E-Mail: pduvall@kingballow.com KING & BALLOW 6540 Lusk Blvd., Suite 250 San Diego, CA 92121 (858) 597-6000 Fax: (858) 597-6008 Attorneys for Defendants and Counter- Claimants Frankie Christian Gaye and Nona Marvisa Gaye
Richard S. Busch (TN BPR 014594) (pro hac vice) E-Mail: rbusch@kingballow.com KING & BALLOW 315 Union Street, Suite 1100 Nashville, TN 37201 (615) 259-3456 Fax: (615) 726-5417 Attorneys for Defendants and Counter- Claimants Frankie Christian Gaye and Nona Marvisa Gaye
Mark L. Block (SBN 115457) E-Mail: mblock@wargofrench.com WARGO & FRENCH LLP 1888 Century Park East; Suite 1520 Los Angeles, CA 90067 (310) 853-6355 Fax: (310) 853-6333 Attorneys for Defendants and Counter- Claimants Frankie Christian Gaye and Nona Marvisa Gaye Paul N. Philips (SBN 18792) E-Mail: pnp@pnplegal.com The Law Offices of Paul N. Philips 9255 West Sunset Boulevard West Hollywood, CA 90069 (323)813-1126 Fax: (323) 854-6902 Attorney for Defendant and Counter-Claimant Marvin Gaye III
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
PHARRELL WILLIAMS, an individual; ROBIN THICKE, an individual; and CLIFFORD HARRIS, JR., an individual,
Plaintiffs, vs.
BRIDGEPORT MUSIC, INC., a Michigan corporation; FRANKIE CHRISTIAN GAYE, an individual; MARVIN GAYE III, an individual; NONA MARVISA GAYE, an Individual; and DOES 1 through 10, inclusive, Defendants. Case No. CV13-06004-JAK (AGRx)
Hon. John A. Kronstadt, Ctrm 750
STATEMENT OF ADDITIONAL MATERIAL FACTS IN SUPPORT OF COUNTER-CLAIMANTS JOINT OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT
Date: October 20, 2014 Time: 8:30 a.m. Ctrm: 750
Action Commenced: August 15, 2013 Trial Date: February 10, 2015
Pursuant to Federal Rule of Civil Procedure 56 and United States District Court, Central District of California Local Rule 56-2, Counter-Claimants Nona Marvisa Gaye, Frankie Christian Gaye, and Marvin Gaye III (collectively the Gayes), hereby submit this Statement of Additional Material Facts in support of their Opposition to Plaintiffs Motion for Summary Judgment (Plaintiffs Motion). I. ADDITIONAL MATERIAL FACTS
Material Facts Supporting Evidence 98. The musical composition of Got to Give it Up is equivalent to the recording and there was no preexisting lead sheet for Got to Give it Up at the time of its recording. The composition was recorded live by Marvin Gaye at his studio. 98. See The Declaration of Janis Gaye (Gaye Decl.) at 5-6. 99. The lead sheet deposited with the U.S. Copyright Office was created by an unknown third party after the composition was recorded. 99. See Gaye Decl. at 5-6. 100. Plaintiff Robin Thicke (Thicke) first heard Marvin Gayes music when he was eight or nine years old. He owned multiple albums, including Greatest Hits, Whats Going On, and Here, My Dear. 100. The Declaration of Richard S. Busch (Busch Decl.) Exhibit 6 at 72:1-13. 101. Thicke admitted that Marvin Gayes song Got to Give it Up is one of Thickes favorite songs. 101. Busch Decl. Exhibit 6 at 17:22- 18:3; 72:14-73:12.
102. Thicke admitted that Marvin Gaye is 102. Busch Decl. see Exhibit 6 at Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 2 of 48 Page ID #:2523
one of his idols but denied, despite contrary prior admissions, that Marvin Gaye inspired half of his music: Ive been called the White Marvin Gaye since I was since I got started. So I think Ive embraced that, consider it an honor. And so -- so sometimes, if somebody is leading you into, you know being compared to or connecting with Marvin Gaye, I might embellish. Instead of saying, Oh Marvin Gaye is one of my favorites, I would go, Oh, he inspires half of my,I also embellish on many other subjects publicly. Thicke also stated when he listens to Marvin Gayes music he is inspired by his greatness. He claimed he was not familiar with the statement on Allmusic.com that Thicke has a perpetual Marvin fixation. 73:13-23, 74:1-24, 130:6-12, Exhibit 10. 103. Thicke stated in his verified Supplemental Interrogatory Response to the Gayes First Set of Interrogatories, that he told Pharrell Williams (Williams) he wanted to create a song that evoked the musical era of Got to Give it Up. 103. Busch Decl. Exhibit 1 at 17:11- 14, Exhibit 16 Track 1. 104. Thicke admitted that he reviewed, signed, and approved his Supplemental Interrogatory Responses. 104. Busch Decl. Exhibit 1, Exhibit 6 at 68:20-71:7, Exhibit 16 Track 1. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 3 of 48 Page ID #:2524
105. After his deposition, wherein Thicke made admissions regarding Marvin Gayes influence on Blurred Lines, he provided Amended Supplemental Interrogatory Responses, which stated that Williams created the entire song, contradicting the Interrogatory Responses he previously verified. 105. Busch Decl. Exhibit 1A at 3:10-11. 106. Thicke is a co-writer on Blurred Lines and owns part of the publishing. 106. Busch Decl. Exhibit 6 at 84:14- 85:6. 107. In a May 7, 2013 interview with GQ, Thicke made the following statement about the creation of Blurred Lines, Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gayes Got to give it Up. I was like, Damn, we should make something like that, something with that groove. Then he started playing a little something and we literally wrote the song in about a half hour and recorded it. 107. Busch Decl. Exhibit 2, Exhibit 6, at 75:10-77:19, 78:3-9. 108. Thicke claimed in his deposition he lied about the story of how Blurred Lines was created to sell records. I thought it would help sell records. I thought that it being my song my idea would make it 108. Busch Decl. Exhibit 6 at 87:20- 88:19, Exhibit 16 Track 9. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 4 of 48 Page ID #:2525
more personal because my music has always been so personal. That this was the first time I had a song out that wasnt personal and had nothing to do with me, and yet it was my biggest successful (sic), which you know, was very tough for me. And so I lied in my story so I could at least make it seem like, hey, Im the guy who came up with this great idea. And you know what? I didnt even use the Marvin Gaye thing until everyone starting saying to me, Hey, its reminiscent of the Marvin Gaye Song, And I was like, Well, yea, that was my idea. I wanted to do something like that. There was no other way for me to get credit for this biggest song of the year unless it was my idea. 109. Thicke claimed that the statements made during his July 9, 2013 interview with Billboard.com were untrue. In that interview Thicke stated, Pharrell and I were in the studio making a couple records, and then on the third day I told him I wanted to do something kinda like Marvin Gayes Got to Give it Up, that kind of feel cause its one of my favorite songs of all time. So he started messing around with some drums and then he started going, 109. Busch Decl. Exhibit 2, Exhibit 6 at 101:18-102:24. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 5 of 48 Page ID #:2526
Hey, hey, hey, and about an hour and a half later we had the whole record finished. 110. During his deposition, Thicke authenticated a video clip from a 2013 interview with Inside Track on Fuse TV wherein he stated, I said to Pharrell, you know, Id like to do something like Marvin Gayes Got to Give it Up, something with that feel, and so we just started messing with drums. Then he said, hey, hey, hey and I was like, I love that. I hopped in the booth, I put that down, and the rest of the song just came flying out, like one line after another. 110. Busch Decl. Exhibit 3, Track 4, Exhibit 6 at 107:16-109:17. 111. Thicke claimed that he was drunk and high during a 2013 interview with VH1, and that the statements he made during the interview were untrue. In the interview Thicke stated, Well, Pharrell and I went in the studio and, you know, I had mentioned to him that one of my favorite songs of all time is Marvin Gayes Got to Give it Up. And so we tried to get a little groove like that going and then we started dancing around the studio like old men, hollering at young girls from porch (sic), you know, like hey, hey, hey, you know. We really 111. Busch Decl. Exhibit 3 Track 2, Exhibit 6 at 111:24-114:17. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 6 of 48 Page ID #:2527
wrote the whole song in about a half an hour, because once we had a little track, we went into a booth together, and, like, I would sing a line and hed go, hey, hey, hey or uh-huh or he would like, hey, girl, come here. You know, we just had such a great time that when we did the video, I wanted to make sure we kept that energy and that sense of humor. So I had Pharrell do some old men dances. And when T.I. showed up, I was like, Hey man, can you do some old-man-like-your-grandpa-at-a- wedding kind of dances. And T.I. went right for it. He was fearless. He went right for it. He gave us some Red Fox magic. 112. During his deposition, Thicke authenticated a video clip from a 2013 interview with Twitter Take Over where he stated, The idea, to uh, behind the song Blurred Lines was Pharrell had been in the studio for a couple of days, and one of my favorite songs of all-time is Marvin Gayes Got to Give it Up. So I came into the studio and was like Hey, Pharrell I wonder if we can do something with this feel and this kind of spirit. And he started working on the drums and about an hour and a half later the whole song was 112. See Busch Decl. Exhibit 3 Track 3, Exhibit 6 at 115:18-116:18, Exhibit 16 Track 6. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 7 of 48 Page ID #:2528
finished. It was just one of those magical days in the studio. Thicke claimed and said that nothing said in the interview was true, and admitted that he was drunk and on vicodin at the time of the interview.
113. Thicke stated that when he appeared on the Oprahs Next Chapter he was on a Norco, which is like two Vicodin in one pill . . . two times the power. The following exchange took place during the October 2013 interview: Q: So lets talk about the Marvin Gaye controversy. A: Yes. Q: Five months after its release, Marvin Gayes family went public with accusations that Blurred Lines sounded strikingly similar to the legendary soul singers classic, Got to Give it Up. I read that you said, first of all, because I read that and I thought one of my all time, its my all time favorite dance song is Youve Got to Give it Up. (sic). A: I know, its a classic. Its one of the best ever. And I went into the studio with 113. Busch Decl. Exhibit 3 Track 5, Exhibit 6 at 119:13-22. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 8 of 48 Page ID #:2529
Pharrell and I said you know, I would love to get something like this feel. You know, something that makes you feel like this. And thats what inspiration is. You know, you cant own a feeling. You own the melodies, the bass lines, the chord progressions, the syncopation. You know. Thats what makes a song. Q: So do you think its going to get settled like out of court? Whatever? A: I sure hope so. Do you know how weird it is to be in legal battles with my idol, with the person who inspires almost all of, you know half of my music, its either Michael Jackson or Marvin Gaye. Q: I know. Whats your favorite all time Marvin Gaye song? A: Theres something about Whats Going On that just, it just feels like it explains life on earth for human beings. You know what I mean? Its pretty much like thats a time capsule. You could send it out into the universes and there are some aliens that are going to hear Marvin Gaye and go Oh thats what life is like on Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 9 of 48 Page ID #:2530
earth, you know. 114. At his deposition, Thicke authenticated that it was his voice in the following interview with Hot 97: Q: Is the song, it feels, cause speaking of old man dances and BBQ dances, it feels sort of like Got To Give it Up Part 2. A: Definitely. Yeah. Q: Was that sort of the vibe, the Marvin Gaye vibe? A: Thats exactly what I went in, its one of my favorite songs of all time, I went in and I was like you know Pharrell Id love to make something like this, you know feel like Got To Give it Up and he started with the percussion you know trying to get that rhythm and then the song actually happened we did the whole record in about an hour. And it was one of those magical, we were having so much fun. In his deposition, Thicke explained that he answered definitely because they teach you in the entertainment and in and to in improve to always say yes and and move forward and instead of saying no 114. Busch Decl. Exhibit 3 Track 1, Exhibit 6 at 125:15-128:24. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 10 of 48 Page ID #:2531
to things. So if they say, Hey, its exciting, if theyre if theyre giving you positivity, you always go, Yeah, of course, man. Thats what we were going for. You dont stop its that entertainment. Its bad interview to fight and argue and disagree. So if somebody lends me a positive opening, I follow the positivity with, Yeah, man. Thats exactly what we were going for. All the way. Thicke also stated, [A]fter so many people, and like the interviewers were saying, Hey man, it reminds me of that song. It reminds me of that era, I was going, Yeah, man. Thats what it is. Its that era. Its and Marvin Gaye, being one of the greatest to ever live, sure, I want my new song to be compared to Marvin Gaye, sure. Thicke admitted that the reference in the interview was not to the era but was specifically a reference to Got to Give It Up. 115. Despite consistently stating that he wanted to create a song like Got to Give it Up, Thicke denied the accuracy of the statements made in the Hot 97 interview. Thicke claims he was never there when 115. Busch Decl. Exhibit 3 Track 1, Exhibit 6 at 127:7-128:24. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 11 of 48 Page ID #:2532
Williams started creating Blurred Lines. 116. After Thicke filed the lawsuit in this case, he gave the following interview to TMZ: Q: So, so when you, when you wrote it, [Blurred Lines], do you like think of Marvin Gaye like when you write your music? A: No. Q: Are you a fan of Marvin Gaye? A: The biggest. Thicke claimed that his answer to the question are you a fan of Marvin Gaye was the one question he answered honestly in all of his interviews. 116. Busch Decl. Exhibit 3 Track 6, Exhibit 6 at 131:23-132:12, 142:2-11. 117. Thicke does not consider himself an honest person. 117. Busch Decl. Exhibit 6 at 31:12- 14, Exhibit 16 Track 7. 118. Thicke admitted that when he gives interviews, I tell whatever I want to say to help sell records. 118. Busch Decl. Exhibit 6 at 31:15- 19, Exhibit 16 Track 2. 119. At his deposition, after hearing a music clip combining portions of Blurred Lines and Got to Give it Up, Thicke was unable to decipher from which song the bass line was playingBlurred Lines or 119. Busch Decl. Exhibit 6 at 35:2- 4, 44:14-25, 48:12-49:11, 51:9-52:20. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 12 of 48 Page ID #:2533
Got to Give it Up. 120. Thicke admitted that kick drum syncopation in Blurred Lines and Got to Give it Up were similar. 120. Busch Decl. Exhibit 6 at 90:12- 14. 121. It was Thickes idea to add the falsetto to the second verse of Blurred Lines with a different melody than the first. 121. Busch Decl. Exhibit 6 at 92:20- 24. 122. Thicke admitted that if he did not win this case his ability to receive income from Blurred Lines might be affected. 122. Busch Decl. Exhibit 6 at 99:13- 18. 123. Thicke admitted that he is familiar with Marvin Gayes After The Dance because it is a classic. 123. Busch Decl. Exhibit 6 at 154:11-16, Exhibit 16 Track 10. 124. Thicke claimed it was his manager and lawyers idea to file this litigation. 124. Busch Decl. Exhibit 6 at 157:22-158:2. 125. Thicke admitted Blurred Lines was by far his biggest hit earning at least 12 million copies worldwide. Comparatively his second biggest hit Lost Without You, sold 1-2 million copies. 125. Busch Decl. Exhibit 6 at 161:11-25. 126. When asked at his deposition if he answered the written questions served upon him by the Gayes, Williams admitted that he did answer a bunch of questions verbally, but could not remember any of the particular questions asked of him. 126. Busch Decl. Exhibit 7 at 21:12- 22:5, 26:4-33:5, 37:3-24. 127. Williams stated that Blurred Lines 127. Busch Decl. Exhibit 7 at 47:20- Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 13 of 48 Page ID #:2534
does not use a blues chord structure. 22. 128. Williams does not know what chords are in a 12-bar blues. 128. Busch Decl. Exhibit 7 at 47:23- 48:13 129. Williams did not know if he conducted any personal search for documents he personally had or that his company had in response to the Gayes document request, in order to ensure that he produced all responsive documents. 129. See Busch Decl. Exhibit 7 at 49:6-25 130. Williams claimed he is able to read musical notation, but cannot read pitches in musical notation nor write in musical notation. At his deposition, Williams stated that he did not feel comfortable identifying the names of notes requested of him on pages 7, 11 of Judith Finells Preliminary Report (Finell Report). Williams also stated that he was not comfortable because, Honestly, its much more of an emotional answer than it is anything else than its a scientific answer. So I dont know if you really want to listen to that. Williams later stated that he could have identified the notes, If I wanted to, but I didnt feel comfortable. 130. Busch Decl. Exhibit 7 at 53:2- 14, 54:8-10, 54:24-59:17, 139:17- 140:18. 131. Williams is familiar with Marvin Gayes music and owned his albums. 131. Busch Decl. Exhibit 7 at 60:3- 12, Exhibit 16 Track 14. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 14 of 48 Page ID #:2535
Pharrell stated that his Aunt used to play Got to Give it Up all the time.
132. Williams denies Thicke made the comments described in the May 7, 2013, GQ article (transcribed in No. 107 of this document), nor did Williams start playing any music for Thicke after his comments. 132. Busch Decl. Exhibit 2, Exhibit 7 at 62:12-63:12, 65:11-66:4. 133. Williams denied Thickes statements in the July 9, 2013 Billboard interview: Pharrell Pharrell and I were in the studio making a couple records, and then on the third day, I told him I wanted to do something kind of like Marvin Gayes Got to Give it Up. . . . (Full transcription in No. 109 of this document).
133. Busch Decl. Exhibit 2, Exhibit 7 at 66:13-67:14, 71:2-72:8, Exhibit 16 Track 11. 134. In response to a question regarding the July 9, 2013 Billboard interview (mentioned in No. 133 above), Williams stated: Unfortunately, these questions that youre asking me refer to a portion of our business in the music industry when people come in, sometimes they either co-write or when they need songs sometimes they embellish those stories. And so what youre hanging your hat on here is a guy that, you know, wants the world to 134. Busch Decl. Exhibit 7, at 67:16-68:15, Exhibit 16 Track 11. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 15 of 48 Page ID #:2536
perceive that, like, you know, that song was primarily, you know, like his his his he had the impetus or the genesis for it. But thats not the way I work. A. B, again, I just highlight this to you. What youre doing is youre taking excerpts from a conversation of an interview where a guy is presenting to the world that these are his songs. So hes going to say: Yeah, I got such A, such A, such A, such A, such A such. But thats not the case. Im happy to answer all these questions, but unfortunately, this is the this is the this is the part of it all that just makes it a little confusing for youIts not the truth.
135. Williams repeatedly claimed Robin Thicke, embellished the statements made in the interviews with GQ and Billboard, particularly with GQ because Thicke was not there during the recording of Blurred Lines. 135. Busch Decl. Exhibit 2, Exhibit 7,at 69:15-70:16, 182:24-183:18, 185:9-188:11. 136. Williams denied the veracity of the following quote from an interview Thicke gave to Inside Track on Fuse TV, on July 29, 2013: I said to Pharrell, Id love to do something like Got to Give it Up. Thicke stated, Pharrell and I started messing with 136. See Busch Decl. Exhibit 3 Track 4, Exhibit 7 at 73:6-21. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 16 of 48 Page ID #:2537
the drums. Then he said the Hey, hey, hey line. I hopped in the booth and we just came flying out. 137. Williams claimed the following quote from Thickes GQ, interview is untrue: Pharrell and I started messing with drums . . . because according to Williams, that never happens in my sessions. Further, . . . going into the booth? Thats not how it happened. And by the way, how am I how was how am I in the booth, saying, Hey, hey, hey, and he can hear me and hes not? How can he hear me? 137. Busch Decl. Exhibit 2, Exhibit 7 at 73:21-74:4, 78:7-16. 138. Williams denied the veracity of the following excerpt about the creation of Blurred Lines, from Thickes VH1 Music interview from 2013, Q: How did the song Blurred Lines come about? A: Pharrell and I went in the studio and I had mentioned to him that one of my favorite songs of all time is Marvin Gayes Got to Give it Up. 138. Busch Decl. Exhibit 3 Track 2, Exhibit 7 at 74:-21-75:25. 139. Williams said the following regarding Thickes comments in the rest of the quote from his interview with VH1 Music, transcribed fully in No. 111 above, This is 139. Busch Decl. Exhibit 3 Track 2, Exhibit 7, at 76:2-77:1. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 17 of 48 Page ID #:2538
a friend of mine, and unfortunately, this is what happens when you embellish, when you embellish like the origins of a song or the origins of anything creative. This is unfortunately what happens. We get in here to places like this where you think theres a threat of me being dishonest. And thats not the case. He also stated that Thickes description of the events was not how it happened. 140. Williams denied that Thicke ever told him during the creation of Blurred Lines, that Got to Give it Up was one of his favorite songs of all times.
140. Busch Decl. Exhibit 7 at 75:18- 25. 141. Williams denies the veracity of statements Thicke made during his Twitter Take Over interview, specifically that, The idea, to uh, behind the song Blurred Lines was Pharrell had been in the studio for a couple of days, and one of my favorite songs of all-time is Marvin Gayes Got to Give it Up. So I came into the studio and was like, Hey, Pharrell I wonder if we can do something with this feel and this kind of spirit. And he started working on the drums and about an hour and a half later the whole song was 141. Busch Decl. Exhibit 3 Track 3, Exhibit 7, at 81:5-82:1. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 18 of 48 Page ID #:2539
finished. It was just one of those magical days in the studio. 142. Williams claims Thickes embellished his statements in his Hot 97 interview. Youre dealing with embellishment, and that is not how it happened.
The full transcription of the excerpt referred to is below:
Q: Is the song, it feels, because speaking of old man dances and BBQ dances, it feels sort of like Got to Give it Up Part 2. A: Definitely, yeah. Q: Was that sort of the vibe, the Marvin Gaye Vibe? A: Thats exactly what I went in, its one of my favorite songs of all time. I went in and I was like, You know Pharrell, Id love to make something like this, you know, feel like Got to Give it Up and he started with the percussion, you know, trying to get the rhythm and then the song actually happened. We did the whole 142. Busch Decl. Exhibit 3 Track 1, Exhibit 7 at 82:12-84:22; 195:19- 197:8. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 19 of 48 Page ID #:2540
record in about an hour and it was one of those magical, we were having so much fun. 143. When asked about Thickes statements regarding the creation of Blurred Lines Williams stated, He is also a friend of mine, right, and this is public record. At the end of the day, hes a friend of mine and Im not trying to, you know, belittle his character in any way, shape or form. But this is what happens every day in our industry. You know, people are made to look like they have much more authorship in the situation than they actually do. So thats where the embellishment comes in. 143. Busch Decl. Exhibit 7 at 83:17- 85:18. 144. Williams admitted that he gave the following March 2013 interview with XXL, referencing Marvin Gaye in regard to Blurred Lines, stating, Q: One of the biggest thing in production is always sampling. Youve gotten into a little bit of an issue with Blurred Lines and Marvin Gayes estate. Did you see the similarities in those tracks? How did you deal with the fallout? A: Well, listen, I have the utmost respect the most utmost respect for Marvin Gaye 144. Busch Decl. Exhibit 4, Exhibit 7 at 104:18-107:15, Exhibit 16 Track 13. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 20 of 48 Page ID #:2541
and his music and he is one of the patriarchs. He is one of the best. But heres the thing. You cant trademark a groove. If I play a song, which a lot of my new hip and rap records are, thats done in a six- eight time signature, Charlie Parkers family is not going to sue me for that. Do you understand what Im saying? If I do a salsa beat right now, I know that Ricky Martins family is not going to come looking for me. Because thats what were dealing with. Were dealing with the idea that someone feels like a groove is proprietary, and its not. Music is and the notes are, and when you look at the sheet music, then youd know. And just for a bit of humor, the percussion that I use in Blurred Lines, aside from the music notation being completely different completely different the sheet music is available online, by the way, but the persuasion I was trying to pretend that I was Marvin Gaye and what he would do, had he went down to Nashville and did a record with pentatonic harmonies, and more of a bluegrass chord structure. So unfortunately, theres no comparison between the minor, bluesy chords he was Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 21 of 48 Page ID #:2542
playing and my major bluegrass-y chords, and thats very plain to see for anyone who can read music. 145. Although Williams stated in his deposition that Marvin Gayes Got to Give it Up did not cross his mind when he was creating Blurred Lines.
However, he admitted in an October 31, 2013 interview promoting Despicable Me 2 that Blurred Lines was inspired by Got to Give it Up. Williams went on to say, What I tried to do was I tried to take the feeling that Got To Give it Up gave me. But I also tried to blend in Southern White Baptist harmonies on the chorus . . . 145. See Busch Decl. Exhibit 3 Track 7, Exhibit 5, Exhibit 7 at 90:13-17, 107:16-23, Exhibit 16 Track 12. 146. When asked about the discrepancy between his statements in the XXL interview and the responses in his deposition where he said that Marvin Gaye did not come into his mind during the creation of Blurred Lines, Williams stated that he was asked whether Got to Give it Up came into his mind, not Marvin Gaye. He claimed he meant to say that he was trying to create the feeling 146. See Busch Decl. Exhibit 4, Exhibit 7 at 107:14-110:22, Exhibit 16 Track 13. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 22 of 48 Page ID #:2543
of the music. When I looked back, when I was answering that question, yes, it was like -- and thats what I should have said. And Im sorry for not being clear. But it it should have read, It felt like Marvin Gaye going into Nashville making a groove. Thats what it should have said. So if Im going to be penalized for that, I do stand corrected[and] Im telling you that was thats not accurate. And I did say that. 147. During his deposition, Williams was not comfortable defining a Bluegrass Chord Structure, Six-eight time signature, or pentatonic harmonies. Nor did he feel comfortable answering if Blurred Lines was in six-eight.
147. Busch Decl. Exhibit 7 at 111:25-116:12. 148. Williams stated that the hook of Blurred Lines is Good girl because, thats what comes around as much as it does. I mean, a chorus is honestly based on what the author of the song deemed it you know, deems is the chorus. So you know, what most people would call the chorus, some people will not. So its obvious its subject to the author of the song. Those things vary. 148. Busch Decl. Exhibit 7 at 117:5- 22. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 23 of 48 Page ID #:2544
149. Williams oversaw the mixing process for Blurred Lines by giving instructions with the way he wants it to be mixed and gives his notes when it comes back to him. 149. Busch Decl. Exhibit 7 at 119:10-15. 150. Thicke told Williams that he wanted the second verse to be sung up higher, asking for the falsetto. 150. Busch Decl. Exhibit 7 at 120:22-121:9. 151. The bass line descends at the end of each section because the chord changes. Williams said that to do so felt like the natural thing. 151. Busch Decl. Exhibit 7 at 122:24-123:11. 152. Williams admitted he thinks for remix purposes, a song can be embedded into Logic and then manipulated to create a new song. 152. Busch Decl. Exhibit 7 at 125:18-126:11. 153. When asked what the most important element of Blurred Lines was, Williams said, [T]he most important thing, its like a mosaic. Each piece is necessary. Its the over-arching message. Its the over-arching feelingIts like asking yourself, whats the favorite part of your sweater? Is it the way that it fits or is it the color or the tag in the backIts all just the composition is what it is. Williams stated that in his eyes, Thickes voice is what holds Blurred Lines together. 153. Busch Decl. Exhibit 7 at 129:17-130:11. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 24 of 48 Page ID #:2545
154. Williams knew that articles in Rolling Stone and other publications were written where the author stated that Blurred Lines and Got to Give it Up sound substantially similar. 154. Busch Decl. Exhibit 7 at 138:21-139:2, 139:5-15, Exhibits 11- 13. 155. According to Williams, a groove is, a compilation of rhythms that give off a certain effect that can be achieved by many different thingsits a combination of many different elementssoundsand their syncopationsand most importantly, the notationthats what helps to identify a groove. 155. Busch Decl. Exhibit 7 at 141:12-142:19. 156. Williams stated that all statements Thicke made regarding the creation of Blurred Lines and read during his deposition, were not only inconsistent, but also untrue because Thicke was not there during the creation of Blurred Lines. 156. Busch Decl. Exhibit 7 at 172:7- 173:22. 157. Sandy Wilbur (Wilbur) has written deposit copies or lead sheets for songs or other musical work that she has composed, but has not prepared deposit copies or lead sheets with the copyright office for a third party, except in cases where someone might be trying to get a trademark. Wilbur stated that, The lead sheet generally has the chords, the lyrics, the melody, the 157. Busch Decl. Exhibit 9 at 42:25- 43:21, 47:9-23, 50:12-21. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 25 of 48 Page ID #:2546
structure, the movement the if they are appropriate to put in to the lead sheet and they are important. Wilbur mentions that generally the arrangements and the sound of the artist are omitted from a lead sheet. 158. Wilbur claims that although she scanned Plaintiffs Motion, she saw that Plaintiffs argued that the court should focus on the lead sheet as being the composition in the case. 158. Busch Decl. Exhibit 9 at 129:11-130:7 159. Wilbur admitted that a lead sheet differs from the full score of her own songs, because the melody, the chords, the lyric structure, and the rhythmic elements such as harmonic rhythm and melodic rhythm are omitted from the lead sheets. Wilbur further admits that the underlying song is omitted from the full score of the lead sheets in her own songs. 159. Busch Decl. Exhibit 9 at 47:24- 49:5 160. Wilbur admitted that in a declaration submitted in Bourne Company v. Twentieth Century Fox, another case where she testified under penalty of perjury, that she stated, Most of the differences in the lead sheet reflect a simplified less fleshed out chord pattern. 160. Busch Decl. Exhibit 8, Exhibit 9 at 131:6-133:24. 161. Wilbur was aware that the copyright 161. Busch Decl. Exhibit 9 at 51:7- Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 26 of 48 Page ID #:2547
Act was amended in 1978 to allow for the deposit of the recording to be the composition. She also acknowledged that before the 1978 amendment, a visually perceptive copy, or a lead sheet, was required. 16. 162. Wilbur did not know how the lead sheet she reviewed for Got to Give it Up was prepared, if it was prepared before or after Got to Give it Up was recorded, or if someone other than Marvin Gaye was the one who prepared it. 162. Busch Decl. Exhibit 9 at 162:10-25. 163. Wilbur admitted that she did not, in fact, look at the lead sheet for Blurred Lines when analyzing the similarities between Blurred Lines and Got to Give it Up, nor did she know if a lead sheet for Blurred Lines existed. Wilbur claimed that she downloaded the lead sheet from a download site and did not know who created the lead sheet that she downloaded, and further the lead sheet was not provided by the publisher. Further, Wilbur admits that she did not use the lead sheet for Blurred Lines or Got to Give it Up, but looked at it briefly, instead, I transcribed the song elements in lead sheet fashion from the recordings. She also admitted 163. Busch Decl. Exhibit 9 at 58:2- 60:21, 62:16-63:2, 68:25-69:5. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 27 of 48 Page ID #:2548
that commercially sold lead sheet for the public does not normally represent the most official form of the music composition.
164. Wilbur provided her preliminary analysis to Plaintiffs in July of 2013, but only reviewed the deposit copy lead sheet for Got to Give it Up recently. Her analysis was based on the transcribing of the recording of Got to Give it Up and Blurred Lines, which has not been produced to the Gayes. 164. Busch Decl. Exhibit 9 at 7:18- 8:8. 165. Wilbur did not include her transcriptions created from the snippets of music from Got to Give it Up and Blurred Lines that she compared, in her declaration. She stated that the transcriptions she already created were substantially the same as the copyright deposits. Wilbur later claimed that in determining whether two songs are similar, she reviews a whole song to determine all of the different similarities. 165. Busch Decl. Exhibit 9 at 70:4- 71:18, 75:9-76:3. 166. Wilbur did not conduct her own prior art research. 166. Busch Decl. Exhibit 9 at 80:22- 81:16. 167. Wilbur did not find any prior art 167. See Busch Decl. Exhibit 9 at Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 28 of 48 Page ID #:2549
containing all eight of the similarities between Got to Give it Up and Blurred Lines that Finell identified in her report. 88:14-89:22. 168. Wilbur admitted she found that the chorus, among other elements in Love After War and After the Dance were similar. 168. Busch Decl. Exhibit 9 at 90:2- 94:6. 169. Wilbur admitted that the decision as to whether something rises to the level of substantial similarity is certainly a jury decision. 169. Busch Decl. Exhibit 9 at 94:8- 14. 170. Wilbur admitted that chord choices are certainly a composers choice. 170. Busch Decl. Exhibit 9 at 91:10- 92:9, 94:15-95:16. 171. Wilbur admitted that it is a common practice to put two pieces into the same key for comparative purposes, as was done for the comparison between Love After War and After The Dance, in the analysis by Judith Finell. 171. See Busch Decl. Exhibit 9 at 95:18-96:10. 172. Wilbur did not remember if the melodies that correspond to the words move it up in Got to Give it Up and hey, hey, hey in Blurred Lines were similar, stating, I dont know the answer because I didnt look at that. 172. Busch Decl. Exhibit 9 at 96:17- 97:13. 173. In her deposition, Wilbur stated that statements made by an alleged infringer 173. See Busch Decl. Exhibit 9 at 116:5-119:18, 121:21-123:5, 127:16- Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 29 of 48 Page ID #:2550
expressing intent to copy a particular song have absolutely no relevance to her infringement analysis when determining things such as access, independent creation, and substantial similarity between the two songs. 128:13. 174. Wilbur admitted she was not aware of any comments made by Thicke about his attempt to copy, evoke, or create something like Got to Give it Up when creating Blurred Lines. She further admitted that even if she were aware of any comments Thicke made to that effect, it would not be relevant to her analysis. 174. See Busch Decl. Exhibit 9 at 127:21-128:13. 175. Wilbur admitted that she thought she read that Thicke was a Great admirer of Marvin Gaye and that he was influenced by Marvin Gaye . . . 175. Busch Decl. Exhibit 9 at 125:24-126:14. 176. Wilbur admitted in her deposition, that she did not know about the inverse ratio rule and that she did not take the theory behind the inverse ratio rule into account in her analysis in this case. 176. See Busch Decl. Exhibit 9 at 120:15-121:17, 128:22-129:10. 177. Despite that Wilbur attended law school and has considerable experience working with copyright attorneys, she never studied Ninth Circuit law on what elements courts 177. Busch Decl. Exhibit 9 at 144:9- 145:18. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 30 of 48 Page ID #:2551
will look at to determine substantial similarity, and did not know about the inverse ratio rule. 178. Wilbur did not look at any Ninth Circuit authority and did not take into account the inverse ratio rule as stated by the courts; that in the case of copyright infringement, the more evidence there is of access or intent to copy, the less substantial similarity need be shown. 178. See Busch Decl. Exhibit 9 at 113:11-20, 128:22-129:10. 179. Wilbur admitted that she does not know whether there is a difference under Ninth Circuit law as to what constitutes a composition in the musical sense, versus in the legal sense under California law. 179. Busch Decl. Exhibit 9 at 145:6- 18. 180. After initially denying the accuracy of the following statement, Wilbur eventually had to acknowledge that it appeared her own website: A thorough comparison of two or more pieces of music which examines all the pertinent music and vocal elements including melody, harmony, rhythm, instrumentation, lyrics, musical style, samples, vocal sound and style, etc. in order to determine if there are problematic similarities between the works. 180. Busch Decl. Exhibit 9 at 135:8- 137:8, 138:24-140:15. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 31 of 48 Page ID #:2552
181. After initially denying the accuracy of the following statement, Wilbur eventually had to acknowledge that it appeared her own website: It is the unique combination of elements some of which could be common on generic that defines originality. 181. Busch Decl. Exhibit 9 at 137:21-138:13, 142:22-144:8. 182. Wilbur admitted that melodic rhythm and harmonic rhythm are rhythmic elements that are part of a composition. 182. Busch Decl. Exhibit 9 at 153:3- 7. 183. Wilbur was not aware if there was any Ninth Circuit California courts that had recognized the elements listed as actually parts of a composition that can be considered. She did, however agree that a combination of elements absolutely must be considered in determining whether two songs are compositionally similar. 183. Busch Decl. Exhibit 9 at 150:12-25. 184. Wilbur was able to recognize a Mozart variation on Twinkle Twinkle Little Star, despite intervening notes not in the original version. 184. Busch Decl. Exhibit 9 at 164:7- 165:9. 185. Wilbur admitted that musicologists weigh the factors of similar series of pitches, similar series of durations within similar pitches and similar rhythmic placement positioning within similar series 185. Busch Decl. Exhibit 9 at 170:3- 13. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 32 of 48 Page ID #:2553
of pitches and durations. 186. Wilbur admitted that the eight Similarities between Blurred Lines and Got to Give it Up were primarily melodic, despite prior claims of no substantial similarity between the two songs, and despite the contradictory assertion in Plaintiffs Motion. 186. Busch Decl. Exhibit 9 at 178:7- 16 (or through 178:16). 187. Wilbur admitted that both Blurred Lines and Got to Give it Up contain a three three sharp two three scale degree that is missing in Working in a Coal Mine, although in different positions. Wilbur admitted that she incorrectly transcribed the scaled degrees for dancing ladies in Got to Give it Up as three, three sharp, two, one when instead of the correct, three, three sharp, two, three, in paragraph 183 of her declaration.
187. Busch Decl. Exhibit 9 at 203:9- 204:10, 206:9-24, 208:24-209:18; Dkt No. 91-1. 188. Wilbur states that the average listener would not hear the less significant and immaterial differences, which contradicts the many minor differences she pointed out with her rigid criteria in comparing Blurred Lines with Got to Give it Up. 188. Busch Decl, Exhibit 8, Exhibit 9, at 215:16-217:23. 189. Wilbur admitted that in the Bourne 189. Busch Decl. Exhibit 8 at 44, Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 33 of 48 Page ID #:2554
affidavit, a case in which she found substantial similarity, she found only 25 out of 65 chords to be the same, also accepting similar chord tones even if the chord names were different. Exhibit 9 at 224:22-226:17. 190. Wilbur admitted in her Bourne declaration that an acceptable manner of determining substantial similarity is to overlay of chords from one song with the melody of another in a mashup.Indeed except for measures 21 and 22 in the B section of Jew, all of Star can be sung using the chords found in Jew and vice versa. 190. See Busch Decl. Exhibit 8 at 45, Exhibit 9 at 227:5-232:23. 191. Wilbur admitted that the for the hooks in Got to Give it Up (keep on dancin) and Blurred Lines (take a good girl), that the numbers above the notes show three out of four pitches with the identical scale degree of 6121 in Got to Give it Up and 6111 in Blurred Lines, in the transcription examples. 191. See Busch Decl. Exhibit 9 at 237:24-239:19. 192. Wilbur admitted that even if an element is a common device, like a vocal backup, it can still be expressed in a unique way, and that both Got to Give it Up and Blurred Lines did so. 192. Busch Decl. Exhibit 9 at 244:7- 15. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 34 of 48 Page ID #:2555
193. Wilbur admitted that using a descending bass melody in the funk or soul genres is a creative choice. 193. Busch Decl. Exhibit 9 at 245:21-25. 194. Wilbur admitted that the same scale degrees are used in the bass lines of Got to Give it Up and Blurred Lines. 194. Busch Decl. Exhibit 9 at 248:13-22. 195. Wilbur admitted that the descending bass melodies in both Blurred Lines and Got to Give it Up begin and end in the same place, specifically that they begin at five on the pitch and end on one. 195. Busch Decl. Exhibit 9 at 251:23-253:23. 196. Wilbur admitted that the keyboard parts in Blurred Lines and Got to Give it Up share three notes. 196. Busch Decl. Exhibit 9 at 258:10-25. 197. Despite her analysis of Low Rider in her declaration, Wilbur admitted that Low Rider is not substantially similar to Got to Give it Up. 197. Busch Decl. Exhibit 9 at 259:10-22. 198. Despite her analysis of Superfly in her declaration, Wilbur admitted that Superfly does not contain vocal melodic material similar to Got to Give it Up. Wilbur was unsure as to whether Superfly contained a descending bass line, whether it contained similar keyboard parts as Got to Give it Up, or whether the drum beat is different in the introduction 198. Busch Decl. Exhibit 9 at 260:17-264:19.
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than it is in the main body of the song. 199. Despite her analysis of Funkytown in her declaration, Wilbur admitted that Funkytown does not contain the hook and accompanying backup vocals found or the open hi-hat found in Got to Give it Up or Blurred Lines. Wilbur further admitted that Funkytown does not contain any of the signature phrases found in Got to Give it Up. 199. Busch Decl. Exhibit 9 at 267:8- 268:17.
200. Despite her analysis of Working in a Coal Mine in her declaration, Wilbur admits that both Blurred Lines and Got to Give it Up begin with a rest and that Working in a Coal Mine does not. 200. Busch Decl. Exhibit 9 at 268:18-269:5. 201. Wilbur admitted that there were harmonic similarities between Love After War and After the Dance. After hearing a recording with the melody of Love After War over the chords of After the Dance, Wilbur admitted that the two songs have a similar chord structure. 201. Busch Decl. Exhibit 9 at 277:4- 15, 283:24-284:13. 202. During her deposition, Wilbur did not remember why she discussed the cowbell part in her Declaration, but omitted the second hand percussion part in her transcription of Blurred Lines. 202. Busch Decl. Exhibit 9 at 290:12-25 Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 36 of 48 Page ID #:2557
203. In listening to Blurred Lines and Got to Give it Up, the ordinary or lay listener would recognize similarities between them. 203. See The Declaration of Judith Finell (Finell Decl), Exhibit 1 at 8. 204. Blurred Lines and Got to Give it Up both contain substantially similar defining compositional elements that are the result of many of the same deliberate creative choices made by their respective composers, far surpassing the similarities that might result from attempts to evoke an era of music or a shared genre. 204. See Finell Decl. at 15, 141. 205. Audio Engineer, Thomas Court, was asked to create a mashup of Blurred Lines and Got to Give it Up for this case, by the Gayes counsel. A mashup represents a composite of both songs, which allows the listener to recognize the similarities in the two works. Mr. Courts analysis was conducted primarily by working on an Apple computer using Pro Tools digital audio software. 205. See generally The Declaration of Thomas Court (Court Decl), at 2-10. 206. The Gayes counsel provided Court with the Blurred Lines and Got to Give it Up files released by iTunes. The first tracks supplied were the stereo-mixed releases. Mr. Court was then provided with separate digital and audio multi-track 206. Court Decl. at 11-13. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 37 of 48 Page ID #:2558
recording for Blurred Lines in Pro Tools in a finished master-session format, as would be delivered to a record company. Mr. Court was able to separate just the Blurred Lines vocals and instrument tracks into separate monaural track-stems, one vocal-only and one music-only. Music- only refers to a track with the instrument accompaniment track and not the vocal tracks. 207. Mr. Court listened and compared all of the tracks, the released versions and the separated stem versions, in order to verify if the tracks were one and the same. Mr. Court determined that the tracks were identical to the commercially released versions. 207. Court Decl. at 14. 208. Mr. Court then isolated vocal and music stems, revealing that there was something interchangeable between Got to Give it Up and Blurred Lines, like a puzzle cut with the same jigsaw. Mr. Court stated, I could move the Got to Give it Up vocal- only (Example 3) from the songs, measures 108 through 124 (16 Bars), and have it play back simultaneously with the Blurred Lines music-only from that song, measures 105 through 121 (16 Bars). The 208. Court Decl. at 15. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 38 of 48 Page ID #:2559
result, without any pitch manipulation, played as if they were one song. 209. Because Mr. Court had access to the separated music and vocals from both Blurred Lines and Got to Give it Up, he did not have to remix or add any special effects to the songs or use any specialized software. The Blurred Lines multi-track was well balanced and Mr. Court only had to mute the music to create his vocal-only track, and then mute the vocals and create the music-only track. Both the Got to Give it Up tracks were already pre-mixed with ambient reverb for the vocal-only, which is common for that era of music. Reverb is an audio-engineering term, for creating an audio recording experience that contains reverberation, creating the impression that one is at a live concert. 209. Court Decl. at 16. 210. The only minor adjustment Mr. Court made was to the Beats Per Minute (BPM) of each song through a process called beat-mapping. This process took place on Pro Tools where Mr. Court was able to determine and adjust the BPM for both Blurred Lines and Got to Give it Up, which revealed that both song recordings were within 1% of each others tempo. 210. Court Decl. at 17-20. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 39 of 48 Page ID #:2560
Mr. Courts adjustment was to conform each songs tempo to a solid 120 BPM. The Blurred Lines iTunes release was at 119 BPM and the multi-track, which is the most authentic track, was at 120 BPM, verifying that Courts approach was accurate. Mr. Court found that the discrepancy in tempo can occur from transferring a master recording to a CD and then digitizing it to an MP3. Got to Give it Up iTunes release was slightly faster at approximately 122 BPM, and had a varying tempo that is typical of recording sessions with live musicians. 211. Mr. Court used the Pro Tools software to import all four isolated audio tracks from the two separate recordings of Got to Give it Up and Blurred Lines, then edited a 16-bar phrase from each song. After which, he played them exactly as is, with no alterations, with the two different songs playing together in parallel. This is called a true composite and not mashed or altered from the original. 211. Court Decl. at 21. 212. In order to display the tracks outside of Pro Tools visually and audibly, Court exported the selected 16-bar phrases for playback in any music-player, utilizing 212. Court Decl. at 22. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 40 of 48 Page ID #:2561
Apple iTunes player. Court then used a computer-screen-capturing software, ScreenFlow, to visually record the playback in iTunes one track at a time, for both Got to Give it Up vocals-only, and Blurred Lines music-only. Mr. Court was able to align both playback visual screen-captures for each song to start at 00:00 time, because iTunes player has a time counter. As a result, Mr. Court was able to play both players at the same time, an identical result as in Pro Tools without the audio-waveform displays. 213. Simultaneously playing the selections enables the listener to gain an understanding of the correlation between the song Got to Give it Up vocals (phrasing of the lyrics) and the Blurred Lines instrumental music. The comparison revealed the songs unique ability to synchronize with one another, and whether the files are played in Pro Tools or on individual music players playing at the same time, the resulting mashup composite is the same. 213. Court Decl. at 23. 214. Mr. Court concluded that the phrase in Got to Give it Up and Blurred Lines, seem to be framework-alike as a literal 214. Court Decl. at 24. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 41 of 48 Page ID #:2562
map. 215. Sound editor, and studio musician, Ron Aston, was asked by the Gayes counsel to create three audio examples (mixes) in such a way that demonstrated the similarities between Blurred Lines and Got to Give it Up. In addition to many years of performing on television shows, motion pictures, and commercials, Aston has spent that last seven years doing sound editing on motion pictures and television productions. After more than 40 years in the music industry, Aston is very familiar with R&B music, as well as the original recorded version of Blurred Lines by Robin Thicke and Got to Give it Up by Marvin Gaye. 215. See generally The Declaration of Ron Aston (Aston Decl.) at 5- 11. 216. Using the software platform Pro Tools, Aston produced two separate musical exhibits. Aston has been a member of the Pro Tools beta team for the past ten years, and was involved the testing and development of Pro Tools. Pro Tools is the world standard for digital audio editing programs. He also provides feedback and new feature suggestions to Avid (the company that makes Pro Tools). 216. See Aston Decl. at 12. 217. Aston examined the audio tracks 217. Aston Decl. at 13. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 42 of 48 Page ID #:2563
provided to him by the Gayes counsel, and compared them to the original, commercially released tracks. Aston determined that the tracks were identical to the commercial releases of each song. All examples created by Aston were created from the original source material he was provided, and nothing was done to alter the sound of the source files of the two songs. 218. The Gayes counsel also supplied Aston with several music tracks, including the original multi-tracks of Blurred Lines, including all of the vocal and instrumental tracks, in a Pro Tools session. A Pro Tools session is a file that contains all of the individual vocal and music tracks, as well as the effects (reverbs, delays, etc.) along with the automation data that controls the volume, pan and other parameters or each track, which ultimately contributes to the creation of the final mix of a song. Aston was able to open the session on his Pro Tools system the way a record company would open it to create the master. The Gayes counsel also provided Aston with two stereo mixes of the original release version of Got to Give it Up. Mix-A contained just the instruments and 218. Aston Decl. at 14-15, 17. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 43 of 48 Page ID #:2564
background vocals with no lead vocals, and Mix-B contained only Marvin Gayes main vocals. 219. From the Blurred Lines Pro Tools session, Aston created two stereo mixes. Mix-1 contained just the mix of vocals only with no music, and Mix-2 contained a mix of just the music tracks with no vocals. 219. Aston Decl. at 16. 220. Using the source material provided, Aston mixed the instrumental tracks and the vocal tracks from both Blurred Lines and Got to Give it Up to where he could mix and match between the two songs to create the requested audio examples. Specifically, he could play the instruments only track from one song along with the vocals only track from the other song, or vice-versa, in either songs original or transposed key. 220. Aston Decl. at 18. 221. In creating Examples 1 & 2, Aston used Pro Tools for editing, which included beat matching, and he used Blurred Lines as the master reference for tempo. After which, he lined up Got to Give it Up to perfectly match the exact constant tempo of Blurred Lines because both songs were very close in the tempo of 120 Beats Per Minutes (BPM), within 1 to 3 BPM. 221. Aston Decl. at 19-23. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 44 of 48 Page ID #:2565
The beat matching aligned the songs tempos, and starting with the music track of Got to Give it Up, Aston used the Elastic Audio function of Pro Tools to match the track to be in perfect sync with the tempo of Blurred Lines. 222. Example-1 is a mashup (combination) of the Got to Give it Up music-only track transposed down to the key of G, with the Blurred Lines vocals-only track in its original key of G. Aston used the Pro Tools audio suite plug-in, Pitch n Time (Serato) to transpose the Blurred Lines music only track from its original key of A down to G, which is the original key of Blurred Lines. After which, he combined the transposed, key of G, Got to Give it Up music with the vocals-only track of Blurred Lines, in its original key of G, to create the resulting mix referred to as Example-1. 222. Aston Decl. at 24-26. 223. Example-2 is a mashup of Got to Give it Up vocals, and Blurred Lines music mixed in the songs original keys. Aston first beat matched the vocal only track of Got to Give it Up, in its original key of A to be the exact 120 BPM tempo of the Blurred Lines music track, in its original 223. Aston Decl. at 27-28. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 45 of 48 Page ID #:2566
key of G. He then combined the two elements creating a mix of the combination resulting in the mix referred to as Example-2. 224. Example-4 contains the full songs of both Got to Give it Up and Blurred Lines, back-to-back original mixes in their original keys. 224. Aston Decl. at 29. 225. After he finished all of the editing, Aston created a stereo mix for Examples 1, 2, and 4. He then exported each of the three example mixes as mono MP3 music files to Thomas Court, a Music Technologist also working on this project with the Gayes counsel. Mr. Court then added a video player to the examples Aston provided. 225. Aston Decl. at 30. 226. Ethnomusicologist, Dr. Ingrid Monson, created an audio example for the Gayes counsel, comparing the two compositions, After the Dance by Marvin Gaye, and Love After War by Robin Thicke. The resulting audio example is named the After the Dance Audio Example. 226. See The Declaration of Ingrid Monson (Monson Decl.), at 84. 227. In creating her audio example, Monson imported an m4a file of After the Dance into Apple Logic. As After the Dance 227. Monson Decl. at 84. Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 46 of 48 Page ID #:2567
played back, she performed the melody to Love After War on a MIDI keyboard. The resulting tracks were mixed and then exported as an AIF file, and then converted to an m4a format to be compatible with iTunes. 228. Monson found that the melody to Love After War can be sung along to the chorus of After the Dance. The After the Dance Audio Example performs the melody to Love After War (on keyboard) over the recording of the hook/chorus to After the Dance. In order for this to be possible, the harmonic progressions must be functionally equivalent and the melodies compatible. 228. Monson Decl. at 84. 229. In her Declaration, Monson states that the detailed discussion in her declaration explains how this strong aural similarity is possible, even though the underlying chord progressions are slightly different. 229. Monson Decl. at 84.
Dated: September 8, 2014 Respectfully submitted,
KING & BALLOW
By: /s/ Richard S. Busch RICHARD S. BUSCH PAUL H. DUVALL Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 47 of 48 Page ID #:2568
Attorneys for Defendants and Counter-Claimants Nona and Frankie Gaye
THE LAW OFFICES OF PAUL N. PHILIPS
By: /s/ Paul N. Philips PAUL N. PHILLIPS
Attorney for Defendant and Counter-Claimant Marvin Gaye III
Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 48 of 48 Page ID #:2569 General Information Court United States District Court for the Central District of California; United States District Court for the Central District of California Nature of Suit Property Rights - Copyrights[820] Docket Number 2:13-cv-06004 Pharrell Williams et al v. Bridgeport Music Inc et al, Docket No. 2:13-cv-06004 (C.D. Cal. Aug 15, 2013), Court Docket 2014 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 49