blurred lines trial - transcript exhibit g part 2.pdf
TRANSCRIPT
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BY MR. BUSCH:
Q. What is it that we're about to hear, Ms. Finell?
A. Two versions of Happy Birthday. First, the traditional
version and then with the rhythm modified.
Q. And what do you believe this shows?
A. It shows that the song is still completely recognizable,
even with shifts in the rhythm.
MR. BUSCH: Okay. Please play.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. Thank you.
And is the rhythmic differences -- in your opinion, is
the rhythmic dissimilarities in what we just heard in those two
versions of Happy Birthday greater or less than the rhythmic
differences in Got to Give it Up and Blurred in the signature
phrase?
MR. MILLER: Objection.
THE COURT: Sustained.
BY MR. BUSCH:
Q. All right. Take that off the screen, please.
We talked about what the hook was before the break.
Improper --
Exhibit 376, page 8, slide 8, is two versions of hooks
so you can explain to the jury; correct?
A. Yes.
MR. BUSCH: I do not believe we have an objection
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 1 of 70 Page ID #:9795
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about this, your Honor.MR. MILLER: No objection, your Honor.
THE COURT: Correct. That's right. This was
previously displayed.
You may play it.
BY MR. BUSCH:
Q. Before you play it, can you explain what the jury is about
to hear?
A. Yes. In popular music, as I mentioned before, there is
often a phrase that becomes more or less what you would think of
as sort of the identifying phrase of the song. Sometimes nowIt's thewith ringtones, that's what the ringtone would be.
hook of the song. So
THE COURT: Stop there.
Next question, please.
BY MR. BUSCH:
Q. And so what are we going to hear?
So you'll hear the hooks of two popular songs. One theA.
song from the show Annie and the other one Cyndi Lauper's Girls
Just Wanna Have Fun.
Q. And are these the hooks to these two songs?
That's right.
Can a hook be very short?
Very.With respect to Beethoven's 5th, which we heard earlier,
A.
Q.
A.
Q.
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 2 of 70 Page ID #:9796
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02:how many notes were in that hook?
A. There are only four notes.
THE COURT: Sustained. It's cumulative.
BY MR. BUSCH:Q. And what are the hooks in Got to Give it Up and Blurred
Lines?
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A. Four notes. I'm sorry. The lyrics -- could you put that
back on, please.The lyrics in Got to Give it Up, which contains one
hook that's repeated, is with the words keep on dancin', and in
Blurred Lines it has two hooks. One is take a good girl and the
other one is I hate these blurred lines.
Q. What makes up these hooks?
MR. MILLER: Objection. Vague.
THE COURT: Sustained.
Are you going to play these?
MR. BUSCH: They've just been played -- yes. We will.
Q. With respect to the hooks --
Page 9 -- we won't put
MR. MILLER: Don't put them on the screen.
MR. BUSCH: No.
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Q. With respect to the hooks, keep on dancin' from Got to Give
it Up, is -- did you prepare a transcription?
A. Y~s, I did.Q. And is the transcription you prepared from the lead sheet?
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 3 of 70 Page ID #:9797
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A. It's exactly as it is in the lead sheet, yes.
Q. Okay. And you prepared a transcription from Blurred Lines
as well; correct?
A. That's correct.MR. BUSCH: Your Honor, we would ask for permission to
display page 9 of Exhibit 376, similarity hooks.
THE COURT: Any objection?
MR. MILLER: Yes. I have several objections to this
slide, your Honor. The fourth bullet point is a reference to
the sound recording of Marvin Gaye. The transcription is not an
accurate reflection of the actual notes as they appear in the
deposit copy.THE COURT: You may display this, but eliminate just
the -- following the bullet points.MR. BUSCH: Just play without the bullet points?
THE COURT: Just show -- if you wish to display this,
start with, quote, Got to Give it Up, and don't display the
other portion, and you can achieve that either by your computer
or use of the projector.MR. BUSCH: Thank you, your Honor.
THE COURT: And I understand your objection with
respect to the other issue.
BY MR. BUSCH:Q. Okay. And so, Ms. Finell, looking at your transcription on
Got to Give it Up and the Blurred Lines hook, what do your
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 4 of 70 Page ID #:9798
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transcriptions show?
A. They show the comparison of pitches, meaning scale degrees.
So out of the four notes from the Got to Give it Up hook and
four notes from Blurred Lines, three are identical in their
scale degrees.
Q. Okay.
A. The fourth one is a repeat of one of the three identical
notes in Blurred Lines.
Q. And is the rhythmic placement similar?
A. Yes. The rhythmic placement is similar in that there are
two notes before the bar line and two notes after the bar line
which affects the stressing.
Q. And why is that significant?
A. Well, music's divided into smaller units. A long piece of
music is divided up into individual bars which are also called
measures. And the placement in the measure has a lot to do with
the pulse or the emphasis of particular words.
In the case of these two hooks, the significance of
the two notes before and the two notes after the bar line, which
is circled, is that the keywords of the hook -- what you would
think of as the money words -- meaning dancin' in Got to Give it
Up and good girl in Blurred Lines, occurred immediately after
the bar line and therefore they are -- the first part of that is
what you call the downbeat. It's the strongest beat right after
the bar line.
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 5 of 70 Page ID #:9799
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Q. And in the sheet music, is there -- does the Got to Give it
Up hook repeat?
A. Oh, yes, it does.Q. Okay. And how many times does it repeat?
A. I believe it's 14.Q. Okay. And in Blurred Lines, the similar hook that you've
described, how many times does it repeat in Blurred Lines?
A. Well, there are two Blurred Lines hooks, but combined, they
occur 12 times in the song, which is quite repetitious.
Q. Okay. And have you prepared audio examples using a MIDI
synthesizer for the hook of Got to Give it Up, keep on dancin',
and the Blurred Lines, take a good girl?
A. Yes, I have.Q. And is the audio excerpt keep on dancing from Got to Give
it Up in the deposit copy lead sheet?
A. It is.MR. BUSCH: All right. We would like to play now
Exhibit 376, page 10, your Honor, and we could display the
exhibit just by -- fine. My -- we have already --
THE COURT: Excuse me. The first recording is based
on the recording that's admissible; is that correct?
MR. BUSCH: Yes, your Honor.THE COURT: Okay. Subject to your prior objections,
any objection to this being played?
MR. MILLER: No objection, your Honor.
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 6 of 70 Page ID #:9800
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THE COURT: No new objection. Thank you.
You may play these.
Excuse me. Is the second -- one second.
Could you pause that?
Is there any pitchshifting in these?
MR. BUSCH: I do not believe so, your Honor.
THE WITNESS: Excuse me. I think you need to show the
I'm sorry.
slide that goes with that. This isn't the right one.
MR. BUSCH: It's page 10.
THE COURT: Could confirm whether there is any
pitchshifting in the recording?
MR. MILLER: I have an objection to the bullet point.
Same objection to the bullet point.
THE COURT: Okay. I understand.
Ladies and gentlemen, what is in the demonstrative
It's designed to facilitate -- as Iexhibits isn't evidence.
told you, it's merely to help you understand the opinions being
offered by Ms. Finell.
Okay. Is each of these recordings taken from the
evidence that's admissible?
MR. BUSCH: Yes, your Honor.
THE COURT: Okay. Thank you.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. What did we just hear?
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 7 of 70 Page ID #:9801
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A. That's the hook from Got to Give it Up with the words that
would have been keep on dancin'.
Q. Okay. And next, we have -- what do we have -- what's the
second audio?
A. The first hook in Blurred Lines which is take a good girl.
Q. And what is it that we just heard as far as the note
comparison?
A. Yes. There are four notes in each hook, of which three are
identical, they're shown with the arrows above them, meaning 75
percent of the notes are identical and the note that isn't
identical is really identical to itself in that in take a good
girl, the note for the word good is a scale degree 1, which is
already heard before and after itself, so those are the
similarities.
Q. We heard -- did we hear rhythmic changes within the last
two audio excerpts?
A. No.Q. Have you identified a similarity that you have identified
or called Theme X?
A. Yes, I have.
Q. Okay. And what is Theme X?
A. Theme X is a melody -- a four-note melody. In Got to Give
it Up, it's what I would call a backup melody sung to the words
dancin' lady. And in Got to Give it Up -- I'm sorry, in Blurred
Lines, it's the main theme that occurs throughout all four
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 8 of 70 Page ID #:9802
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verses with words like --
THE COURT: You may finish.
THE WITNESS: Okay. Excuse me. With words like if
you can't see, if you can't hear, etc., and it also occurs in
the choruses and in the signature -- it's embedded in the
signature phrase.MR. MILLER: Object and move to strike. There is no
evidence before the Court that this is in the deposit copy.
There is no foundation for it.
MR. BUSCH: I can lay the foundation.
THE COURT: I'm going to strike the response at this
point subject to establishing a foundation.
Ladies and gentlemen, you may remember one of the
early instructions I read you talked about deposit copy, and
that certain -- that the actual commercial recording wasn't at
issue in this case.So we're touching on these issues and we will come
back and do more explaining to you about it later.
Establish the foundation, please. Or seek to do so.
BY MR. BUSCH:Q. Is Theme X, as you've described it, the backup hook in Got
to Give it Up in the deposit copy lead sheet?
MR. MILLER: Objection. Vague, your Honor.
THE COURT: Do you understand the question?
THE WITNESS: I do.
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 9 of 70 Page ID #:9803
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THE COURT: By in -- what do you mean by in the
deposit copy lead sheet?
BY MR. BUSCH:
Q. Is it shown in the deposit copy lead sheet?
MR. MILLER: Same objection, your Honor. Are the
notes in the deposit copy?
MR. BUSCH: I will rephrase the question.
THE COURT: Just restate the question so that the
witness can address whether -- the basis for her view as to what
issue -- whether Theme X is shown in the lead sheet. Thank you.
BY MR. BUSCH:
Q. Is the audio excerpt that we have -- that I have -- that
you have prepared with respect to Theme X in the deposit copy
lead sheet?
MR. MILLER: Same objection, your Honor.
THE COURT: Define in, please.
BY MR. BUSCH:
Q. Do you believe it is consistent with, in, reflected by --
do you believe it's in the deposit copy lead sheet?
MR. MILLER: Same objection, your Honor. The question
is whether it's identical to what's in the lead sheet.
THE COURT: Sustained. Restate it, please.
BY MR. BUSCH:
Q. Do you believe the audio excerpt that you have prepared
with respect to Theme X is specifically -- is it in the deposit
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 10 of 70 Page ID #:9804
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copy lead sheet?I'm not sure how else to ask the question, your Honor.
MR. MILLER: Same objection, your Honor. The question
is is it identical to notes in the lead sheet.
THE COURT: Well, lay the foundation, please, as to
the basis upon which the witness has evaluated the lead sheet
with respect to this issue.
BY MR. BUSCH:
Q. All right. Have you reviewed the deposit copy lead sheet
with respect to Theme X?
A. Yes.Okay. And do you have an opinion about whether the depositQ.
copy the audio example that you have prepared is in the
deposit copy lead sheet?
Same objection.
We have to establish what she did with theMR. MILLER:
THE COURT:
lead sheet --
MR. BUSCH:
THE COURT:
you.
BY MR. BUSCH:
I will.
-- before you get to that question. Thank
Q. What did you do in order to reach your opinion about
whether Theme X is in the deposit copy lead sheet?
THE COURT: And talk more slowly, please.
Q. What did you do in order to reach your opinion that Theme X
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 11 of 70 Page ID #:9805
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is in the deposit copy lead sheet?
A. I reviewed both part 1 and part 2 of the lead sheet. I
found the section in part 2 of the lead sheet which contained
what I consider a variant of Theme X, and I saw it as referring
to the Theme X that I've been discussing in my analysis.
Q. Can you explain why you believe Theme X -- why it is your
opinion that Theme X is found in the deposit copy lead sheet?
A. Yes. Theme X, as it's shown in the lead sheet, has a
couple of limitations imposed on it. If I could explain about
that. That has an impact on my analysis.
THE COURT: Ask the questions, please.
BY MR. BUSCH:
Q. Okay. Would you please explain the limitations that you
have just described.
A. Okay. A lead sheet is in essence a musical -- musical
shorthand for musicians to understand what the music should be
performed as.
So in the case of Theme X, the actual part 2 of the
lead sheet only shows one of three lines that are being sung at
the same time by singers who are harmonizing, a group of
singers, so there's a high voice, a middle voice and a low voice
all singing parallel notes but not the same notes
MR. MILLER: Objection. Move to strike. She is not
answering the question.
THE COURT: The word is nonresponsive. Do not argue
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 12 of 70 Page ID #:9806
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Q. So if you would please explain, Ms. Finell, your analysis
why Theme X is in the lead sheet, please do so.
A. Theme--
MR. MILLER: Objection. Asked and answered.
THE COURT: I'll see. You may respond and it's
subject to a motion to strike. Go ahead. Thank you Ms. Finell.
Please proceed.
THE WITNESS: Thank you. Theme X, in the part 2 of
the lead sheet, consists of what we would call music. It's a
four-note melody. I consider it what you call a cell, meaning a
short melody or pattern.
The notes are -- the same note repeated once, which is
called static. In other words, the same note, same note, and
then it goes up one note in the scale and back down one note.
So basically it's static, static, up, down.
about the what the witness is doing. Thank you.
I'm going to strike after So in the case of Theme X.
The answer is So in the case of Theme Xr the actual
part 2 of the lead sheet only shows one of three lines that are
being sung. The rest of it is stricken.
You need to make sure to focus, please, on the lead
sheet, the sheet music, as opposed to the sound recording.
MR. BUSCH: Right.
THE COURT: Thank you.
BY MR. BUSCH:
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 13 of 70 Page ID #:9807
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Theme X occurs also on the recording of part 1 in a
mirror form, which I can explain.
MR. MILLER: Objection, your Honor.
THE COURT: Excuse me. What -- I want to understand
what the witness meant by the word recording.
I believe she's talking about --
Why don't we find out.
MR. BUSCH:
THE COURT:
BY MR. BUSCH:
Q. What do you mean by the word recording?
A. Well, Theme X in the part of the lead sheet where I
identified it is referring to an earlier variant of that same
theme and that's what I was trying to explain.
MR. MILLER: Objection. Move to strike.
THE COURT: Strike that.
MR. BUSCH: I can clarify, I believe, your Honor.
THE COURT: Just a minute.
Ms. Finell, you said Theme X also -- excuse me. You
said Theme X occurs also on the recording of part 1.
Do you recall saying that?
THE WITNESS: I do.
THE COURT: What -- when you said the word recording,
what -- to what were you referring?
THE WITNESS: Well, there were two recordings that I
reviewed. One was a -- an approximately four-minute recording,
and another one was what you call an extended recording, which
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 14 of 70 Page ID #:9808
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was a much longer recording of Got to Give it Up.
THE COURT: I want to understand what these recordings
are before I determine whether to strike the response.
MR. BUSCH: Okay.
Q. Is the audio excerpt that you have created what you have
referred to as the recording that is consistent with what you
say is in the lead sheet?
A. Yes.MR. MILLER: Your Honor, I would object and move to
strike. That's not the question.
THE COURT: Is there an exhibit --
MR. BUSCH: Yes.
THE COURT: -- associated with the recording as you
have -- as it's just been defined?
MR. BUSCH: Yes, sir.
THE COURT: What is --
MR. BUSCH: Yes, your Honor.
THE COURT: What is the exhibit number, please?
MR. BUSCH: It is 376, page 11.
THE COURT: So based on that understanding, with that
limitation, the answer may stand.
MR. BUSCH: Thank you.
We would ask, based on that, to play the audio
excerpts on that page.
THE COURT: Okay.
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 15 of 70 Page ID #:9809
1 MR. MILLER: Your Honor, I would object that there has 03:
2 been no lacks foundation as to Theme X being in the deposit 03:
3 copy. She has testified it's in the Give sound recording. 03:
4 THE COURT: I understand. All right. 03:
5 MR. MILLER: That's her testimony. 03:
6 THE COURT: I thought the testimony was that these 03:
7 recordings -- that the testimony was based on the recordings 03:
8 that are admissible the one -- the recordings that are 03:
9 admissible. 03:
10 MR. BUSCH: That is correct. 03:
11 MR. MILLER: She has testified that it's in 376, 03:
12 Exhibit 11, which is an excerpt from the Marvin Gaye sound 03:
13 recording. 03:
14 MR. BUSCH: It is an excerpt that has been allowed to 03:
15 be played 03:
16 THE COURT: It's the edited one? 03:
17 MR. BUSCH: Edi ted one, correct. 03:
18 THE COURT: Okay. Again, ladies and gentlemen, I'm 03:
19 referring -- we are referring to what I have told you is that 03:
20 the commercial recording is not at issue in this case. A 03:
21 different version -- I have explained that in the instruction. 03:
22 We will be talking to you more about it. All right. 03:
23 MR. MILLER: I just would renew my objection that 03:
24 there has been no foundation that this is part of the deposit 03:
25 copy. 03:
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I understand. Thank you. Overruled.THE COURT:
It's a subject for cross-examination.
BY MR. BUSCH:Q. Okay. Ms. Finell, looking at what I have placed on the
screen, which is Exhibit 376, page 11, would you please explain
what we are viewing.A. Yes. The first audio example -- this is to compare the
Theme X in the two songs at issue here, Got to Give it Up and
Blurred Lines.
So the first sound example is Got to Give it Up, it's
backup hook to the words dancin' lady, and that is compared to
two different phrases in Blurred Lines. As I said, Theme X in
Blurred Lines occurs in every verse of the entire song and,
therefore, the words keep changing but it's still the same
musical cell, which I explained before.
Q. And in the Got to Give it Up deposit copy, is there a
reference to Theme X repeating?MR. MILLER: Objection, your Honor. Lacks foundation
to Theme X in the deposit copy. The question is whether the
phrase occurs in the deposit copy as it's about to be played.
THE COURT: All right. Restate the question, please.
BY MR. BUSCH:Q. Is the phrase that you've referred to as Theme X repeated
in the deposit copy?MR. MILLER: Same objection. The question is whether
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the phrase that's about to be played is heard in the deposit
copy.
THE COURT: I understand. Restate the question. It's
not about repeated, whether it appears.
MR. BUSCH: All right.
Q. We talked about that it appears. You have a reference here
to Got to Give it Up, dancin' lady repeats 28 times in 28 bars.
What do you mean by that?
A. It should say repeats 14 times in part 2. I don't know
where you are reading from.
Q. Okay.A. And that refers to the deposit copy.
that means repeat this phrase.
It has a symbol in it
Q. Okay.
A. In music notation.Q. All right. And then Blurred Lines you wrote Theme X in
variance occurred 25 times. What do you mean by that?
A. I mean it occurs in all four verses of Blurred Lines,
multiple times in each verse plus in the signature phrase and
throughout the chorus.Q. Okay. And what are the audio excerpts we're going to hear?
A. The first audio excerpt is Theme X with the words dancin'
lady from Got to Give it Up and then the second two are from
different sections of Blurred Lines that contain Theme X.
Q. And they are both pitchshifted up?
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A. Yes. They are shifted up to be in the same key so they're
more easily compared.
MR. MILLER: Your Honor, I would object to playing any
of these examples as we have yet to have an answer to the
question whether Theme X appears with those notes that are about
to be played exactly in the deposit copy.
THE COURT: Okay. Can you respond to that question?
THE WITNESS: Theme X in the deposit copy part 2 is
referencing an earlier version and it's a mirror of the earlier
version. I've explained that. It's an analytical and
compositional technique. It has the same number of notes, it
goes static, static, down, up, in its original version and
static, static, up, down, in its mirror version and it has the
word lady in both but one has dancin' lady and one is, I think,
mistranscribed in their deposit copy as fancy lady but other
than that, they are clearly the same. They are the same theme.
They are the same cell.
MR. MILLER: I would object and move to strike the
testimony is that other than not being the same notes or the
same lyrics, they -- the phrase exists in the Marvin Gaye sound
recording. It does not exist in the deposit copy.
THE COURT: Well, what did you mean by earlier
version?
THE WITNESS: Well, there the deposit copy part 2
begins after the first four minutes of the extended version. It
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 19 of 70 Page ID #:9813
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doesn't start at the beginning of the song. It starts where the
shorter version stops.So it doesn't -- it's missing the first four minutes.
MR. MILLER: I would object and move to strike that
that's all testimony about the Marvin Gaye sound recording.
THE COURT: Just a minute. Thank you. All right.
Let me talk to you briefly.
(Sidebar conference commenced.)
THE COURT: Until it's established that the recording
you wish to play is based on the deposit copy, then I don't want
it played.
MR. BUSCH:
THE COURT:
It is based on the deposit copy.
Well, she hasn't said that. She said it
was based on a prior version and then she explained that the
prior version was something other than deposit copy.
MR. BUSCH: She can clarify that.
THE COURT: Well, you need to, because you have been
at this for 15 minutes.
MR. BUSCH: No. He's going to have to --
THE COURT: Excuse me. It's your job to establish
that what she wants to say and what she wants to play is in the
deposit copy. You need to do that. And until you do that, it's
not going to be played. And if you think you need to meet with
your witness and further explore this, then maybe move to a new
area so you can efficiently use the time now.
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MR. BUSCH: What's happening, your Honor, is that
Mr. Miller is trying to re-argue the entire -- the Court has
never ruled that the notes themselves have to be identical.
THE COURT: I didn't say that, but she just answered
my question as to what she meant by the prior version and she
didn't say that was the deposit copy. She referred to another
part of a song, I think.
MR. BUSCH: No.
THE COURT: I didn't understand her to say it's in the
deposit copy.
MR. BUSCH: I'll get that answer.
MR. MILLER: Your Honor, if I may be heard on this.
THE COURT: Briefly.
MR. MILLER: Very briefly. What she is testifying to,
and I will continue to object, is that the Marvin Gaye sound
recording has something that's called dancin' lady that has
certain notes in it. Neither the lyrics nor those notes are in
the deposit copy and she cannot get to it without --
THE COURT: I think I said that. I don't really need
to hear from you six times on the same thing either.
So I would suggest that an efficient use of your time
perhaps is to move to a new area, come back -- listen, you've
estimated hours on this, still further hours. You use your time
as you wish, but I'm cautioning you if it's not efficiently
done, then we're going to --
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112MR. BUSCH: I have one question that can clarify this
whole thing and then we can move on.
THE COURT: Good. Thank you.
(Sidebar conference ended.)
THE COURT: Okay. Please proceed, Mr. Busch.
Thank you for your patience, ladies and gentlemen. As
I have said in our instructions, when we have these conferences,
we know we are keeping you waiting but we are trying to make
ultimately things more efficient.
Go ahead, please, Mr. Busch.
BY MR. BUSCH:Q. In the deposited -- deposited with the Got to Give it Up
copyright registration, are there two lead sheets filed?
Registered?
A. Yes, there are.Q. And are they called Got to Give it Up part 1 and part 2?
A. Yes.Q. Okay. Is Theme X, in your opinion, in the deposit copy
filed with the United States copyright office?
MR. MILLER: Same objection, your Honor. Asked and
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answered.
THE COURT: Overruled.
You may answer.
THE WITNESS: Yes, it is.
MR. BUSCH: Okay. Thank you.
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I would like to play, your Honor, the audio excerpts
on this page.
THE COURT: You may play.
MR. MILLER: Same objection.
THE COURT: All right. Same objections. Overruled.
You may play them.
MR. BUSCH: Thank you. Play all three
back-to-back-to-back.
THE COURT:
MR. BUSCH:
And is any of these pitchshifted?
Yes. Two of the three as reflected on the
exhibit are pitchshifted.
THE COURT: So the second and third?
MR. BUSCH: Yes, sir.
THE COURT: Same instruction, ladies and gentlemen, as
to the second and third. It's the expert's opinion that
matters. The purpose of your hearing this is to understand
so you can evaluate the expert's opinion.
(Whereupon, the audio was played for jury.)
BY MR. BUSCH:
Q. What did we just hear, Ms. Finell?
A. You heard the initial song from Got to Give it Up with the
words dancin' lady is in scale degree comparison is 3, sharp 2,
3, 3.
Q. AndA. I'm sorry. I did that backwards. Pardon me. It was 3 --
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114
dancin' lady. Excuse me. 3, 3, sharp 2, 3 is what you heard
with Marvin Gaye's song.
Q. And with Blurred Lines?
A. The same cell with two extra syllables added, so it's 3, 3,
sharp 2, 3 and then again sharp 2, 3. And that's for both of
the Blurred Lines examples. They're exactly the same.
Q. Okay. Turn to slide 13 . Exhibit 376, slide 13.
Oh, do you have additional audio examples to further
illustrate your point that the notes were the same?
A. Yes.Q. Okay. And what is the next audio example you've prepared
to show that the notes are the same?
A. May I see the slide, please?THE COURT: Just publish the lower portion of that.
Thank you.
BY MR. BUSCH:Q. And what are these audio examples that you have prepared to
show the notes are the same?A. This is, again, dancin' lady from Got to Give it Up, the
Theme X. And then the section in the signature phrase, which is
connected with the hook in Blurred Lines, it's the phrase
that -- it's embedded in the signature phrase we've already
discussed and it's for the words and that's why I'm and it's
right before the hook.MR. BUSCH: Okay. Can we play those two, please.
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(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. And what does this show in your opinion?
That they are very, very similar through the same musicalA.
material.
Q. Why are they the same musical material?
They are the same notes, very similar rhythm and they --A.
it's just the same.
Q. Okay. Do you have a third musical example to put a pin in
your opinion about this -- the fact that the notes are the same?
A. Yes.
MR. BUSCH: Can you put that on the screen, just the
lower portion, please. Slide No. 14?
THE COURT: You can have a standing objection.
MR. MILLER: Yes, I have a standing objection.
BY MR. BUSCH:
Q. And what is this audio example?
This is just to remove the distraction of the words sinceA.
what's similar about them is the melodies, not the words. So
the first one is dancin' lady again played on a synthesizer,
just the notes themselves, and the second one is a synthesizer
playing the words you just heard of Blurred Lines. If the words
were there it would be and that's why I'm.
Q. So this is the music with words removed?
That's right.A.
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MR. BUSCH: Okay. Play it, please.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. What did we just hear?
A. You heard the Theme X in both songs. And in the case of
Blurred Lines, it occurs throughout the song. I believe it's 25
times allover the verses. It's used with different words but
it's the same theme.
Q. And are the notes identical, in your opinion?
A. Yes. In this case, they are.
Q. No difference?
A. Nope.
Q. And Theme X appears in the Got to Give it Up lead sheet 14
times?MR. MILLER: Objection, your Honor.
THE COURT: Asked and answered, let's move on, please.
BY MR. BUSCH:Q. Have you prepared a chart showing the bar numbers and times
that Theme X appears in Blurred Lines?
A. I have.MR. BUSCH: We would like to put on the screen slide
No. 15, your Honor, Exhibit 376.
THE COURT: Any objection to that being displayed?
MR. MILLER: Subject to my standing objection
THE COURT: Thank you. You may publish that.
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BY MR. BUSCH:
Q. What does this chart show?
A. This -- this chart shows where throughout the song Blurred
Lines Theme X appears. As I said, it appears in all four verses
so the -- the theme -- oh, did I just do that? I'm sorry. I'm
not familiar with this technology.
So the first -- the first left-hand column shows where
it is in the song, verse 1, verse 2, etc.
The middle column tells the bar numbers. As I said,
music is divided into individual bars.
And the third column just tells the timing of when
they occur.
And at the bottom is the total.
So out of the entire song, all of these occurrences
total 31 out of 130 total bars. Blurred Lines is 130 total
bars. So out of that, about 25 percent of the song, which is
31 bars, contain Theme X. It's probably the most used theme in
the song.
May I add --
THE COURT: There's no question pending.
BY MR. BUSCH:
Q. Okay. Do you believe that the -- the identical notes being
used that you've just described was a conscious choice?
MR. MILLER:
THE COURT:
Objection
Sustained.
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BY MR. BUSCH:
Do composers make -- in your opinion, does music is
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Q.
music created randomly?
A. No. Music is composed and represents a series of
individual choices that composers make. The exact note that's
chosen, how long to hold the note, how to take a lyric, a word
like love or happy or any other kind of lyric and set it to
tones.
MR. MILLER: Objection.
THE COURT: I'm going to strike after the word No.
BY MR. BUSCH:
Q. Would you please explain why you believe music does not
happen randomly?
A. Well, like any art form, music is a -- represents a series
of choices that composers make in terms of exactly what notes
they decide to use, how many what kind of rhythms, how they
decide to express the lyrics of -- with notes and the harmonies,
etc. All of that is a conscious choice on the part of a
composer. It's not just accidental.
Q. Okay. Earlier in your testimony when you were talking
about your methodology, you stated that you sometimes look for
broken rules.
A. Yes.
Q. Would you explain what you mean by broken rules.
MR. MILLER: Objection. Asked and answered,
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your Honor. We did this yesterday.
MR. BUSCH: I don't believe that --
THE COURT: Answer it, but please focus on the
question.
THE WITNESS: Thank you.
Okay. The reason I explained about broken rules is
music has traditions and one of the traditions is a scale of
seven notes, as I said.
Well, in the compared Theme X
THE COURT: Stop right there.
Next question, please.
BY MR. BUSCH:
Q. When you were comparing the Theme X in Got to Give it Up
with Blurred Lines, the similarities, did you note any broken
rules?
MR. MILLER:
THE COURT:
Objection.
Overruled.
Leading, your Honor.
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You may answer.
THE WITNESS: Yes. Yes. Exactly. These particular
comparisons of Theme X contain the broken rule of the sharp 2.
The reason why it's called sharp 2 is there's no sharp 2 in that
key. The note had to be changed so that they both have the
series 3, 3, sharp 2, 3. Well, that sharp 2 isn't in the key.
THE COURT: Stop there, please.
Next question.
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MR. BUSCH: Okay.
Q. Why is the sharp 2 in both songs the same broken rule, in
your mind?
A. They both deviated from their own scale exactly in the same
way.
Q. Is that unusual?
A. Well, it's a red flag when I'm comparing music.
MR. MILLER: Objection. Move to strike as
nonresponsive.
THE COURT: Yeah. It's -- let's move on, please.
MR. BUSCH: Okay.
THE COURT: It's cumulative.
BY MR. BUSCH:
Q. Where else does this four-note melody that you've been
describing as Theme X -- where else is it found in Blurred
Lines? Is it found in the signature phrase?
A. Yes, it is.
Q. Okay. How could you explain that to the jury, please.
A. Excuse me. It's embedded in the signature phrase for
MR. MILLER: Objection, cumulative, your Honor.
THE COURT: Sustained. How is this different than the
chart that was just discussed?
MR. BUSCH: I'm not sure the signature phrase is on
the chart.
THE WITNESS: It -- it is.
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BY MR. BUSCH:
Q. Okay? It is? All right.
Okay. Is there more? Have you found additional
similarities, Ms. Finell?
A. Yes, there are.
Q. Okay. I want to now move to bass melodies, if I could.
Is the bass melody that you have identified, the
similar bass melodies, is the part from Got to Give it Up in the
deposit copy lead sheet?
MR. MILLER: Objection, your Honor. Vague.
THE COURT: All right. Overruled. Subject to
establishing the same issue -- the same matters that we've
discussed before.
BY MR. BUSCH:
Q. Did you review the deposit copy lead sheet with respect
to bass melodies --
THE COURT: And talk more slowly, please.
BY MR. BUSCH:
Q. Did you review the deposit copy lead sheet with respect to
the bass melodies?
A. Yes.
Q. Is the bass melody that you are analyzing and comparing to
Blurred Lines in the deposit copy lead sheet of Got to Give it
Up?
MR. MILLER: Same objection, your Honor.
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THE COURT: Overruled.
You may answer.
THE WITNESS: Yes.
Q. Does the deposit copy lead sheet for Got to Give it Up
reflect that the bass line continues throughout the song?
A. Yes.Q. Okay. How often does the bass line and descending bass
line appear in Blurred Lines?
MR. MILLER: Objection. Lacks foundation.
THE COURT: Overruled.
BY MR. BUSCH:
Q. Go ahead.A. The bass line in Blurred Lines and its similar features
recur throughout Blurred Lines. It's a repetitious song.
Q. Have you created audio examples comparing
A. Oh, I didn't complete my answer.
THE COURT: Excuse me. Next question, please.
BY MR. BUSCH:
Q. Did you want to correct something, Ms. Finell?
A. Thank you. I believe --
THE COURT: Restate the question, please.
BY MR. BUSCH:Q. Does the bass melody from Got to Give it Up repeat -- how
often does the bass line repeat throughout Blurred Lines?
A. Yes. Yes, I believe it's 77. It occurs in 77 --
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THE COURT: Would you read the question, please?
Okay. Restate the question, please.
Miss Finell, wait until I tell you to respond. Thank
you.
Go ahead.
Q. How often does the bass line from Got to Give it Up that
you've identified appear in Blurred Lines?
MR. MILLER: Same objection. Asked and answered.
THE COURT: Overruled.
You may answer briefly.
THE WITNESS: I think it's in 77 of the measures. Out
of 130.
BY MR. BUSCH:Q. Okay. We played earlier for the jury, if you recall, the
bass line and keyboard together that you've described as the
heartbeat of the song?
A. Yes.MR. BUSCH: Okay. Now, your Honor, we would like to
put on the board, based on Exhibit 376, slide 16.
THE COURT: All right.
MR. MILLER: Same objection, your Honor. The
transcription of the bass part is not what's in the deposit
copy.THE COURT: All right. Same rUling. You can have a
standing objection on that.
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You may display that.
BY MR. BUSCH:
Q. And can you explain to the jury what they're about to --
what they're reviewing first, Ms. Finell?
A. Yes. This is from the individual tracks of the recordings
of each song, so Got to Give it Up, it's the first four bars in
the introduction section of the song. And the same with Blurred
Lines, the first four bars, pitchshifted up to be in the same
key as Got to Give it Up.
Q. And you've prepared comparative transcriptions of the two;
correct?
A. Yes.Q. Would you please explain to the jury the numbers and the
arrows that are above the transcription?
A. Yes. The arrows show where the notes are the same.
They're called target notes in this analysis. So that means
that in my opinion, those are the most important notes; the
essential notes of each bass line. And it shows that the Is and
the flat 7, the little -- the flat 7 looks like a small B, lower
case B and a 7 but that means flat 7.
So the Is and the flat 7s are the same between the
songs and often in the same rhythmic positions. And beyond
that, both songs have a leap up from scale degree 1 to 4.
Q. Okay. Can you please explain what you mean by both songs
have a leap up from scale degree 1 to 4?
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A. Yes. In analyzing melodies, melodies can go in three
different ways. They can repeat themselves, as I earlier said,
static, meaning that the note repeats itself, it does not go up
higher or down lower. Or a note can go -- the second note in a
series and then the third note, etc., can go up higher or down
lower.And when it goes up higher or lower, it can either go
to the next note, adjacent note, if you think of a piano, it
would be like the next white note above the C would be to D, to
E, etc. That's call step wise. Or you could jump over those
notes and go from one lower note to a note quite a bit higher,
or the reverse, from one note to another note quite a bit lower
and that's called a leap.
Q. And why is the similarity in the leap significant in your
mind?A. Because it represents a shared creative choice of going
from exactly the same scale degree 1 to the exact same scale
degree 4 in both.Q. In your opinion, are the notes that you have transcribed
between a comparison of the notes that you've transcribed, Got
to Give it Up versus Blurred Lines with respect to the bass
melody, very similar?
A. Very similar, yes.
Q. Okay. Do you have audio of the bass line with the
keyboards removed?
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A. Yes. The audio that we will be hearing is only of the bass
line by itself.
MR. BUSCH: Okay. Would you please play.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. Okay. Have you prepared a mash-up where the two bass lines
play over each other?
A. Yes.
Q. Okay. And what is a mash-up?
A. A mash-up is when two different recordings in this case are
played at the same time so that you can see whether or not they
have coinciding notes. It's -- in visual terms, it would be
like superimposing two different musical lines to see if all
the melodies have the same pitches, for example.
Q. And what is it in your view that it shows if the two
mashed-up songs play on top of each other very well without
differences being noticed?
A. It definitely suggests similarity.
Q. Do you have an opinion whether if that were not the case,
there would be a clash?
A. Yes. There would be what musically you would call
dissonant. It would be a clash, yes.
Q. And how was -- how was the mash-up you prepared for the two
bass lines for this case prepared? How were they prepared?
A. Well, they were pitchshifted so that they would be in the
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same key and then it was a matter of just playing each of them
individually at the same time.
Q. And did you use the multi-tracks from both songs of the
bass line?
A. Yes, I did.
Q. Okay. Did you satisfy yourself as part of this process
whether the two components that were mashed-up actually
reflected the lead sheet of Got to Give it Up and the commercial
recording of Blurred Lines?
A. Yes.
MR. BUSCH: We would like to play the mash-up on
page 17, your Honor.
THE COURT: You may.
MR. BUSCH: Thank you.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. And what do you believe that shows, Ms. Finell, with
respect to the notes?
A. That the two lines coincide very closely through most of
it.
Q. I want to talk now about the descending bass melody, if we
could.
A. Okay.
Q. And with respect to the descending bass melody between Got
to Give it Up and Blurred Lines, do you have an opinion about
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whether those are similar?
A. Yes. They are very similar.
Q. Why is that?
A. The descending bass line, which means a bass line that
moves down to lower notes from higher notes -- the descending
bass line in Got to Give it Up both begin on the 5 of the scale
and end on the 1 of the scale. So they end up on the same
targeted destination.MR. MILLER: Objection and move to strike. This is
based on the sound recording now, it's not based on the deposit
copy.MR. BUSCH: I will establish the foundation.
THE COURT: All right. Let's see.
Ladies and gentlemen, I will rule in a moment based on
the next answer.
BY MR. BUSCH:Q. Is the descending bass line in the deposit copy lead sheet?
MR. MILLER: Objection. Vague.
THE COURT: Overruled. We have been over this.
Do you understand the question?
THE WITNESS: I do.
THE COURT: You may answer.
THE WITNESS: Yes.
BY MR. BUSCH:Q. And is your transcription that you have prepared for this
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from the deposit copy lead sheet of Got to Give it Up?
THE COURT: Slow down with your questions, please.
BY MR. BUSCH:
Q. Is the transcription that you prepared in the deposit copy
lead sheet of Got to Give it Up?
A. It is it is shown in the deposit copy, yes.
Q. Okay. All right. I would like to put on the screen
page 18, Exhibit 376.
Would you please describe your transcription.
A. Yes. So if you see the arrows above the numbers, the upper
line is Got to Give it Up and the bottom line is Blurred Lines.
So, again, we're talking about two bass lines that go
down or descend in the same way with the same target notes.
In Got to Give it Up, which is the upper line -- I
don't know if I okay. This is the upper line so you can't
see it now. So could you circle that? Thank you.
So the upper line shows a 5 and then a 4 and then a 3
flat, which I'll explain in a minute, and a 1.
And music analysts are taught to analyze through
directions that music goes, that melodies go, and analyze the
notes that are contained in those movements.
So what we're talking about is something that goes
from 5, which is the first note, down to a 1.
THE COURT: Next question, please.
MR. BUSCH: Okay.
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Q. And do you believe that to be significant?
A. Yes. In comparison to Blurred Lines, yes.
Q. Why?
A. Because Blurred Lines also has its bass melody descend from
a 5, which is the first arrow, and ends on a 1, and has some of
the same intervening notes, which are less important, but
they're there.
Q. Okay. With respect to Blurred Lines, is there something
that you have identified called octave rebound or doubling going
on?
A. Yes. Some -- okay.
Q. What is that
A. Thank you.
Q. -- could you please explain?
A. All right. So octave rebound is a term in music analysis
in which you see that the same note is played again at a
different octave.
Octaves mean the notes are 8 notes apart so that in a
standard scale of 7 notes, C, D, E, F, G, A, B, the next note
that you would hit if you were playing it on a keyboard would be
another C and that's called an octave.
So if you sing, you know that sopranos sing in one
octave or register and somebody else could sing the same notes
an octave below if that person were an alto.
So in this case, what's happening is that the descent
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131
is the same. It's from 5 to 1 with some intervening notes, but
in addition, each note is echoed in what you call an octave
rebound. So it's played -- the note itself is played first by a
lower note and then up to the same register as the -- if we
could circle the unparenthesized notes, you see the 5 there and
then the 4 and then the 3 and then the 1.
So these notes are like the above, the 5, the -- if
you could circle the 5 -- no, no.
THE COURT: wait a second.
Next question, please.
THE WITNESS: Okay.
BY MR. BUSCH:
Q. All right. Can you -- are the notes that have been circled
the same as the notes in Got to Give it Up?
A. Yes.
Q. And is there doubling going on?
A. Yes. That's what I meant by the echo. The lower element
of each note, the ones that are in parentheses on the Blurred
Lines are the lower octave first. So that it alternates low,
high, low, high, low, high. But all the highs are the same note
and the low one is the same note an octave below.
Q. Is this in your experience, this doubling, something a
composer does oftentimes to camouflage similarities in another
work?
THE COURT: Sustained.
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BY MR. BUSCH:
Q. Is this a disguising technique?
MR. MILLER: Objection.
THE COURT: Sustained.
BY MR. BUSCH:Q. Why do composers often time double, in your experience,
Ms. Finell?MR. MILLER: Same objection.
THE COURT: Sustained.
BY MR. BUSCH:Q. Do you have an opinion about what the purpose of octave
rebounding is?
THE COURT: Sustained.
Let's move on, please.
BY MR. BUSCH:Q. Do you have an example of octave rebound, Ms. Finell?
MR. MILLER: Objection.
THE COURT: Sustained. It's been explained.
Is there something new?
MR. BUSCH: I would like to have the jury hear --
Q. Can you play on the keyboard the same composition with
octave rebound and then with octave rebound removed in order to
show the two notes are similar?
A. Yes.MR. MILLER: Objection. 403.
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THE COURT: Is that different than what is shown on
the exhibit, the audio excerpts shown in page 18?
MR. BUSCH: It is different.
THE COURT: All right. You may play that.
THE WITNESS: Thank you.
THE COURT: Are you planning to play what is on
page 18?
MR. BUSCH: No, your Honor. She is going to play an
example.
THE COURT: Okay. So it's one or the other; right?
MR. BUSCH: Yes.
THE COURT: Would you read the question, please.
(Record Read)
THE COURT: Do you have the question in mind?
MR. BUSCH: She answered yes.
THE COURT: I didn't hear.
THE WITNESS: Yes.
BY MR. BUSCH:
Explain to the jury what you are about to
THE COURT: I think we just did that
BY MR. BUSCH:
Q.
go ahead.
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Q. Explain to the jury the composition you are about to play
with and without the octave rebound.
THE COURT: I think this question was just posed which
is what I had read. That was what you asked her to do. And
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that's why I asked her if she understood the question and she
said yes.Read the question once more, please.
(Record Read)
THE COURT: Go ahead.
THE WITNESS: Okay. So this is octave rebound in
Blurred Lines.
I'm sorry. I'll do it again.
(Whereupon, the witness plays for the jury.)
THE WITNESS: And then with no octave rebound.
(Whereupon, the witness plays for the jury.)
BY MR. BUSCH:Q. Can you play the comparison of the descending bass line
from Got to Give it Up so the jury can hear the comparison of
the two.A. I don't have that here at the keyboard. I would just be
doing it by memory.
Q. Okay.(Witness plays for the jury.)
THE WITNESS: That's Got to Give it Up.
(Witness plays for the jury.)
BY MR. BUSCH:
Q. And that is?
A. Blurred Lines without the octave rebounds.
Q. Thank you.
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Do you have an opinion about whether the descending
bass line in Blurred Lines versus Got to Give it Up -- whether
the notes are very similar?
A. Very similar.
Q. Please explain why.
A. Well, they have all the same target notes. They're used in
the same way to close the phrase. It -- they're significant to
both songs in the same way.
Q. Okay.
A. They have most of the same notes.
Q. All right. Thank you.
We've -- we previously talked about the keyboard being
in the deposit copy. Do you recall earlier I asked you about
that?
A. Yes.
MR. BUSCH: Okay. Your Honor, I would like to now
play -- or show on the screen Exhibit 376, slide 20.
MR. MILLER: Same objection.
THE COURT: That's fine. Overruled.
BY MR. BUSCH:
Q. Can you explain to the jury with respect to the keyboard
parts the transcriptions that we are reviewing and similarities
that you have found?
A. Yes. But this -- this isn't the right slide.
Q. 19. My mistake.
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A. Thank you.
Q. Same question. Please explain to the jury what they're
seeing and why you believe they are similar.
A. Yes. The keyboard parts in the two songs, as I described
them earlier, are part of the heartbeat or the pulse of the
song.
They're very similar between them for two -- two or
three reasons. Primarily the keyboard part plays harmonies or
chords that are indicated in the lead sheet.
In Blurred Lines there are two chords that alternate
in the song and in Got to Give it Up, those two chords appear in
a slightly decorated form.
So they share the three main notes of their primary
chords together. The chords in -- and number two is how -- how
often those chords are played in terms of the rhythm and
repetition.
THE COURT: All right. Stop there.
Next question, please.
MR. BUSCH: Okay.
Q. Would you please explain what you mean when you say that
they share the distinctive offbeat rhythm, please.
A. Yes. As I mentioned about rhythm, there are beats, what we
think of as beats in a measure. If you're tapping your foot to
rhythmic music that you're listening to, the onbeat, so to
speak, is the part where your foot goes down to the floor and
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when you raise your ankle up to prepare for the next tap, that
would be the offbeat.So it's strong, weak, strong, weak, strong, weak.
That's what rhythm about in this case -- context.
Well, both songs here use -- play their keyboards with
their same harmonies on the offbeat and it's very distinctive.
It throws the pulse off. It feels dislocated.
Q. And is that something you found to be unusual coincidence
between the two?
A. Yes. A distinctive trait.
Q. Okay. And you also say that they have the same two root
chords of three notes in Blurred Lines with two identical scale
degrees. Would you explain that?
A. YesMR. MILLER: Objection. Asked and answered.
THE COURT: Sustained.
Let's take a brief break here, ladies and gentlemen.
We will take a break for 10 minutes. Don't discuss the case.
Thank you.(Jury Out)
THE COURT: You may step down, Ms. Finell. You may be
seated.We will resume in 10 minutes. We have a request for
this from the jurors.(Recess taken)
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(Jury Out)
THE COURT: Is Ms. Finell here? Would you have her
come up, please.(Jury In)
THE COURT: Please be seated. All eight jurors are
back.Ladies and gentlemen, does any of you have a
scheduling conflict this afternoon? Okay. We will probably go
for about another 45 minutes to an hour. Does that work? All
right. Thank you.
Please proceed, Mr. Busch.
BY MR. BUSCH:Q. I believe we were on the keyboard parts. We had gone
through the first two similarities on the page.
Would you please describe what you mean by same
rhythmic suspension?A. Yes. The keyboard parts, as I say, have this constant
offbeat rhythm that I describe as a pulse. But it's interrupted
in both keyboards in the same way.
If you look at the fourth bar in the upper -- in
the -- if you could circle the fourth bar with the rhythmic
suspension, that's it right there. You'll see that also below
it in the fourth bar is a rhythmic suspension.
So what rhythmic suspension means here is that that
constant pulse of going on the offbeat is interrupted
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temporarily and the notes are held longer and it's done very
similarly. So it's a temporary interruption and that's the
purpose of the word suspension.
Q. Is that temporary interruption or suspension in both of the
keyboard parts in your mind a significant similarity?
A. Yes. I would consider it a shared creative choice that
both composers made.Q. And the last bullet point that you describe is left-hand
parts share distinctive rhythmic traits and pitches.
Would you describe what you mean by that.
A. Yes. On a keyboard such as a piano, the keyboard is
basically divided in half. The first half -- a piano keyboard
has 88 keys.So your right hand is more or less responsible for all
the keys -- all 44 keys from middle C up to the top -- top
highest note, and your left hand is responsible in essence for
all the notes from middle C down to the very bottom notes.
So when I say the left-hand part, I'm talking about
the lower notes that are played with the left hand. Keyboard
player's left hand, I mean.Q. And what are the distinctive rhythmic traits and pitches
that are shared?A. Yes. The left hand has similar target notes that are
actually primarily the same in both, meaning the A, which is
scale degree 1, and then the flat 7, which is scale degree --
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scale degree flat 7, which is a G natural in both.
In Blurred Lines, the main target notes in this
particular four bars is all As so it's all target number --
target note, scale degree 1, but it shares the same off -- the
same rhythms in the sense that there's many, many bars of --
moments of silence. That's what -- it's hard to explain but
there are rests, which mean don't play any notes.
So they share the same rests. And silence is as much
of a rhythm as a note playing is. So they share the same
silences as well as where the notes occur, say, on the second
half of beat 4 quite often.
Q. Are these four similarities, in your opinion, the result of
shared creative choices?
A. Absolutely. There is no accident about them.
MR. BUSCH: Okay. Would you please play the two
audios.
MR. MILLER: Objection. And move to strike.
THE COURT: I'm going to strike the last sentence,
there is no accident about them, as not part of the case.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. And then that was what did we just hear?
A. Yes, that was Got to Give it Up, bars 1 through 4.
Q. And now what will be the next thing we will hear?
A. Blurred Lines, bars 1 to 4.
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(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. Okay. And have you also prepared a slowed-down, or in tech
terms, time-stretched audio example of the keyboards?
A. Yes. A comparison of both keyboards slowed down quite a
bit, yes.
Q. And why did you do that?
A. It's easier to focus for a listener if you slow it down.
It's similar to slow motion if you're watching a football game.
You can focus on it more easily if the music is slowed down a
little bit.
MR. BUSCH: I would like to play, then, Exhibit 376,
No. 20.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. That was Got to Give it Up?
A. Yes.
Q. And now is Blurred Lines?
A. Yes.
(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. What does that illustrate as far as you are concerned?
A. It illustrates all of their similarities that they are
playing the same chords, that they are playing the same rhythms,
that their left hand alternates with the upper hand rhythms and
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that they're very similar.Q. What do you mean when you say that the left-hand parts are
in both songs?A. Well, again the left hand is what you would call sparse.
If you look -- maybe you could circle this. If you look at the
lower -- what's called the left hand, it's -- in essence, it's
the bass part within the piano itself. So the low notes are --
I'm sorry. I'll have to explain it with notes. It's the A and
the G and the A and the G in Got to Give it Up and in the lower
part, it's A, A. See how they have all the rests there. It's
very silent for almost -- most of the bar. So they alternate
with the upper. So you will have that low, high, low, high.
And the high part is always on the offbeat.
So it's very -- it's almost like a conversation
between the lower -- that lower left-hand part and that higher
response, in a sense, chord in the right-hand part and they're
done in the same rhythms. They are very similar rhythms.
Q. All right. Thank you. Have you found -- we can move on
from the keyboards now.Have you found even more similarities, Ms. Finell?
A. Yes. Quite a few more.
Q. Okay. Have you found similarities in lyrics and music that
you have identified as word painting?
A. Yes, I have.Q. Okay. Would you please explain to the jury what you mean
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when you say word painting.
A. Yes. In music, there's a compositional technique in which
the music in terms of the melodies, rhythms, harmonies, any
number of melodic traits, can be used to actually illustrate or,
so to speak, paint the words in the lyrics.
For example, if it's a song about you want your --
your beloved to return to you, a melody that does that may take
a note and then depart from that note to another note and keep
coming back to the first note. What we would call rebounding.
So that musically it illustrates the meaning of that lyric.
Another example is if a song is singing about going
higher, that the notes also go higher in pitch as a way of
illustrating that. That's called word painting.
Q. Okay. Is word painting a long- established musical
composing technique?
A. Yes. It's been used for many centuries.
Q. Do you believe there is very similar word painting in Got
to Give it Up and Blurred Lines?
A. Yes.MR. BUSCH: Exhibit 376, slide 32.
Q. What does this -- what does this slide show?
A. In both songs, Got to Give it Up and Blurred Lines, there's
a section of each song with a similar series of words, each sung
within very short phrases of two or three notes in length, one
after the other. In both songs this is in a section called a
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bridge section, which means a transition from other sections or
two other sections.
Q. Okay. With respect to the bridge sections, are they
parallel in your mind between Blurred Lines and Got to Give it
Up?
A. Very much so.
Q. Can you explain to the jury how?
A. Well, they both share the word painting element, and there
are other elements that they have in common with the melody, in
other words, the way they do the word painting, as well as the
words themselves.Q. So it's the melodies, the words. Is there a comparable
function of each in both songs?
A. Yes. The function is the bridge. It's meant to transition
between one section and another.
Q. Okay. So it's lyrics, the melodies sung to the lyrics or
the melodies that underlie the lyrics and the function; is that
correct?
A. That's right. All four.
Q. And is there a shared unusual compositional technique as
well?A. Well, the technique is word painting, as I said, but I
should say that their bridge acts in each case like a bookend to
another important section which I'll be talking about a little
bit later, but both the Blurred Lines and the Got to Give it Up
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in essence bookended another key section of their songs in
similar ways.Q. All right. So let's start with No.1, the similarity of
lyrics. Explain what this page reflects with respect to the
similar lyrics in the two songs?
A. Okay. In Got to Give it Up the series of lyrics that are
each separated by rests, so they are separate phrases one right
after another, are move it up, turn 'round -- I'm sorry -- turn
it 'round, ooh, shake it down.
And then in Blurred Lines, there's the similar series
of phrases, one right after another, and the words are also
there but in a slightly different order. So in Blurred Lines,
it's shake around, get down, get up. And the arrows show
where -- how they relate to one another on the page.
Q. All right. You also said there was a similarity in the
music these phrases are set to. What is that similarity?
A. Well, for example, of the three -- of the four notes that
are contained in these three phrases, each of them being so
short, altogether they have four scale degrees that they use in
their three phrases. Of those four scale degrees, three are
identical, No.1.No.2, the way they paint the words is similar. Where
it says move it up, both of them go up in the same way to the
next scale degree. When it says get down, they both end up
down -- coming down onto scale degree 1 on what you call the
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downbeat or the strongest emphasized beat of the bar. So
there's that illustration element, too.
Q. Your third similarity within this is a shared function.
What do you mean by that?
A. It's that bridge function again.
Q. Okay. And I'm not sure you mentioned this specifically
yet, but what is the section in the songs, respective songs,
where the bridges appear?A. Yes. In Got to Give it Up, there's a section of the song
that we have -- we will discuss soon called parlando section,
which I'll explain, which is a deviation from anything before or
after it in the song.In Got -- I'm sorry. In Blurred Lines, there is a
section that is a rap section that you can hear clearly because
it's completely different from the before and after portion of
that song.So in Got to Give it Up, this bridge, move it up, turn
it 'round, shake it down, is immediately before the parlando
section, which is a chanted section that's a deviation. And
it's a bookend. That's just the best way I can describe it.
And with Blurred Lines, it's immediately after the rap
stops and then it's shake it 'round, get down, get up, and
that's the bookend on the other side of that similar parallel
section.Q. Okay. And I may have neglected to mention this, but are
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these -- is this the lyrics and the melody underlying the
lyrics reflected in the lead sheet?
A. Absolutely, yes.
All right. Would you please turn to Exhibit 376,
I would like to put on the board, please.
Could you please explain to the jury what they're
seeing on this demonstrative.
A. Yes. This describes the points I've already made, really,
Q. Okay.
slide 33.
about the pitches, the way in which the word down and up is
painted similarly in the melody, and the way the lyrics, the
series of lyrics from Got to Give it Up are reorganized in
Blurred Lines and their shared location as a bridge and
function.
Do you -- should I explain what we're going to hear?
Q. I will ask you the question.
A. Excuse me.
Q. And I see you have some audio here. What is the audio
excerpt that you have prepared that we're about to hear?
A. Well, this is in a way a mash-up, meaning that in order to
illustrate how parallel these are, I changed the order so that
Got to Give it Up's lyrics are alternating in their related way
with Blurred Lines. If you remember the prior slide with the
arrows crossing over each other, it's to show you how they would
sound the same if they were actually done in the same order.
So you'll be able to hear them. First, the one song
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148
and then the other with the shared lyrics, so they're not out of
order any longer.
MR. BUSCH: Would you please play the audio excerpt,
please.
(Whereupon, the au¢io was played for the jury.)
BY MR. BUSCH:
Q. In your opinion, what did we just hear?
A. Three very similar phrases between Got to Give it Up and
Blurred Lines.
Q. And melodically?
A. Melodically very similar and the word painting is, you
know, an unusual choice that they both share.
Q. In addition, did you identify what you believe are similar
themes within Got to Give it Up and Blurred Lines?
A. Themes in terms of the story lines that they share, yes.
Both songs do share an overall theme of their story
lines. Blurred Lines in a way talks to another person, whereas
Got to Give it Up is speaking about himself mostly.
But in Got to Give it Up, the story line is of an
introverted person who wishes that he could be more liberated,
more free, more attractive to women who he would hope would want
to dance with him. So there's a transformation that he is
trying to make in himself and that's what he talks about in the
song, and then actually addresses women that he's flirting with
in the song.
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In Blurred Lines, the transformation is on the part of
the singer is really of the other person, hoping that the
young -- the girl that he is seeing to will transform from a
good girl to a more sexually liberated girl and there is a
singing back and forth about that in that song.
MR. MILLER: I would object and move to strike in that
she has been qualified as an expert in music and this is a
literary theme.
THE COURT: sustained.
Disregard the last question and answer.
Next question, please.
BY MR. BUSCH:Q. Have you prepared a chart that shows lyrical similarities
between the two songs?
A. Yes.MR. BUSCH: Could you put on the chart page 35.
MR. MILLER: Your Honor, I would object to this
exhibit on the third column, for the same reasons as the prior
objection.THE COURT: Sustained.
So do you have an objection to columns 1 and 2? I
think that's something similar to what was shown by the Thicke
parties in opening, isn't it?MR. MILLER: That's correct, in response to this.
THE COURT: All right. You may show columns 1 and 2.
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MR. BUSCH: Thank you.THE COURT: But please focus your questions, in light
of my ruling, with respect to literary versus musical issues.
Thank you.MR. BUSCH: I understand.
Q. Have you prepared comparative lyrics between Got to Give it
Up and Blurred Lines?
A. Yes.Q. And the Got to Give it Up lyrics that you've identified in
column 1 are identified -- those -- each one is next to a --
MR. MILLER: Your Honor, I apologize for interrupting.
The header is also -- I didn't notice that.
THE COURT: Okay. Go ahead. Ask the questions. I
don't know that you need this chart to display this, so ask the
questions. Let's go.
MR. BUSCH: Okay.
THE COURT: Please.
BY MR. BUSCH:Q. You've compared the lyrics but my body yearned to be free
with the lyrics just let me liberate you; correct?
A. Yes.Q. And you compared the lyrics somebody watching might wanna
make romance with I know you want it, must wanna get nasty;
correct?
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Q. And the lyrics you can bump me when you want to, babe,
let me be the one you backversus -- I apologize in advance
that ass into; correct?
A. Yes.Q. And the lyrics let me slip into your erotic zone
versus I'll give you something -- and I'll apologize again
I'm not going to read it. You can read it on the screen. I
lost that bet.All right. Okay. You've been discussing, Ms. Finell,
the rap parlando section similarities in those compositional
similarities; correct?
A. Yes.Q. Okay. Can you please explain for the jury the next
similarity you found which is the rap parlando similarity?
A. Yes. In Got to Give it Up, there's a section that
deviates, and I mentioned earlier that a musicologist looks at
broken rules or deviations from the norm.
So it deviates from itself in the in the sense that
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the music changes from melodic music to chanted music, some of
which is just sung in a monotone, almost in a spoken way. That
technique of not having a melody --MR. MILLER: Objection. Your Honor, this is about the
sound recording.MR. BUSCH: No, your Honor, we've addressed this.
THE COURT: I think you can be more focused. She has
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already testified extensively about this, so what is your
focused question, please?
BY MR. BUSCH:Q. Let me ask this question first in light of the objection by
Mr. Miller.Is the chanted -- is the chanted spoken portion of the
parlando in the lead sheet?A. Yes. I could show it in the lead sheet. It's very clearly
notated.
Q. Okay. Thank you.Now, with respect to the parlando rap section, is
there anything -- what is the most significant thing that you
have identified with respect to it?
A. WellMR. MILLER: Objection to form.
THE COURT: I agree. Sustained. Are you referring to
sections or section?MR. BUSCH: I understand what my limitation is,
your Honor, so let meTHE COURT: Because you referred to parlando and rap
in the same question.
MR. BUSCH: That's fine.
Q. with respect to the parlando section that you just
described, the spoken, chanted section, what is the bar on which
it begins in Got to Give it Up?
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A. 73.Q. And with respect to the rap -- T.I. 's rap section in
Blurred Lines, what bar does it begin on?
A. 73.Q. with respect to the parlando chanted section in Got to Give
it Up, what bar does it end on?
A. 88.
Q. With respect to the rap section of Blurred Lines, what bar
does it end on?
A. 88.
Q. Do you have a chart that you've prepared that illustrates
this?
A. Yes.Q. Would you please put on the screen 376/37.
Would you please describe for the jury what this chart
shows.A. This chart illustrates where in the structure of each song
the parlando section occurs in Got to Give it Up and the rap
section occurs in Blurred Lines. It's in the same location.
Q. Okay. And you say deviation from material before and
after.What do you mean by that?
A. In both songs, before and after these sections, the songs
are sung in a melodious way in Got to Give it Up, where the
melodies rise and fall many notes, 6, 7, 5 notes, up and down,
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as I say, with leaps, etc., but when it changes to parlando, it
sho~s on the lead sheet. It's just a single note, for example,
It's just a single note sung repetitive wayfor a whole bar.that you would chant, almost like you would speak instead, and
it shows -- it even changes the rhythm to what you call
triplets. It's more as an inflected speaking than it is a full
out singing.And that goes on until bar 88, and then it goes right
back to the signature phrase which is very melodious and
involves all the different movements of the note. So it's
definitely a deviation.The same things happens in the rap. Of course, there
it's really obvious because it goes to pure speaking in a
rhythmic sense. But parlando is a precursor to the rap, in my
opinion, many years before -- before rap was used as an art
form.Q. When you say the third phrase similar starting lyrical
phrase, what do you mean?A. Yes. In the parlando, the early phrase is you can bump me
when you want to, babe, is the lyric. And in the rap section,
right after the first statements, the immediate next phrase
is -- right after one thing I ask you is the phrase that we
didn't want to say before. And I don't have it in front of me.
But it means the same thing.Q. Okay. All right. Do you have audio examples to show the
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bridge followed by the spoken part followed by the bridge in
both songs?A. Yes. It will show the way the contrast exists and also the
bridge being the bookend for these separate sections, yes.
MR. BUSCH: Would you please play the audio on slide
38, Exhibit 376.(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:Q. All right. At some -- before you play that, where was
the -- where did the spoken end and the more melodic singing
begin within that?A. It was right where he started -- I mean, I'd have to have
it in front of me, but it was right where he started -- I think
it was you can move your body, baby.
Q. And was the bars that preceded that 73 to 88?
A. Yes.Q. Okay. All right. Let's play the second track, which is
Blurred Lines rap and surrounding bars.(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:
Q. Okay. Okay.Now, underlying both sections, did we hear the organ
and bass playing as well?A. Yes. The heartbeat is always going and that's what I mean
about the constellation. There's so many similarities at the
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same time.
Okay. Now--
MR. MILLER:
THE COURT:
the question.
Q.
Move to strike everything after yes.
Motion is granted. It's not responsive to
Let's move on, please.
MR. BUSCH: All right.
Q. with respect to the third audio exhibit, what are we going
to hear?A. SO this is the same thing but without the -- any of the
instruments playing so you can focus on how the -- how the vocal
lines change.Q. Okay. Now, with respect to Got to Give it Up, is there a
portion toward the end where the chanting goes back to a more
melodic singing?
A. Yes, there is.Q. And I just want, for the jury's sake -- the chanting ends
at bar 88 and more singing begins?
A. Yes. It's just -- it transitions right back to the way it
was in the earlier part of the song. The deviation is over, in
essence.Q. Okay. And is that the same length as the T.I. rap that we
heard?
A. Exactly the same length.(Whereupon, the audio was played for the jury.)
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BY MR. BUSCH:Q. Okay. So bars 73 to 88 were up to but not including when
you move -- when you're moving your body?
A. That's right. That's when it goes back to the melodious
part.Q. And the T.I. rap is 73 to 88 as well?
A. That's right.
Q. And would you play -- what is the fourth --
A. It's the vocal track only in Blurred Lines.
Q. Let's play that, too.(Whereupon, the audio was played for the jury.)
BY MR. BUSCH:Q. So with respect to that last audio example, was that bridge
that you've identified in Blurred Lines shown or heard right
after the rap section?
A. Yes, it was.Q. And in the last example of Marvin Gaye's parlando preceding
his parlando was the bridge that you just identified heard?
A. Yes. The bridge with the word painting was, yes.
Q. And do you consider that significant?
A. Yes. I I think it's what you might call a fingerprint.
Q. What do you mean by fingerprint?
A. In musical terms, I mean that it's the -- the similarity is
so unlikely otherwise that it's a fingerprint and --
MR. MILLER: Objection, your Honor.
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MR. BUSCH: Her opinion, your Honor.
THE COURT: I agree. Just a minute.
3 Strike the last response.
4 What's the next question, please?
5 BY MR. BUSCH:6 Q. Is it unusual to have two such similarities like you
7 just like we just heard in two songs?
A. Yes. Very much.
Have you ever, in your years of experience in thisQ.
business -- have you ever seen similarities like that, beginning
and starting at the same bar and measure with the same bookends?
Have you ever seen anything like that?
MR. MILLER: Objection. Relevance. 403.
THE COURT: No. Overruled.
You may answer that.
THE WITNESS: No.
BY MR. BUSCH:
Q. Okay. We have prepared have you prepared a chart
showing those constellations of similarities that we have gone
over at length over the last day and where they appear within
Blurred Lines?
A. Yes.
Q. Okay.
THE COURT: Is there something new that you are
offering now that hasn't been covered?
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MR. BUSCH: We're showing where -- I'm almost
finished, your Honor. It will take 30 seconds.
MR. MILLER:
THE COURT:
Object on 403 to going over all this.
Based on the question you just asked, this
has already been covered.
MR. BUSCH: It hasn't been covered to show where it
runs throughout the entire song.
THE COURT: This is a demonstrative exhibit.
MR. BUSCH: Yes.
THE COURT: She has already testified I think
concerning this. So let's see what your question is.
BY MR. BUSCH:
Q. Do you have a document that illustrates how pervasive the
use of Got to Give it Up in Blurred Lines is?
MR. MILLER: Objection. 403.
THE COURT: Sustained. That's not a demonstrative
exhibit.
BY MR. BUSCH:
Q. Well, do you have a --
THE COURT: Does she have an opinion, perhaps, but not
a demonstrative exhibit.
BY MR. BUSCH:
Q. Do you have an opinion about the elements that are
contained in Blurred Lines that are very similar to those in Got
to Give it Up?
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THE COURT: This is cumulative.
Is there something new?
BY MR. BUSCH:
Q. Is there any bars of Blurred Lines that do not contain
something substantially -- very similar to Got to Give it Up?
A. Very few. Out of 130 bars, almost none.
MR. BUSCH: That's all we have for Ms. Finell,
your Honor.
THE COURT: All right. Thank you. Thanks for being
expeditious.
What's your time estimate on your cross-examination?
MR. MILLER: Hour, hour and a half, I'd say. Probably
more like -- probably over an hour, I would guess.
THE COURT: All right. Then I think probably the most
efficient thing, ladies and gentlemen, would be to let you go
home. You don't want to go home?
Well, I -- as counsel know, I agree with that.
Can you cover a section in 15 minutes?
MR. MILLER: Yeah, I guess I could.
THE COURT: All right, then, let's proceed for 15
minutes, approximately. Is there any other juror who has a
conflict? No. All right.
Go ahead, please, Mr. Miller.
CROSS-EXAMINATION
BY MR. MILLER:
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Case 2:13-cv-06004-JAK-AGR Document 347-3 Filed 03/17/15 Page 70 of 70 Page ID #:9864