus the 28 KING, HOLMES, PATERNO & BERLINER, LLP

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1 1st scale degree on the first and second beat in BLURRED that are discussed above. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 100. The Finell Report fails to take into account the differences in harmony, 18 pitch (scale degree), duration, and placement of the notes in the Signature Phrases. 19 (a) Repeating a Starting Tone Is Not a Substantial Similarity 20 (see transcription at ¶ 102 below) 21 101. The Finell Report, on page 4, states that both Signature Phrases “repeat 22 their starting tone several times.” 23 102. Below is the first measure of the Finell Report transcription of the 24 Signature Phrases (which appears on page 5 of the Finell Report), as annotated to 25 show the chords, and to also highlight in yellow the first four notes of BLURRED 26 and GIVE that are discussed below. 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 103. The starting tones are different. In GIVE, the starting tone is the 5th 18 scale degree (e). In BLURRED, the starting tone is the 3rd scale degree (c#). 19 104. The starting tones are played over different chords – an A7 in GIVE, 20 and an E in BLURRED. The harmonic context for the starting tones is different. 21 105. In GIVE, the starting tone (e) is repeated four times. In BLURRED, 22 the starting tone (c#) is repeated twice, the third note is a half-step lower (b#), and 23 the fourth note is the c# starting tone again. The melodic contour in BLURRED has 24 a down-up chromatic movement that is not present in the first four notes of GIVE. 25 106. A sequence of pitches can only move in one of three ways: up in pitch, 26 down in pitch, or repeating the same pitch (or a combination of same). There is 27 nothing original about the musical idea or device of repeating a pitch in a melodic 28 phrase, including repeating the starting tone of a melodic phrase several times. KING, HOLMES, PATERNO & BERLINER, LLP

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1 107. Repeating a starting tone several times in a row is a commonplace 2 musical idea or device. For example, the 1957 Number One hit song, “Catch a 3 Falling Star,” sung by Perry Como, repeats its starting tone five times over the lyric 4 “catch a falling star.” Below is a transcription of the first measures of the Signature 5 Phrases of GIVE and BLURRED and of the first sung line in “Catch a Falling Star” 6 (transcribed to the key of A) with the repeated notes in each song highlighted in 7 yellow. As can be seen below, repeated eighth note starting tones are not original to 8 GIVE. 9 10 11 12 13 14 15 16 17 18 108. Below is a chart showing by measure (“M”), beat (“B”) the first 19 measures of the Signature Phrases in GIVE (“G”) and BLURRED (“BL”) and of the 20 first sung line in “Catch a Falling Star” (“CA”). The notes are indicated by their 21 respective scale degrees (1, 2#, 3, etc.). The three repeated starting tones in 22 BLURRED are highlighted in yellow, as are the identical repeated starting tones in 23 “Catch a Falling Star.” As can be seen, the repeated starting tones are the same 24 pitch (3rd scale degree) in “Catch a Falling Star” and BLURRED, whereas the 25 repeated starting tone in GIVE is a different pitch (5th scale degree). 26 / / / 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 2 3 4 5 6 7 8 9 10 11 (b) The Scale Degree Sequence 5-6-1 Is Not a Substantial 12 Similarity (see transcription at ¶ 110 below) 13 109. The Finell Report, on page 4, states that both Signature Phrases 14 “contain the identical scale degree sequence of 5-6-1 followed by 1-5.” 15 110. Below is the Finell Report’s transcription of the Signature Phrases, as 16 annotated to highlight in yellow the 5-6-1 scale degree sequence in each song, and 17 to highlight in purple the held 2nd scale degree (b) in GIVE that is not in BLURRED, 18 as is discussed below. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 111. The Finell Report fails to compare the full melodic phrases. The scale 16 degree sequence of the full Signature Phrase in GIVE is 5-5-5-5-6-1-2-1-5-6. The 17 scale degree sequence of the full Signature Phrase in BLURRED is 3-3-#2-3-5-6-1- 18 1-1-5-4-3. 19 112. The scale degree sequences in the Signature Phrases are significantly 20 different. 21 113. The harmonies also are different. The chords in GIVE are A7. In 22 BLURRED, the chords are E in the first measure and A in the second measure. 23 114. The Finell Report compares only a few notes rather than the entire 24 melodic phrase and also fails to take into account the chords, and the duration and 25 placement of the 5-6-1 note sequences, each of which is different. 26 115. Even focusing on just the portion of each phrase that starts with 5-6-1, 27 the scale degree sequences are still different. In GIVE, the sequence is 5-6-1-2-1-5. 28 In BLURRED, the sequence is 5-6-1-1-1-5. GIVE contains the 2nd scale degree KING, HOLMES, PATERNO & BERLINER, LLP

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1 before the downbeat of the second measure, which pitch is then sustained (held by 2 the singer) for two full beats – none of which is present in or similar to BLURRED. 3 116. BLURRED does not have the 2nd scale degree in its Signature Phrase. 4 117. The two scale degree sequences have different rhythms and note 5 placement. The 5-6-1-2-1-5 sequence in GIVE starts on the third beat of the first 6 measure. In BLURRED, the 5-6-1-1-1-5 sequence starts after the third beat, on its 7 off-beat (“+” of the third beat). GIVE also holds for two full beats the 2nd scale 8 degree note that is the last note of the first measure. BLURRED has no held note at 9 the end of the first measure and has two notes played on the first two beats of the 10 second measure. 11 118. The 5-6-1 scale degree sequence is a commonplace musical idea or 12 device. The 1st scale degree is the most stable note in a scale. The 5th scale degree 13 is the second most stable. The 6th scale degree is a commonplace note used to move 14 between the 5th and 1st scale degrees in a melodic phrase occurring over a major 15 chord. The scale degree sequence 5-6-1 is commonplace in popular (and other) 16 music. Furthermore, it does not occur at the same time in the two Signature Phrases. 17 119. Moreover, the 5 and 1 get more emphasis in GIVE as they fall on the 18 third and fourth beats of the measure, whereas they get less emphasis and are less 19 important in BLURRED as they fall on the “+” of the third and fourth beats. 20 (c) Six Repeated Eighth Notes Is Not a Substantial Similarity 21 (see transcription at ¶ 122 below) 22 120. The Finell Report, on page 4, states that both Signature Phrases 23 “contain identical rhythms for the first six tones.” 24 121. The first six tones in both songs are simply six eighth notes in a row. A 25 series of six (or more) eighth notes is a common musical idea or device. Numerous 26 compositions contain six (or more) eighth notes in a row. For example, the 1958 27 Chuck Berry song, “Johnny B. Goode” (“Way down in Louisiana …”), the 1964 28 Beatles song, “Hard Day’s Night” (“And it’s worth it just to hear you say …”), the KING, HOLMES, PATERNO & BERLINER, LLP

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1 instrumental melody in the 1975 hit “Low Rider” by War, and so on. The above 2 three songs and others contain six (or more) eighth notes in a row and pre-date 3 GIVE. There is nothing original about having six (or more) eighth notes in a 4 melodic phrase. 5 122. Below is the Finell Report’s transcription of the Signature Phrases, 6 annotated to highlight in yellow the first six eighth notes of each Signature Phrase, 7 and to indicate the chords, and to highlight in purple the sustained seventh note at 8 the end of the first measure in GIVE that is different from the rhythm in BLURRED. 9

11 12

13 14 15 16 17 18 19 20 21 22 23 24 25 26 123. In BLURRED and GIVE, the notes in the first six tones are different. 27 The same rhythmic pattern played with entirely different notes is not a similarity. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 124. The melodic phrases also are rhythmically different in that the seventh 2 note (after the six eighth notes in a row) in GIVE is held for two full beats. In 3 BLURRED, the seventh note is not held, and a note is played on the next beat. 4 125. The chords are also different in each song. 5 (d) The Melismas Are Not a Substantial Similarity (see 6 transcription at ¶ 127 below) 7 126. The Finell Report, on page 4, states that both Signature Phrases “use 8 the same device of a melodic ‘tail’ (melisma) on their last lyric, beginning with the 9 scale degrees 1-5.” 10 127. Below is the Finell Report’s transcription of the Signature Phrases, 11 over which I have highlighted the respective melismas. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 128. The melismas in the second measures of GIVE and BLURRED are 28 different in pitches, rhythm, placement in the measure, and melodic contour. KING, HOLMES, PATERNO & BERLINER, LLP

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1 129. The melisma in GIVE consists of three eighth notes. It starts on the 2 “+” of the second beat and has the contour down-up. Its three notes are a-e-f#, or 3 scale degrees 1-5-6. 4 130. The melisma in BLURRED consists of a quarter note, two sixteenth 5 notes, and an eighth note. It starts on the second beat, and its contour is downward 6 only. Its four notes are a-e-d-c#, or scale degrees 1-5-4-3. 7 131. The 1st and 5th scale degrees in each melisma start in different places in 8 the measure in GIVE and BLURRED and are common choices for a melisma 9 because they form part of the underlying chord. 10 132. A melisma is a commonplace musical idea or device where one syllable 11 or lyric is sung over several successive pitches. There is nothing original about the 12 compositional idea or device of putting a melisma at the end of a melodic phrase. In 13 fact, it is common in popular music. As just one example, in the 1965 Beatles song 14 “Hard Day’s Night,” there is a three-note melisma sung on the word “dog” in the 15 lyric “And I’ve been working like a dog.” 16 (e) The Melodic Contours Are Not a Substantial Similarity 17 133. The Finell Report, on page 4, states that both Signature Phrases 18 “contain substantially similar melodic contours (melodic outlines/design).” 19 134. Melodic contour refers to the overall shape of a melodic phrase. 20 Melodic contour can be refined to include the direction between one note and the 21 next within the overall phrase. 22 135. There are only three potential directions between one note and the 23 next– a series of notes can move up in pitch (“U”), down in pitch (“D”), stay on the 24 same pitch (“S”). 25 136. The direction between the notes in GIVE is S-S-S-U-U-U-D-D-U. 26 137. The direction between the notes in BLURRED is S-D-U-U-U-U-S-S- 27 D-D-D. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 138. The directions between the notes in each song are not substantially 2 similar. 3 139. Both Signature Phrases overall move up in pitch then down again over 4 the two measures, but there is nothing original about that overall contour, which is 5 commonplace. 6 (ii) “Similarity 2: Hooks” Is Not a Substantial Similarity (see 7 transcription at ¶ 143 below) 8 140. Similarity 2 is discussed on pages 6-7 of the Finell Report. 9 141. Similarity 2 relates to what the Finell Report refers to as the “hooks” of 10 GIVE and BLURRED. For discussion purposes, I will adopt this terminology. 11 142. Below is the transcription of the two hook phrases that appears on page 12 7 of the Finell Report. The transcription omits the chords, omits the melisma in the 13 BLURRED hook in its first occurrence in the Signature Phrase, and for some reason 14 compresses the spacing in the first measure of the GIVE hook so that it matches the 15 spacing in the measure of the BLURRED hook, even though the rhythm of the first 16 two notes of GIVE is one beat longer than in BLURRED, and the rhythm of the last 17 two notes in GIVE is fifty percent longer than the last two notes in BLURRED. 18 19 20 21 22 23 24 25 26 27 28 KING, HOLMES, PATERNO & BERLINER, LLP

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1 143. Below is a transcription of the two hook phrases that includes the 2 melisma at the end of the BLURRED hook in its first occurrence in the Signature 3 Phrase and correct spacing. I have highlighted the sustained 2nd scale degree in 4 GIVE (discussed below) that is not in BLURRED. It is evident from the 5 transcription that the melodic rhythms also are different (as discussed below). 6 7 8 9 10 11 144. There is no substantial similarity between the two so-called “hooks.” 12 145. The GIVE hook lasts for five beats. It starts on the third beat of the 13 first measure of the hook and ends on the third beat of the second measure. 14 146. The BLURRED hook lasts for five beats and is part of a larger melodic 15 phrase that is not represented in Musical Example 2b. It starts on the fourth beat of 16 the first measure of the hook and ends on the fourth beat of the second measure. 17 147. The GIVE hook consists of four notes. The first two notes are quarter 18 notes. The second two notes are dotted quarter notes, which are fifty percent longer 19 in duration than a quarter note. 20 148. The BLURRED hook consists of seven notes when it occurs with the 21 melisma. The first two notes are eighth notes. The third and fourth notes are 22 quarter notes, followed by two sixteenth notes and a dotted quarter note (1½ beats). 23 149. The BLURRED hook in its first occurrence in the Signature Phrase 24 ends with a downward melisma that starts on the second beat of the second measure. 25 The GIVE hook has no melisma. 26 150. The note on the first beat of the second measure of each hook is 27 different. In GIVE, the note is the 2nd scale degree (b), which creates tension. In 28 BLURRED, the note is the 1st scale degree (a), the most stable note. KING, HOLMES, PATERNO & BERLINER, LLP

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1 151. The harmonies of the two hook phrases are different. In GIVE, the 2 chord is A7. In BLURRED, the first measure is E, and the second measure is A. 3 152. Below is a chart reflecting by measure (“M”) and beat (“B”) the notes 4 and melodic rhythms in the hooks of GIVE (“G”) and BLURRED (“BL”). The 5 duration of the sustained 2nd scale degree in GIVE (discussed above) is highlighted 6 in yellow. The 2nd scale degree is not in the BLURRED hook. 7 8 9 10 11 (iii) “Similarity 3: Hooks with Backup Vocals” Is Not a 12 Substantial Similarity (see transcription at ¶ 156 below) 13 153. Similarity 3 is discussed on pages 8-11 of the Finell Report. 14 154. Similarity 3 concerns the backup vocals for the hooks in Similarity 2. 15 155. The transcription of the two hooks with backup vocals that appears at 16 page 8 of the Finell Report is inaccurate because it includes a fourth note (f#) in the 17 BLURRED backup vocals that is not present in BLURRED and also compresses the 18 spacing of the notes in the first measure of GIVE, as discussed above. 19 156. Below is a transcription of the two hooks with backup vocals, as 20 annotated to highlight in yellow the backup notes in the two songs. The notes that 21 are not highlighted are the hook phrases that are discussed above in Similarity 2. 22 23 24 25 26 27 28 157. In GIVE, the backup vocals accompany every note of the hook. KING, HOLMES, PATERNO & BERLINER, LLP

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1 158. In BLURRED, the backup vocals are not on the first two notes. This 2 gives extra emphasis to the notes in the second measure of the BLURRED hook, 3 unlike in GIVE. 4 159. In GIVE, there are only two notes sung at the same time. In 5 BLURRED, there are three notes sung at the same time. 6 160. In GIVE, the two sung notes form an interval of a perfect fourth. In 7 BLURRED, the three sung notes form a major chord. A perfect fourth, by itself as 8 in GIVE, has a pure sound that is different from the richer sound of a major chord. 9 This is true even though the major chord in BLURRED contains a perfect fourth 10 interval within it. 11 161. In GIVE, the single backup vocal note is an interval of four scale 12 degrees lower than the hook lead vocal note. In BLURRED, the two backup vocal 13 notes are at respective intervals of two scale degrees above and three scale degrees 14 below the hook lead vocal note. BLURRED has backup vocal notes above and 15 below the hook vocal. GIVE only has one backup vocal note, and it is below the 16 hook vocal. 17 162. Backup vocals are a commonplace musical idea or device. There is 18 nothing original about having backup vocals beneath a lead vocal in popular music. 19 163. The Copyright Deposit for GIVE does not contain the backup vocals. 20 (iv) “Similarity 4: Core Theme in ‘Blurred’ and Backup Hook in 21 ‘Give It Up’” Is Not a Substantial Similarity (see transcription at ¶ 168 22 elow) 23 164. Similarity 4 is discussed at pages 8-11 of the Finell Report. 24 165. Similarity 4 concerns what the Finell Report refers to as “Theme X” in 25 GIVE and BLURRED. For discussion purposes, I will adopt this terminology. 26 166. The GIVE Theme X is not contained in the GIVE Copyright Deposit. 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 167. The Finell Report, at pages 10-11, contains transcriptions of the GIVE 2 Theme X (denoted Musical Example 4A), which the Finell Report then compares to 3 four iterations of the BLURRED Theme X (denoted Musical Examples 4B-4E). 4 168. Below is a transcription showing the differences in rhythm and pitches 5 between the GIVE Theme X and the four versions of the BLURRED Theme X. The 6 notes in Musical Example 4E below differ from what appears in the Finell Report 7 (at page 11 of the Finell Report) because the Finell Report for some reason 8 transposes Musical Example 4E into the key of F# major (rather than A major). The 9 transcription of Musical Example 4E below is transposed into the key of A major. 10 As is evident from the transcriptions below, the duration, order, and placement of 11 the notes in BLURRED is different from that in GIVE. In addition, as shown in the 12 transcription below, the GIVE Theme X repeats for three successive measures. 13 None of the BLURRED Theme X variations repeat for three measures in a row. 14 15 16 17 18 19 20 21 22 23 24 25 26 169. The GIVE Theme X starts on the second beat of the measure, and is 27 repeated in each successive measure. 28 170. The GIVE Theme X contains four eighth notes in a row. KING, HOLMES, PATERNO & BERLINER, LLP

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1 171. The first two and the last eighth notes in GIVE Theme X are c# (3rd 2 scale degree). The third eighth note in Theme X is b# (sharp 2nd scale degree). 3 172. The GIVE Theme X consists of a simple chromatic pitch movement. 4 The melody moves down a half-step interval then back up a half-step interval. 5 173. Chromatic movement is a commonplace musical idea or device. There 6 is nothing original about melodic movement up and down by half-step intervals. 7 174. The children’s song “Hokey Pokey” contains a half-step chromatic 8 movement up and down at “And you shake it all around. You do the Hokey Pokey.” 9 175. A series of notes with half-step chromatic movement up and down also 10 occurs in the lyric of the 1975 War song, “Low Rider,” over the phrase “take a little 11 trip, take a little trip,” which is transcribed below (as transposed into the key of A 12 from its original key for comparison purposes). The “Low Rider” phrase below 13 contains five eighth notes in a row, repeats the starting tone, moves down a half 14 step, then moves up a half step. In that respect, the chromatic movement in “Low 15 Rider” is identical to that in GIVE (except that GIVE repeats the starting tone twice 16 before moving down a half-step, whereas “Low Rider” repeats its starting tone three 17 times before moving down a half step – the note duration and chromatic movement 18 of the notes in the two songs is otherwise identical in these two melodic phrases). 19 176. Below is a transcription of the “take a little trip” four measure phrase 20 from “Low Rider” by War transposed into the key of A major for comparison 21 purposes, and with the chromatic movement of the notes that is discussed above 22 highlighted in yellow. 23 24 25 26 177. The GIVE Theme X does not appear anywhere in BLURRED. 27 178. BLURRED does not contain the same series of notes – with the same 28 pitch, duration, rhythm, and placement in the measure – as in the GIVE Theme X. KING, HOLMES, PATERNO & BERLINER, LLP

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1 179. The note order of the GIVE Theme X is c#-c#-b#-c#. The note order of 2 the first BLURRED Theme X (Musical Example 4B) is c#-b#-c#-c#. The Finell 3 Report indicates that BLURRED Musical Example 4B is in “reverse order” from the 4 GIVE Theme X. This statement makes no musicological sense. Although 5 sometimes used a compositional device, a sequence of notes in reverse order bears 6 no similarity to the sequence of notes that it reverses if the notes do not have the 7 same duration and placement in the measure. Music only has one direction: it goes 8 forward in time. Notes in reverse order sound different. Besides, the duration of the 9 notes (shown above) is different. In GIVE, the sharp 2nd scale degree (b#) is played 10 on the third beat of the measure, which is the second strongest beat, and thus tends 11 to emphasize the b#, which is not a stable note. In BLURRED, the b# is played on 12 the offbeat (“+”) of the second beat, and the 3rd scale degree (c#), which is a stable 13 note, is played on the second and third beats, emphasizing the c# and not the b#. 14 GIVE emphasizes the b# and BLURRED does not. 15 180. The 1966 Lee Dorsey song, “Working In a Coal Mine,” contains a 16 melodic phrase with the identical notes – i.e., the identical scale degrees, note 17 duration, placement, rhythm, and chromatic movement – as Musical Examples 4B 18 and 4D and (except for one note) Musical Example 4C of the BLURRED Theme X. 19 181. Below is a chart comparing by measure (“M”) and beat (“B”), with 20 notes indicated by their scale degree (1, #2, 3, etc.), the Theme X Backup Hook for 21 GIVE (“GA”), the first three iterations of Theme X (Musical Examples 4B-4D) for 22 BLURRED (“BLB-BLD”), and the hook phrase (“Working in a coal mine”) from 23 the 1966 Lee Dorsey song, “Working In a Coal Mine.” The notes in the Lee Dorsey 24 song that are identical to BLURRED Musical Examples are highlighted in yellow. 25 / / / 26 / / / 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 2 3 4 5 6 7 8 9 10 182. As can be seen from the above chart, “Working In a Coal Mine” is 11 virtually identical to BLURRED in terms of the Theme X variations. Theme X in 12 BLURRED is much closer to “Working In a Coal Mine” than it is to GIVE. 13 183. Below is the same comparison, this time in a transcription, with the 14 notes that have the same scale degree and placement in the measure in GIVE 15 (Musical Example 4A), BLURRED (Musical Examples 4B-4E), and “Working In a 16 Coal Mine” (as transposed to the key of A) highlighted in yellow. As can be seen, 17 BLURRED has far more notes in common with “Working…” than with GIVE. 18 19 20 21 22 23 24 25 26 27 28 KING, HOLMES, PATERNO & BERLINER, LLP

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1 184. Musical Example 4E of the BLURRED Theme X (see transcription 2 above) contains the scale degree sequence 5-5-4#-5-5, is a two-measure phrase, 3 starts on the offbeat (“+”) of the third beat of the first measure, and ends on the 4 second beat of the second measure. 5 185. GIVE Theme X, by contrast, has the scale degree sequence 3-3-2#-3, is 6 a one-measure phrase, starts on the second beat of the first measure, and ends on the 7 offbeat (“+”) of the third beat of the first measure. 8 186. Musical Example 4E does not have the same scale degrees or scale 9 degree sequence, placement in the measure, or melodic rhythm as GIVE Theme X. 10 Hence, no notes in Musical Example 4E are highlighted in the above transcription 11 because there are no notes in common with GIVE. 12 187. None of the examples of the BLURRED Theme X identified in the 13 Finell Report are substantially similar to the GIVE Theme X. In each case, the 14 duration, order, and placement of the notes in BLURRED is different than in GIVE. 15 (v) “Similarity 5: Backup Hooks” Is Not Substantially Similar 16 (see transcription at ¶ 190 below) 17 188. Similarity 5 is discussed at pages 11-12 of the Finell Report. 18 189. Similarity 5 concerns what the Finell Report refers to as the “‘Blurred’ 19 Backup Hook.” For discussion purposes, I will adopt this terminology. 20 190. A transcription of the BLURRED Backup Hook and its comparison to 21 the GIVE Theme X is below. The notes in the BLURRED Backup Hook (Musical 22 Example 5b) below differ from what appears in the Finell Report (p. 12) because the 23 Finell Report for some reason transposes Musical Example 5b into the key of F# 24 (rather than A). The transcription of Musical Example 5b below is transposed into 25 the key of A. 26 / / / 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 2 3 4 5 6 191. There is no substantial similarity between the GIVE Theme X and the 7 BLURRED Backup Hook. 8 192. The pitch sequences are completely different. In GIVE, the sequence 9 of pitches is c#-c#-b#-c# (scale degrees 3-3-2#-3). In BLURRED, the sequence is 10 d-d#-e (scale degrees 4-4#-5). 11 193. The melodic rhythms are completely different. The GIVE Theme X 12 has four eighth notes, starting on beat two of each measure. The BLURRED 13 Backup Hook has three eighth notes, starting on beat four of each measure. 14 194. GIVE has no note on the first beat (strongest beat) of the measure. The 15 last note of BLURRED is on the first beat of the measure, which is emphasized. 16 195. Moreover, the contour and duration of each phrase are different. 17 (vi) “Similarity 6: Bass Melodies” Is Not Substantially Similar 18 (see transcriptions at ¶ 199 and ¶ 212 below) 19 196. Similarity 6 is discussed at pages 12-14 of the Finell Report. 20 197. Similarity 6A concerns the bass pattern in the first four measures of an 21 eight measure sequence in GIVE, and Similarity 6B concerns the bass pattern in the 22 first four measures of an eight measure sequence in BLURRED. 23 198. There are no similarities in the bass patterns in the second four 24 measures of these sequences in the two songs because the second four measures of 25 each song have different chords – A7 in GIVE, and E in BLURRED. As a result, 26 the BLURRED bass pattern has completely different notes in the second four 27 measures from the notes in GIVE. There is no note in common in the second four 28 measures. KING, HOLMES, PATERNO & BERLINER, LLP

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1 199. The Finell Report, at page 13, contains a transcription of the bass 2 patterns in the first four measures of the two songs, which is set forth below, as 3 annotated to highlight in yellow the notes that have the same pitch, duration, and 4 placement in the measure in each song. 5 6 7 8 9 10 11 12 13 14 15 200. The notes highlighted above are the only notes (scale degrees) in 16 common that appear at the same location in the measure in the respective four- 17 measure bass patterns in BLURRED and GIVE. The notes in common that appear 18 in the same location in the measure are an “a,” the 1st scale degree of the chord 19 201. In BLURRED, the bass plays the root (a)(1st scale degree) on the first 20 beat of each measure. This is a generic and commonplace musical idea or device. 21 202. In GIVE, the bass does not play the root on the first beat of any 22 measure except the first measure in the four measure phrase (Musical Example 6A). 23 Instead, the GIVE bass plays the root (a) on the offbeat (“+”) of the fourth beat of 24 each of the first three measures in the first four measures of the bass pattern. The 25 rhythmic emphasis is on the “+” of the fourth beat in GIVE. 26 203. By playing the root (a) on the “+” of the fourth beat, but not on the 27 downbeat, the GIVE bass pattern has a more syncopated rhythm than BLURRED, 28 which plays the root note squarely on the first beat (strongest beat) of each measure. KING, HOLMES, PATERNO & BERLINER, LLP

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1 204. Below is the Finell Report transcription of the bass pattern, as 2 highlighted to show where the root (a) is played on the “+” of the fourth beat in 3 GIVE but not on the first beat of the next measure (i.e., only before the bar line in 4 the musical staff that divides the measures), and by contrast where the root is played 5 on the first beat in BLURRED (i.e., after the bar line that divides the measures). 6 7 8 9 10 11 12 13 14 15 16 17 205. It is the most fundamental role of the bass in popular music to play the 18 1st scale degree, or root, of the chord. While the bass may play other notes, the bass 19 is usually the lowest pitched instrument, and it commonly is used to anchor the 20 sound of the chord by playing the root note (1st scale degree) of the chord. 21 206. There is nothing original about having the bass play the root. It is a 22 commonplace and generic musical device or idea to have the bass play the root note. 23 207. There also is nothing original about having the bass play the root note 24 on the first beat (strongest beat) of the measure or as a lead-in note to the first beat. 25 It is a commonplace and generic musical device or idea. 26 208. Both BLURRED and GIVE include the 4th scale degree and b7th scale 27 degree in their four measure bass patterns, but not with the same emphasis or 28 location in the measure. GIVE establishes a strong relationship between the b7th KING, HOLMES, PATERNO & BERLINER, LLP

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1 and 1st scale degrees in the first three measures of its bass pattern, which tend to 2 emphasize the offbeats, as compared to BLURRED, which establishes a pattern of 3 repeated 1st scale degrees only and emphasizes the downbeat of each measure. 4 209. There are no similarities between the bass patterns other than the 5 commonplace idea of having the bass play the root of the chord. The placement in 6 the measure where the root is played and the other notes are different in each song. 7 210. The 1972 Curtis Mayfield hit “Superfly” that predates GIVE by five 8 years has a bass pattern that plays the root (1st scale degree) of the chord on the first 9 beat of the first measure and on the “+” of the fourth beat of the first measure but 10 not on the first beat of the second measure – just as it is played in the first two 11 measures of GIVE. A chart reflecting the scale degrees in the first four measures of 12 “Superfly” (“SF”), BLURRED (“BL”), and GIVE (“G”) is set forth below. The 13 notes in common between the three songs are highlighted in yellow below. The 14 bass notes shared between GIVE and BLURRED are not original to GIVE and, as 15 one example, were used in “Superfly” five years before GIVE was written. 16 17 18 19 20 21 22 23 24 25 26 211. A transcription comparing the bass patterns in BLURRED, GIVE, and 27 “Superfly” (SF), as transposed to the key of A, is set forth below, with the notes that 28 have the same scale degree and placement in the measure in each song highlighted KING, HOLMES, PATERNO & BERLINER, LLP

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1 in yellow. In “Superfly,” the 1st scale degree is an octave lower and thus appears at 2 a lower position in the musical staff in the transcription below, but it is the same 3 scale degree as in GIVE and BLURRED. As can be seen, every note in common 4 between GIVE and BLURRED also appears in the earlier song, “Superfly,” which 5 has an additional scale degree in common with BLURRED on the first beat of the 6 third measure. BLURRED is more similar to “Superfly” than it is to GIVE. 7 8 9 10 11 12 13 14 212. Importantly, the descending bass pattern in BLURRED that ends the 15 eight measure bass phrase (denoted Musical Example 6D and discussed at pages 13- 16 14 of the Finell Report) is not substantially similar to the ending of the eight 17 measure bass phrase in GIVE. The descending bass pattern in GIVE shown on page 18 14 of the Finell Report (denoted Musical Example 6C) is not contained in the GIVE 19 Copyright Deposit even though the Copyright Deposit does contain a bass pattern. 20 213. The last measures of each eight-measure bass pattern in BLURRED 21 and GIVE, respectively (Musical Examples 6C/6D), do not have a single note in 22 common with the same pitch and placement in the measure. The two melodies also 23 do not have the same rhythm, as shown in the below transcription of the eighth 24 measure of each bass pattern. The only note with the same pitch and placement (but 25 not the same duration) in the measure is the root (a)(1st scale degree) played on the 26 first beat of the first measure of the next eight measure phrase. That single common 27 note – i.e., the root of the chord played on beat one of the measure, which is a 28 commonplace musical idea or device for a bass – is highlighted in yellow below. KING, HOLMES, PATERNO & BERLINER, LLP

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1 2 3 4 5 214. Furthermore, the last measure of the eight measure phrase in 6 BLURRED is an E chord, whereas in GIVE it is an A7 chord. The bass patterns are 7 in support of entirely different chords in the last four measures, including the eighth 8 measure of each song. 9 215. It is a commonplace and generic musical device or idea in popular 10 music to have a variation on the bass pattern at the end of a four or eight measure 11 phrase to indicate the end of the phrase and beginning of the next phrase or section. 12 216. It is a commonplace and generic musical device or idea in popular 13 music to have a descending bass pattern as a transition at the end of a phrase or 14 section. 15 217. It is a commonplace and generic musical device or idea in dance or 16 disco music to have a descending bass pattern consisting of alternating octave notes. 17 218. An example of such an alternating octave note, descending bass pattern 18 can be found in the song “Funkytown” released by Lipps Inc. in 1980. 19 219. Here, the last measure of the eight measure bass pattern in BLURRED 20 contains a descending bass pattern using alternating octave notes. 21 220. GIVE has no such descending bass pattern using alternating octave 22 notes. 23 (vii) “Similarity 7: Keyboard Parts” Is Not Substantially Similar 24 (see transcription at ¶ 223 below) 25 221. Similarity 7 is discussed at pages 14-15 of the Finell Report. 26 222. Similarity 7 concerns the keyboard parts in the two songs. 27 223. The keyboard part in GIVE, including the keyboard part referenced at 28 pages 14-15 of the Finell Report, is not contained in the GIVE Copyright Deposit. KING, HOLMES, PATERNO & BERLINER, LLP

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1 224. Below is a transcription of the keyboard parts in the two songs. 2 3 4 5 6 7 225. The rhythms of the two keyboard parts are different. The piano in 8 BLURRED plays chords on the offbeat of each beat. The piano in GIVE plays four 9 eighth notes in a row, then five offbeats, of which the last is held twice as long as 10 the preceding chords, followed by an eighth rest. 11 226. The chords are different in that the BLURRED chord is an A major 12 triad (three notes), and the GIVE chord is an A7 (four notes). 13 227. It is a commonplace and generic musical idea or device in popular 14 music to have a piano or other instrument (e.g., guitar) play chords on the offbeat in 15 order to provide rhythmic drive and counterpoint to drums and other instruments 16 that play “on the beat.” There is nothing original about “comping” on the offbeats. 17 228. The electric piano is a commonplace rhythm section instrument in 18 popular music. The electric piano sound in each song is common and generic. 19 229. For example, the 1975 hit song by War, “Low Rider,” contains an 20 electric piano part that emphasizes chords on the offbeat (“+”). 21 (viii) “Similarity 8: Unusual Percussion Choices” Is Not 22 Substantially Similar (see transcription at ¶ 233 below) 23 230. Similarity 8 is discussed at pages 15-16 of the Finell Report. 24 231. Similarity 8 concerns the percussion parts in the two songs. 25 232. The percussion parts in GIVE are not contained in the GIVE Copyright 26 Deposit, including that the cowbell and hi-hat elements referenced at pages 15-16 of 27 the Finell Report do not appear in the GIVE Copyright Deposit. 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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1 233. The Finell Report says that both compositions have a cowbell part. 2 Jack Ashford, the percussionist who played on GIVE, has stated in reported 3 interviews that the percussion part on GIVE was created by his tapping on the side 4 of a Coke bottle. The percussion part in BLURRED is a digital cowbell sound. 5 234. A transcription of the first four measures of the above two percussion 6 parts (cowbell and Coke bottle, respectively) in BLURRED and GIVE is below. 7 8 9 10 11 12 13 14 15 16 235. The rhythms of the two percussion parts here are significantly different. 17 The BLURRED cowbell part is comprised of 16th note rhythms that occur on the 18 second half (offbeat, or “+”) only of each beat and has no note played on any beat in 19 any measure. The GIVE Coke bottle part has no 16th notes (it is an 8th note rhythm), 20 and it has notes played on three out of the four beats in each measure. 21 236. The BLURRED cowbell part has a sixteenth note rhythm on the offbeat 22 (“+”) of almost every beat, which emphasizes the sixteenth note rhythmic groove of 23 BLURRED. The GIVE Coke bottle part shown above does not contain any 24 sixteenth notes. GIVE is a variation of a rhythm commonly found in Latin music. 25 237. There is nothing original about using a cowbell in popular music. A 26 number of Beatles songs from the 1960s – “Taxman,” “Drive My Car,” “Hard Day’s 27 Night,” and “I Call Your Name” – feature a cowbell, as do Barry White’s “Can’t 28 Get Enough of Your Love” released in 1974, Stevie Wonder’s “Pastime Paradise” KING, HOLMES, PATERNO & BERLINER, LLP

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1 released in 1976, and War’s 1975 hit “Low Rider,” which begins with a prominent 2 sole cowbell rhythm. All of these examples predate the release of GIVE. 3 238. The Finell Report also states that an open hi-hat sound occurs on the 4 second half (or offbeat) of beat four in both BLURRED and GIVE. 5 239. Playing an open hi-hat (or “splash”) sound on the second half of beat 6 four is a commonplace and generic device used by drummers in popular music. 7 There is nothing original about this device. For example, “Superfly” by Curtis 8 Mayfield from 1972 contains an open hi-hat sound on the second half of the fourth 9 beat of the measure at various places throughout the song. The 1974 hit song, “The 10 Hustle,” and the 1975 hit song, “TSOP (The Sound of Philadelphia),” each have an 11 open hi-hat on the “+” of the fourth beat starting at about 35 seconds into each song. 12 (ix) “Additional Distinctive Similarities”Are Not Substantially 13 Similar – or Part of the Composition 14 240. “Additional Distinctive Similarities” are discussed at pages 16-17 of 15 the Finell Report. 16 241. The Additional Distinctive Similarities are the use of falsetto singing, 17 the use of background party noise, and the omission of a guitar in each song. 18 242. The Additional Distinctive Similarities, including the use of falsetto 19 singing, background party noise, and the omission of a guitar (or any other 20 arrangement choices), are not referenced in the GIVE Copyright Deposit. 21 243. These purported “Similarities” are performance and arrangement 22 choices in the GIVE sound recording and are not part of the composition. None of 23 these elements are reflected in the GIVE Copyright Deposit. 24 244. The musical idea or device of falsetto background singing is 25 commonplace and not original. Frankie Vallie and the Four Seasons in the 1950s 26 and Smokey Robinson in the 1960s used male falsetto in a number of songs, as did 27 Curtis Mayfield in “Superfly” in 1972, Eddy Kendrick in his 1973 hit “Keep on 28 Trucking,” and The Bee Gees in their 1976 hit “You Should Be Dancing.” KING, HOLMES, PATERNO & BERLINER, LLP

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1 245. There is no background party noise in BLURRED. While there are 2 vocal “whoops” in the background of the BLURRED sound recording, these are 3 isolated vocalizations, whereas in GIVE the party noise is just that – noise that 4 simulates the sound of a lively party. 5 246. Not all songs use a guitar. Whether to use a guitar in performing a 6 composition is an arrangement choice and not a compositional element. There is 7 nothing original about recording a song without a guitar in the instrumental track. 8 Furthermore, in “Got to Give It Up (Part 2),” there is a guitar part, as indicated in 9 the Copyright Deposit for “Got to Give It Up (Part 2).” 10 (x) Generic Similarities Are Not Relevant 11 247. BLURRED and GIVE are in the style of soul or rhythm and blues. 12 248. The vast majority of modern American popular music, including, soul, 13 dance, and rhythm and blues music, is in 4/4 time. So are BLURRED and GIVE. 14 249. Any perceived similarity in the sound of the recordings of BLURRED 15 and GIVE does not relate to their underlying compositions but instead concerns 16 arrangement, performance, or production elements that are not original to GIVE. 17 250. It has been commonplace since the 1970s for disco, soul, and other 18 dance music to have a tempo in the range of 120-128 beats per minute (BPM). 19 251. The BLURRED and GIVE sound recordings, respectively, are both in 20 the range of 120-128 BPM. The tempo of both songs in their respective sound 21 recordings is commonplace, particularly given their musical style. 22 252. The drum patterns in the BLURRED and GIVE sound recordings are 23 commonplace for dance music and are not substantially similar to each other. 24 253. There is no musicological evidence that any portion of GIVE was 25 copied in BLURRED. Any similarities between the two songs are insignificant and 26 commonplace practices and do not represent expression that is original to GIVE. 27 / / / 28 / / / KING, HOLMES, PATERNO & BERLINER, LLP

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

Andrea Keifer Not Reported

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFFS’ AND COUNTER- DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT (DKT. 89)

I. Introduction and Procedural Background

Pharrell Williams, Robin Thicke, and Clifford Harris, Jr. (“Plaintiffs”) composed the hit song “Blurred Lines.” Compl., Dkt. 1, ¶ 6. Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III (“Defendants”) claim an ownership interest in two compositions by Marvin Gaye: “Got to Give It Up” and “After the Dance.” Answer of Frankie Christian Gaye and Nona Marvisa Gaye, Dkt. 12, ¶ 11; Answer of Marvin Gaye III, Dkt. 35, ¶ 11. On August 15, 2013, Plaintiffs filed this action seeking a finding under the Declaratory Judgment Act, 28 U.S.C. § 2201, that “Blurred Lines” does not infringe on the copyright in “Got to Give It Up” or otherwise violate Defendants’ rights. Compl., Dkt. 1 at ¶ 4, p. 6. Plaintiffs also sought costs and attorney’s fees, and such other and further relief as the court deemed just and proper. Id. On October 30, 2013, Nona Marvisa Gaye and Frankie Christian Gaye filed several counterclaims. Dkt. 14. On November 19, 2013, Marvin Gaye III separately filed counterclaims that are substantially similar to those of Nona Marvisa Gaye and Frankie Christian Gaye. Dkt. 36.

The first counterclaim alleges that Plaintiffs, Star Trak Entertainment, Interscope Records, UMG Recordings, Inc., and Universal Music Distribution infringed the copyright to “Got to Give It Up” through their involvement in the recording, reproduction, performance, or sale of “Blurred Lines.” Id. ¶¶ 72-91. The second counterclaim alleges that Thicke, Paula Patton, Star Trak, Geffen Records, UMG and Universal Music Distribution, all of whom were involved in the recording, reproduction, performance, or sale of another Thicke song, “Love After War,” infringed the copyright to “After the Dance.” Id. ¶¶ 92-112. The remaining counterclaims of Nona Marvisa Gaye and Frankie Christian Gaye concerned Sony/ATV Music Publishing Acquisition, Inc., and its subsidiaries EMI April Music, Inc. and Jobete Music Co., Inc., with whom they have since reached a settlement. Dkt. 57. On January 14, 2014, the Court dismissed the claims against these counterclaim-defendants with prejudice. Dkts. 57-1, 59.

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 2 of 28 Page ID #:3766

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

On July 22, 2014, Plaintiffs filed a Motion for Summary Judgment (“Motion” (Dkt. 89)) as to both their request for declaratory relief and Defendants’ counterclaims.1 Dkt. 89. On September 8, 2014, Defendants filed an opposition (Dkt. 108), which they subsequently amended (“Opposition” (Dkt. 120)).2 On September 22, 2014, Plaintiffs filed a reply (“Reply” (Dkt. 125)). After a hearing on the Motion on October 20, 2014, the matter was taken under submission. Dkt. 129. For the reasons stated in this Order, the Motion is DENIED.

II. Factual Background

A. The Gaye Compositions

Marvin Gaye was an influential American singer-songwriter. He composed and recorded dozens of hit songs. Counterclaims, Dkt. 14, ¶ 3; Plaintiffs’ Answer, Dkt. 49, ¶ 3. Gaye received a Grammy Lifetime Achievement Award and was inducted into the Rock and Roll Hall of Fame posthumously in 1984. Id.

In 1976, Gaye recorded the song “Got to Give It Up” at his studio. Janis Gaye Decl., Dkt. 117, ¶ 3. Gaye’s widow, Janis Gaye, was present when the song was recorded. Id. ¶ 4. She declares that “Got to Give It Up” was not composed prior to the recording sessions, and that Marvin Gaye did not write sheet music of his songs; indeed he did not fluently read sheet music. Id. ¶¶ 5-6. In 1977, the musical composition “Got to Give It Up (Part 1 and 2)” was registered with the United States Copyright Office, Registration Number EP 366-530. The copyright has since been renewed as RE 910-939. Dkt. 110, ¶ 1; Dkt. 91, Ex. A. Defendants assert these registered copyrights as a basis for their counterclaims. Dkt. 14, ¶ 30; Dkt. 36, ¶ 6. When the registration was filed initially, Gaye deposited with the Copyright Office sheet music representing the lyrics and some of the melodic, harmonic, and rhythmic features that appear in the recorded work. Dkt. 110, ¶ 2; Dkt. 91, Ex. C. “Got to Give It Up” was released on or about March 15, 1977 on the album Live at the London Palladium; the single of the recording reached number one on the U.S. Billboard Hot 100 charts. Dkt. 14, ¶ 31.

“After the Dance” was written, composed, recorded and released by Marvin Gaye in 1976 on the album I Want You. That album reached number one on the Billboard Soul Albums chart. Counterclaims, Dkt. 14, ¶¶ 47-48. In 1976, the musical composition “After the Dance” was registered with the United States Copyright Office and received Registration Number EP 351-582 & PA 002-617. This copyright has been renewed as RE 903-945. Dkt. 110, ¶ 77; Dkt. 91, Ex. B. Defendants also assert these registered copyrights as a basis for their counterclaims. Dkt. 14, ¶ 47; Dkt. 36, ¶ 7. When the registration was filed initially, Gaye deposited with the Copyright Office sheet music representing the lyrics and some of the melodic, harmonic and rhythmic features that appear in the recorded work. Dkt. 110, ¶ 78; Dkt. 91, Ex. D.

1 Counterclaim-defendants joined Plaintiffs in filing the Motion. For ease of reference, this Order refers to the movants as “Plaintiffs.” 2 The amendments incorporated materials that had been redacted prior to the order granting in part Defendants’ application to file documents under seal. Dkt. 119.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

Defendants state that ownership of each song reverted to the Gaye family by operation of law following Gaye’s death in 1984. Counterclaims, Dkt. 14, ¶¶ 32, 49.

B. “Blurred Lines” and “Love After War”

Plaintiffs are the composers of the song “Blurred Lines,” which was released on or about March 26, 2013. Plaintiffs’ Answ., Dkt. 49, ¶ 35. “Blurred Lines” has sold more than six million digital copies, and the music video for the song has been viewed over 250 million times on the websites YouTube and Vevo. Counterclaims, Dkt. 14, ¶ 36; Plaintiffs’ Answ., Dkt. 49, ¶ 36.

Plaintiff Robin Thicke and counterclaim-defendant Paula Patton are the writers and composers of “Love After War,” which was released on or about October 11, 2011. Id. ¶ 55. “Love After War” reached number 22 on the Billboard 200 charts. Id. ¶ 56.

Plaintiffs concede that they had access to “Got to Give It Up” and “After the Dance” when “Blurred Lines” and “Love After War” were composed. See Reply, Dkt. 125 at 10; Thicke Dep., Dkt. 122, Ex. 6 at 88.

C. The Expert Reports

1. The Preliminary Report of Finell

Judith Finell is a musicologist. She has been retained by Defendants as an expert. On October 17, 2013, she completed an 18-page Preliminary Report comparing “Got to Give It Up” and “Blurred Lines.” Dkt. 91, Ex. B.3 Finell based her preliminary analysis on recordings and sheet music of “Got to Give It Up” and “Blurred Lines,” and prepared transcriptions of portions of both songs as part of the comparison. Id. ¶¶ 1-3. She concluded, “[a] preliminary review comparing ‘Give It Up’ and ‘Blurred’ has revealed a constellation of eight substantially similar features thus far,” and that these similarities “surpass the realm of generic coincidence, reaching to the very essence of each work.” Id. ¶¶ 6-7. The following are the eight features identified by Finell:

1) Signature phrase in main vocal melodies, id. ¶¶ 13-17; 2) Hooks, id. ¶¶ 18-19; 3) Hooks with backup vocals, id. ¶ 20; 4) Core theme, or “Theme X,” id. ¶¶ 21-27; 5) Backup hooks, id. ¶ 28; 6) Bass melodies, id. ¶¶ 29-31; 7) Keyboard parts, id. ¶ 32; and 8) Unusual percussion choices, id. ¶ 33.

3 The parties have filed voluminous evidentiary objections with respect to the reports of their competing experts. Dkts. 111, 126. The rulings on these objections are set forth in separate orders. Dkts. 137, 138.

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 4 of 28 Page ID #:3768

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

Finell opined that “[i]t is improbable that a single third-party work could be found that would contain all of these similar features coinciding in a similar ‘constellation’ as described above.” Id. ¶ 47.

2. The Wilbur Declaration

Sandy Wilbur is a musicologist who has been retained by Plaintiffs as an expert. She prepared a 55-page Declaration containing a comparative analysis of “Got to Give It Up” and “Blurred Lines” as well as one about “After the Dance” and “Love After War.” Dkt. 91-1. Wilbur found no substantial similarity between the melodies, rhythms, harmonies, structures and lyrics of “Blurred Lines” and “Got to Give It Up,” and concluded that the songs were not substantially similar. Id. ¶¶ 24-55. She critiqued Finell’s preliminary report on a number of grounds and responded in detail to each of the purported similarities set forth by Finell. Id. ¶¶ 81-253. Among Wilbur’s key opinions are that Finell’s “eight similarities are primarily melodic,” but “[t]here are no two consecutive notes in any of the melodic examples in the Finell Report that have the same pitch, the same duration, and the same placement in the measure.” Id. ¶¶ 58-59 (emphasis in the original). In addition, Wilbur opines that many of the purported similarities are unoriginal. She asserts that many comprise “the basic building blocks of musical composition that are present, if not inevitable, in many songs” or were found in prior art, which she describes. Id. ¶¶ 69, 72.

Wilbur also opined that there is no substantial similarity between “After the Dance” and “Love After War.” This opinion was based on a similar, although less comprehensive, comparative analysis of the two works. Id. ¶¶ 254-313.

3. The Monson Declaration

Ingrid Monson is the Quincy Jones Professor of African American Music at Harvard University. Defendants retained her as an additional expert. Dkt. 112-3 at 105. She prepared a 30-page Declaration containing her musicological analysis of the similarities and differences between “Got to Give It Up” and “Blurred Lines” as well as those between “After the Dance” and “Love After War.” Id. at 71. Although Monson reviewed sheet music for each work, she opined that to limit the composition of each song “to its copyright deposit is musically misleading.” Id. ¶¶ 3.a, 15, 80. She also prepared and then analyzed transcriptions of selected passages from the recordings of each song. Id. ¶¶ 4. Monson found at least seven similarities between “Got to Give It Up” and “Blurred Lines.” These parallel those identified by Finell, but also addressed other elements: (i) cowbell/hand percussion; (ii) bass lines; (iii) harmony; (iv) drum set parts; (v) form; (vi) melodic connections; and (vii) keyboard parts. Id. ¶¶ 24, 30, 36, 40, 45, 48, 53. Monson also found that “Love After War” and “After the Dance” had substantially similar “hooks,” choruses, melodies and harmonies. Id. ¶¶ 81-100.

Monson disagrees with several of the opinions expressed by Wilbur. Monson also compared “Got to Give It Up” with several works that Wilbur claims are prior art: “Low Rider,” “Superfly,” and “Funkytown.” Id. ¶¶ 64-79. She found that “[n]one of the examples has more than one part of the ensemble texture in common” with “Got to Give It Up.” Id. ¶ 78. Monson concluded that Plaintiffs’ works are substantially similar to Defendants’, and that the similarities are so pronounced that “direct copying” seems likely. Id.

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 5 of 28 Page ID #:3769

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

¶¶ 100, 104.4

4. The Finell Declaration

Finell prepared a 41-page Declaration that expanded on her opinions in the Preliminary Report. Dkt. 112-3. First, Finell criticized in detail the conclusions and methodology used by Wilbur in her Declaration. FInell described these opinions as “deconstruct[ing] and microscopically dissect[ing] the individual similar features in isolation, outside the context of the entire work.” Id. ¶ 11. Second, Finell reviewed for the first time the Copyright Office deposit copies for “Got to Give It Up” and “After the Dance.” Id. ¶¶ 1.d, 40. Finell declares that “nothing stated in the . . . deposit copies changed my findings or conclusions as stated in my preliminary report of October 17, 2013,” although she also acknowledges that “[a]s a musicologist, I rarely if ever find that a deposit copy fully defines the entire composition.” Id. ¶¶ 6, 41, 117. Third, Finell elaborated on the analysis in the Preliminary Report of the “constellation” of eight substantially similar features in “Got to Give It Up” and “After the Dance,” and addressed certain criticisms raised in the Motion and the Wilbur Declaration. Id. ¶¶ 49-99. Fourth, Finell added a brief comparison of “After the Dance” and “Love After War.” Based on that analysis, she opines that there is substantial similarity in these works. However, she cautions that this opinion is based on a preliminary review, and that she would “be able to explain these similarities in more depth after conducting a full review.” Id. ¶ 121.

III. Analysis

A. Legal Standard

A motion for summary judgment will be granted where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial burden to show the basis for its motion and to identify those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. In an action seeking a declaration of non-infringement, the party who owns the work as to which infringement is claimed bears the burden on summary judgment. Medtronic, Inc. v. Mirowski Family Ventures, LLC,

4 Attached to Monson’s declaration are several audio files prepared by sound engineer Thomas Court and sound editor and studio musician Ron Aston. Dkt. 109. These files contain “mashup tracks” that juxtapose parts of “Blurred Lines” with parts of “Got to Give It Up.” Id. Monson declares that these accurately reflect the music of each song and that they highlight some of the similarities discussed in her report. Dkt. 112-3, ¶¶ 56-61. Monson also prepared a track containing a piano melody played over “After the Dance.” Dkt. 109. These tracks seek to isolate aspects of the works relevant to the “analytical dissection” performed on a motion for summary judgment in a copyright infringement case. See Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004), as amended on denial of reh'g (Aug. 24, 2004). However, to determine whether the works are substantially similar based on their sound is a subjective assessment that is the function of the factfinder at the time of trial. It is not to be performed by a court at the summary judgment phase. Id. Therefore, these tracks are not considered for purposes of this Motion.

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 6 of 28 Page ID #:3770

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

134 S. Ct. 843, 849 (2014). Where the non-moving party will have the burden of proof on an issue, the movant need only demonstrate that there is an absence of evidence to support such claims. See id. If the moving party meets its initial burden, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fed. R. Civ. P. 56(e).

Only admissible evidence may be considered in connection with a motion for summary judgment. Fed. R. Civ. P. 56(e). However, in considering such a motion, a court is not to make any credibility determinations or weigh conflicting evidence. All inferences are to be drawn in the light most favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630- 31 (9th Cir. 1987). Conclusory, speculative testimony in declarations or other evidentiary materials is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

B. Application

1. Copyright Infringement: Inquiry on Motion for Summary Judgment

To establish copyright infringement, two matters must be established: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). “Because direct evidence of copying is not available in most cases, [a] plaintiff may establish copying by showing that defendant had access to plaintiff's work and that the two works are ‘substantially similar’ in idea and in expression of the idea.” Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996). Plaintiffs and counterclaim-defendants acknowledge that they had access to the relevant works. Further, for purposes of this Motion, they do not contest Defendants’ ownership of valid copyrights in “Got to Give It Up” or “Love After War.” Dkt. 110, ¶¶ 1, 77; Reply, Dkt. 125 at 10. Therefore, at issue are the scope and originality of what Defendants own, and the extent, if any, of any copying by Plaintiffs and counterclaim-defendants.

A motion for summary judgment in a copyright infringement suit necessarily fails when there is “a genuine issue regarding whether the ideas and expressive elements of the works are substantially similar.” Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir. 1992). “A ‘genuine issue’ exists when the plaintiff provides indicia of ‘a sufficient disagreement’ concerning the substantial similarity of two works ‘to require submission to a jury.’” Id. (citations omitted). In determining whether two works are substantially similar, the Ninth Circuit employs a two-part analysis: “an objective extrinsic test and a subjective intrinsic test. For the purposes of summary judgment, only the extrinsic test is important because the subjective question whether works are intrinsically similar must be left to the jury.” Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004), as amended on denial of reh'g (Aug. 24, 2004). If there is not sufficient evidence to permit a trier of fact reasonably to find that extrinsic similarity exists, summary judgment of non-infringement must be granted because “a jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests.” Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003) (citation omitted).

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 7 of 28 Page ID #:3771

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

In general, in applying the extrinsic test, a court considers expert testimony in order to perform what is called “analytical dissection” of a work. “‘Analytical dissection’ requires breaking the works ‘down into their constituent elements, and comparing those elements for proof of copying as measured by substantial similarity.’ Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff's work.” Swirsky, 376 F.3d at 845 (citations omitted). “To the extent a plaintiff's work is unprotected or unprotectable under copyright, the scope of the copyright must be limited” prior to conducting this analysis. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1476 (9th Cir. 1992) (quotation marks omitted). However, “[a]lthough copyright protection is not afforded to certain elements of a work, such limitations must not obscure the general proposition that copyright may inhere, under appropriate circumstances, in the selection and arrangement of unprotected components.” Id. at 1476 n.4 (quotation marks omitted).

2. Scope of Defendants’ Copyrights

Defendants assert that they own the copyrights in the musical compositions “Got to Give It Up” and “After the Dance.” Dkt. 110, ¶¶ 1, 77.5 The Court must first determine what elements of these works “are protected by [their] copyright[s] in the musical composition . . . and ‘filter out’” elements not protected by the copyright. Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002), aff'd in amended opinion, 388 F.3d 1189 (9th Cir. 2004).

Defendants registered the challenged works with the Copyright Office in 1977 and 1976, respectively. Upon registration, they submitted to the Copyright Office “lead sheets,” or sheet music representing the lyrics and some of the melodic, harmonic, and rhythmic features that appear in the recorded works. Stockett Decl., Dkt. 91. “The 1909 [Copyright] Act is the applicable law in cases in which creation and publication of a work occurred before January 1, 1978, the effective date of the 1976 [Copyright] Act,” Dolman v. Agee, 157 F.3d 708, 712 n.1 (9th Cir. 1998), and so the publication and registration of these works are governed by the 1909 Act.6 Defendants do not dispute this conclusion. Opp’n, Dkt. 120 at 29.

a) The Positions of the Parties

Plaintiffs assert that the only subject matter protected by Defendants’ copyright in the compositions is what is contained in the sheet music that was deposited with the Copyright Office. Thus, they argue that other features of the songs that appear in the recordings are to be disregarded. Mot., Dkt. 89 at

5 Plaintiffs’ arguments as to the originality of the protected works also concern the scope of the copyrights. However, these issues are considered below in the discussion of “Analytic Dissection.” 6 Defendants’ copyrights were renewed after 1978. Consequently these renewals are governed by the 1976 Act. See Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962, 971 (9th Cir. 2008) (“[T]o analyze questions arising from events that occurred before January 1, 1978, such as who is the author of the [work], the 1909 Act applies; for events that occurred after that date, such as registration of the renewal copyright, the 1976 Act applies.”). Defendants offer no evidence or argument in support of the position that the renewal registrations expanded or otherwise affected the scope of the initial registrations.

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 8 of 28 Page ID #:3772

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

14-16. “Musical elements of GIVE that are not contained in the composition [as limited to the deposit]— such as the ‘groove’ of the sound recording, the sounds of the instruments, or other recording or performance elements (e.g., falsetto singing, party noise)—simply have no bearing on the infringement claim here.” Id. at 14-15. Because Defendants’ experts consulted the recordings when they prepared their reports on the similarity between the two pairs of songs, Plaintiffs argue that their analyses are fundamentally flawed.

Defendants contend that their claims are not restricted to the elements in each copyright deposit. Janis Gaye, the widow of Marvin Gaye, declares that “Got to Give It Up” was not composed prior to the recording sessions, and that Marvin Gaye did not write sheet music to accompany his songs; indeed, she states that he did not fluently read sheet music. Janis Gaye Decl., Dkt. 117, ¶¶ 5-6.7 Consequently, Defendants argue that their copyrights extend to the compositions as presented in Gaye’s studio recordings of the songs rather than what is reflected in the copyright deposits. Opp’n, Dkt. 120 at 27. They also contend that, prior to 1978, the Copyright Office refused to accept recordings as deposits. Id. at 29. Therefore, Marvin Gaye and his publisher, Jobete Music, submitted sheet music rather than recordings as their copyright deposits. The Copyright Office has since changed its position on this process. 37 C.F.R. §§ 202.3, 202.20.

Defendants cite Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000), to support their position. They contend that Three Boys concerned a composition registered under the 1909 Copyright Act, but held that the factfinder may review -- as part of the “composition” -- elements that appear only in the recorded version of the song, and not in the sheet music deposited with the Copyright Office. Id. at 486-87; Opp’n, Dkt. 120 at 28-31. Finally, Defendants rely on the opinions of their experts, Finell and Monson, that a deposit copy is “not intended to represent fully the composition. At best, it is a skeletal representation or sketch, and usually shows only the most basic vocal melodies, typically only a single iteration of the beginning sections, some beginning lyrics, and chord indications.” Id. at 28 (quoting Finell Decl., Dkt. 112-3, ¶ 41). Finell notes that “lead sheets were notated after the composition was completed and recorded, in order to fulfill music copyright registration requirements. They were often notated by music copyists employed by the music publishers rather than by the artists themselves.” Id. ¶ 42. Defendants claim that this was true of the lead sheet to “Got to Give It Up,” which was “created by an unknown third party after the composition was recorded.” Dkt. 121, ¶ 99.

b) Material Protected by the Copyrights in “Got to Give It Up” and “After the Dance”

Because both “Got to Give It Up” and “After the Dance” were created and registered prior to the effective date of the 1976 Copyright Act, publication and registration issues as to both are governed by the 1909 Copyright Act. Dolman v. Agee, 157 F.3d 708, 712 n.1 (9th Cir. 1998). The general rule under the 1909 Act was that the publication of a work with proper notice was necessary to obtain statutory copyright protection.8 See Stewart v. Abend, 495 U.S. 207, 233 (1990). Deposit of a copy of the

7 An appropriate inference from these statements is that Gaye also did not write sheet music for “After the Dance.” 8 The 1909 Act also recognized common law copyright protection. See 17 U.S.C. § 301; Batjac Prods. Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223, 1226 (9th Cir. 1998).

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 9 of 28 Page ID #:3773

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

published work with the Copyright Office was not necessary to obtain statutory protection. However, no copyright infringement action could be brought before the deposit was made and the work was registered. Act of March 4, 1909 (“1909 Act”), ch. 320, § 12, 35 Stat. 1075, 1078.9

“Publication” is not expressly defined in the 1909 Act. However, the “date of publication” is defined “in the case of a work of which copies are reproduced for sale or distribution [as] the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.” 1909 Act, § 62, 35 Stat. 1075, 1087-88. An unpublished composition could be protected under the statutory scheme if its owner “deposit[ed] a manuscript copy of the music as an unpublished work prior to the sale of records.” See M. Nimmer & D. Nimmer, 1 Nimmer on Copyright (“Nimmer”) § 4.05[B][4] at 4-35; see also id. § 7.16[A][2][c][ii] at 7.151 (“statutory copyright protection for unpublished works could be claimed under the 1909 Act only by registration and deposit under Section 12.”); 1909 Act, §§ 11-12, 35 Stat. 1075, 1078. This regime contrasts markedly with that currently in effect under the 1976 Act. Under this legislation, copyright protection automatically applies to original works of authorship when they are “fixed in any tangible medium of expression,” although prompt registration grants additional benefits and protections. 17 U.S.C. § 102; see id. §§ 410-12 (containing some of these benefits).

For these reasons, under the relevant provisions of the 1909 Act, Defendants could have obtained statutory copyright protection for their works in one of two ways: (i) publishing them with the proper notices; or (ii) composing, but not publishing them, and making the necessary deposits with the Copyright Office. Contrary to Plaintiffs’ assertions,10 in neither case would the copyright deposit necessarily limit the scope of the material protected. However, it could bear on the copyright owner’s ability to bring a civil action. See Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1342 (9th Cir. 1981) (“[T]he deposit requirement is merely a limitation on the ability to bring an action for infringement at a particular time. It has no effect whatsoever on the validity or enforceability of a copyright.”); Nimmer § 7.17[A] at 7-190.23 (deposit requirement has archival rather than substantive function). Therefore, the scope of Defendants’ copyrights is not, as a matter of law, limited to the lead sheets deposited with the Copyright Office in 1976 and 1977.

Notwithstanding this conclusion, Defendants offer no evidence that, prior to the registration of the copyrights, “Got to Give It Up” or “After the Dance” was published or reduced to a manuscript form that was more complete than what is included in the lead sheets. Defendants argue that the copyrighted compositions consist of “the recorded work as performed by Marvin Gaye.” Opp’n, Dkt. 120 at 27. This argument misapplies a 1976 Act standard to compositions governed by the 1909 Act. Under the 1976

9 Copyright protection could be forfeited for failure to provide deposit copies of the work to the Copyright Office, but only if the Register of Copyrights “upon actual notice” demanded deposit and the copyright holder failed to comply. 1909 Act, § 13, 35 Stat. 1075, 1078. 10 Plaintiffs’ assertions are based on their interpretations of sections 408 and 411(a) of the 1976 Copyright Act. Mot., Dkt. 89 at 15-16 (discussing at length Shady Records, Inc. v. Source Enterprises, Inc., 2005 WL 14920 (S.D.N.Y. Jan. 3, 2005), a case concerning compositions registered under the 1976 Act). Even if Plaintiffs correctly interpret the deposit requirements under the 1976 Act, those principles do not apply to the registration of a work under the 1909 Act. Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962, 971 (9th Cir. 2008).

CV-90 (10/08) CIVIL MINUTES - GENERAL Page 9 of 28

Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 10 of 28 Page ID #:3774 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

Act, compositions are eligible for protection when they are fixed in “phonorecords,” which include master recordings. 17 U.S.C. §§ 101, 102. Under the 1909 Act, the act of recording or distributing recordings does not constitute the publishing of a composition. Instead, “in order to claim copyright in a musical work under the 1909 Act, the work had to be reduced to sheet music or other manuscript form.” Nimmer § 2.05[A] at 2-55. In 1997, Congress amended the 1976 Copyright Act to provide that “[t]he distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein.” 17 U.S.C. 303(b) (1997) (superseding La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995)). The Ninth Circuit has since held that this amendment has retroactive effect because it “was a ‘statement of what [the 1909 Copyright Act] has meant all along.’” ABKCO Music, Inc. v. LaVere, 217 F.3d 684, 691 (9th Cir. 2000) (bracketed text in original).

Apart from the recordings themselves, which are not protectable publications under the 1909 Act, Defendants do not offer evidence that the copyrighted compositions encompass subject matter beyond the lead sheets. Indeed, Janis Gaye’s testimony suggests that the lead sheets are the only sheet music or manuscripts for “Got to Give It Up” and “After the Dance” that existed at the time of copyright registration. Janis Gaye Decl., Dkt. 117.11 Finell opines that “[a]s a musicologist, I rarely if ever find that a deposit copy fully defines the entire composition.” Finell Decl., Dkt. 112-3, ¶ 41. Similarly, Monson opines that “[t]o limit the composition of ‘Got to Give it Up’ to its copyright deposit is musically misleading.” Monson Decl., Dkt. 112-3, ¶ 15. However, these opinions are not admissible as to the legal issue that is presented. Thus, how musicologists define “composition” or make use of copyright deposits cannot be used to determine the meaning of the term “composition” as it us used in the 1909 Act.

As noted, Defendants rely on Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000). They assert that it supports the proposition that the factfinder in a music copyright infringement action may consider elements that appear in the recorded version of the song as part of the “composition” even if they do not appear in sheet music deposited with the Copyright Office in accordance with the 1909 Act. Their reading of Three Boys Music is not convincing. There, a jury found that the Michael Bolton song “Love Is a Wonderful Thing” infringed on the Isley Brothers’ copyright in a song with the same name. Id. at 480. On appeal, Bolton argued that the Isley Brothers’ 1964 deposit copy of sheet music differed from the recorded version of the song. Consequently, he argued that there was no subject matter jurisdiction in the trial court. Id. at 486. The Ninth Circuit rejected this argument: “Although the 1909 Copyright Act requires the owner to deposit a ‘complete copy’ of the work with the copyright office, our definition of a ‘complete copy’ is broad and deferential: ‘Absent intent to defraud and prejudice, inaccuracies in copyright registrations do not bar actions for infringement.’” Id. (citation omitted). These statements address only subject matter jurisdiction, not the material actually protected by the copyright. Applying this standard, the Ninth Circuit refused to disturb the determination by the jury that a complete copy had been deposited. Instead, the decision stated that “[a]t trial, the Isley Brothers' expert, Dr. Eskelin, testified that the deposit copy included all of the song's essential elements

11 The copyright registration forms show “Date[s] of Publication” of March 10, 1977 for “Got to Give It Up” and March 6, 1976 for “After the Dance.” Stockett Decl., Dkt. 91, Exs. A & B. However, it is unclear to what publications these refer, or whether they erroneously designate as “publications” the phonorecords sold shortly after each of these dates.

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 11 of 28 Page ID #:3775 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

such as the title hook, chorus, and pitches. Dr. Eskelin even played the deposit copy for the jury on the keyboard.” Id. This analysis supports, rather than contradicts, the conclusion that the recording of a pre- 1978 work does not add to the subject matter protected by the copyright in the published work.12 Thus, the deposit copy or a comparable writing defines the scope of what is protected.

No more persuasive is the Defendants’ reliance on Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984) and KnowledgePlex, Inc. v. Placebase, Inc., 2008 WL 5245484, at *10 (N.D. Cal. Dec. 17, 2008). These decisions also concern the jurisdictional effect of incomplete or inaccurate copyright deposits and do not address what material is actually protected by the copyright. Defendants also cite Scentsy, Inc. v. B.R. Chase, LLC., 942 F. Supp. 2d 1045, 1051 (D. Idaho 2013). But, that case does not apply here; it concerns works registered under the 1976 Copyright Act, and deposit adequacy rather than publication.

More significant is Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267(6th Cir. 2009). There, a jury found that a music publisher had infringed the copyrighted work “Atomic Dog,” a 1982 song that was governed by the 1976 Act. On appeal, the defendants argued that the jury had improperly considered elements present in the sound recording, but not in the sheet music, including the musical punctuation of the word “dog” and rhythmic, doglike panting. Id. at 275-76. The Sixth Circuit held that it was proper for the jury to consider this evidence because “[u]ncontroverted testimony at trial established that the song was composed and recorded in the studio simultaneously and, therefore, that the composition was embedded in the sound recording.” Id. at 276. However, this could not have occurred under the 1909 Act -- a sound recording is not a publication under the earlier legislation.

Defendants have the burden to prove infringement at trial as to both Plaintiffs’ claim for a declaration of non-infringement and their own counterclaims. See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1976 (2014) (copyright plaintiff bears the burden of proving infringement); see also Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 849 (2014) (when plaintiff seeks declaration that defendant patentee’s patent was not infringed under the Declaratory Judgment Act, “the burden of persuasion is with the patentee, just as it would be had the patentee brought an infringement suit”). Thus, Defendants have the burden to prove that they own the material Plaintiffs allegedly infringed. Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977). Defendants have failed to produce evidence that creates a genuine issue as to whether the copyrights in “Got to Give It Up” and “After the Dance” encompass material other than that reflected in the lead sheets deposited with the Copyright Office. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Accordingly, for purposes of the analytic dissection performed in connection with this Motion, the lead

12 At the motion hearing, Defendants argued that the Three Boys holding concerned the admission at trial of evidence contained in the sound recording as well as jurisdiction. Dkt. 131 at 30. Even if the opinion is so interpreted, it does not suggest that this material is protected by the copyright in a composition under the 1909 Act. Instead, Three Boys suggests that this material was not protected by the copyright. Nevertheless, the consideration by the jury of the sound recording was deemed harmless error in light of the sufficiency of other trial evidence, including the testimony of Dr. Eskelin, which supported the determination of infringement by the jury. Three Boys Music, 212 F.3d at 485-86; see also Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005) (discussing harmless error standard in civil cases).

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Case 2:13-cv-06004-JAK-AGR Document 139 Filed 10/30/14 Page 12 of 28 Page ID #:3776 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. LA CV13-06004 JAK (AGRx) Date October 30, 2014

Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

sheets are deemed to define the scope of Defendants’ copyrighted compositions.

3. Plaintiffs’ Access to the Works

Defendants have presented deposition testimony and copies of media interviews in which Plaintiffs made statements concerning whether Marvin Gaye and “Got to Give It Up” had an influence on their work. See Busch Decl., Dkt. 122, Exs. 1-9, 16. Plaintiff Thicke gave a number of media interviews in which he stated that he was influenced by “Got to Give It Up” and Marvin Gaye when he composed “Blurred Lines.” However, at his subsequent deposition, he claimed that he was intoxicated when he made these statements. Id. at 6-7. Defendants claim that these are admissions of direct copying, and warrant the denial of the Motion without an inquiry into the substantial similarity of the works. Opp’n, Dkt. 120 at 6-7, 21.

Thicke told GQ Magazine that, shortly before “Blurred Lines” was composed, he told Plaintiff Williams that “Got to Give It Up” was one of his “favorite songs of all time,” and he wanted to “make something like that, something with that groove.” Dkt. 121, ¶ 107. He told similar stories to Oprah Winfrey, Billboard.com, Hot 97, Twitter Take Over, Fuse TV, and VH1. Id. ¶¶ 109-14. In a subsequent media interview, after this action was filed, Thicke denied that he was thinking of Marvin Gaye when “Blurred Lines” was written, id. ¶ 116. In addition, at his deposition, Thicke denied that he was present when Williams started composing the song, contrary to these media interviews and to an earlier interrogatory response that he later amended. Dkt. 121, Exs. 104-105; Ex. 122 at 85.

Thicke’s inconsistent statements do not constitute direct evidence of copying. In Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989), the Ninth Circuit affirmed a summary judgment in a copyright infringement action despite the deposition testimony of the alleged infringer that she took certain “language” from another author’s book. This testimony was held not to be direct evidence of copying because the defendant did not specify that she copied protected elements of the book. Id. Direct evidence of copying is only found in “rare cases,” and a “finding that a defendant copied a plaintiff's work, without application of a substantial similarity analysis, has been made only when the defendant has engaged in virtual duplication of a plaintiff's entire work.” Id.; see also Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) (the “rare scenario where there is direct evidence of copying” was presented when artist gave a copy of a photograph to artisans “with the explicit instruction that the work be copied”). Construing Thicke’s statements in the light most favorable to Defendants, they are not admissions that Thicke or Plaintiffs copied protected elements of Defendants’ compositions, or that they engaged in virtual duplication of “Got to Give It Up.”

Even if Thicke’s statements are not direct admissions of copying, Defendants argue that this evidence of access is “critical in the infringement analysis” because of the so-called “inverse-ratio rule.” Thus, it “requires ‘a lesser showing of substantial similarity if there is a strong showing of access.’” Opp’n, Dkt. 120 at 20 (citing Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000)). The scope and force of this rule has been placed at issue in some recent Ninth Circuit decisions. See, e.g., Benay v. Warner Bros. Entm't, 607 F.3d 620, 625 (9th Cir. 2010) (“[W]e assume without deciding that the inverse ratio rule applies to lower the burden on the [plaintiffs] to show similarity.”); Novak v. Warner Bros Pictures, LLC, 387 F. App'x 747, 749 (9th Cir. 2010) (“The Producers rely on the ‘inverse ratio’ rule, which ostensibly lessens the quantum of proof required to show copying when the plaintiff can show

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that the defendant had a ‘high degree of access' to the protected work”) (emphasis added). Where, as here, the alleged infringers concede access, see Reply, Dkt. 125 at 10; Thicke Dep., Dkt. 122, Ex. 6 at 88, this additional evidence does not affect the analysis in the summary judgment setting. See Funky Films, Inc. v. Time Warner Entm't Co., L.P., 462 F.3d 1072, 1081 (9th Cir. 2006) (“No amount of proof of access will suffice to show copying if there are no similarities.”) (quoting Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1172 (9th Cir. 1977)).13

4. Analytic Dissection

a) “Got to Give It Up” / “Blurred Lines”

(1) The Finell Report and Declaration

Defendants’ expert Judith Finell identified a “constellation” of eight alleged similarities between “Got to Give It Up” and “Blurred Lines.” Preliminary Report, Dkt. 112-3, ¶¶ 13-34; Finell Decl., Dkt. 112-3, ¶ 10. These features are: (1) signature phrase in main vocal melodies; (2) hooks; (3) hooks with backup vocals; (4) core theme, or “Theme X;” (5) backup hooks; (6) bass melodies; (7) keyboard parts; and (8) unusual percussion choices. Defendants refer to these in their Counterclaims and Opposition, and Plaintiffs’ expert, Sandy Wilbur, criticizes them in her Declaration. Counterclaims, Dkt. 14, ¶ 38; Opp’n, Dkt. 120, at 10-14; Wilbur Decl., Dkt. 91-1. As noted, although some of these features do not appear in the copyrighted composition, which Finell calls a “partial and incomplete sketch of the fuller work as embodied in the recording,” she testifies that she did not change her preliminary findings or conclusions after reviewing the copyright deposit. Finell Decl., Dkt. 112-3, ¶¶ 40, 43. Plaintiffs effectively concede that the signature phrase (Similarity 1), hooks (Similarity 2), and one of the two bass melodies (Similarity 6A) are contained in the “Got to Give It Up” copyright deposit. Reply, Dkt. 125 at 3 (“alleged Similarities 3, 4, 5, 6C, 7, and 8 are not contained in the GIVE Copyright Deposit”).

(a) Signature Phrase

Finell explains, “[a] phrase is a passage within a longer melody, similar to a sentence within a paragraph or a line within a poem. In vocal music, phrases are often determined by the pauses between lyric lines as the singer takes a breath. The signature phrase is a primary identifying feature of a song and one of its most memorable elements.” Preliminary Report, Dkt. 112-3, ¶ 13 n.4. Finell adds that the signature phrase in “Blurred Lines” is sung to the lyrics, “and that’s why I’m gon’ take a good girl,” and that the signature phrase in “Got to Give It Up” is sung to the lyrics, “I used to go out to parties.” Id. ¶ 13. Finell finds the following five similarities with respect to these similar phrases:

a. Both repeat their starting tone several times; b. Both contain the identical scale degree sequence of 5-6-1 followed by 1-5. Finell defines a “scale degree” as “the position in a particular scale of each tone,” and states

13 If at trial the factfinder were to determine that infringement occurred, such statements could be admissible as to willfulness, which could affect the determination of statutory damages and attorney’s fees. See 17 U.S.C. §§ 504(c), 505; Historical Research v. Cabral, 80 F.3d 377, 379 (9th Cir. 1996).

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that “[t]wo melodies containing a similar series of scale degrees with similar rhythms usually sound similar”; c. Both contain identical rhythms for the first six tones; d. Both use the same device of a melodic “tail” (melisma) on their last lyric, beginning with the scale degrees 1-5. Finell defines a “melisma” as “a vocal melody in which one syllable or lyric is held while sung with several successive pitches, rather than a single pitch for each syllable”; e. Both contain substantially similar melodic contours (melodic outlines/design).

Id. ¶ 14 & nn. 5, 7. Finell provides the following musical example to illustrate her opinions. “Blurred Lines” is transposed to the key of “Got to Give It Up,” and the score for “Got to Give It Up” is based on Finell’s transcription of the recording rather than the copyright deposit:

Id. ¶ 14 & n.9.

Wilbur finds no substantial similarity. She claims that the melody, harmony, and rhythm of the songs are different. She highlights the one note in her transcription that appears “in both Signature Phrases that has the same pitch and placement (but not the same duration) in both songs. No other notes in the Signature Phrases have the same pitch and placement.” Wilbur Decl., Dkt. 91-1, ¶ 84:

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In addition to the difference in notes, which Wilbur describes in technical terms, id. ¶¶ 86-93, she opines that the harmonies are different in that both measures of the “Got to Give It Up” signature phrase are A7, whereas the first measure of “Blurred Lines” is E and the second measure is A. Id. ¶ 94. She also contends that the rhythms are different. Id. ¶ 95.

Wilbur presents competing opinions as to the five similarities that Finell identifies. First, Wilbur states that the starting tones are different in each song, and are played over different chords. Id. ¶¶ 103-105. To the extent the tones are the same or similar, Wilbur states that “[r]epeating a starting tone several times in a row is a commonplace musical idea or device,” and notes that the 1957 Perry Cuomo number one hit song “Catch a Falling Star” used this device. Id. ¶¶ 107-108. Second, Wilbur claims that Finell’s analysis of the scale degree sequence is incomplete, and that a complete comparison of the melodic phrases and harmonies shows that there are substantial differences. Id. ¶¶ 109-117. Third, Wilbur dismisses the identical rhythm of the first six notes of each signature phrase as a “common musical idea or device.” She provides examples: The 1958 Chuck Berry song “Johnny B. Goode,” the 1964 Beatles song “Hard Day’s Night,” and the 1975 War song “Low Rider” each contains six or more eighth notes in a row. Id. ¶¶ 120-21. Fourth, Wilbur opines that a melisma at the end of a melodic phrase is a common musical device, and that those in “Got to Give It Up” and “Blurred Lines” differ based on the pitches, rhythm, placement and melodic contour of the sustained lyric. Id. ¶¶ 128-32. Finally, Wilbur claims that the melodic contours are substantially different. Id. ¶¶ 133-38. Representing upward movements in pitch as “U,” downward movements as “D,” and no movement as “S,” or “same,” Wilbur states that the melodic contour of “Got to Give It Up” is S-S-S-U-U-U-D-D-U, and that of “Blurred Lines” is “S-D-U-U-U-U-S-S-D-D-D.” Id. ¶¶ 136-37. Although she acknowledges that both signature phrases overall move up and then down in pitch, she states that “there is nothing original about that overall contour, which is commonplace.” Id. ¶ 139.

In her Declaration, Finell disputes Wilbur’s methodology and conclusions. “The methodology is built on requiring absolute identity in all 3 melodic comparison factors of (A) pitch or scale degree, (B) duration, and (C) rhythmic placement for every single note in order to be similar.” Finell Decl., Dkt. 112-3, ¶ 50. Finell also states that Wilbur’s opinion is deficient because it fails to consider the overall role of the signature phrases in the songs, “microscopically analyzing each compositional element in isolation, rather than evaluating the full combination of all 5 component elements within the same phrase,” and emphasizing individual differences while ignoring similarities. Id. ¶¶ 52-55.

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(b) Hooks

Finell defines a “hook” as “the term used in popular and commercial music for the most important melodic material of the work, that which becomes the memorable melody by which the song is recognized. . . . [i]t is usually the passage in the chorus in which the title lyrics are sung.” Preliminary Report, Dkt. 112-3, ¶ 9 n.3. Finell contends that three of the four notes of the songs’ hooks are identical in scale degree, as illustrated by arrows in the following diagram:

Id. ¶ 19. Wilbur argues that Finell fails to space the hooks correctly within the measure, and that she omits the subsequent melisma to give a misleading impression of similarity:

Wilbur Decl., Dkt. 91-1, ¶ 143. Wilbur also states that the highlighted note -- which Finell concedes is different in “Got to Give It Up” and “Blurred Lines” -- significantly changes the effect of each hook. “In GIVE, the note is the 2nd scale degree (b), which creates tension. In BLURRED, the note is the 1st scale degree (a), the most stable note.” Id. ¶ 150. Wilbur also contends that certain harmonic and rhythmic differences make the hooks unalike one another. Id. ¶¶ 151-52. Finell criticizes Wilbur’s opinion because, she claims, its conclusions are based on differences, ignore similarities and require an overly high bar for similarity. Finell Decl., Dkt. 112-3, ¶¶ 56-57.

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Finell states that the backup vocals in “Got to Give It Up” accentuate and harmonize with the hook, and “amplify the primary message of the lyrics.” Finell Decl., Dkt. 112-3, ¶¶ 58, 61. However, Wilbur points out that the copyright deposit for “Got to Give It Up” does not contain the backup vocals, which she highlighted in the following diagram:

Wilbur Decl., Dkt. 91-1, ¶¶ 156, 163. Although she transcribes them differently, Finell also represents the backup vocals as tones that are “stacked vertically above tones that are sung simultaneously.” Preliminary Report, Dkt. 112-3, ¶ 20. These or similar stacked notes do not appear in the deposit copy:

Dkt. 91-2, Ex. C.

Thus, for purposes of this Motion, the backup vocals to the hooks are deemed unprotected by Defendants’ copyright in “Got to Give It Up,” and this alleged similarity is not considered.

(d) “Theme X”

Finell refers to backup vocals, sung to the lyrics “dancin’ lady,” as the “Theme X,” or core theme, of “Got to Give It Up.” These appear in “Got to Give It Up” 28 times beginning at the 3:13 mark:

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Preliminary Report, Dkt. 112, ¶¶ 21-27. Finell states that these are copied in the verse and signature phrase of “Blurred Lines.” Id. Wilbur notes that these do not appear in the deposit copy. Wilbur Decl., Dkt. 91-1, ¶ 166. In the recording, “Theme X” begins after the lyric, “think I’m gon-na let you do it”:

Dkt. 91-2, Ex. C.

Thus, for purposes of this Motion, “Theme X” is deemed unprotected by Defendants’ copyright in “Got to Give It Up,” and this alleged similarity is not considered.

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(e) Backup Vocals

Finell contends that the backup hook in “Blurred Lines,” sung to the lyrics “hey, hey, hey,” also copies the “Theme X” to “Got to Give It Up,” as sung to the lyrics “dancin’ lady.” Preliminary Report, Dkt. 112-3, ¶ 28; Finell Decl., Dkt. 112-3, ¶¶ 70-71. As noted, because for purposes of this motion, this “Theme X” is deemed unprotected by Defendants’ copyright in “Got to Give It Up,” this alleged similarity is not considered.

(f) Bass Melodies

(i) The Opening Bass Line

Finell contends that the bass line that begins in bars 1-4 of “Blurred Lines” and is repeated throughout the song is similar to the bass line in bars 1-4 of “Got to Give It Up,” which appears on the lead sheet. Preliminary Report, Dkt. 112-3, ¶ 29. In the following diagram, she marks what she calls identical rhythms for both pitches and rests with an “x,” and identical scale degrees with arrows:

Id.

Wilbur disputes the claim that these bass lines are similar. She asserts that the four bars of each song have only three notes in common -- both notes in the first bar and the last note in the second bar. Wilbur Decl., Dkt. 91-1, ¶¶ 199-200. She also argues that the differences between the bass lines outweigh the similarities. For example, “[b]y playing the root (a) on the ‘+’ of the fourth beat, but not on the downbeat, the GIVE bass pattern has a more syncopated rhythm than BLURRED, which plays the root note squarely on the first beat (strongest beat) of each measure.” Id. ¶ 203. Wilbur claims that the only similarity between the bass patterns is that “the bass play[s] the root of the chord,” which she dismisses as a “commonplace idea” and “the most fundamental role of the bass in popular music.” Id.

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¶¶ 205, 209. She points to the 1972 Curtis Mayfield song “Superfly” as prior art that expresses this commonplace idea. Id. ¶¶ 210-11.

Once again, Finell criticizes the basis for Wilbur’s opinions. She asserts that Wilbur applies an unduly narrow methodology that “results in an erroneous dismissal of nearly all of the . . . similar features, literally because all three factors of melodic similarity do not occur on every single note.” Finell Decl., Dkt. 112-3, ¶ 73. She identifies seven distinct similarities between the bass lines: (i) the “idiosyncrasy” of the bass playing “one note, followed by rests, then 2 notes, then 2-3 notes . . . followed by rests, then 2-3 notes”; (ii) the use of the root as an anchoring tone; (iii) that both play scale degree 1 on the first downbeat as well as on the second half of beat 4 in the first and second bars, with identical rhythm; (iv) that “both depart from scale degree 1, moving to scale degree flat (lowered) 7 and returning to 1, as well as to scale degree 4, then returning to 1”; (v) scale degree flat (lowered) 7 occurs in beat 4 of both songs; (vi) identical rhythms in 3 out of four beats in bars 1-3; and (vii) both contain a quarter rest on beat 2 in all 4 bars. Id. ¶ 72. In addition, she claims that Finell and Plaintiffs overlook similar choices in pitch, syncopation, and rests that appear in “Blurred Lines” and “Got to Give It Up,” but not in “Superfly.” Id. ¶ 78. Ingrid Monson, Defendants’ other expert, also opines about the substantial similarity in the bass lines, and disputes Wilbur’s claim that the “Got to Give It Up” bass line is generic. “R&B and Funk bass lines tend to be generically syncopated throughout a two bar phrase. That the ‘Got to Give it Up’ and ‘Blurred Lines’ bass lines both leave space where they do[] points to the conclusion that ‘Got to Give it Up’ was used as the model for the ‘Blurred Lines’ bass line, and was not a coincidence dictated by a specific genre.” Monson Decl., Dkt. 112-3, ¶ 35.

(ii) The Descending Bass Line

Finell also contends that a descending bass melody that appears at every eighth bar in “Blurred Lines” is substantially similar to a bass melody that recurs intermittently throughout the verse of “Got to Give It Up.” Preliminary Report, Dkt. 112-3, ¶ 31. This melody does not appear in the deposit sheet. Wilbur Decl., Dkt. 91-1, ¶ 212. For purposes of this Motion, this alleged similarity is deemed unprotected and is not considered.

(g) Keyboard Parts

Finell argues that the keyboard parts in “Blurred Lines” are very similar to those that appear in “Got to Give It Up,” beginning at the first two bars of each song. Finell Decl., Dkt. 112-3, ¶¶ 87-92; Preliminary Report, Dkt. 112-3, ¶¶ 31-32. These keyboard parts consist of chords with similar pitches played to a rhythm in which “the keyboard stops playing on beat 4, creating a rhythmic suspension until the following bar.” Id. Wilbur claims that the “keyboard part in GIVE . . . is not contained in the GIVE Copyright Deposit.” Wilbur Decl., Dkt. 91-1, ¶ 223. This claim has some force. Thus, the particular rhythm transcribed by Finell does not appear in the copyright deposit. The copyright deposit also does not designate this part as one played on a keyboard. However, the chord, or group of three or more notes played at the same time, does appear in the deposit. It is not as transcribed musical notes, but as the notation “A7,” which is shorthand used by musicians to refer to the set of notes that comprise the chord. Dkt. 91-2, Ex. C. Under the 1909 Act, this form of notation was sufficient publication to claim copyright protection. See Nimmer § 2.05[A] at 2-55 n.14 (under the 1909 Act, a “musical composition might . . . have claimed copyright if reduced to a visibly intelligible form using a system other than our

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conventional system of musical notes.”). The copyright deposit does not, however, indicate what instrument would play these chords.

For these reasons, the analysis of the similarity in keyboard pitches may be considered, but that as to similar keyboard rhythms may not. The relevant keyboard chord in “Got to Give It Up” is an A7 chord, and consists of the pitches A, C#, E, and G. Finell Decl., Dkt. 112-3, ¶ 87 & n.31. The relevant keyboard chord in “Blurred Lines” is an A chord, and consists of the pitches A, C#, and E; i.e., it is an A7 chord with the G omitted. Id. By itself, the repetition of a single, common chord is not a sufficiently original expression to merit copyright protection. See, e.g., VMG Salsoul, LLC v. Ciccone, 2013 WL 8600435 (C.D. Cal. Nov. 18, 2013). However, this individually unprotected element may be considered in combination with other features for purposes of analytic dissection. See Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004), as amended on denial of reh'g (Aug. 24, 2004).

(h) Percussion Choices

Finell contends that there are substantial similarities between the percussion parts in “Blurred Lines” and “Got to Give It Up.” These prominently feature cowbells and open hi-hats playing in what she describes as an unusual and distinct rhythm. Preliminary Report, Dkt. 112-3, ¶¶ 33-34; Finell Decl., Dkt. 112-3, ¶¶ 93-94. As Wilbur observes, neither this rhythm nor these instruments appears in the copyright deposit. Wilbur Decl., Dkt. 91-1, ¶ 232. Thus, for purposes of this Motion, the percussion choices are deemed unprotected by Defendants’ copyright in “Got to Give It Up,” and this alleged similarity is not considered.

(i) Other Alleged Similarities

Finell identifies three other notable similarities between “Blurred Lines” and “Got to Give It Up”: (i) the use of falsetto in the vocal parts; (ii) the use of party noises as accompanying sound; and (iii) the omission of a guitar from the instrumental scoring. Preliminary Report, Dkt. 112-3, ¶¶ 36-40; Finell Decl., Dkt. 112-3, ¶¶ 96-99. None of these alleged similarities is reflected in the “Got to Give It Up” copyright deposit. Therefore, for purposes of this Motion they are deemed unprotected and are not considered.

(2) The Monson Declaration

Defendants’ other expert, Dr. Monson, also testified about several similarities between “Blurred Lines” and “Got to Give It Up.” Many of these, including cowbell/hand percussion, drum set parts, background vocals, and keyboard parts, concern material that is deemed unprotected by the copyright in “Got to Give It Up” for purposes of this Motion for the reasons stated above. Monson Decl., Dkt. 112-3, ¶¶ 24-29, 40-44, 48, 51-52, 53. However, Monson describes two alleged similarities that appear in the copyright deposit and are distinct from those analyzed by Finell.14

14 Monson opines that “[t]o limit the composition of ‘Got to Give it Up’ to its copyright deposit is musically misleading,” but she does not state expressly that her conclusions would be the same had she not considered the musical recording. Monson Decl., Dkt. 112-3, ¶ 15. However, Monson also reviewed the 1977 sheet music to “Got

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(a) Harmonic Similarity

Monson acknowledges certain harmonic differences between the songs, but contends that “the resemblance of the melodies is so strong that the chord progression on ‘Got to Give It Up’ can serve as a substitute progression for ‘Blurred Lines.’” Id. ¶ 38. It is not clear whether she is referring to the protected melodies in the deposit sheet or the unprotected -- for purposes of this Motion -- melodies in the sound recording. “The 16 bar verse in ‘Got to Give it Up’ is comprised of A7 for 8 bars followed by the progression D7|E7|E715|B7/D7/E7/A7/B7 (beginning on the words ‘But my body’). In functional terms this progression is IV / V of V/ V/ IV/ V/ I/ V of V.” Id. ¶ 36. “The harmonic progression in ‘Blurred Lines’ for the 16 bar verse is A/ A/ A / A/ E/ E/ E/ E repeated twice, in functional terms I-V-I-V-I-V-I-V.” Id. Although the chords and tones differ, Monson contends that “[i]n effect the harmonic progression in ‘Blurred Lines’ reduces the ‘Got to Give it Up’ progression to an alternation from tonic (I) to dominant (V) – in a longer structural sense it prolongs the tonic.” Id. ¶ 37.

Wilbur’s declaration pre-dates Monson’s, and does not respond to this analysis. However, she concluded that there was no substantial similarity in the harmonies of the songs. In support of this conclusion, she opines that “[t]here is no sequence of two chords played in the same order and for the same number of measures (duration) in GIVE and BLURRED,” “[t]here are no three chords in common in GIVE and BLURRED,” and GIVE has “a minor or bluesy sound” where “BLURRED has a major sound,” among other points. Wilbur Decl., Dkt. 91-1, ¶¶ 37-38, 44-45. Monson disputes the characterization of “Got to Give It Up” as having minor sound. Monson Decl., Dkt. 112-3, ¶ 39.

(b) Melodic Similarity

Monson contends that there is a substantial similarity between a portion of the lead vocal melody of “Got to Give It Up” and a melodic line in “Blurred Lines”:

In “Got to Give it Up,” Marvin Gaye’s lead vocal melody on the words “move it up” and “turn it round[]” chromatically ascend from the pitch G to A. Specifically, from the 7th of a dominant seventh on A chord to the root of the chord A . . . The comparable melodic line in “Blurred Lines” is on the words “hey, hey, hey,” and occurs on the V chord. The pitch sequence consequently ascends chromatically from the pitch D to E, that is, from the seventh of a dominant chord on E to the root of the chord. . . . Although the chromatic ascent is on a V chord rather than a I chord, the repeated melodic profile and harmonic function is recognizably related to the passage on “move it up” in “Got to Give it Up.”

Id. ¶ 49. Monson’s transcription of this portion of the “Got to Give It Up” melody is the same as that

to Give It Up,” id. ¶ 3.a, and, with a few minor discrepancies that do not appear to be material, the elements she transcribes appear in the copyright deposit. 15 The copyright deposit places an A7 here. Dkt. 91-2, Ex. C.

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contained in the copyright deposit. Compare id. ¶ 49, Ex. 11 (tenor solo), with Dkt. 91, Ex. C at 11.16 She claims that this similarity “cannot be accidental.” Id. ¶ 50.

Monson also opines about several melodic similarities between the songs based on their respective background vocals. However, for purposes of this Motion, these cannot be considered for the reasons stated above. Thus, they are based on background vocals not present in the sheet music of “Got to Give It Up.”

(3) Filtering of Unprotected Elements

“[T]he unprotectable elements have to be identified, or filtered, before the works can be considered as a whole.” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir. 1994). Plaintiffs contend that the alleged similarities identified by Defendants are “commonplace and generic building blocks of musical composition.” Mot., Dkt. 89 at 11. Plaintiffs argue that these alleged similarities are insufficient to create triable issues of fact as to the alleged copying of the works.

Although a work must be original to be protected by copyright under the relevant statutes and under the Constitution, only a “modicum of creativity” is required for copyright eligibility. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346-47 (1991) (discussing this requirement under both the 1909 and 1976 Acts). Further, copyright law protects only “an author’s expression; facts and ideas within a work are not protected.” Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990). Where music is concerned, fundamental building blocks, such as individual notes and chords, do not warrant copyright. Swirsky v. Carey, 376 F.3d 841, 851 (9th Cir. 2004), as amended on denial of reh'g (Aug. 24, 2004). For example, Defendants’ use of an A7 chord is not protected by copyright.

The Ninth Circuit has cautioned that the creativity requirement should not be applied too stringently, and that a very limited arrangement of notes may be sufficiently original to warrant copyright protection. Id. at 851-52 (declining to hold that a seven-note melody is too short to have copyright protection, and citing with approval a district court decision finding that four notes were enough to be accorded copyright protection); see also Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987) (“Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.”).

Commonplace expressions within a genre, which are called “scenes a faire,” are not protected by copyright because the “expressions are indispensable and naturally associated with the treatment of a given idea.” Swirsky, 376 F.3d at 850. However, “[i]t is inappropriate to grant summary judgment on the basis of scenes a faire without independent evidence, unless the allegation of scenes a faire is uncontested.” Id.

16 The second and sixth notes of this portion are marked as sharps in Monson’s transcription; they do not have this feature in the deposit. However, some transcribers follow the convention that such markings alter the pitch of the note to which they are attached and to the later times that the same note appears in the same measure. See Accidentals, Virginia Tech Multimedia Music Dictionary, http://www.music.vt.edu/musicdictionary/appendix/ accidentals/accidentals.html (last visited Oct. 27, 2014).

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Defendants have offered sufficient evidence to create triable issues as to whether their 11-note signature phrase, four-note hook, four-bar bass line, 16-bar harmonic structure and four-note vocal melody are protectable expressions. Wilbur’s testimony that these are commonplace in the genre or anticipated by earlier works is insufficient to show that there is not a triable issue because they are “scenes a faire.” See id. at 850-51 (expert’s testimony not sufficient for this purpose where she failed to introduce independent evidence that copyrighted work was more similar to work that allegedly anticipated it than to work that allegedly infringed upon it, and triable issue of fact existed as to whether differences between copyrighted work and allegedly anticipating work had “merely trivial differences”). Finally, to the extent that any of these elements is itself not protectable, the combination and selection of these elements may be considered under the extrinsic test because “the over-all impact and effect indicate substantial appropriation.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (citations omitted). See also Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1476 (9th Cir. 1992) (“Although copyright protection is not afforded to certain elements of a work, such limitations ‘must not obscure the general proposition that copyright may inhere, under appropriate circumstances, in the selection and arrangement of unprotected components.’”) (citation omitted).

(4) Genuine Issues of Material Fact Exist

The separate analyses of Finell, Wilbur, and Monson of “Got to Give It Up” and “Blurred Lines” provide indicia of “a sufficient disagreement” concerning their substantial similarity to present a genuine issue of material fact. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). There are disputes, supported by competing expert analyses, as to the similarity of individual elements of each song. These include disputes as to the signature phrases, hooks, bass lines, keyboard chords, harmonic structures and vocal melodies. Plaintiffs attempt to disqualify or impeach Finell by pointing to alleged inconsistencies between her report and declaration in this case, her deposition testimony and her testimony in prior cases. Dkt. 91, Exs. D, E, F. Defendants attempt to do the same as to Wilbur. Dkt. 112, Ex. 8; Dkt. 116. This evidence does not warrant the exclusion of either expert’s testimony. “The judge is ‘supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.’” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (citation omitted). Moreover, these arguments go the weight, not the admissibility of the evidence.

Defendants have made a sufficient showing that elements of “Blurred Lines” may be substantially similar to protected, original elements of “Got to Give It Up.” Defendants have identified these with particularity for purposes of analytic dissection. Thus, genuine issues of material fact are present as to the extrinsic similarity of the works. The intrinsic similarity of the works is a jury question. Swirsky, 376 F.3d at 845. Therefore, summary judgment is DENIED as to Plaintiffs’ declaratory claim and Defendants’ counterclaim concerning the alleged infringement of “Got to Give It Up” by “Blurred Lines.”

b) “After the Dance” / “Love After War”

The Parties’ analysis of the alleged similarities between “After the Dance” and “Love After War” is less extensive. Finell’s Preliminary Report did not discuss “After the Dance” and “Love After War”, and her Declaration focuses primarily on backup vocal melodies and harmonies that she acknowledges do not

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appear in the deposit copy. Finell Decl., Dkt. 112-3, ¶¶ 117-24. Finell does identify “a distinctive identical rhythm on the last note of each phrase iteration” and “melodic structure shared in repeating the similar phrase 4 times consecutively (with some variation) to create the entire chorus section.” Id. ¶ 122. Finell acknowledges that this is only a “preliminary review,” and does not elaborate on either observation. Id.

Monson reviewed the two songs in greater detail, and concluded that there are similarities in hook, melody, harmony, and structure. Wilbur drew different conclusions in her Declaration.

(1) Alleged Similarities

(a) Hook and Melody

Monson describes the “Love After War” hook as “an inversion of the ‘After the Dance’ hook melody.” Monson Decl., Dkt. 112-3, ¶ 81. She provides the following diagram, in which her transcription of the voice part and chords of “After the Dance” is similar, though not identical, to what appears in the deposit copy:17

///

17 The bass line in this diagram is not considered for purposes of this Motion because it does not appear in the deposit copy. Dkt. 91-2, Ex. D.

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Id. Monson contends that “the governing gesture [in ‘Love After War’] is a descent from B-A-G#, an inversion of the ‘After the Dance’ gesture,” and that these melodic gestures interact similarly with the harmonic progression. Id. ¶¶ 82-83.

Wilbur states that the melodies of the songs are not substantially similar: “The only melodic similarity in the two songs appears in the chorus of each song and consists of one note with the same pitch and placement in the measure, which is repeated four times in the chorus,” and “the melodic rhythm, the melodic contour, and the duration (with one exception) of that final note are different in each song.” Wilbur Decl., Dkt. 91-1, ¶ 265. Monson opines that, as a matter of music theory, an exact identity of notes is unimportant because the inversion of the melodic gesture and the substitution of chords produce a melody to “Love After War” that can be “sung along to the chorus of ‘After the Dance.’”

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Monson Decl., Dkt. 112-3, ¶ 84.18

(b) Harmony and Structure

Monson acknowledges differences in the harmony and form of “After the Dance” and “Love After War,” but claims that “the two seemingly different progressions are functionally equivalent.” Id. ¶ 86. She states that “’Love After War’ uses a II-V7-I progression in E major (F#-7 B7/Emaj7),” and “’After the Dance uses an altered II-V-I progression (Am7 Bm7 /Emaj7 Bb7#5).” Id. Monson’s transcription of the chord progression in “After the Dance” is similar, but not identical, to the chord progression represented in the copyright deposit. Id. ¶¶ 86-89; Dkt. 91-2, Ex. D. Monson provides a detailed technical analysis in support of her conclusion. There, she asserts that “After the Dance” makes certain modulations and substitutions for creative reasons, but that as a functional matter, “’Love After War’ uses the simplest version of a II-V-I progression in E,” and “’After the Dance uses a substitute II-V-I to heighten the contrast of its modulation from C#minor to E major.” Id. ¶¶ 88-92. Monson also states that “the basic organization of the arrangements is very similar,” notwithstanding the longer verse sections and irregular phrasing of “After the Dance.” Id. ¶ 94.

It is not clear to what extent Monson’s testimony about the similarities in the harmony and structure of the two songs relies on protected elements of “After the Dance” that appear in the copyright deposit. Thus some of her views may be based on elements that are unique to her transcription of the sound recording. Some of her testimony refers to aspects which are, for purpose of this Motion, deemed to be clearly unprotected, such as a bass line that does not appear in the deposit sheet. Id. ¶ 91. Elsewhere, her statements are ambiguous. For example, she claims that “After the Dance” effectively substitutes an Am7 chord for an expected F#m7 chord, and that “[d]elaying the arrival of the pitch C to the hook creates a more startling shift into the new key when Am7 arrives.” Id. ¶ 90. The relevant portion of the copyright deposit shows an Am chord, not an Am7. However, an Am also contains the pitch C. Dkt. 91-2, Ex. D. Monson’s conclusion about the effect of this substitution may have been the same if she analyzed the Am instead of the Am7, but that is not clear. On a motion for summary judgment, ambiguous expert testimony is to be construed in the light most favorable to the non-moving party. Smith v. Jackson, 84 F.3d 1213, 1220 n.8 (9th Cir. 1996). Under this standard, Monson’s testimony is construed to rely on elements that appear in the copyright deposit.

Wilbur found little harmonic or structural similarity between the two songs. She declares that the only harmonic similarity is the use of an E major 7 chord, which is repeated four times in the chorus, and a B minor 7 chord “that appears once in the chorus of WAR but four times in the chorus of DANCE.” Wilbur Decl., Dkt. 91-1, ¶ 289. She adds that the use of two of the same chords is “commonplace,” and that the placement and rhythm with which these chords are used gives them a different character within each song. Id. ¶¶ 290-302. She also states that four songs released prior to the creation of “After the Dance” “include similar harmonic elements to DANCE, including the use of jazz influenced chords”: “I’m

18 Monson has created a sound file that illustrates this alleged similarity, in which she plays the melody to “Love After War” on a MIDI keyboard over the sound recording of the “After the Dance” chorus. Dkt. 109. This sound file is not considered because it requires a subjective assessment. That step in the analysis is reserved for the jury through its consideration of the intrinsic step of the substantial similarity analysis.

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Title Pharrell Williams, et al. v. Bridgeport Music, Inc., et al.

Still in Love with You,” “Let’s Stay Together,” and “Love and Happiness,” by Al Green, and “Suavecito” by Malo. Id. ¶ 312. Wilbur does not provide any transcriptions or other analysis to support this claimed similarity, which Finell contests. Finell Decl., Dkt. 112-3, ¶ 125. Wilbur’s proffered prior art for the harmony of “After the Dance” is not supported by sufficient evidence to establish for purposes of summary judgment that the “After the Dance” harmony is an unprotected scene a faire. Swirsky v. Carey, 376 F.3d 841, 851 (9th Cir. 2004), as amended on denial of reh'g (Aug. 24, 2004).

(2) Genuine Issues of Material Fact Exist

These expert analyses show “a sufficient disagreement” concerning the extrinsic similarity of “After the Dance” and “Love After War” to present a genuine issue of material fact. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). Defendants offer evidence that “Love After War” contains melodic and harmonic features substantially similar to those in “After the Dance,” notwithstanding the inversion of the melody in the choruses and the substitutions and modulation in the harmony.

Plaintiffs argue that Defendants’ claim must fail because the only extrinsic similarity is the alleged copying of “a single note” and a “couple of chords,” none of which is protected. Mot., Dkt. 89 at 33. Plaintiffs also argue that Defendants’ allegations go to intrinsic similarity, which is not to be considered on summary judgment and must be accompanied by extrinsic similarity to support a claim of infringement. Reply, Dkt. 125 at 11. However, “[o]bjective analysis of music under the extrinsic test cannot mean that a court may simply compare the numerical representations of pitch sequences and the visual representations of notes to determine that two choruses are not substantially similar, without regard to other elements of the compositions.” Swirsky, 376 F.3d at 847-48. Extrinsic analysis “is an objective comparison of specific expressive elements’; it focuses on the ‘articulable similarities’ between the two works.” L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 848 (9th Cir. 2012), as amended on denial of reh'g and reh'g en banc (June 13, 2012). The Ninth Circuit has declined to narrow the “large array of elements” of which music is comprised to a “uniform set of factors” whose similarity must be shown on summary judgment. Swirsky, 376 F.3d at 849. What is needed is “expert testimony that addresses some or all of these elements and supports its employment of them, that the similarity was ‘substantial’ and to ‘protected elements’ of the copyrighted work.” Id. Defendants have met this burden.

IV. Conclusion

For the foregoing reasons, the Motion is DENIED.

IT IS SO ORDERED.

Initials of Preparer ak

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