blurred lines trial - transcript exhibit h.pdf

Case 2:13-cv-06004-JAK-AGR Document 347-4 Filed 03/17/15 Page 1 of 75 Page ID #:9865

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Friday, February 27, 2015

UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

4 THE HONORABLE JOHN A. KRONSTADT

5 UNITED STATES DISTRICT JUDGE PRESIDING

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7 Pharrell Williams, et al.,

8 Plaintiffs,

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vs. Case No.

CV 13-06004-JAK(AGRx)

12 Bridgeport Music, Inc., et al.,

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Defendants.

REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS

Day 4 - P.M. Session

Los Angeles, California

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

23 Roybal Federal Building255 East Temple Street

24 Room 181-1Los Angeles, California 90012

25 (213) 687-0446

United States District Court, Central District of California

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Q. And, for example, the phrase move it up in Give has

different rhythm and different notes than get up in Blurred

Lines; right?

A. Again, if I may look at my own breakdown of it, I'll be

happy to answer you. But they have -- there are only four notes

in these phrases and three are identical.

Q. Why don't you look at move it up and get up and tell me

whether those have the same notes.

A. Okay. I'll have to look at, I think, my report. May I do

that?

Q. Do you have it handy?

THE COURT: Which exhibit? To which of your reports

are you referring?

THE WITNESS: It would be my full report.

MR. MILLER: You know what? It's not worth getting

into that, your Honor.

THE COURT: All right.

MR. MILLER: I have no further questions.

THE COURT: All right. Thank you.

Any redirect, Mr. Busch?

MR. BUSCH: Yes, your Honor.

REDIRECT EXAMINATION

BY MR. BUSCH:

Q. Good afternoon, Ms. Finell.

A. Good afternoon.

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Q. I want to ask you -- we've been going about three and a

half hours now today with Mr. Miller; is that right?

A. Uh-huh.

Q. Yes?

A. Yes.

Q. About a half hour yesterday; is that right?

A. Yes.

Q. Do any of the distinctions that Mr. Miller has tried to

make between your transcriptions and the deposit copy change

your analysis at all?

A. Not at all.

Q. And did you base your testimony today on your analysis of

the deposit copy?

A. Yes.

Q. Okay.

I'd like to, I think, begin by giving you a chance to

explain certain of the answers that you were not allowed to

explain in Mr. Miller's examination of you.

First, I want to start with the keyboard issue that

came up during Mr. Miller's examination of you. Do you have

that in your mind?

A. Yes.

Q. Is there a dedicated stave for the keyboard in the deposit

copy?

A. No.

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Q. Okay. And is that what you were testifying about in your

deposition?

A. Yes.

Q. But can you explain to the jury exactly why you believe or

you say that your opinion is that the keyboard rhythm is

absolutely in the deposit copy?

A. Yes.

Deposit copies are meant as a musical shorthand, so a

stave means the five lines on which you write musical notes.

So deposit copies only allow -- in most of their

formats only allow one stave and yet it could represent music

that's being performed by five, six, eight musicians all at

once. So the copyist has to choose what to write down. So it's

not possible to write everything down. And musicians who are

professional have learned how to look at that and know what's

meant.

Q. And so specifically with respect to the keyboard rhythm,

could you explain to the jury why the keyboard rhythm

specifically is in the deposit copy. And if you'd like me to

put the deposit copy on the screen to illustrate

THE COURT: Slow down, please.

BY MR. BUSCH:

Q. To illustrate, I would be happy to do so.

A. Thank you, yes.

THE COURT: You wish to see it or you don't?

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THE WITNESS: Yes. I'm sorry. Yes. Please put it on

the screen.

MR. BUSCH: This is Exhibit 248.

THE WITNESS: Okay. And I will be looking also at the

keyboard transcription, which is an exhibit.

THE COURT: What exhibit are you reviewing, please?

MR. BUSCH: That would be exhibit --

THE COURT: I'm asking the witness.

THE WITNESS: It's 16. Oh, I'm sorry.

THE COURT: Exhibit 376, page 16?

THE WITNESS: Yes. That's right. I'm sorry.

THE COURT: Go ahead.

THE WITNESS: Okay.

So --

THE COURT: Read the question, please.

(Record Read)

THE WITNESS: I need to correct myself. It should be

Exhibit 376, page 19, not 16.

THE COURT: Okay.

THE WITNESS: I'm looking at the keyboard

transcription.

BY MR. BUSCH:

Q. Would you please explain to the jury how the keyboard

transcription is in the deposit copy.

A. Right. So the -- as I say, the keyboard plays with the

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left and the right hand so the left hand accounts for part of it

and the right hand accounts for part of it and together they

combine to express the A7 chord, which is -- which is shown on

the deposit copy in the beginning.

So the left hand of the keyboard is primarily playing

A and G natural as shown in the bass line, and the rhythms,

which are offbeat rhythms, are shown in the second note which is

an offbeat G, meaning it's the second half of the bar. And,

again, in the third bar in the second half of the bar, there are

all of these offbeat rhythms and they coincide with both the

left and the right hand which is also playing the chords, the

A7. Over and over again is the A7 chord.

Q. Okay. Thank you.

Now, did you hear in opening statement by Mr. King and

Mr. Miller the playing of something that they created and

represented to be the playing of Marvin Gaye's Got To Give It Up

as found in the lead sheet? Did you hear that?

MR. MILLER: Objection. Beyond the scope.

THE COURT: Sustained. It's not a proper question.

Let's go.

BY MR. BUSCH:

Q. Have you listened to what was created by the Thicke

parties

THE COURT: Are you referring to an exhibit?

MR. BUSCH: What is the recording?

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Q. Have you listened to Exhibit No. 141, which is an audio

played by or created by Sandy Wilbur?

MR. MILLER: Objection. Beyond the scope of cross,

your Honor.

THE COURT: I can't tell you.

BY MR. BUSCH:

Q. Have you listened to that?

A. Yes.

Q. Is there a keyboard rhythm played in that recording?

I can't tell.

A. Yes.

Q. Is the keyboard rhythm that's played in that recording

reflected in the lead sheet?

MR. MILLER: Beyond the scope.

THE COURT: Yes. Sustained.

BY MR. BUSCH:

Q. Let's go back now and I want to talk to you about some

earlier questions that Mr. Miller asked you in his examination.

And I want to start, I think, with Exhibit 376, and I want to

start with the signature phrase. Would you put that on the

board. Exhibit 376, slide 3.

Now, Mr. Miller played Blurred Lines multiple times in

his examination of you.

Do you recall that?

A. Yes.

Q. And you were asked how many times the signature phrase

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appears in Blurred Lines.

Do you remember that?

A. Yes.

Q. And do you recall Mr. Miller confining his questions to

twelve note -- full twelve-note signature phrase?

A. Yes.

Q. You wanted to explain the variations in your answers but

were not allowed to do so. I would like you now to explain --

MR. MILLER: Objection.

THE COURT: That's an improper question. Excuse me.

If I have made a ruling then I've made a ruling, then you just

proceed with your questions. Come on, Mr. Busch.

BY MR. BUSCH:

Q. Would you please explain the times that the signature

phrase appears in the -- in Blurred Lines, including its

variants and explain variants as well, please.

MR. MILLER: Objection. Calls for a narrative.

Objection to form.

THE COURT: Start with the first part of your

question. Take it in pieces, please. Number of times.

MR. BUSCH: Okay.

Q. Explain to the jury, if you would, the number of times the

signature phrase appears in Blurred Lines.

A. It appears multiple times in Blurred Lines. I have a chart

in which I showed that and it's also part -- part of my exhibit.

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MR. BUSCH: Can you put that up, please. This is

Exhibit No. 376.

THE COURT: Mr. Busch, can you pose the question to

the witness concerning her percipient knowledge as opposed to

publishing the --

MR. MILLER: Objection, your Honor. This did not come

in in direct.

THE COURT: Pardon?

I object to the exhibit.MR. MILLER: It was not partof the cross or direct.

THE COURT: Just ask her percipient questions, please.

Not what does the chart show. Ask her --

MR. BUSCH: Okay.

Q. How many times does the signature phrase or its variants

appear in Blurred Lines?

A. It would help for me to see my own report to answer that,

but it's about four or five times.

Q. Okay. And you are free to look at your own report.

THE COURT: If you wish to look at your report again

to refresh your recollection, let me know but we need to know

the report at which you're looking.

THE WITNESS: Okay. Well, when I looked at the report

in the documents here, it was not printed in a way that was

legible to me. May I look at it in a different form?

THE COURT: We need an exhibit.

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I would like to show --MR. BUSCH:

THE CLERK:

MR. BUSCH:

Exhibit 376, please.

THE COURT:

MR. KING:

THE COURT:

1728.

I would like to show the witness

8 Disregard that.

9 Mr. Busch, I want you to ask question of the witness.

10 She has already answered what she recalls so please move on.

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MR. BUSCH: Okay.

Q. Why are the variants that appear throughout Blurred Lines,

13 the variants of the signature phrase that is important to you?

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A. It's part of my musical analysis in terms of how I compared

the music. The variants are referring back to the initial

signature phrase.

Q. Okay. And I'd like to play, actually, Blurred Lines, if we

could.

THE CLERK: Mr. Busch, what exhibit?

MR. BUSCH: 529.

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

BY MR. BUSCH:

Q. Okay. Ms. Finell, how many times did you hear the

signature phrase or its variants appear in that first playing of

Blurred Lines?

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Well, it was the -- one was the first time.A. It was full

its full expression and then there was one variant.

Q. And was there a blurred lines?

A. I'm sorry?

Q. Was there a phrase blurred lines as well?

A. Yes.

Q. Was that a variant?

A. Yeah. It's related defini tely.

Q. Did you hear good girl as well?

A. Yes, I did.

Q. All right. And explain how good girl and blurred lines

would be a variant of the signature phrase.

A. They are -- they are restatements -- the good girl is

always on a repeated note. When the chord is A, it repeats on

the A, good girl, the words good girl. When it's on an Echard,

because the song moves from A to E, it's on an E. It repeats

itself, but moves harmonically around.

Q. And is that equivalent to one of the examples you played on

your keyboard yesterday?

A. Yes. Oh, in the terms of transposing a melody and moving

it up or down, yes, that's true. I did that with Jingle Bells,

for example.

Q. Okay. Let's play the next section, please.


MR. BUSCH: Okay.

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Q. How many times did you hear the signature phrase in that

section or its variants?

A. I think there were two.

Q. And what were those two times?

A. It's very hard once the record's turned off, but it was

again related to the blurred lines and the good girl sections.

Q. Okay. All right. And keep playing.


BY MR. BUSCH:

Q. Did you hear it one or two more times there?

A. Yes. Uh-huh.

Q. And would you play it again.


BY MR. BUSCH:

Q. Did you just hear there -- and we're going to move from the

signature phrase for a brief second -- did you just hear the

bridge in Blurred Lines that followed the rap section?

A. Yes.

Q. And does that very similar bridge precede Marvin Gaye's

parlando that we talked about?

A. Yes.

Q. And did you hear good girl repeated there, the signature

phrase, in that last section we played?

A. I think so but it went by pretty fast. You mean before the

rap?

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Q. Before the rap, yes.

A. Oh, yes, before the rap I did.

Q. Okay. Go ahead. Play the rest.


BY MR. BUSCH:

Q. And did you hear the signature phrase several times there

as well or its variants?

A. Yes, I did. There's a part where he sings I always wanted

a good girl.

Q. Okay. And so, Ms. Finell, let me ask you, is it or is it

not correct that the signature phrase that you've identified or

its variants appear throughout Blurred Lines in its choruses?

A. Yes. Six times.

Q. Now, Mr. Miller also asked you about a rest in the

notation.

Can you put up Exhibit No. 376, page 3. Okay.

And do you recall Mr. Miller trying to draw a

distinction between the rest there and the deposit copy lead

sheet? Do you recall that?

A. Yes.

Q. Okay. Would you please explain to the jury why you do not

see that as any distinction?

A. I'll have to get the lead sheet to make this comparison.

Just one moment.

Q. We can put it on the screen, if you like.

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A. Yeah. But I need this, too. So -- excuse me.

Q. We can put one on top of another.

A. Can you put them both on?

Q. We are putting up on the screen 248 next to 376, page 3.

THE COURT: What page of 248 are you displaying?

THE WITNESS: Okay. Thank you. Could you please move

down -- move the lead sheet up a little bit? Thank you. Could

you move it back down. Just keep going. Further. Stop,

please. Thank you.

Okay.

BY MR. BUSCH:

I don't recall Mr. Miller's precise question.

Q. You don't recall him discussing with you the rest?

MR. MILLER: Objection, your Honor.

THE COURT: Let's move on, please.

BY MR. BUSCH:

Q. Let me ask the question this way: Do you believe your

notation of the signature phrase in Got To Give It Up is

consistent with the deposit copy lead sheet?

A. Completely.

Q. Why?

A. Because all of the rhythms and all of the pitches are

represented accurately and some of the differences are simply

notational. There's more than one way to notate a rhythm

and that's -- most of the differences are that, as the same is

true with rests. A note could be shown as a full-length note or

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it could be shown as a shorter note with a rest, meaning

silence, no other note interrupts it.

Q. Is there any doubt in your mind that the audio exhibit

that that the audio excerpt reflecting the signature phrase

in the audio example you prepared is in the lead sheet?

A. No doubt at all.

Q. With respect to the signature phrase, where the variants of

the signature phrase do not have a repeated note which is in the

initial playing of the signature phrase, why is that?

A. Why is there no repeated note?

Q. Yes.


THE COURT: Restate the question, please.

MR. BUSCH: Okay.

Q. I guess my question is this: Does it make any analytical

difference if the initial note is the same or not?

THE COURT: Do you understand the question?

THE WITNESS: Yes.

THE COURT: Okay. I don't think I do.

Would you restate that, please.

MR. BUSCH: I'll move on, your Honor.

Q. All right. The other topic that Mr. Miller covered was

Theme x.Do you recall that?

A. Yes.

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Q. And he asked you a long question about Theme X to which

your answer was yes before break.

Do you recall that?

A. Yes.

Q. Can you explain to the jury exactly how Theme X is in the

deposit copy?

A. Yes. Theme X is in the deposit copy in one -- it's

represented as one melodic line when there's really three that

occur with the harmonizations of the chord. So Theme X is

represented as one line.

THE COURT: Okay. Stop there.

Next question, please. In other words, I don't want a

narrative.

MR. BUSCH: Okay.

Q. And why is it that a lead sheet would only include one

line?

A. Well, a lead sheet's restricted to one stave, meaning one

set of five lines, so you have to eliminate some of the

material. You have to pick and choose.

Q. With respect to the lyrics that were put on the screen by

Mr. Miller, what was your point with respect to those lyrics?


THE COURT: Yes. Sustained as framed.

BY MR. BUSCH:

Q. Why did you compare those two sets of lyrics?

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MR. MILLER: Same objection. We did this yesterday.

MR. BUSCH: He opened the door, your Honor.

THE COURT: Yes. The door was opened.

BY MR. BUSCH:

Q. Why did you compare those sets of lyrics?

A. It's -- a musical analyst who's looking at vocal music is

required to see what the relationship are of the lyrics to the

music.

Q. So let's go through each one that Mr. Miller asked you

about and put on the screen.

So what was your point in comparing but my body

yearned to be free with just let me liberate you?

A. That both --


THE COURT: Well, it needs to be framed from a musical

perspective, not from a literary one.

MR. BUSCH: Fine.

Q. From a musical perspective, lyrical perspective, thematic

perspective in the music, what was your point in comparing those

two?

THE COURT: It's compound.

MR. MILLER: Same objection.

THE COURT: It's compound.

MR. BUSCH: Okay.

Q. As a musical work, what was your point in comparing those

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two sets of lyrics?

THE COURT: Do you understand the question?

THE WITNESS: Thank you. I do.

The lyrics are set to melodies and rhythms and

harmonies, etc., so to the extent that the lyrics are similar,

I'm looking at them. That's what an analyst needs to do.

BY MR. BUSCH:

Q. And what was your point in reviewing from a musical analyst

perspective the lyrics but my body yearned to be free and just

let me liberate you?

A. That both songs use similar lyrics and set similar lyrics

to their music.

Q. Okay. Was it thematic as well?


THE COURT: Sustained. This needs to be limited to

musical, not literary. It hasn't been framed in that way. It

needs to link the music, not just the words.

BY MR. BUSCH:

Q. Well, why are the lyrics linked, in your mind?


MR. BUSCH: It's part of the musical analysis.

THE COURT: Not the way that question's framed.

Sustained.

BY MR. BUSCH:

Q. Let me ask you this, Ms. Finell. As a musicologist and a

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musical analyst, is it just the music that you are trained to

interpret or was it the lyrical similarities as well?

It's both. I would be incomplete to just look at the musicA.

without the lyrics when it's a vocal work.

Q. And with respect to your standard analysis, is comparing

lyrics for similar themes in two musical works part of your

training?


THE COURT: Just a minute. Let me hear the answer and

then I'll decide this.

THE WITNESS: Yes.

THE COURT: Overruled.

BY MR. BUSCH:

Q. And so when you were comparing Got To Give It Up and

Blurred Lines, did you do that? Did you compare the lyrics for

similar themes?

A. Yes.

Q. Okay. And is that part of your training?

THE COURT: Let's move on.

BY MR. BUSCH:

Q. Well, why did you then compare the lyrics somebody watching

might want to make romance versus --

THE COURT: This is cumulative. Let's move on,

please.

MR. MILLER: It's beyond the scope.

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THE COURT: Let's move on, please.

BY MR. BUSCH:It's cumulative.

Q. With respect to what we just heard -- and I'm focusing now

on the lyrics -- I'm sorry -- on the signature phrase and the

hook that we just heard. Was the bass line and melody running

throughout those as well?

A. Yes. Throughout the entire song.

Q. And so at the same time the signature phrase and the hook

that Mr. Miller asked you about was playing, was there anything

else that you found significant about those phrases in that --

those portions of the song?

MR. MILLER: Objection. Beyond the scope.

THE COURT: No. But I don't understand the question.

BY MR. BUSCH:

Q. Besides the time that or the number of times that the

signature phrase and the hooks appear, is there anything else

that is important to you in analyzing those portions of the

songs?

A. Well, yes. I compare all the music that's occurring at

once and I did find that the bass and keyboard were integrated

fully throughout the entire -- entirety of both songs and so

they were constantly -- their similarities were constantly

present as well.

Are any of the minor or any of the notations thatQ.

Mr. Miller put on the screen at all relevant in your analysis?

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Q. With respect to the bass line, Mr. Miller made -- had you

MR. MILLER: Overbroad.

THE COURT: Sustained. It's overbroad.

3 BY MR. BUSCH:

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5 compare the -- your transcription of the bass line versus the

6 deposit copy lead sheet.

7 Were any of the differences or distinctions that he

8 tried to draw relevant in your mind?

9 A. Not at all.

10 Q. With respect to the signature phrase, Mr. Miller did the

11 same thing.

12 Were any of the differences or distinctions that he

13 tried to draw relevant in your mind?

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A. No. The similarities were much more important.

And yesterday Mr. Miller asked you whether you comparedQ.

16 differences in the two songs and if that was as part of your

17 analysis.

18 Do you recall that?

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A. Yes.

What is the most important part of your analysis in yourQ.

21 mind?

22 A. Well, it's the -- to determine what's similar as well as

23 different between works, but in the end, I found so many

24 overriding similarities that the differences really were

25 diminished.

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MR. BUSCH: All right. Thank you. Nothing further.

THE COURT: Thank you, Ms. Finell.

MR. MILLER: May I have one minute on direct,

redirect.

THE COURT: What's your question about?

MR. MILLER: It's about the copyright office lead

sheet, what can be notated on a lead sheet.


MR. MILLER: It will be quick.

THE COURT: One minute. Just do it from where you

are. Do it from right there.

RECROSS-EXAMINATION

BY MR. MILLER:

Q. Is there any reason you know why sheet music submitted as a

deposit copy to the copyright office can't include mUltiple

staves that reflect a piano part or vocal harmonies if the

author wanted it?

I -- in my experience, I've rarely seen that. It's not theA.

tradition.

THE COURT: Let's move on.

Ms. Finell, thank you for your testimony. You may

step down.

Who is the next witness?

MR. BUSCH: Ingrid Monson, Dr. Monson.

THE COURT: That's your witness; correct?

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MR. BUSCH: Yes.

for a break.

Your Honor, now might be a good time

THE COURT: No. Let's keep going. Let's keep going.

Thank you.

Does any of you need a break? No? Thanks.

MR. BUSCH: We call Dr. Monson, your Honor.

Ingrid Monson, was sworn

Please have a seat.THE CLERK: Can you please state

your full name and spell it for the record.

THE WITNESS: My name is Ingrid Monson.

I-N-G-R-I-D, M-O-N-S-O-N.


That's

Good afternoon, Ms. Monson.

Good afternoon.

Please proceed, Mr. Busch.

DIRECT EXAMINATION

BY MR. BUSCH:

Q. Good afternoon, Dr. Monson.

What is your profession?

I'm a musicologist and ethnomusicologist. My title is theA.

Quincy Jones Professor of African American Music at Harvard

University.

Q. Can you please give me your educational background?

A. Yes. I have a BA in economics from the University of

Wisconsin. A Bachelor's of Music in jazz trumpet performance

from New England Conservatory of Music. I have a Master's and

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Ph.D. from New York University in musicology and ethnomusicology

that I received in 1991.

Q. And starting with your most recent position, walk me

through the positions you have held since receiving your

doctorate, please.

A. Okay. I am the Quincy Jones professor of African American

Music at Harvard University and I have been that since 2001.

Prior to that time, I was an assistant professor and

associate professor at Washington University in st. Louis. I

did a year as a visiting professor at the University of Michigan

in Ann Arbor in '95 to '96, and I began my career as an

assistant professor of music at the University of Chicago in

1991.

Q. Do you have other musical education?

I've been a performer my entire life.Yes. I'm a trumpetA.

player and I played professionally in my 20s and early 30s.

also studied piano from the age of seven. I have played in the

genres of jazz, classical music, salsa, R&B and Klezmer music.

Q. What is Klezmer music?

It's Jewish music.A.

Q. Okay.

It's good.

Can you give me an overview of your primary academic work,

A.

Q.

please?

That would be my publications. So I have two singleA.

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authored books, both of which won awards. The first was called

Saying Something: Jazz Improvisation and Interaction.

THE COURT: Could you slow down, please.

THE WITNESS: Okay. I do talk too fast.

So I was trying to save the Court time.

But the title of the book is Saying Something: Jazz

Improvisation and Interaction, and that was published by the

University of Chicago Press in 1996.

My second book is called Freedom Sounds: Civil Rights

CallOut to Jazz and Africa, and that was published by Oxford

University Press in 2007.

I published an edited collection where I was the

editor of essays called the African Diaspora: A Musical

Perspective, and that was published in 2000.

And I have over 20 peer-reviewed articles and chapters

in books.

BY MR. BUSCH:

Q. And what courses do you teach?

A. I teach both undergraduate and graduate courses. My large

lecture undergraduate courses, I have one that I teach that's

called From R&B to Neo Soul. That gives you the history of

African American popular music since World War II.

And I have a jazz history class that's called Jazz

Freedom and Culture.

I also teach smaller undergraduate seminars about the

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analysis of jazz that focus on particular artists and

repertories. I've done one on Herbie Hancock's music. I have

done one comparing the music of Miles Davis, Thelonious Monk and

John Coltrane.

I also teach courses on the music of Africa. And at a

graduate level, I do seminars on theory and method in the field

of ethnomusicology. Topics like the sensory turn in musical

study which is about music and perception, about music and

cultural theory. The topics change every year.

Q. Do you serve on any professional board relating to your

academic studies?

I've served on many professional boards. Probably what youA.

would be most interested is I have served on the editorial

boards of both the major publications of the two societies in

ethnomusicology and musicology. So the Society for

Ethnomusicology publishes a --

THE COURT: Dr. Monson, you need to slow down.

THE WITNESS: Okay.

The Society for Ethnomusicology publishes a journal

called Ethnomusicology. I have been on that editorial board.

The American Musicological Society publishes a journal

called The Journal of the American Musicological Society and

I've served on that editorial board.

I've served on the editorial board of a journal called

Jazz Perspectives.

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I have also served on a variety of committees and

board positions within these organizations.

I've also served on committees in the Society For

American Music.

BY MR. BUSCH:

Q. Do you regularly lecture or speak to academia on music

issues?

A. Yes. I certainly do. My topics --

Q. Can you please describe your lecturing?

A. Okay. My lecturing -- I speak on jazz improvisation and

its analysis. I -- I lecture on the social and cultural history

of jazz, R&B and Motown. I lecture on music and perception and

embodiment and, you know, theory and method in ethnomusicology.

I -- in recent years I have lectured a lot

internationally. I have lectured at Oxford University in

England. I was asked to do a lecture series at Cambridge

University in England.

I was invited to South Africa and spoke at Rhodes

University. I've spoken at the Max Planck Institute in Berlin.

And in addition to that, since the beginning of my career, I

have given lectures at the major universities in the

United States, University of California Berkeley, UCLA,

Princeton, Columbia, Yale, University of Michigan, University of

Illinois, and many others.

Q. As part of your academic training, do you learn -- did you

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learn how to compare two pieces of music?

Absolutely. That's part of your training in musicalA.

analysis, to look for similarities and differences in musical

passages.

One of my favorite courses as a graduate student is I

took a course on comparing the music of Haydn and Mozart.

Q. Okay. And as part of your academic work, do you regularly

compare pieces of music?

A. I certainly do. This is very important in jazz analysis.

What we often do is we'll take a piece like 'Round Midnight or

Body and Soul and we'll compare multiple performances on each

piece. And what we do in those classes is we'll transcribe

passages from them and then look at the different

improvisational choices that have been made by different

artists.

MR. BUSCH: Okay. Your Honor, we would tender

Dr. Monson as an expert in musicology and ethnomusicology.

THE COURT: Any objection?

MR. MILLER: Not on those two topics, your Honor.


BY MR. BUSCH:

Q. Now, Dr. Monson, do you have any previous experience being

an expert witness in a case?

No, I do not. This is my first time.A.

Q. Do you seek out work as an expert witness?

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A. No, I don't.

Q. Why is that?

A. I am far too busy with the rest of what I do.

Q. Okay. Why did you then agree to be an expert witness in

this case?

THE COURT: Sustained.


BY MR. BUSCH:

Q. Okay. When asked to analyze and compare pieces of music,

do you have a general methodology that you employ?

A. Yes, I do.

Q. And can you please describe that methodology.

A. Well, I would start out by listening to the two works in

question and noticing where similarities arise. If the -- if

sheet music or a score or a transcription existed, I would

consult those as well and I would be looking for similarities in

melody, harmony, accompaniment parts and rhythm.

Q. What other similarities might be there where you would want

to do something differently?

A. Sometimes the similarities that operate musical works have

to do with the sections, a phrase link or section, and in that

case, I might make a diagram to remind myself of the

relationships of the -- of the different sections in the piece.

Q. If the pieces you are comparing are in different keys, does

that affect the way you analyze?

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A. No, it doesn't, except for the fact that you would need to

transpose the pieces into a common key so you can make a proper

comparison.

Q. Is that standard procedure in musical analysis?

Absolutely it's standard procedure.

Why is that?

A.

Q.

A. Well, it's standard procedure because there are 12 keys in

western music and that's because there's 12 half-steps in an

octave, so you can sing any song in 12 keys. So if I do America

The Beautiful in E flat or in A or in B flat, you're going to

recognize the melody, American -- America The Beautiful, no

matter what key I sing it in because it's the relative

relationship of those pitches that gives you the sense of the

song's identity.

All right. Is pitchshifting and transposing the sameQ.

thing?

Yes, it is. I mean, people tend to use the wordA.

pitchshifting when it's being done by a computer program and

transposition when you're doing it in notation.

Q. Once you've transposed the pieces to a common key, what

comes next?

A. Well, then I'm going to want to look at the notes in common

in the melody. I'm going to want to look at them in

relationship to the underlying harmony and then to assess what

the role of each pitch is.

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Q. Okay. What do you mean by the role of each pitch?

Well, in music, pitches are not equal. Musical -- music isA.

kind of hierarchical. So the more important pitches, generally

speaking, the ones that share notes in common with the

background harmony, are considered structurally more important.

Q. Okay. And what other considerations do you make in

analyzing melodies besides pitch and note?

A. I would want to look at the overall contour of the melody,

where it begins, where it ends, where it rises, where it falls

and what its rhythmic shape is.

Q. Are you saying -- well, are all these factors important in

creating a melodic identity of a phrase?

A. Absolutely.

And is it standard practice in musical analysis to leaveQ.

some pitches out?

A. Yes, it is. We are trained in musical analysis when we're

assessing the role of each pitches to factor out those -- those

pitches that are ornamental or passing in nature. We're

supposed to reduce the musical passage to its essential notes.

Q. Do similar principles apply to the analysis of harmony?

A. Absolutely. We're also taught that some chords are more

important than others. Usually the tonic chord, the 1 chord, is

the most important one. But you can build chords on any degree

of the scale, I, 2, 3, 4, 5, 6, 7, and we're taught that usually

1, 4, and 5 are the most important chords in a -- in a key. And

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that's because they make the cadence or the closing of the key.

We're taught that 2, 3, 6 and 7 are secondary chords,

often because they lead to one of those other primary chords, 1,

4 and 5.

Q. Okay. With these concepts in mind, how do you go about

determining if melodies are similar to one another?

A. Well, I go back to first looking for common pitches.

Looking for the harmonic context, what is the harmonic

background. Where the melodies start, where they end. The

rising, the falling, and the overall rhythmic contour. And I

should say that with rhythm, also, there -- rhythm is somewhat

relative, too. You can stretch it a little or -- and shorten it

a little, and you will still recognize it as a similar rhythmic

gesture.

Q. Are there different types of similarities?

A. Yes. There are many different kinds of similarities.

Probably the biggest categories would be qualitative

similarities and quantitative similarities.

Q. Okay. And what is a quantitative similarity?

A. Well, a quantitative similarity would be one that arises by

virtue of the pitches -- you know, or of the melodic ideas

repeating within a work. So you hear that a lot and so

therefore you recognize it as a similarity.

Q. What is qualitative similarity?

A. A qualitative similarity is one that's very distinctive.

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It has a distinct musical profile and it often becomes the

signature of the piece. So we heard Ms. Finell yesterday talk

about Beethoven's 5th and the dah-dah-dah-dah.

THE COURT: Okay. Stop there, please.

Next question.

BY MR. BUSCH:

Q. Do you have an example of something that is quantitatively

significant?

A. Well, often, yes, the accompaniment

THE COURT: Slow down, please.

BY MR. BUSCH:

Q. What I was going to ask you is do you have a musical

example like Beethoven's 5th of something that is quantitatively

important -- qualitatively important, I should say.

A. That' s qualitatively important?

Q. Yes.

A. I would say that the hooks of most popular songs are

qualitatively important.

Q. All right. Were you retained by the Gayes in this matter

as an expert witness?

A. Yes, I was.

Q. And you of course know Judith Finell; correct?

A. Yes, I do.

Q. Okay. And did you two have a division of responsibility

with respect to the analysis of these -- of the issues in this

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case?

A. Absolutely.

Q. Okay. And what was your role?

A. My -- my role, I was asked to particularly assess the

claims of the Thicke parties that whatever resemblances exist

between Blurred Lines and Got To Give It Up are the product of

genre or of it having existed in prior art.

I was asked also to take a look at the originality of

the keyboard and bass lines.

And I was also asked to take a look at the two songs

After The Dance and Love After War.

Q. Okay. And, Dr. Monson, is Got To Give It Up, in your

opinion, original?

A. Yes, it is.

Q. And did you review the reports by Judith Finell?

A. Yes, I did.

MR. MILLER: Your Honor, I object. This is beyond the

scope of her expert disclosure.

MR. BUSCH: It's not.

MR. MILLER: She did not have an opinion.

THE COURT: As to what?

MR. MILLER: As to originality. That was not what she

was offered.

MR. BUSCH: She did.

THE COURT: Excuse me. Where's the report? Your

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objection is to the originality of keyboard and bass lines?

What is your objection to?

MR. MILLER: That she is now offering an opinion on --

she is now offering an opinion apparently on the originality of

elements of Got To Give It Up. She was not -- that was not the

focus of her report.

THE COURT: Okay. Let me see. Is that an exhibit?

MR. BUSCH: We're getting it.

THE COURT: Dr. Monson, if you want water, there is

water behind your monitor.

THE WITNESS: Oh, great.

MR. BUSCH: It's 1713 and 1714.

THE COURT: Where in each exhibit do you contend the

opinion is offered as to the originality of elements of Got To

Give It Up?

MR. BUSCH: In the section entitled prior works.

THE COURT: What page of Exhibit --

MR. BUSCH: Page 10.

THE COURT: This is 1713?

MR. BUSCH: 1713 and then in 1714 --

THE COURT: Just a minute. And where in 1714?

MR. BUSCH: Beginning at page -- paragraph 7, Got To

Give It Up and Blurred Lines bass lines.

THE COURT: What page is that, please?

MR. BUSCH: Page 2 and 3.

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MR. MILLER: 1714 is a rebuttal report and the portion

recited in 1713 responds to Ms. Wilbur's prior art example so

this is all rebuttal testimony.

THE COURT: Just a minute.

MR. BUSCH: 1713 is our original

THE COURT: Just a minute. Well, 1713 at page 10

says -- refers to the opposing expert in its last line; correct?

MR. BUSCH: There's also the affidavit that's attached

to it, your Honor. I'm sorry. She incorporated into her

report


MR. BUSCH: Okay.

THE COURT: Was there a report prepared and exchanged

prior to Exhibit 1713?

MR. MILLER: No, your Honor.

MR. BUSCH: In response to summary judgement, the

motion that was filed

THE COURT: I just want to know was there a report

prior to this one.

MR. BUSCH: There was a --

THE COURT: That was exchanged.

MR. BUSCH: Yes.

THE COURT: Is that an exhibit?

MR. BUSCH: It is.

MR. MILLER: Your Honor, Exhibit 1713 is her initial

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disclosure on October 31st. That was the disclosure deadline.

THE COURT: All right. Just a minute. Let me talk to

you briefly.

(Sidebar conference commenced.)

THE COURT: I'm looking at Exhibit 1713, page 10,

which refers to my declaration. Is that a declaration that was

filed in opposition to the motion for summary judgement?


THE COURT: Well, was this was this the first

document in which she was identified as an expert?

MR. BUSCH: She was identified as an expert in the

response to summary judgement motion that she had been retained

by the Gayes --

THE COURT: Slow down.

MR. BUSCH: She had been identified in response to the

motion for summary judgement by the Thicke parties that she was

retained as our expert and that she submitted a declaration

identifying -- saying that the work was original and she

incorporated it by reference into this report.

THE COURT: Let me ask this. Putting aside for a

moment whether this is actually a proper disclosure, because I

don't know that a summary judgement declaration is a disclosure

consistent with what's required under the civil rules, why is

this not cumulative of what we have already heard? What's

different?

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MR. BUSCH: I do not believe that Ms. Finell discussed

the originality component of it.

THE COURT: What does that mean? How is it different?

MR. BUSCH: Because the originality component of it is

something that we would want to elicit. So--

THE COURT: What do you mean by originality that

hasn't already been covered by Ms. Finell?

MR. BUSCH: It's one question basically. Is there

prior art that predates Got To Give It Up from which -- that you

believe is -- makes Got To Give It Up not original. That's it.

One question.

THE COURT: Okay. Do you contend -- do you take the

position that Got To Give It Up was not original?

MR. MILLER: I take -- Ms. Wilbur takes the position

that certain aspects of it are commonplace, which is a

distinction in the Copyright Act between not original as in

copied from someone else. So she has some testimony which is

not her summary judgement testimony about commonplace elements

as opposed to Marvin Gaye copied some other song.


When's she going to testify?

MR. MILLER: Tuesday.

THE COURT: This witness is just here today?

MR. BUSCH: Yes. I will tell you that most of the

examples, if not all of them, she used in summary judgement are

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not going to be part of her testimony at trial so I think this

is responding to something that is --

THE COURT: No. I understand that. What I question

is for efficiency reasons.

MR. MILLER: Yes, I understand that.

THE COURT: What I think you ought to do, and I would

do the same thing for any witness that is difficult to be here,

would be to potentially ask one narrow question subject to a

motion to strike if it's not something that's raised by

Ms. Wilbur.

MR. MILLER: Wilbur. Fair enough, your Honor.

THE COURT: So I think that that's what -- I think I

will instruct the jury on that. Does that work for you?

MR. MILLER: That's fine.

MR. KING: One question, one answer?

THE COURT: Yeah. Well, I mean, lawyers never can

manage to ask just one question. All right. Keep it focused.

The jury is -- they're -- they're asking let's move.

MR. BUSCH: I got it. Thank you, your Honor.

(Sidebar conference ended.)

THE COURT: All right. Ladies and gentlemen, you're

going to be hearing other experts in this matter, and the way

the process works sometimes is an expert can testify and offer

opinions and then another expert can offer competing opinions

and then either a new expert or one of -- the first expert may

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rebut the second expert. It doesn't happen necessarily in every

matter but it sometimes does.

To just move things along here, I am going to permit

Dr. Monson to testify in a very focused area that may, may, be

addressed by an expert that the Thicke parties present.

If the Thicke parties do present that expert -- if

through that expert, testimony is presented on this narrow

topic, then the testimony you're about to hear would be

admissible.

If the Thicke -- if the Thicke parties' expert

doesn't, then the testimony -- this limited testimony you're

about to hear would not be relevant.

And I will instruct you later as to whether or not

it's in or out. But I just wanted you to have that in mind as

you hear it. And I'll tell you when this portion of

Dr. Monson's testimony has been completed.


MR. BUSCH:

BY MR. BUSCH:

Thank you, your Honor.

Q. Dr. Monson, in your expert opinion, do you believe Got To

Give It Up is an original musical composition?

A. Yes, I do.

In your expert opinion, do you believe all the elementsQ.

within Got To Give It Up to be original?

A. Yes.

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THE COURT: That concludes your questioning?


THE COURT: Okay. We are finished with that part of

what I just instructed you. We are now turning back to other

areas which are not subject to my instruction.


MR. BUSCH: Thank you, your Honor.

BY MR. BUSCH:

Q. So I asked you, I believe before we got on this very

briefly, did you review the reports of Judith Finell in this

case?

A. Yes, I did.

Q. Okay. And do you agree with Ms. Finell?


THE WITNESS: Yes.

MR. MILLER: 403, your Honor.

THE COURT: Sustained. It's cumulative.

BY MR. BUSCH:

Q. And you examined the keyboard and bass in Got To Give It Up

compared to Blurred Lines in combination as part of your

analysis?

Yes, I did.

MR. MILLER: Same objection, your Honor. We've heard

about this.

A.

THE COURT: Yeah. Let's move on, please.

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MR. BUSCH: Your Honor, I think we need to take a

quick sidebar because

THE COURT: I want to hear the testimony concerning

matters that were not addressed by the prior expert. So let's

go.

BY MR. BUSCH:

Q. What is a genre, Dr. Monson?

A. A genre is a large category of musical style, like jazz or

classical or country music or hip hop or rock and roll.

Q. Is there one kind of ensemble part configuration, such as

keyboard and bass, associated with each style?

MR. MILLER: Objection. Leading, your Honor.

THE COURT: It's an expert. You can both lead

experts.

Do you have the question in mind?

THE WITNESS: I do have the question in mind and yes,

there's not one ensemble configuration that goes with each

style. It's true that in the most --

THE COURT: Excuse me, Dr. Monson. Do you have some

materials in front of you? That's okay. If you have materials

in front of you and you wish to refer to them, I need to know

what they are and when you wish to refer to them. The purpose

would be to refresh your recollection.

THE WITNESS: That was the purpose.

THE COURT: That's fine. This is your report? Is

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this an exhibit?

MR. BUSCH: May I approach the witness, your Honor?

MR. KING: I would like to see what it is, too, if

it's not an exhibit.

THE COURT: Well, I don't think she's going to use it

right now.

THE WITNESS: Okay.

MR. KING: Well

THE COURT: But you can

MR. KING:

THE COURT:

Well --

MR. KING:

MR. BUSCH:

THE COURT:

MR. KING:

THE COURT:

MR. KING:

this.

yes, you may see it.

I would like to see it.

Yes, you may take a look.

Okay, your Honor. It's a script.

Your Honor, I object to that.

Disregard -- please disregard.

Well, I think

Excuse me. Excuse me. If -- disregard

At the break I would like to object to

THE COURT: Disregard. We are at the very beginning

of the testimony, ladies and gentlemen, so .

Let's move on, please.

BY MR. BUSCH:

Q. Is there one part of ensemble part configurations such as

keyboard and bass associated with each style?

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A. No. For musicians there are many choices that can be made

in order to fill the expectations of a style. Very often in the

most basic form of a musical style there's a basic expectation.

For example, if somebody asked you to play a swing style in

jazz, you would expert there to be a walking bass, which would

be a bass on all four beats of the bar. You would expect to

hear a swing rhythm on the cymbal, and you would expect to hear

offbeat accompaniment parts on the keyboard.

But musicians are never limited by those

prescriptions. Very often those expectations that very often

creative and innovative pieces go beyond those expectations.

And in my view, when they do that, those become compositional

choices. And I think that's the case in Got To Give It Up.

Q. So, Dr. Monson --

MR. MILLER: Objection. Move to strike.

THE COURT: Strike the last phrase.

BY MR. BUSCH:

Q. Dr. Monson, are combinations always being developed and

changed?

A. Absolutely. And in fact, many of us who are historians of

this really go back and look at the history of musical style as

this. The history of many of the big changes in American

popular music really are about innovations that occur in these

parts of the ensemble.

Q. And what do you mean when you say that sometimes

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divergences are distinctive and original?

A. That means that they go beyond what is -- what is an

expectation of a genre and they create something new. The new

ensemble configurations often add something new.

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

bass line rhythm and offbeat harmonic accompaniment, is that

generic in your view?

MR. MILLER: Objection. 403.

THE COURT: Restate the question because I don't want

this to be cumulative.

MR. BUSCH: I don't believe -- okay.

Q. Is

THE COURT: Based on -- this -- I want you to focus on

the areas of expertise of Dr. Monson in framing your questions,

please; not just repeating the testimony that we've heard.

Thanks.

BY MR. BUSCH:

Q. Is the combination of bass line rhythm and offbeat harmonic

accompaniment in Got To Give It Up generic in your mind?

A. No.

Q. Why?

Why? Because first of all, it's an unusual bass line.A.

does not -- it -- it does not have the same rhythmic profile as

most Motown bass lines, for example. It's something different.

It has a kind of start and stop rhythm that I can describe to

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you. And it's combined with this offbeat accompaniment part,

which is also not something you're going to hear in a Motown or

R&B piece very often.

Q. All right. And what do you mean by the start and stop

component of the bass line?

A. Well, if you listen to the bass line, it's a 2-measure

phrase. And musically speaking, it has -- it rests for a while

on beats 2 and 3 in each measure. So here is how I would do it:

Oa, stop; budop, stop; budop, stop. So it starts and it stops.


that we went over.

THE COURT: I think this is cumulative. So, please,

403, your Honor. Same issue

the expert has been offered with different areas of expertise.

Please focus on those. Thank you.

BY MR. BUSCH:

Q. Is the explanation you just gave for the bass line, is that

what you believe to be original to the bass line of Got To Give

It Up?

MR. MILLER: Same objection, your Honor. Sidebar.


I want the questions to focus on the genre or prior

art matters that have been described.

MR. BUSCH: That is exactly what I was trying to do.

THE COURT: Well, then, focus on those, please, in

your questions.

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Do you understand that as well, Dr. Monson?

THE WITNESS: Yes, I do.

THE COURT: Thanks.

BY MR. BUSCH:

Q. Would you please explain why the bass line in Got To Give

It Up is not generic?

A. Well, I just --


THE COURT: All right. Overruled.

Excuse me, Dr. Monson. This is the process that we

hundreds of years of tradition. And you will just have to be

patient with that. Thank you.

Would you read the question, please.

MR. BUSCH: Okay.

THE COURT: Read the question, please.

(Record Read)

THE COURT: Do you understand that question within the

realm of your expertise?

THE WITNESS: Yes, I do.

THE COURT: Okay. Please proceed.

THE WITNESS: So what I was trying to explain is that

start and stop rhythm is not generic to a Motown bass line. If

you were to take a look at James Jamerson's bass lines, he's

he's the bassist who really defined Motown bass style -- he

doesn't play in that kind of rhythm. So that's why I say it

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does not point to -- it has elements -- similar to Motown in the

sense that there are some syncopated bass lines and it's

melodic, but it does not replicate the characteristic rhythms of

the Motown genre in bass playing. And that's why I think that

the bass line in Got To Give It Up is original and why they took

the trouble to write it down into the copyright deposit.

BY MR. BUSCH:

Q. And is the combination of keyboard and bass line in

combination running throughout Got To Give It Up generic in your

opinion?

A. No. Absolutely not.

Q. Why is that?

A. Okay. The keyboard in both Blurred Lines and Got To Give

It Up has this offbeat pattern that's going on it. Now, if you

were to try to figure out some genre that had that offbeat

accompaniment, you would probably either think of reggae or

perhaps ragtime and early jazz. But in reggae or ragtime with

the offbeat accompaniment, you would never have a bass line in

the rhythm of Marvin Gaye's bass line accompaniment.

So in my view, the combination of the bass line and

the offbeat accompaniment part is absolutely not dictated by

genre.

MR. BUSCH: Your Honor, I'm going to assume that if I

ask questions about whether the keyboard or bass line is in the

deposit copy lead sheet, that would be --

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THE COURT: It's cumulative.

MR. BUSCH: All right. Thank you.

Q. I now want to move to prior art, Dr. Monson.

A. Yes.

Q. What is prior art?

A. Well, prior art would be pieces that came before Got To

Give It Up.

Q. Okay. And how do you go about researching prior art?

A. Well, I look at pieces that happened before Got To Give It

Up. I like to look a little bit after as well because I like to

get a sense of when certain kinds of musical devices come into

the repertory in popular music.

Q. And did you do that in this case?

A. I did.

Q. How?

A. I did that based on my 24-plus years of experience as a

researcher, a teacher and a listener and a musician. I I

have drawn on my knowledge of that repertory. And where I start

is when I listen to a piece of popular music, I kind of say

well, okay, what kind of genres are possibly being invoked here,

and that's where I begin my search.

MR. MILLER: Your Honor, I believe this all should be

subject to the instruction you gave earlier. It seems to be

responding. Prior art --

THE COURT: All right. I'll explain -- ladies and

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gentlemen, I may be instructing you later that some portions of

this testimony would be admissible only depending on the

testimony of the expert offered by the Thicke parties. We'll

sort that out so you don't have to wait for us to do it right

now.

Go ahead, please.

But please try to -- to the extent that you are

seeking to present something that you think would be rebuttal,

let me know in advance.

MR. BUSCH: Okay.

BY MR. BUSCH:

Q. In your research, did you find prior art that had the same

accompaniment parts, keyboard and bass as Got To Give It Up?

A. No.

MR. BUSCH: Did -- and this will be -- this is -- the

next question will be responsive to your Honor's

THE COURT: All right. Then, ladies and gentlemen,

this will be admissible only if I later direct you that it's

rebuttal and I can't tell you that yet because we haven't heard

the other expert.

Go ahead.

BY MR. BUSCH:

Q. Did Ms. Wilbur, who is the expert retained by the Thicke

parties, find any instances of prior art that in your opinion,

were remotely close to Got To Give It Up?

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MR. MILLER: Objection. Lacks foundation.

THE COURT: Okay. Same instruction, ladies and

gentlemen. This may be stricken.

You may answer.

THE WITNESS: No.

BY MR. BUSCH:

Q. In -- you have reviewed the items, the allegedly prior art

examples that Ms. Wilbur cited?

A. Yes, I have.

Q. Okay. And is there a general theme regarding the prior art

that Ms. Wilbur cites, in your opinion?

A. Well, in those examples --

THE COURT: Same instruction, ladies and gentlemen.

THE WITNESS: In those examples, very often a prior

art is cited in which only one of the parts that are in Got To

Give It Up and Blurred Lines is referenced. For example, a bass

line.

In no in none of those examples is the combination

of keyboard and bass line addressed. And to me in my -- my own

judgment about what relevant prior art is that is -- that since

the things that are shared in Got To Give It Up and Blurred

Lines are the keyboard and the bass part, that any -- any

relevant prior art would need to include both of those things.

BY MR. BUSCH:

Q. Okay. In your opinion, do you believe that Ms. Wilbur has

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blurred lines trial - transcript exhibit h.pdf

Documents

page id

jakagr document

deposit copies

analysis ofthe deposit

keyboard rhythm

good afternoon

millers examination

keyboard issue thatcame