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Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 1 of 66 Page ID

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EXHIBITK

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 2 of 66 Page ID


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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

2
3

THE HONORABLE JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE PRESIDING

5
6
7

Pharrell Williams, et al.,

Plaintiffs,

9
10

Case No.

vs.

cv 13-06004-JAK(AGRx)

11

12
13

Bridgeport Music, Inc., et al.,


Defendants.

14
15
16
17
18
19
20

REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS


Day 5 - P.M. Session
Los Angeles, California
Tuesday, March 3, 2015

21
22
23
24
25

Pamela A. Batalo, CSR, FCRR, RMR


Official Reporter
Roybal Federal Building
255 East Temple Street
Room 181-1
Los Angeles, California
90012
(213) 687-0446
United states District Court, Central District of California

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27
00:

note.

Q.

the

A.

that.

Q.

which

That's

one

of the earlier

chorus

sections

where

it's

00:

not

00:

same

note

Right.

-Well,

there

were

three

notes

that

were

the

same

in

00:

00:

And

now

let me play

is Exhibit

530,

(Whereupon,

the chorus

just

section

from

Love After War,

00:

at the beginning.

the audio

was played

00:

for the

00:

jury.)

00:

BY MR.

MILLER:

So in that

10

Q.

11

how

12

changing

13

from being

14

vocal

15

A.

in the

comparison

first

with

of those

recording,

each

vocal

a different

as you

note

two

recordings

testified,

the

can hear

chords

and

the

chords

change

before

00:

00:

are

in Love After War, apart

sung,

melody,

you

00:

00:

the

00:

comes

in; correct?
00:

Correct.

16

MR. MILLER:

I have

17

THE COURT:

18

Cross-examination,

19

MR.

All

BUSCH:

no further

00:

questions.

00:

right.

Yes,

Mr.
your

00:

Busch?

00:

Honor.

00:

CROSS-EXAMINATION

20

00:

21

BY MR.

22

Q.

BUSCH:

Good

23

attention

24

multiple

25

chord

afternoon,
to your
times,

had been

Ms.

Wilbur.

testimony,

upon

and

questioning

notated

I have

been

I believe
by Mr.

in the deposit

playing

I heard

Miller,

copy,

that

very

you

that

close

00

say

if the

it would

00:

look

00

00

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1

exactly as the notation they showed you from the recording of

00:

00:

Got To Give It Up.

00:

Do you recall that?

4
5
6

7
8

Not specifically, but go ahead.

Q.

Do you agree with me that it is your testimony that if the

00:

chord was notated in the lead sheet of Got To Give It Up, that

00:

it would look exactly as the notation that Mr. Miller showed you

00:

00:

as being in the recording of Got To Give It Up?


MR. MILLER:

9
10

00:

A.

Objection.

It misstates the testimony.

00:

The question is whether the piano part.


THE COURT:

11

Okay.

Restate the question.

00:

If you're

12

asking about a specific exhibit, why don't you display it,

13

please.

00:

00:

00:

THE WITNESS:

14

THE COURT:

15

00:

I'm confused --

00:

There's no question pending.

00:

16
17

BY MR. BUSCH:
Q.

Ms. Wilbur, you began your testimony today by saying that

18

when you are retained by someone to analyze two pieces of

19

work

20

A.

Right.

21

Q.

__

22

A.

I do.

Q.

And you said that you look at things objectively;

00:

00:

00:

00:

you approach it neutrally;

00

correct?

00

23

is that

00

00

24

right?

25

A.

00

That's correct.

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29

And

you

Q.

contending

the deposit

in order

know

that

in this

the notes

copy

needs

case,

the Thicke

in the deposit

to reflect

to be protected

that;

copy

notes,

in this

You understand

parties

need

certain

00:

are

to be -- or

specific

notes

A.

I do.

Q.

So in your

comparison

deposit

testimony,

of the notes

copy

00:

correct?

you went

that

and you've

you

compared

through
are

those

to a notation

That's

not

11

A.

No.

12

Q.

That's

13

A.

No.

not

at great

claim

To Give It Up; correct?

recording

length

in -- or not

in the

00:
00:

correct?

00:

Restate

-- next

question,

00:

please.

00:

BUSCH:

You,

in the

last

16

Q.

17

notes

18

you compared

19

It Up and how those

and how

four

elements
that

are

to,

No.

A.

22

the

23

Q.

24

recording

25

didn't

I compared

recording
Okay.

hours,

went

notes

through

transcribed

for example,

Did you not

20

00:

00:

correct.

THE COURT:

14

00:

00:

of the

21

00:
00:

case.

of Got

10

BY MR.

00:

00:

15

that

appear

in the deposit

the

recording

in Got

the

You didn't

do that?

copy

how
and

To Give

of Got

deposit

compare

00:
00:
00:
00:

To Give It Up.

00:

do that?
copy

of Got

of Blurred Lines, as I was

of Got

and compared

how

To Give It Up with

instructed

the notes

also

To Give It Up with the deposit

to do.
appear

copy?

in the

You

00:
00:
00:
00:
00:

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I certainly did do a transcription

A.

recording, yes.

earlier of the

00:
00:

Okay.

Q.

4
5
6
7
8

Now, isn't it true, Ms. Wilbur, that a lead sheet

just reflects a simplified,


pattern in a composition?
I think

A.

less fleshed-out version of a chord

00:
00:

Isn't that true?

you know, it's difficult to answer the question.

I mean, deposit copy and lead sheet and sheet music are all
different things.

00:

So can you just clarify for me what you mean

00:
00:
00:
00:

9
10
11

12

by a lead sheet?
What I want to know is isn't it true that you believe that

Q.

a lead sheet simply reflects a simplified, less fleshed-out


version of a chord pattern in a composition.
THE COURT:

13
14

THE WITNESS:

15

Yes.

16

BY MR. BUSCH:

Do you understand

Yes or no?

the question?

00:
00:
00:
00:
00:

I do.

00:
00:

17
18

Q.

And isn't it true, Ms. Wilbur, that a chord notation is

merely representational?

19

MR. MILLER:

20

THE COURT:

Isn't that true?

Objection.

Vague.

sustained.

00:
00:
00:
00:
00

21
22
23
24
25

BY MR. BUSCH:
Q.

Isn't it true that you've stated in the past that chord

notation is merely representational?


THE COURT:
THE WITNESS:

Do you understand the question?


Yes.

00
00
00
00

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31

THE COURT:

You may

THE WITNESS:

00:

answer.

00:

Yes.
00:

BY MR.

And

Q.

BUSCH:
isn't

reasonable

it true,

experts

Ms.

Wilbur,

can disagree

that

it is your

as to how

a chord

opinion

should

that

00:

00:

be

00:

notated?

Isn't

A.

That's

Q.

And

that

true?
00:

8
9

chords

correct.

isn't

it true,

can and

often

Ms.

Wilbur,

do sound

that

similar

differently

or even

00:

notated

identical?

Isn't

00:

00:

10

that

true?

11

A.

Often,

Q.

And

00:

12
13

14

yes.

isn't

transcribed
the

sound

it true,

the

Ms.

Wilbur,

that

in this

Got To Give It Up composition


of Got To Give It Up?

recording

case,

you

first

as it appears

Isn't

that

in

00:

00:

00:

right?

00:

15
16
17

A.

I did.

Q.

And

lead

sheet

isn't

it true,

deposit

Ms.

copy

that

Wilbur,

that

later

you received

you've

been

talking

about

the

here

00:

00:

00:

18

today?

19

A.

Isn't

that

true?
00:

Yes.
MR. MILLER:

20
21

question.

Objection
THE

22

COURT:

Objection
to the
All

form

right.

to lead sheet.

Form

of the

00

of the question.
You need

00:

to define

the term

00

00

23

you're

using.
00

24
25

BY MR.
Q.

BUSCH:

Isn't

it true,

Ms.

Wilbur,

that

later

after

initially

DC

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1

transcribing

recording, you transcribed

the -- that was deposited in the copyright office that we've

been talking about here today?

MR. MILLER:
THE COURT:

6
7

00:

the deposit copy lead sheet from

00:
00:
00:

Same objection to the form.


Why don't you identify it as Exhibit 248.

MR. BUSCH:

00:

Yes.

00:

Isn't it true that you later received Exhibit 248 and

Q.

00:
00:

Is that to which you're referring?

00:

the composition as it appears in the sound

10

compared that transcription

with your earlier transcription

11

the composition

12

Give It Up?

13

A.

I don't believe I ever did do that.

14

Q.

Isn't it true, Ms. Wilbur, that you did that and you

of

as embodied in the sound recording of Got To

00:
00:
00:

Isn't that true?

00:
00:

concluded that the two, the notation from the composition as

00:

15

embodied in the sound recording and the composition as embodied

00:

16
17

in Exhibit 248, were substantially

the same?

Isn't it true, Ms. Wilbur, that that happened?

18
A.

I could have said that, yeah.

20

Q.

It's not that you could have said that, Ms. Wilbur -THE COURT:

24
25

Don't argue with the witness.

What's your next question, please.

22
23

Excuse me.

You actually did say that, didn't you?


THE COURT:

00:
00:
00:
00:

BY MR. BUSCH:
Q.

00:
00:

19

21

00:

Sustained.

Sustained.

00:
00

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33
00:

BY MR. BUSCH:
Q.

THE COURT:

00:

sustained.

Mr. Busch, don't argue with the witness.

5
6
7

8
9

10
11

12
13

00:

In fact, you said that under oath, didn't you?

If you want

00:

to read from a deposition, do that, please.


MR. BUSCH:

Yes, your Honor.

I'd like to read from

00:

Which deposition?

MR. BUSCH:

Her August deposition.

THE COURT:

Just a moment, please.

of the transcript, please?

00:

Do you have a copy

Yes.

14

taken out of context.

15

explain what she's answering.

I would start it at page 70, line 4, to

Any objection to that?

17

MR. BUSCH:

I need to see page 70, line 4.

20

I don't

00:

00:

00:

Well

MR. MILLER:

00:

00:

believe it's being taken out of context.


THE COURT:

00:

00:

THE COURT:

19

00:

My objection is that it's being

16

18

00:

00:

Thank you.

Any objection to that being read?


MR. MILLER:

00:

00:

page 71, lines 3 through 18 of Ms. Wilbur's deposition.


MR. MILLER:

00:

I'm also not sure it's impeaching her

00:

00:

21
22
23
24

25

last answer.
Just read page 70, line

00

4, through page 71, line 18, excluding the objection on lines 12

00

THE COURT:

and 13 on page 71.


MR. BUSCH:

That's all right.

It's overruled.
Let's put it on the screen.

00

00

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Q.

00:

Beginning at page 70, line 4.


Q. Okay.

What transcriptions

did you choose to

00:

00:

include in the declaration?

A. There were transcriptions

4
5
6
7

melodies

side-by-side

of, you know, the

along with prior art examples to

illustrate points that I was trying to make.


were -- you know, basically

You know, there

comparing lead sheets with -- with

00:

00:

00:

00:

00:

chords, melodies,

lyrics.
00:

Q. What lead sheets?

A. In the declaration,

10

there were snippets that were

00:

00:

11

12
13
14
15
16
17
18
19
20

used.
00:

Q. Snippets of what?

A. Of the things and actually they were --

00:

Q. Of the things?

A.

in response to the Finell report.

Q. The things -- what do you mean by

'the things'?

00:

00:

00:

There were snippets of the things?


A. There were snippets of music that I compared.

00:

Q. Okay.

00:

What I want to know is:

Did you include transcriptions,

your transcriptions

21

from the recordings of 'Got To Give It Up' versus your

22

transcription

23

00:

of the recordings of 'Blurred Lines' or did you

include transcriptions

from the lead sheet that was deposited

24

with the copyright office of 'Got To Give It Up' in your

25

affidavit, declaration?

00:

00:

00

00

00

00

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00:

Q. Go ahead.

A. I used the ones that I had already created.

turns out that they were substantially

It

the same as the copyright

00:

00:

00:

deposits.

All right.

5
6

So I want to step back now, having gone

through that, Ms. Wilbur, and just get a little background

on

00:

00:

00:

you.
You have never been employed as a music transcriber,

00:

00:

have you?

10

A.

I actually have.

11

Q.

You have?

12

A.

Uh-huh.

13

Q.

Okay.

00:

00:

00:

00:

Your Honor, I would like to now read from Ms. Wilbur's

14
15

deposition,

sworn deposition

testimony, page 76, lines 4 through

00:

00:

00:

16

6.

THE COURT:

Is this the same date?

00:

17

MR. BUSCH:

Yes.

00:

18
19

First deposition, your Honor.

00:

August deposition.
Any objection to that being read?

00:

20

THE COURT:

21

MR. MILLER:
THE COURT:

You may read that.

00:

22

MR. BUSCH:

Thank you.

00

23
24

No, your Honor.

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

00:

00

00

25

BY MR. BUSCH:

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And you've never been employed as a copyist either, have

Q.

00:

00:

you?

A.

00:

No, I have not.


I have been hired as a transcriber .

.4

THE COURT:

There's no question pending.

00:

00:

00:

6
7

BY MR. BUSCH:
And I want to go back to your education that you have had,

Q.

00:

00:

your college and your Master's degree.

Isn't it true, Ms. Wilbur, that you took no courses

00:

00:

10

during your Master's work in popular music?


00:

11

12
13

A.

They weren't being offered.

Q.

So the answer to my question is no, you never took any

courses since they weren't being offered; correct?

00:

00:

00:

14

A.

That's correct.
THE COURT:

15
16

Could you speak into the microphone,

please, and, Mr. Busch, could you slow down, please.

00:

00:

00:

17

MR. BUSCH:

Yes.

18

THE COURT:

Thank you.

00:

19

Q.

And you did not take any classes in urban music either, did

00:

00:

20
21
22

you?
A.

No.

Unfortunately,

I was too early for those courses.

Q.

And you didn't take any courses in musical analysis of R&B

00

00

00

23
24

25

or soul; isn't that right?


A.

I've done a lot of that, but I did not take courses, no.

Q.

And your specialty, your thesis was in the Pawnee Indians

00

DC

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37
00:

in Oklahoma;

is that

A.

Correct.

Q.

Now,

right?
00:

as Mr. Miller

the advertising

5
6
7
8

A.

I have

Q.

And

listened
aired

done

it's

for Foote,

firm

you,

of Foote,

to all the music

in an effort

for

00:

& Belding.

that

while

a program

advertisements

litigation;

00:

00:

Cone

Ms. Wilbur,

in the

you worked

& Belding?

you designed

to avoid

it true

for Foote,

is it not,

& Belding,

isn't

Cone

a lot of work

true,

Cone

asked

doing

where
before

work

00:

00:

you

00:

they

00:

correct?

00:

10

A.

That's

11

Q.

And

Cone

& Belding,

12
13

correct.

you -- and while

working

you would

to unsuccessfully

license

often

-- doing
deal

a piece

with

work

an agency

of music

00:

for Foote,
that

and then

tried

00:

00:

create

00:

14
15
16
17

18

something

that

You

know,

A.

but
Q.

that

again,

certainly

Okay.

to try

sounded

And

like

you have

was

to be more

sometimes

you agree,

to create

it; correct?

something

specific

the case,

Ms. Wilbur,
like

than

00:

that,

00:

yes.

that

it would

an existing

piece

be foolish

00:

00:

of music

00:

19

without

permission;

isn't

20

MR. MILLER:

21

THE COURT:

that

right?
00:

Objection.

00

sustained.

00

22

23
24
25

BY MR.
Q.

BUSCH:

If an advertiser

I'm talking
might

use

now about
a temp

track

wanted
your

to recreate

work

at Foote,

as a reference

a song
Cone

track;

and this
& Belding

isn't

that

00

is
they
right?

00

00

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38

MR. MILLER:

THE COURT:

Objection.

THE WITNESS:

THE COURT:

THE WITNESS:

00:

00:

Overruled.

Do you understand

Relevance.

00:

the question?

00:

Yes.

00:

You may answer.

00:

Yes.

00:

BY MR. BUSCH:

8
9

10

Q.

And temp tracks are music tracks that are temporarily used

in a film or TV spot as a placeholder

for a similar piece of

music which will be used in the final version; isn't that

00:

00:

00:

00:

11
12

correct?
A.

It doesn't have to be a similar piece of music, but it is

00:

00:

13

14
15
16

used as a placeholder
Q.

Okay.

for sure.

And in your experience, you found temp tracks to be

problematic because you said that way too often, the client
falls in love with the temp track and then later has a problem

00:

00:

00:

00:

17

getting away from it; isn't that right?

18

A.

That's often true.

Q.

And if a piece of music took too much of the fabric of

00:

19
20
21

00:

another song where you could not separate copied elements from

00

original elements, you, in some cases, tell the advertiser to

00

00

22
23

start allover;

isn't that right?

MR. MILLER:

Objection.

403.

Going beyond

00

00

24

25

musicology.
THE COURT:

I understand.

Just a minute.

00

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1

You may answer this and then let's move.

00:

THE WITNESS:

00:

Can you ask the question, again.

00:

(Record Read.)

THE COURT:

THE WITNESS:

5
6

points specifically

00:

Do you understand the question?


It's a little convoluted, but if it

to another piece, yes, I would say that they

00:

00:

00:

should start over.


00:

8
9

10
11

BY MR. BUSCH:
In fact, your criteria, wasn't it, Ms. Wilbur, that

Q.

00:

anything they could used could not point directly to an artist,

00:

a recording, a song, a group or an arrangement;

00:

isn't that

00:

12

right?

13

MR. MILLER:

14

THE COURT:

15

MR. MILLER:
THE COURT:

16
17

as stated.

Objection.

00:

403.

00:

Pardon?

00:

403.
Restate -- I don't understand

the question

The foundation for the question isn't established.

00:

00:

00:

18
19
20
21

BY MR. BUSCH:
Q.

In doing work for Foote, Cone & Belding, isn't it true that

00:

you told them your criteria was that anything that they used

00:

could not point to an artist, a recording, a song, a group or an

00

00

22

arrangement;

isn't that right?

23

A.

This is because

24

Q.

Yes

00

00

25

or no.
THE COURT:

Excuse me.

Don't interrupt the witness.

00

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 16 of 66 Page ID


#:10022

40
1

And after you have answered, you may explain.


THE WITNESS:

Yes.

are extremely vulnerable

THE COURT:

Go ahead.

And that is because advertisers

Stop there.

Thank you.

00:

00:

Next question, please.

00:

00:

to legal action.

All right.

00:

00:

6
7

8
9

BY MR. BUSCH:
Now, Ms. Wilbur, when you were deposed in this case in

Q.

00:

August of 2014 and again in December of 2014, you were asked

00:

about the cases in which you have previously

00:

served as an

00:

10

expert; isn't that right?

11

A.

I was.

12

Q.

Isn't it true, Ms. Wilbur, that you failed to name two of

13

the cases on which you worked, Berlent --

00:

THE COURT:

14

Sustained, improper.

00:

00:

It's improper

00:

00:

15

impeachment.
00:

16

BY MR. BUSCH:
Q.

Did you identify all of the cases that you worked on?

00:

A.

There were three that I did not remember and they were not

00:

18
19

listed.

17

00:

20

Q.

And one of them was Berlent vs. Focus Features; isn't that

00:

00:

21

right?

22

A.

Correct.

23

Q.

And one of them was smithKline Beecham vs. Watson

24

Pharmaceuticals;

25

A.

00:

correct?

00:

00

00

Correct.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 17 of 66 Page ID


#:10023

41
And

in both

of those

Q.

party

bringing

their

property,

A.

The

-- the

literally

taken

the

-- the Nicorette

was

definitely

Q.

cases

Okay.

the

cases,

infringement

intellectual
first

on the

isn't
case

recorded

Beecham

one.

side

infringement
that

where

00:

of

right?

00:

they

00:

piece.
The

00:

of the

had

So that

other

one,

00:

was

yes,

00:

00:

side.

So in both

you were

on the

alleging

a sample

of the

Klein

on that

claim

property;

one was

30 seconds

you were

-- the
side

answer

is in both

00:

infringement;

00:

to my question

of the person

alleging

00:

10

correct?

11

A.

Correct.

12

Q.

Now,

00:

did

employed

you

13

you

14

the plaintiff

15

parties?

16

A.

Absolutely

17

Q.

Okay.

leave

those

a different
than

cases

off of your

methodology

you are doing

in those

here

resume

cases

on behalf

00:

because

on behalf

of

00:

00:

of the Thicke

00:

00:

not.

00:

18
19

THE COURT:

Excuse

Ms. Wilbur,

just

00:

me.
respond,

please,

without

00:

argument.

00:

20

Thank

you.
00:

21

BY MR.

BUSCH:

Because

22

Q.

23

depending

24

appropriate;

25

A.

you agree

on which

side

that

using

of the

a different

case

you're

00:

methodology

on would

00:

not be

00:

I give

right?
an opinion

based

on my

opinion.

It has

nothing

to

00

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 18 of 66 Page ID


#:10024

42
00:

do with what side it is.

Okay.

Q.

be inappropriate

for you to use a different methodology

00:

when

you're on the side of the person bringing the infringement

00:

So the answer to my question is you agree it would

claim

00:

versus when you're on the side of the defendant; correct?

00:

00:

MR. MILLER:

Argumentive.
00:

THE COURT:

Overruled.

You may answer.

THE WITNESS:

00:

Do you understand the question?

I use the same methodology

00:

no matter

00:

10

what the side is.


00:

11

BY MR. BUSCH:
00:

12

Q.

Would you please, ma'am -- my question is -THE COURT:

13

There has been a response to the question.

00:

00:

14

Please move on.

15

BY MR. BUSCH:

00:

16
17

Q.

00:

And so you never do employ a different methodology

00:

depending on what side of the case you're on; right?

00:

18
19
20
21

A.

Never.

Q.

Ms. Wilbur, isn't it true that you believe that it is

inappropriate

00:

00

to transcribe songs in a way that overemphasizes

minor performance

elements in the songs such as pauses or rests

00

00

22

23
24

25

to overstate differences?
A.

I didn't follow you.

Q.

Isn't it true that you believe that it is inappropriate

transcribe

00

Can you just ask that again.


to

songs in a way that overemphasizes minor performance

oc
oc

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 19 of 66 Page ID


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43

elements in the songs, such as pauses, in order to overstate

00:

00:

differences?

THE COURT:

00:

Do you understand the --

00:

BY MR. BUSCH:

00:

Do you think it's wrong to do that?

Q.

THE COURT:

Do you understand that question?

00:

00:

THE WITNESS:

THE COURT:

Yeah.
You can answer the question.

THE WITNESS:

I think so.

I think I would agree with

00:

00:

9
00:

10

that.
00:

11

BY MR. BUSCH:
00:

12

Okay.

Q.

And would you also agree that you believe it is

13
14

inappropriate

to focus on less significant or immaterial

00:

00:

00:

15

differences between songs?


THE COURT:

16

THE WITNESS:

17

Do you understand the question?


I generally don't focus on differences.

00:

00:

00:

18

I focus on the similarities.


00:

19
20
21

BY MR. BUSCH:
Q.

So the answer to my question is you believe it's

inappropriate

to focus on less significant or immaterial

00

01
01

22
23

differences between songs; correct?


A.

It really depends on the circumstance.

You know, each

01
01

24

25

situation is very, very different.


Q.

Okay.

In the Bourne case, you gave an affidavit, did you

OJ

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 20 of 66 Page ID


#:10026

44
01:

not?

A.

I did.

Q.

And in that affidavit, did you criticize the opposing

01:

expert for focusing on less significant or immaterial

differences between the songs?

6
7
8
9

01:
01:
01:

That was a fair use case really, about satire and parody,

A.

01:

and it was a question of how much of the piece was supposed to

01:

be used, so I -- you know, you are taking it out of context.

01:

Q.

Did you criticize the opposing expert for doing that in

01:
01:

10

that case, yes or no?

11

A.

Yes.

Q.

And would you agree that it's inappropriate

01:

12
13

differences

in compositions

14

appear more different than they really are?

15

that's inappropriate?

16

A.

It depends on the circumstance.

17

Q.

Can you tell me what circumstance

to emphasize

01:
01:

in an effort to make the songs


Would you agree

01:
01:

18

emphasize differences

01:
01:

it would be okay to

in an effort to make the songs appear more

01:
01:

19
20
21
22
23
24

25

different than they are?


MR. MILLER:
THE COURT:
THE WITNESS:

Vague.

01:

Incomplete hypothetical.

01:

Do you understand the question?


If you're referring to the Bourne

case

01:

and the fact that they put an entirely different piece in the

01:

middle of the song, that -- that would be -- then in that case,

01

I would say that's correct.

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 21 of 66 Page ID


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45
01:

BY MR. BUSCH:

And you examined -- speaking of the Bourne

Q.

case, you

examined the number of chords the songs in Bourne

had in common;

01:

01:

01:

correct?

A.

I did.

Q.

And you believed that -- you concluded in that case that

01:

the two songs had 25 out of 65 chords or 38 percent in common;

01:

01:

01:

8
9

10
11

correct?

Were the same?

A.

If you say so.

I'd have to review my report.

Q.

And you found that the 25 out of 65 chords made them

extremely similar in Bourne;

isn't that right?

01:

01:

01:

01:

12
13
14

A.

If you say so.

Q.

And in Bourne,

is it true that you found that there were

similarity in chords where they shared three of the same chord

01:

01:

01:

15
16
17

tones?
A.

Isn't that right?

That is correct.

This was a fair use case and the question

is really in a case like that, how much can you actually take.

18
19

MR. BUSCH:

Move to strike, your Honor.

THE COURT:

Next question.

01:

01:

01:

01:

01:

20
21
22
23

BY MR. BUSCH:
Q.

And you also found, in connection with your finding that

the two pieces were extremely similar, that other chords shared
two of the same chord tones in common; isn't that right?

01

01

01

01

24

25

A.

Yes.

Q.

In this case, you have stated, agreed, that the hooks in

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 22 of 66 Page ID


#:10028

46
Blurred Lines and Got To Give It Up share three out of the same

01:

four notes or tones in common; isn't that right?

2
3

A. .

Totally different

Q.

Can you answer the question, ma'am?


THE COURT:

you make it to me.

01:

and out of context.

Excuse me.

01:

If you have a motion to make,

Do not argue with the witness.

And I

MR. BUSCH:

01:

01:

01:

shouldn't have to remind you of this.

01:

I move to strike that as nonresponsive,

01:

01:

your Honor.
THE COURT:

10

All right.

Restate the question, please.

01:

01:

11

12
13
14

BY MR. BUSCH:
Isn't it true, Ms. Wilbur, that in this case, you have

Q.

agreed that the hook of Blurred Lines and Got To Give It Up have

THE COURT:

16

THE WITNESS:

17

THE COURT:
THE WITNESS:

18
19

and the placement

Do you understand

01:

01:

three out of four notes in common?

15

01:

the question?

01:

01:

I do.

01:

You may answer.


The tones are the same.

The durations

01:

01:

and the measures are not.

01:

20
21
22

BY MR. BUSCH:
Q.

And isn't it true that you agree that in the Bourne case,

the chords did not have to be identical for you to find the two

23

songs to be extremely similar?

24

A.

25

Excuse me, Ms. Wilbur.

01:

01

You know, you can't combine melodies and chords.


THE COURT:

01:

If you understand

01

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 23 of 66 Page ID


#:10029

47
1

the question, please respond.

After -- after Mr. Busch has

finished, Mr. Miller can ask you other questions.

01:

(Record Read.)

THE COURT:

5
6

THE WITNESS:

THE COURT:
THE WITNESS:

Do you understand

01:

01:

Read the question, please.

01:

the question?

01:

01:

Yes.

01:

You may answer.


Yes, because the melodies were the same.

01:

01:

10
11

12

BY MR. BUSCH:
And you keep saying the Bourne case was a fair use case.

Q.

But isn't it true that fair use was being used as a defense to a
copyright infringement
THE COURT:

13

case in that Bourne matter?

01:

01:

01:

01:

sustained.

01:

14

BY MR. BUSCH:
Wasn't the allegation copyright infringement by the

15

Q.

16

plaintiff

17

A.

It probably was.

18

Q.

And in Bourne, you found that chords that only had three

01:

01:

19

in Bourne?
01:

common tones or notes in common were similar; isn't that right?

20

MR. MILLER:

21

THE COURT:

01:

01:

01:

Asked and answered.

01:

sustained.

01:

22
23

BY MR. BUSCH:
Q.

But you've made it a point, have you not, Ms. Wilbur, to

24

distinguish

those same types of similarities

25

Blurred Lines and Got To Give It Up?

of chords in

01

01

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 24 of 66 Page ID


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48
I don't

A.

the

colors

chord

see how

it's

on my charts

are

related.
MR.

relevant.

very

clear.

One has

BUSCH:

Move

They're

four

using

The A7th

notes,

to strike

-- I've made

chord

one has

and the A

01:

01:

01:

three.

01:

as nonresponsive,

01:

your

Honor.
THE COURT:

relevant,

Wilbur,

and

10

three

chord

11

A.

You're

Q.

I'm talking

12
13
14

recording,
and

keyboard

tones

in common;

talking

the

about

about
keyboard

the

the

of it will

an A7 chord

isn't

the

rest

in Blurred Lines uses

Got To Give It Up uses

triad

the

I don't see how it's

to strike

they're using, and then

Ms.

Q.

I'm going

that

now;

an A7 chord

and those

have

which

01:

01:

01:

01:

01:

right?

as embodied

in Blurred Lines uses

Got To Give It Up uses

an A major

right?

recording

composition

stand.

01:

an A major
have

01:

in the

three

triad
chord

01:

01:

01:

15

tones

in common?
MR. MILLER:

16

THE

17

COURT:

I'm going
Sustained

01:

to object.

01:

as framed.

01:

18
19

BY MR.
Q.

BUSCH:

Okay.

Is it true

that

the keyboard

in Blurred Lines uses

01:

01:

20

an A major

21

A.

It's

Q.

In Blurred Lines, an A major

22

triad?
not part

of the

composition,
triad

01:

so, no.
is not part

of the

01:

01

23
24

composition?
A.

You're

asking

about

the

keyboard.

The

keyboard

is not part

01

01

25

of the

composition.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 25 of 66 Page ID


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49
Assume

Q.

Ms.

for purposes

-- we have

a dispute

about

01:

that,

01:

Wilbur.
What

I'm asking

Blurred Lines uses

A.

In the recording.

Q.

Okay.

an A7 chord?

you

is is it true

an A major

that

the

keyboard

in

01:

01:

triad?

01:

And

isn't

it true

in Got To Give It Up, there's

that

01:

01:

THE COURT:

8
9

Are

you -- be specific

as to what

01:

you're

01:

to as to Got To Give It Up.

referring

01:

10
11

BY MR.

BUSCH:

In Got To Give It Up, does

Q.

THE COURT:

12
13

something

else?
MR.

14

15

whether

it's

18

Restate

BUSCH:
there

ambiguous.

01:

--

referring

to the deposit

your

question,

please.

Honor,

we have

copy

or

a dispute

01:

about

01:

Well,

but

make

Please

01:

01:

or not.

You didn't

one or the other.

composition

you

Your

THE COURT:

16
17

Are

the

the question

clear

make

whether

that

you asked

you were

01:

was

referring

to

01:

01:

clear.

01:

19

BY MR.

BUSCH:

Got To Give It Up musical

20

Q.

The

21

does

it not?

22

A.

Yes,

Q.

Okay.

composition

uses

an A7 chord,

01:

01:

01:

23
24

chord

25

A.

it does.

tones

And

the A major

in common;

isn't

triad
that

and the A7 chord


right?

have

three

01:

01:

01

That's

correct.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 26 of 66 Page ID


#:10032

50

three

in the Bourne case,

Whereas

Q.

tones

in common

was

you

evidence

said

that

a chord

chord

tones

being

in common

THE COURT:

Okay.

showed
403,

differences,
it's

01:

in Blurred

of similarity,

Lines and Got To Give It Up, you said that those

01:

having

same
didn't

cumulative.

01:

three

01:

you?

Let's

01:

move

01:

on, please.
01:

BY MR.

BUSCH:

In Blurred Lines, the

Q.

three

note

triad

is A, C sharp,

01:

E;

01:

correct?
01:

10

A.

In the

recording.

11

Q.

Okay.

And

12

sharp,

in Got To Give It Up, the A7 chord

01:

is A, C

01:

E, G; correct?
MR. MILLER:

13

Objection.

Vague

as to what

01:

he's

01:

14

referring.
THE COURT:

15

01:

sustained.

01:

16
17
18
19
20

BY MR.
Q.

BUSCH:

In the

composition,

It Up, the A7 chord,


A.

That's

-- those

Q.

Okay.

And

21

7, is purely

22

A.

I wouldn't

Q.

Okay.

23

25

the eight

the notes

additional

call

Now,

Wilbur,

note

to move

you have

constellations,

of Got To Give

01:

in an A7 chord.
heard

01:

01:

E, G; correct?

in the A7 chord,

the

01:

01:

is it not?

it decorative,

I want

composition

are A, C sharp,

are the notes

decorative,

Ms.

24

the

the musical

01:

no.

on to something
reviewed

as she called

Ms.

Finell's

them,

01

else.
report

of similarities

and

01

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 27 of 66 Page ID


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51
1

01:

that she finds between Got To Give It Up and Blurred Lines;

01:

correct?

Those constellations

A.

01:

-- I've reviewed her constellations

01:

but they refer to the recording.

MR. MILLER:

MR. BUSCH:

MR. MILLER:

THE COURT:

01:

I was going to object on that ground.

01:

Move to strike, your Honor, that comment.

01:

He's referring to
Excuse me.

Excuse me.

I'm not going

01:

am going to strike the question and answer because as framed,

01:

the question doesn't distinguish between the -- again, between

01:

the deposit copy and the commercial recording or the recording

01:

11
12

that's been made for this case.

10

01:

01:

13

MR. BUSCH:

Right.

14

THE COURT:

So you need to do that.

01:

01:

15
16

BY MR. BUSCH:
Ms. Finell has identified eight similarities

Q.

17

are in the constellation

18

stated in testimony those similarities

19

are in the deposit copy lead sheet; correct?


MR. MILLER:

20

of similarities

Objection.

that she says

for which she has

-- those constellations

Vague as to what chord he's

01:

01:

01:

01:

01:

01:

21

referring to.
THE COURT:

22

Yes, sustained.

01:

01:

23

BY MR. BUSCH:

24

Q.

You were here for Ms. Finell's testimony; correct?

25

A.

No, I was not.

01

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 28 of 66 Page ID


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52
1

Q.

You read her testimony?

A.

I read part of it, yes.

Q.

You read the transcript?

01:

01:

That's what Mr. Miller asked you

01:

01:

during his direct examination.

A.

Yes.

Q.

And you heard Ms. Finell explain why each of those

01:

similarities that she's found is in the deposit copy of the lead

01:

01:

sheet filed in the copyright office.

01:

You read that; correct?

01:

01:

10

A.

I did.

11

Q.

Okay.

12

A.

1--

01:

Now, with respect to --

01:

THE COURT:

13

There's no question pending.

01:

01:

14
15
16
17
18
19

BY MR. BUSCH:
With respect to those constellation

Q.

those similarities,

-- with respect to

I should say, you have stated that they

01:

01:

reflect -- I want to get this right -- simply a few of the basic

01:

building blocks of musical composition that are present, if not

01:

inevitable, in many songs; isn't that right?

20

MR. MILLER:

21

THE COURT:

01:

Objection.
Sustained.

01:

sustained.

01:

01:

22
23
24

25

BY MR. BUSCH:
Do you believe that those similarities that she's pointed

01

out to represent a few of the basic building blocks of musical

01

compositions that are present,

01

Q.

if not inevitable, in many songs?

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 29 of 66 Page ID


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53
THE

1
you're

COURT:

talking

sustained.

-- to what

your

You need
question

to identify

01:

what

01:

refers.

01:

BY MR.

BUSCH:
01:

Have

Q.

you

stated

THE

COURT:

Because

you need

01:

to be specific.

01:

6
7
8

9
10

BY MR.

BUSCH:

Have

Q.

case,

you

stated

Ms. Wilbur,

identified

are

in your

that

the

simply

musical

composition

songs?

Have

report

-- have

similarities

that

a few of the basic

that

are present,

you

stated

Ms.

Finell

building

if not

in this

blocks

inevitable,

01:
01:

has

01:

of
in many

01:
01:

11

12

you made

that

statement?

THE

COURT:

Just

a minute.

MR.

MILLER:

My objection

in trial

and not --

13

01:

is it should

be related

to

01:
01:

14

what

she said
THE

15

No.

THE WITNESS:

16
17

COURT:

eight

or whatever

01:

Overruled.

Can

number

you name

so that

the

I can

constellation,

respond

to each

the
one of

01:
01:
01:

18

them?
01:

19

BY MR.

BUSCH:

Q.

Do you believe

21

ones

of the

22

A.

Well,

20

there's

a different

answer

for different

01:
01:

constellation?
01

some

of them

THE COURT:

23

Why

24

don't

--

Excuse
you

me,

excuse

identify

these.

me,

excuse

It would

me.
just

01
01
01

25

streamline

this,

please.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 30 of 66 Page ID


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54

01:

BY MR. BUSCH:
Is the bass and keyboard a building block of musical

Q.

compositions

that are present, if not inevitable, in many songs?

01:

01:

01:

A.

No.

Q.

Okay.

being similar between Blurred Lines and Got To Give It Up part

01:

of a basic building block of musical composition that's present,

01:

if not inevitable,

01:

A.

They're simply different.

10

Q.

That's not my question.

Are the vocal melodies that Ms. Finell identifies as

in many songs?

01:

01:

01:

THE COURT:

I don't understand

12

MR. BUSCH:

Move to strike, your Honor.

01:

13

THE COURT:

01:

14

don't understand

--

01:

11

your question.

BY MR. BUSCH:
You know that Ms. Finell has identified that the signature

01:

01:

15

Q.

16

phrases between Got To Give It Up and Blurred Lines are very

17

similar; correct?

18

A.

That is her opinion.

19

Q.

Okay.

20

vocal melody that relates to the hooks of those songs are very

21

similar; correct?

22

A.

That is her opinion.

23

Q.

Okay.

24

those vocal melodies, basic building blocks of musical

01:

25

composition that are present, if not inevitable, in many songs?

01:

And you know that Ms. Finell has identified that the

with respect to those two items, are those melodies,

01:

01:

01:

01:

01:

01:

01:

01:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 31 of 66 Page ID


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55
1

MR. MILLER:

THE COURT:

THE WITNESS:

THE COURT:

THE WITNESS:

THE COURT:

8
9

10
11

Objection.

It's vague, your Honor.

01:

the question?

01:

Do you understand

It's not comprehensible


Okay.

at all to me.

Restate the question, please.

01:

01:

Building
There's no question pending.

01:

01:

BY MR. BUSCH:
When you said that in this case that the similarities

Q.

01:

01:

represent a few of the basic building blocks of musical

01:

composition

01:

that are present,

if not inevitable, in many songs,

were you referring to the vocal melodies

of the hook or the

01:

01:

12

signature phrase?

13

A.

No.

14

Q.

Okay.

15

A.

But they're different.

16

Q.

What similarity were you referring to?

17

A.

18

I would tell you.

19

Q.

20

and it wasn't the vocal melodies,

01:

01:

You'd have to give me the constellation

MR. MILLER:

22

THE COURT:

24
25

01:

of eight things and

Objection,

what was it?


argumentive.

Sustained.

BY MR. BUSCH:
Q.

01:

01:

Well, if it wasn't the bass line and it wasn't the keyboard

21

23

01:

Can you identify one of the similarities that you believe

represent a few of the basic building blocks of musical

01 :

01:

01:

01:

01

01

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 32 of 66 Page ID


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56
composition

01:

if not inevitable, in many songs?

I don't know what it's referring to.

A.

that are present,

I'm sorry.

01:

I am just

01:

completely baffled.

01:

Have you dismissed in this case any similarity between Got

Q.

01:

To Give It Up and Blurred Lines that Ms. Finell has found as

01:

simply basic building blocks?

A.

Yes.

Q.

Isn't it true, though, Ms. Wilbur, that you believe -- let

01:

8
9

10
11

01:

me get this right -- excuse me.

That you believe it is

inappropriate

to reduce similar elements to

for a musicologist

01:

01:

common musical choices because all music contains common musical

01:

01:

12

choices?

13

A.

THE COURT:

14

01:

(Record Read.)
THE WITNESS:

16

It depends on what those choices are.

THE COURT:

Excuse me.

If you don't understand

THE WITNESS:
THE COURT:

21

01:

Okay.
Otherwise,

01:

01:

question, please let me know.

20

01:

01:

didn't really understand what you're asking.

18
19

01:

Read the question.

15

17

01:

SO your question is

it will -- thank you.

01:

01

22
23

BY MR. BUSCH:
Q.

I'm going to refer you now to your affidavit in the Berlent

01

01

24

25

case, Ms. wilbur.


THE COURT:

Is that an exhibit?

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 33 of 66 Page ID


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57
1

2
3

Yes, it is.

THE COURT:

What is the exhibit, please?

01:

MR. BUSCH:

It is Exhibit Number 1721.

01:

MR. MILLER:

01:

MR. BUSCH:

Your Honor, I would object to it being

01:

01:

published.
THE COURT:

6
7

Don't publish it.

Not yet.

to review that, it is in the notebook No. 17.

If you wish

Volume 17.

01:

01:

01:

Volume 17.
THE WITNESS:

THE COURT:

10

THE WITNESS:

11

THE COURT:

12

01:

What number?
1721.

Do you have the book?

Yes.

01:

01:

I have it.

Would it be easier if we moved the

01:

01:

13
14
15
16
17
18
19

keyboard?
THE WITNESS:
THE COURT:

It would be easier, yes.


And Mr. Busch, when you get to a break

01:

01:

point, let me know, please.


MR. BUSCH:

Now is as good as any, your Honor.

01:

THE COURT:

Let's take our second break here, ladies

01:

and gentlemen.

We will resume in 20 minutes.

Thank you.

21

THE COURT:

22

You may step down, Ms. wilbur.

23
24

THE COURT:

01:

01:

(Jury Out.)

20

25

01:

01:

Please be seated.

01

(Recess taken.)

01

(Jury In)

01

Please be seated.

All eight jurors are

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 34 of 66 Page ID


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58
1

01:

back.

And, Ms. Wilbur, would you please restate your name.

01:

THE WITNESS:

01:

THE COURT:

Sandra Wilbur.
And do you understand that you remain

01:

under oath?

01:

THE WITNESS:

THE COURT:

Please proceed, Mr. Busch.

01:

I do.

01:

Okay.

01:

01:

BY MR. BUSCH:
Ms. Wilbur, is it correct that in the deposit copy lead

01:

10

Q.

11

sheet for Got to Give it Up, there is a pattern relationship

01:

12

between the E7 chord and the A7 chord where they run together in

01:

13

the deposit copy?

14

MR. MILLER:

15

THE COURT:

16

THE WITNESS:

17

01:

Objection, vague.
Do you understand the question?

01:

01:

No.

01:

BY MR. BUSCH:
Do you know whether in the deposit copy the E7 chord and

18

Q.

19

the A7 chord have a relationship

20

without any intervening chords throughout the deposit copy lead

21

sheet?

22

A.

in which they are together

01:

01:

01:

01:

Let me just think about that a second.


I don't believe that's true, but I'd have to look at

23

01:

24

the -- at the deposit copy again.

25

do that.

Maybe if you can just let me

01:

01:

01:

01:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 35 of 66 Page ID


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59
01:

Q.

Sure.

A.

Yes.

There is an E7 followed by an A7 in the eight chords

01:

01:

that are together.

Q.

Okay.

And in Blurred Lines, is the same true with respect

01:

to the A and E chords?

A.

There's a completely

Q.

Is -- please -- move to strike, your Honor.


THE COURT:

01:

01:

different pattern.

Well, I don't understand

-- restate the

01:

01:

01:

question, please.
01:

10
11

BY MR. BUSCH:
Q.

In Blurred Lines, are the two alternating

12

Lines A and E chords?

13

A.

Yes.

14

Q.

Okay.

chords of Blurred

01:

01:

01:

Now, Ms. Wilbur, before the break, we were looking

15

at Exhibit No. 1721, which is your affidavit in Berlent vs.

16

Focus Features.

01:

01:

01:

Do you have that in front of you?

17

01:

01:

18

A.

I do.

19

Q.

And that is your signature on the first page?

20

A.

It is.

21

Q.

So this is an affidavit that you gave under oath?

22

A.

Yes.

01:

01:

01:

01:

23
24

25

THE COURT:
THE WITNESS:
THE COURT:

It's a declaration.
It's -- I don't actually
Excuse me.

01

01

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 36 of 66 Page ID


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60
1

THE WITNESS:

THE

01:

sorry.

01:

Go ahead.

COURT:

01:

BY MR.

Do you

Q.

BUSCH:
see where

it says

under penalty of perjury

above

your

signature

I declare

that the foregoing is true and correct?

01:

01:

01:

6
7

A.

I do.

Q.

Okay.

Would

you turn

to paragraph

5 of your

declaration,

01:

01:

please.
Do you

9
10

see where

at paragraph

5 in your

THE COURT:

Just

have

the witness

review

01:

01:

By looking at the musical elements --

declaration:

11

it states

this,

please,

01:

01:

12

and then

pose

your

13

BY MR.

BUSCH:

question.
01:

14

Q.

Okay.

Would

your

declaration.

you please

read

to yourself

paragraph

5 of

01:

01:

15

Yes,

16

you've

read

01:

it?

01:

17

18
19
20

A.

Yep.

Q.

Okay.

matter,
elements

And

you

would

criticized

as independent
MR. MILLER:

21

it be fair
your

to say that

opponent

for

and unrelated
Objection.

in the Berlent

looking

at musical

not

01:

01:

to one another?

It's

01:

01:

impeachment,

01

22

your

Honor.

23

THE COURT:

24

You may

01

Overruled.

01

25

answer.

THE WITNESS:

Yes.

But

the melody

notes

were

the

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 37 of 66 Page ID


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61
01:

same.

The harmony was the same.


01:

BY MR. BUSCH:

And you also criticized the expert on the other side of,

Q.

quote, attempting to reduce these elements to common musical

01:
01:
01:

choices; is that right?

A.

I very well might have, yes.

Q.

Well, if you look at paragraph

01:

8
9

10

5 which I just asked you to

01:
01:

read to yourself, you in fact did do that?

01:

I did do that.

A.

Yes.

Q.

Because you said in your own words in this declaration

01:
01:

11

under oath, quote -THE COURT:

12

No.

Ask a question, please.

01:
01:

13

BY MR. BUSCH:
01:

14

Q.

All music
THE COURT:

15

Ask a question, please.

This declaration

01:
01:

16

is not an exhibit.
What's your question, please.

17

01:
01:

18
19

BY MR. BUSCH:
Q.

Is it true that it is your view that, quote, all music

01:
01:

20

contains common musical choices?

21

A.

Yes.

Q.

Okay.

01

22
23
24

25

And isn't it true, Ms. Wilbur, that you believe that

it is the combination of musical elements, some of which may be


common, that can make a musical composition unique?
MR. MILLER:

Objection.

Vague.

01
01
01
01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 38 of 66 Page ID


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62
1

THE COURT:

THE WITNESS:

THE COURT:

Do you understand

01:

the question?

01:

It's very vague.


All right.

01:

Restate it, please.

01:

BY MR. BUSCH:
Isn't it true, Ms. Wilbur, that you have stated that it is

01:

Q.

the combination

common, that can make a musical composition unique?

A.

melody, harmony, 3-4 time and very slow meter, so I did say

01:

10

that, yes.

01:

11

Q.

12

short phrase can be original; correct?

01:

13

A.

It depends on the situation.

01:

14

Q.

Isn't it true that you found ut-oh to be original

01:

15

expression?

16

A.

No.

17

Q.

It was the vocal melody and rhythm tied to the phrase

18

ut-oh; isn't that right?

Yes.

of musical elements, some of which that can be

and rhythmic similarities

in a

01:

01:

It was not just an ut-oh.

MR. MILLER:

20

THE COURT:

Objection.

01:
01:

Argumentive.

01:
01:

Sustained.

01:

BY MR. BUSCH:
Did you find in another matter that the manner in which the

22

Q.

23

word ut-oh appeared in a musical composition made it original,

24

ma'am?

25

01:

01:

19

21

01:

And I said here the combination of these elements,

And you agree that melodies

01:

01:
01:
01:

MR. MILLER:

Objection.

403, your Honor.

01:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 39 of 66 Page ID


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63
THE COURT:

No.

You may -- do you understand

2
3

THE WITNESS:

THE COURT:

01:

the question?

01:

Yes.

01:

You may answer.

THE WITNESS:

01:

Overruled.

repeating phrase ut-oh, ut-oh, ut-oh, ut-oh, ut-oh, ut-oh.

01:

It was a very specific rhythm of a


That

01:

01:

was what the phrase was.


01:

8
9

10
11

BY MR. BUSCH:
Q.

And in that matter, you found ut-oh to be original because

of how it was combined with the particular phrasing,


inflection,

rhythm,

and accented tone used in the song's hook; correct?

01:

01:

01:

01:

12
13
14

A.

Correct.

Q.

And in that matter, the other side submitted multiple other

examples of ut-oh being used in other songs; correct?

01:

01:

01:

15
16
17

A.

I don't recall.

Q.

And you dismissed all of those other examples because the

rhythm of the way ut-oh was stated was not the same in -- as in

01:

01:

01:

18

your song; correct?


MR. MILLER:

19
20
21
22
23

Q.

01:

Objection.

THE COURT:

sustained.

MR. BUSCH:

All right.

403.

Let's move on, please.

You agree that musical analysis must focus not only on

constituent elements but how those elements are combined;

01:

01:

01:

01

01

24

correct?

25

A.

01

Correct.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 40 of 66 Page ID


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64
And you believe that it is the unique combination

Q.

elements, some of which that can be common or generic, that

defines originality;

THE COURT:

THE WITNESS:

I think that's fair to say.

01:

Do you understand

01:

the question?

01:

Yes.

01:

01:

BY MR. BUSCH:

01:

Q.

That is fair to say?

A.

Yeah.

10

Q.

Okay.

11

correct?

12

A.

If you say so.

13

Q.

You don't know what's on your own website?

14

A.

I haven't memorized

01:

In fact, you wrote that statement on your website;

01:

01:

01:

it, no.

Sustained.

01:

sustained.

01:

BY MR. BUSCH:
Q.

01:

01 :

THE COURT:

15

17

01:

correct?

16

01:

of

01:

And isn't it true, Ms. Wilbur, that you believe it is

essential to recognize that musical originality often is borne

01:

18

of the combination of elements which, although individually

01:

19
20

new, combine in a unique fashion; isn't that right?

21

A.

That's correct.

22

Q.

And you also agree that composers and songwriters regularly

create highly original material by combining in new ways

01:

23

melodies, harmonies and rhythm that individually are common;

01:

24

25

correct?

not

01:

01:

01:

01:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 41 of 66 Page ID


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65
1

01:

A.

Or have been used before, yes.

Q.

And you also agree, Ms. Wilbur, that a thorough comparison

of two or more pieces of music must examine all pertinent music

problematic

01:

similarities between the works; correct?

That was designed specifically

A.

for advertising

01:

01:

and vocal elements in order to determine if there are

01:

agencies,

01:

01:

yes.

Q.

It's on your website; right?

A.

Probably, yeah.

Q.

And your website does not include any qualifications

01:

01:

10

or

01:

11

limitations on that statement, does it?

12

A.

I don't -- I don't recall.

Q.

It doesn't say this statement only applies to advertising

13

01:

01:

01:

01:

14

agencies; correct?
THE COURT:

15

sustained.

It's hearsay.

Next question,

01:

01:

16

please.
01:

17
18
19
20
21
22

BY MR. BUSCH:
Q.

So you agree that in order to do a full comparison,

not appropriate to do a microscopic

it is

examination but rather to

look at the entire work or the work in totality; correct?

01:

01:

01:

A.

I -- I generally go from the general down to the specific.

01

Q.

So the answer to my question is yes, you agree with that?

01

A.

Yes.

Q.

Okay.

01

23
24

25

And with respect to your examination

in this matter,

your examination of Got to Give it Up and Blurred Lines, you

01

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 42 of 66 Page ID


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66
1

attempted to find prior art; correct?

A.

Yes.

Q.

Okay.

for prior art pieces.

01:
01:

And you actually engaged three other people to look

01:

That's not something you did on your own; isn't that

01:

01:
01:

right?

A.

THE COURT:

8
9

01:

I did it with help, yes.

microphone

Ms. Wilbur, could you speak into the

or just move it closer to you?

Thank you.

01:
01:
01:

10
11

BY MR. BUSCH:
And even with those resources, three people assisting you,

Q.

01:

you did not find any prior art that had all eight of the

01:

12

constellation

01:

13
14

that correct?

of similarities

identified by Ms. Fine11; isn't

01:

THE COURT:

15

sustained.

01:

sustained.

01:

16
17
18

BY MR. BUSCH:
And in doing your prior art, you said that you looked at

Q.

artists like Stevie Wonder and Curtis Mayfield;


MR. MILLER:

19

Objection, your Honor.

this is the prior --

21

THE COURT:

22

Just a minute.

23

All right.

25

Beyond the scope,

sustained.

Please proceed.

BY MR. BUSCH:
Q.

01:
01:
01:

20

24

correct?

01:

Now, Ms. Wilbur, we -- you have created and you've heard

01:
01:
01:
01:
01:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 43 of 66 Page ID


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67

some examples of other music that you played during Mr. Miller's

01:

01:

examination

of you; correct?

A.

Correct.

Q.

And you had created some mash-ups as part of your report in

01:

01:

01:

this case; correct?

MR. MILLER:

Objection, your Honor.

Objection, that

01:

01:

was --

THE COURT:

8
9

10

sustained.

As with the -- there was some

testimony concerning mash-ups and there was also some limited


testimony on prior art.

So focus your questions on those,

01:

01:

01:

01:

11

please, if you wish to pursue that.


01:

MR. BUSCH:

12
13
14
15

That's fine.

In this case, Ms. Wilbur, you have -- you know that there

Q.

were statements made by Mr. Thicke and Mr. Williams about the
creation of Blurred Lines outside of this case; correct?

16

A.

I learned that much later in the fact.

17

Q.

Okay.

A.

I certainly didn't know anything about that.

Q.

You never heard Mr. Thicke or Mr. Williams ever reference

01:

01:

01:

01:

01:

18
19
20

any song other than Got to Give it Up in any of those

01

01

01

01

21

statements; isn't that right?

22

MR. MILLER:

23

THE COURT:

Irrelevant.

01

0]

sustained.
0:

24

25

BY MR. BUSCH:
Q.

Is it relevant in your analysis what the songwriter was

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 44 of 66 Page ID


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68
01:

trying to accomplish when creating their song?

Absolutely

A.

not.

understand music.

about.

Q.

6
7

01:

I found that a lot of people don't

They don't have any idea what they're talking

01:
01:

I let the music speak for itself.

01:

So you don't think it is relevant at all to your analysis

that Mr. Thicke stated multiple times that he told Mr. Williams

01:

to create a song like Got to Give it Up?

01:

That was not relevant

01:

at all?
THE COURT:

sustained.

Asked and answered.

01:

403.

01:

10
11

BY MR. BUSCH:
Did you review Mr. Williams' deposition

Q.

testimony as part

01:
01:

12

of your analysis?

13

A.

Not as part of my analysis, no.

Q.

So you do not know that Mr. Williams

14
15

16

01:

stated that he

understands when people say the bass lines between Got to Give

THE COURT:

sustained.

Let's move on.

01:
01:

it Up and Blurred Lines sound the same --

17
18

01:

The objection

01:
01:

will be stained to each question in this form.

01:

19
20
21

BY MR. BUSCH:
Q.

01:

Do you know who is credited on the Got to Give it Up

commercially-released

22

MR. MILLER:

23

THE COURT:

01:

album as playing the keyboards?

01

Relevance.

01

sustained.

01

24

25

BY MR. BUSCH:
Q.

Would you agree, Ms. Wilbur, that two similar melodies

can

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 45 of 66 Page ID


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69
1

be recognized

in two compared works even if the works' overall

MR. MILLER:

THE COURT:

THE WITNESS:

THE COURT:

THE WITNESS:

8
9

10
11

12

01:

structures are different?

01:

Objection.

Incomplete hypothetical.

Do you understand

01:

01:

the question?

01:

Yes.

01:

You may answer.

01:

Yes.

01:

BY MR. BUSCH:
And would you agree that it is possible to recognize that a

01:

portion of a piece of music like the hook has been taken from an

01:

original song and then embedded into a second song, even if the

01:

hook used had a different rhythmic placement in the second song?

01:

Q.

MR. MILLER:

13

Objection.

It's not extrinsic testimony,

01:

01:

14

your Honor.
THE COURT:

15

Sustained.

01:

As framed.

01:

16
17

BY MR. BUSCH:
Q.

Do you believe it is still the use of -- the compositional

01:

use of an original song by a new song if the hook is taken but

01:

18

given a different rhythmic placement in the second song?

01:

19
20

THE COURT:

21

MR. MILLER:

22
23
24

25

THE COURT:
THE WITNESS:

01:

Do you understand?

01:

Same objection.

01:

Do you understand the question?


It's very incredibly vague.

I mean, it

01:

really depends on the


THE COURT:

01:

Excuse me.

Excuse me.

If you don't

01

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 46 of 66 Page ID


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1

understand,

Ms. Wilbur.

Thank you very much,

01:

01:

01:

Restate the question, please, Mr. Busch.

3
4

that's all I need to know.

01:

BY MR. BUSCH:
Okay.

Let me put it this way, Ms. Wilbur.

01:

If you're

Q.

comparing two songs and a certain melodic phrase appears in the

01:

verse in the first song and in the chorus of the second song,

01:

would you still consider that use similar?

01:

MR. MILLER:

10

THE COURT:

11

THE WITNESS:

01:

Vague, your Honor.

Yeah.

I mean, if they were the same, I

01:

MR. BUSCH:

Move to strike the second

01:

THE COURT:

Strike the response to the extent it says

01:

would consider them.

13
14
15

that in this case they are the same -- excuse me.

16

not the same.

19

That they're

opportunity

to ask you further questions.

01:

01:

Thank you.

01:

BY MR. BUSCH:
I want to talk to you about some of the similarities

20

Q.

21

this matter, Ms. Wilbur.

in

23

most important and vital parts of a song; correct?

24

A.

Yes.

25

Q.

And you would agree that while hooks are relatively

01:

02:

You would agree that the hook is generally one of the

22

01:

01:

Pardon me.

Again, Ms. Wilbur, Mr. Miller will have the

17

01:

In this case, they're not the same.

12

18

01:

Do you understand the question?

02:
02:
02:

short

02:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 47 of 66 Page ID


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71
1

musical

phrases

the most

vital

when
and

taken

out

important

of their

element

musical

of the

context,

song

each

in which

is

02:
02:

it

02:

appears?

A.

Taken

out of its context?

Q.

Would

you agree

A.

I don't

Q.

Okay.

02:

with

know what

that

02:

statement?

you mean

02:

by that.

02:

Burrell case,

In the

you did

an affidavit;

02:

correct?

02:

10
11
12
13

A.

I believe

Q.

Okay.

you must

so.

And

did

emphasize

musical

phrases,

is the most

vital

you
that

when
and

say

in your

while

taken

both

affidavit
hooks

element

case

are relatively

out of their

important

in that

musical
of the

that

song

02:

short

context,

02:

each

in which

it

02:
02:
02:

14

appears?
THE COURT:

15

sustained.

sustain

02:

the objection.

02:

16

17
18
19

20

BY MR.

BUSCH:

In the Burrell case,

Q.

ut-oh, were
their
and

relatively

musical

important

context
elements

MR. MILLER:

21

THE COURT:

22

did you

short
but

musical

that

of the
Same
It's

find

each
songs

that

phrases

the hooks,
when

represented
in which

taken

out

the most

they

02:

the
of

vital

02:
02:

appeared?

02:

objection.
cumulative.

02:

This

has been

covered

02
02

23

already.

24

BY MR.

02

25

Q.

And

BUSCH:
do you agree

that

in Got to Give it Up, the hook

is

02

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 48 of 66 Page ID


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02:

keep on dancin'?

A.

Yes.

Q.

Do you agree

A.

I would

Q.

And

02:

of Blurred Lines is take a good girl?

the hook

02:

02:

4
5

say the hook

do each

of these

is good girl.
hooks

appear

several

times

02:

within

02:

their

I don't

A.

respective

songs?

remember

in the deposit

11

how many

I could

certainly

notes
each

or the melisma
repetition

afterward,

and

it's

you

keep on dancin' is

times
look

Good girl is -- is -- if that's

9
10

copy.

exactly

the hook,

know,

on a different

it up and

it changes

chord

02:

see.

those

two

02:

02:

each

as well,

02:

if I am

02:

02:

12
13

not mistaken.
Q.

Isn't

it true

that

it's

take a good girl that's

actually

02:

02:

14

the hook

15

A.

of Blurred Lines?
02:

No.
MR.

16
17

could,

BUSCH:

Ms. Wilbur's

Your

Honor,

deposition

I would

testimony

like

to read,

at page

237,

if I

line

24 to

02:

02:

02:

18

page

238,

line

6.

MR. MILLER:

19

THE COURT:

Is this
Which

the August

date

-- which

02

27th?
transcript

-- to which

02

20
02

21

transcript

are
MR.

22

you referring?
BUSCH:

The

first

one.

The August

02

1st that

02

23

your

Honor

has.
MR. MILLER:

I'm

sorry.

You're

reading

through

what

24
0;

25

line?

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 49 of 66 Page ID


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1
2

MR. BUSCH:

Page 237, line 24 to page 238, line 3.

02:

THE COURT:

Any objection to that being read?

02:

MR. MILLER:

02:

No objection.

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

02:
02:

5
6
7
8

BY MR. BUSCH:
Would you agree, Ms. Wilbur, that the -- that take a good

Q.

girl and keep on dancin' used an identical pitch A, scale degree


1, on B2?

11

02:
02:

Let me rephrase this.

Would you agree that those hooks use an identical

10

I'm sorry.

02:

02:

pitch A, scale degree 1 on beat 2, and in Give, it's on the

02:

second half of beat 2, and in Blurred Lines it's on the first

02:
02:

12

half of beat 2?
MR. MILLER:

13

THE COURT:

14

Objection.

Vague and compound.

02:
02:

sustained.

02:

15

BY MR. BUSCH:
Well, I'd like to read Ms. Wilbur's deposition

16

Q.

17

your Honor, at page 243, line 13 to 20.

testimony,

Your Honor, there is nothing to impeach.

02:
02:
02:

18

MR. MILLER:

19

THE COURT:

20

MR. MILLER:
MR. BUSCH:

Page 243, line 13 to line 20.

02:

21

THE COURT:

Any objection to that being read?

02:

22
23

MR. MILLER:

24
25

your Honor.

Just a minute.
What's the page?

It's

--

she is not a party witness,

It's not impeachment.

THE COURT:

You may read this.

02:
02:

02:
02
02

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 50 of 66 Page ID


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74
MR. BUSCH:

02:

Thank you.

02:

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

02:

BY MR. BUSCH:

02:

Ms. Wilbur, do you agree that a backup hook can be

Q.

expressed in a unique way?

A.

asking a general question?

Q.

02:

I don't believe that's part of the deposit copy.

THE COURT:

10

02:
02:
02:

We have a dispute about that, Ms. Wilbur.


Move to strike that.

Are you

02:

Answer, your Honor

02:

Restate the question, please.

02:

11

BY MR. BUSCH:
Do you believe that a backup hook can be expressed in a

12

Q.

13

unique way?

02:
02:

14

MR. MILLER:

15

THE COURT:

16

THE WITNESS:

17
18

02:

Objection, vague.
Do you understand

02:

the question?

Yes, I understand

the question.

It's

02:

relating to the recording.


THE COURT:

Excuse me.

02:

It's not tied to anything at

02:
02:

19
20
21
22
23
24
25

this point.
MR. BUSCH:

I move to strike, your Honor.

02:

THE COURT:

Do you understand

02:

the question?

Are you seeking to have this question -- is this


question supposed to do more than ask a general question -MR. BUSCH:

Yes.

THE COURT:

Excuse me -- - unrelated to any of the

02:
02
02
02

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 51 of 66 Page ID


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75
1

02:

exhibits in the case at this moment?

2
3

MR. BUSCH:

This initial question, yes.

02:

THE COURT:

Okay.

02:

Read the question, please.

02:

(Record Read.)

THE COURT:

THE WITNESS:

6
7

8
9

unique way?

Do you understand

the question?

A backup hook can be expressed in a

02:
02:

Yes.

02:

BY MR. BUSCH:
And do you agree that the backup hook in Got to Give it Up

Q.

02:

10

are both expressed in a


and the backup hook in Blurred Lines

11

unique way?

02:
02:
02:
02:

Objection, vague.

12

MR. MILLER:
THE COURT:

Sustained.

02:

13

MR. BUSCH:

Your Honor, I would like to read page 244,

02:

14
15

02:

line 11 to 15.

02:

244, line 11?

16

MR. MILLER:

17

MR. BUSCH:

I'm sorry.

18

THE COURT:

It's not impeaching.

244, line 11, to 244, line 15.


And it's out of

02:
02:
02:

19
20
21

context.
BY MR. BUSCH:
Q.

Would you agree, Ms. Wilbur, that if an element like a

22

vocal backup is a common device, it can still be expressed in a

23

unique way?

24

A.

Yes.

25

Q.

And are the backup hooks in Got to Give it Up and Blurred

02:
02:
02:
02:
02
02

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 52 of 66 Page ID


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76
02:

Lines both expressed in a unique way?

2
3

THE COURT:

To what are you referring?

02:

MR. BUSCH:

I'm referring to what is being called

02:
02:

Theme X in this case


THE COURT:

5
6

referring?

No.

No.

To what exhibit are you

Are you referring to sheet music?

Are you referring

02:
02:
02:

to a recording --

9
10

MR. BUSCH:

I'm referring to

THE COURT:

-- what exhibits are you referring?

02:
02:
02:

please restate your question.

02:

11

12

BY MR. BUSCH:
Q.

Do you agree that the backup hook as referenced in

13

Exhibit 248 and the backup hook in Blurred Lines are both

14

expressed in a unique way?

02:
02:
02:

15

A.

I don't have 248 in front of me so I don't know what you're

02:
02:

16

referring to.
THE COURT:

17
18

Exhibit 248 is the deposit copy of the

sheet music for -- excuse me.

The deposit copy for the --

19

THE WITNESS:

20

THE COURT:

21

Do you agree with that, Mr. Busch?

22

MR. BUSCH:

Yes.

23

THE COURT:

Thanks.

THE WITNESS:

24

For Got to Give it Up?


For Got to Give it Up.

There is no backup hook in the deposit

02:
02:
02:
02:
02:
02'
02
02
02

25

copy.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 53 of 66 Page ID


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77
02:

BY MR. BUSCH:

I understand, Ms. Wilbur, that that's your position.

Q.

You

know that Ms. Wilbur disagrees with that -- I mean, Ms. Fine11

02:
02:
02:

disagrees with that.

You know that; right?


02:

MR. MILLER:

Argument.

THE COURT:

sustained.

02:
02:

BY MR. BUSCH:

Would you agree that what Ms. Finell identifies as the

Q.

9
10

02:
02:

backup hook as it appears in the composition within the


recording of Got to Give it Up is expressed in a unique way?

02:
02:

THE COURT:

11

sustained.
02:

12
13

BY MR. BUSCH:
Q.

Have you reviewed the edited audio clips that have been

02:
02:

14

submitted in this case by Ms. Finell?

15

A.

I have heard some of them.

Q.

Okay.

02:

16
17

And you know the edited audio clips -- one of the

edited audio clips is for the backup hook of Got to Give it Up;

02:
02:
02:

18
19

correct?
A.

You'd have to play it for me so I understand what you're

02
02

20

talking about.

THE COURT:

21

24

Can you speak into the microphone,

THE WITNESS:

22
23

I'm not sure what

about.

Can you specify?

please.

I don't understand what you're speaking


The audio -- there are several audio

02
02
02

clips so I don't have any idea what you're talking about.


0:

25

BY MR. BUSCH:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 54 of 66 Page ID


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78
02:

You don't know that one of the audio clips that has been

Q.

02:

submitted, the edited audio clip, is the backup hook for Got to

02:

Give it Up?

02:

MR. MILLER:

Argumentive.
02:

THE COURT:

sustained.
02:

BY MR. BUSCH:

02:

putting on the screen Exhibit 376.

Q.

This is the backup hook

7
02:

for Got to Give it Up and the backup hook for Blurred Lines.
8

02:

Have you listened to these edited audio clips?


9
02:

I believe this is the one with the piano just playing the

A.

10
02:

11

dancin' lady; correct?


02:

Let's play -- let's go through each one.

Q.

Let's play the

12
02:

13

first audio clip for dancin' lady.


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

02:

14
02:

MR. BUSCH:

And then from Blurred Lines.

15
02:

MR. MILLER:

Your Honor, there's no question.

16
MR. BUSCH:

I'm playing the backup hooks, your Honor.

THE COURT:

That's fine.

02

17
02

18

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

02

19
Oi

MR. BUSCH:

And the second and third one.

20
0:

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


21
0:

22

BY MR. BUSCH:
Q.

23
24

Are those three audio clips -- are those three clips

expressed in a unique way?


MR. MILLER:

25

Objection.

Vague, compound.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 55 of 66 Page ID


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79
02:

THE COURT:

Do you understand the question?

02:

THE WITNESS:

I don't know what you mean by unique

02:

way.

I mean -02:

THE COURT:

stop there.
02:

Next question, please.

02:

BY MR. BUSCH:

02:

Let's go to the next slide.

Q.

02:

Now I'm going to play the MIDI synthesizer of the


8

02:

backup.

Play them one after the other, please.

First one is

02:

from Got to Give it Up.

10

played for the jury. )


(Whereupon, the audio was

11

Now play from Blurred Lines.

12

MR. BUSCH:

13

played for the jury. )


(Whereupon, the audio was
last of Blurred Lines.
MR. BUSCH: Now, the

14

02:
02:
02:
02:
02:

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


15
16
17

02

~~--//~
BY MR. BUSCH:
Do you agree that the first fQur notes are u~e same i~--==--===I

'---------

Q.

---- --'0

18

those edited audio clips?


02

First of all, dancin' lady isn't in the deposit copy at


19

A.

20

all.

0;

THE COURT:

Excuse me.

Excuse me.

Do you understand

21
22
23

the question?
THE WITNESS:
THE COURT:

o
Yes.
Would you read the question, please.

24

(Record Read.)
25

0:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 56 of 66 Page ID


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02:

MR. BUSCH:

Yes or no, ma'am.

THE COURT:

That's -- Mr. Busch, I don't think I need

02:
02:

to tell you this again.

Ask questions.

If you have an issue,

02:

talk to me about it.

Thank you.
02:

Do you have the question in mind?

02:

THE WITNESS:

Yes.
02:

THE COURT:

THE WITNESS:

You may answer.


The four notes are not the same because

02:
02:

they do not appear on the same beats in the measure.

They're

02:

taken out of context without any harmonic context, without any


10

02:

11

12

rhythmic context so, no, they're not the same.


02:

BY MR. BUSCH:
02:

13

Q.

The first few

14

A.

The tones are the same.

Q.

The tones are the same.

02:
02:

Okay.

Let's go to the next.

15
Can you play -- this is from Got to Give it Up and
16

02

Blurred Lines, vocal lines on the individual track.

Play Got to

17
18

02:

02

Give it Up first.
02

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


19

0,

MR. BUSCH:

20

Play it again, please.


0;

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


21
0:

MR. BUSCH:

22

Now play --

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


23
24

25

o
o

BY MR. BUSCH:
c
Q.

Are those tones from the melody the same?

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 57 of 66 Page ID


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81
02:

The tones are the same, but it's completely out of context

A.

02:

and on the wrong stress points.

02:

Okay.

Q.

02:

Next.

Now we are going to play from the MIDI

02:

synthesizer the notes that we just heard again.

02:

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


6

02:

MR. BUSCH:

And from Blurred Lines.

02:

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


8

02:

MR. BUSCH:

Got to Give it Up one more time again,

02:

please.

10

02:

THE COURT:

This is cumulative.

Next question,

11

02:

please.

12

02:

13
14

BY MR. BUSCH:
02:

Are those tones the same

Q.

02

THE COURT:

This is cumulative.

Next question,

15

02

please.

Let's move on.

This has been asked five times.

16
17

02

BY MR. BUSCH:
0<

Q.

Do you know how often dancin' lady appears throughout the

18
19

0:

musical composition of Got to Give it Up?


0:

MR. MILLER:

Objection.

Mischaracterizes

her

20
21
22
23

o
testimony.

a
THE COURT:

No.

Overruled.

You may answer.


THE WITNESS:

It's -- I don't know how many times it

24

25

occurs, but it's only in the recording.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 58 of 66 Page ID


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82
02:

MR. BUSCH:

I move to strike that last as

02:

nonresponsive.
MR. MILLER:

02:

Your Honor, her testimony is not in the

02:

deposit copy.
THE COURT:

02:

Just a minute.

By musical composition,

to

02:

what are you referring?

02:

MR. BUSCH:

The musical composition -- let's start

02:

with the phrase --

02:

THE COURT:

Well, restate your question.

02:

BY MR. BUSCH:

10

02:

Do you know how many times the phrase and that's why I'm

Q.

11

02:

appears in Blurred Lines?

12

02:

THE COURT:

To what are you referring?

MR. BUSCH:

I'm referring to the musical composition,

13

02:

14

02

Blurred Lines, and I would like to know how many times and
15

02

that's why I'm, that lyrical phrase appears in Blurred Lines?


16

02

THE WITNESS:

I think it's twice.

17

0;

MR. BUSCH:

18

Okay.
0:

Q.

Do you know how many times the lyrical phrase but you are

19
20
21

o
an animal appears in Blurred Lines?
a
A.

I think twice.

Q.

Do you know how many times okay, noW he was close appears

22
23

in Blurred Lines?

24

A.

I think twice.

Q.

And do you know how many times the -- let's talk about the

25

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83
02:

descending bass melody,

if we could.
02:

Would you agree that both the descending bass melody


2

02:

in Got to Give it Up and the descending bass melody in Blurred


3

02:

Lines end on the same pitches in their descending bass melody?


4

Objection.

MR. MILLER:

THE COURT:

THE COURT:

02:

question?
Do you understand the

THE WITNESS:

02:

Vague, your Honor.

02:

Yes.
02:

You may answer.

end on the tonic -I think they both


THE WITNESS:
please.
speak into a microphone,
Would
you
THE COURT:
1.
they both end on the toni cal
think
I
THE WITNESS:

10
11

BY MR. BUSCH:

12

Q.

14

notes?

02:
02:

Are those descending


02:
02

MR. MILLER:

Objection.

Incomplete hypothetical.

15

02

THE COURT:

sustained.

sustained as framed.

16
17

02:

02:

Are the notes D, C, G descending?


13

02:

02

BY MR. BUSCH:

0;

Do those notes descend, D, C, G, Ms. Wilbur?


18
19
20
21
22
23
24
25

Q.

specific
asking again as to a
THE COURT: Are you
question?
you asking a general
are
or
case
issue in this
question.
I'm asking a general
MR. BUSCH:
you understand the question?
THE COURT: Do
a C to
ascending from a D to
could
be
It
THE WITNESS:
a G in different octaves.
no.

So it's not -- it's hypothetical

and,

0:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 60 of 66 Page ID


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84
02:

BY MR. BUSCH:

Okay.

Q.

02:

Does D, C, A -- are those descending?

02:

MR. MILLER:

Incomplete hypothetical.

02:

THE COURT:

sustained.

02:

BY MR. BUSCH:
Q.
In Blurred Lines and Got to Give it Up, are the notes D, C,

5
6

02:

02:

G in the descending bass line descending?


7

02:

MR. MILLER:

Mischaracterizes

the document.

02:

THE COURT:

Ask it

ask it one at a time with

02:

respect __ and identify that to which you're referring when you


10

02:

ask about these three notes.

11

02:

BY MR. BUSCH:
Q.
In the Got to Give it Up deposit copy, Exhibit 248, does

12
13

02

02

the descending basS line descend with notes D, C, G?


o.

14
They do.
And in the deposit copy sheet music, Exhibit 248, does the

A.

15

Q.

0:

16
descending bass line descend at all with notes D, C, A?

17
18

A.
Q.

They do.
Okay. Are those the notes that appear in the bass lines

19
bars 4 and 7 in the deposit copy of Got to Give it Up?
20
A.

I don't believe so.

You have a C natural and you have a G

21
natural, and neither of those, if I'm not mistaken

-- I don't

22
23

think either one of those is.


Oh, maybe __ it starts with E, upper E, D, upper D, C

24
sharp, upper C sharp, B, upper B, and then A.
25

That's the

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 61 of 66 Page ID


#:10067

85
02:

descending

pattern.

It's

not

the

same.
02:

MR.

BUSCH:

Your

Honor,

I would

like

to read
02:

Ms. Wilbur's

testimony

from

her

deposition.

This

is the

second

02:

deposition

of Ms. Wilbur,

page

476.
02:

THE COURT:

I don't

have

this.

02:

Page

476 to line

what?

02:

BUSCH:

MR.

MR. MILLER:

THE COURT:

10

14 to page

Any

objection

line

3.

to that

being

read?
02:

No,

your

Honor.
02:

You may

read

that.
02:

I'll

just

read

it myself.

Page

476,

line

BUSCH:

MR.

11

477,

02:

THE COURT:

Line

02:

14.

12

02

MR. MILLER:

13

Objection

to it being

published.
02

It doesn't

need

to be published.

Just

THE COURT:

14
read

15

it, please.
MR.

16
This
17

02

BUSCH:

begins

Okay.

Fine.
0:

at page

476,

line

14:

Q.

o
Q. Can you then again read bar

4 and 7 in part 1 of

18
19

Got to Give it Up starting

with

the D?

20

A. D, C, Band

21

Q. Is that B that you mentioned,

22

A. I'm sorry.
Q. You said B.

D, C, A.

Did you mean G?

23

A. I'm sorry.

G.

I'm sorry.

24
Q. Can you read it for me again?

25

not a G?

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 62 of 66 Page ID


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86
A. Dr C

G, and Dr C, A.

Of courser one is in the key

02:

02:

of A and one is in the key of G.

02:

Ms. Wilbur, in -- one second.


3

02:

In Blurred Lines at the descending bass line, are the


4

02:

notes D, C, B, A, G?

02:

In __ in you mean the key of G?

The original key?

A.

02:

I'm just asking you if the notes are D, C, B, A, G in the


Q.

02:

descending bass line of Blurred Lines.

02:

THE COURT:

Are you referring to the sheet music?

To

02:

what are you referring?

10

02:

MR. BUSCH:

I'm referring to the Blurred Lines sheet

11

02:

music, Exhibit 91-B.

12

02:

THE COURT:

Do you have that?

MR. BUSCH:

I'm sorry.

13

02:

Exhibit -- what is it?

14
15
16
17
18
19

My mistake, your Honor.

Exhibit 48.

Objection.

MR. MILLER:

02

Exhibit 48.

Vague.

It depends on what

02

key this is.


THE COURT:

0;

48?
Do you have Exhibit

0:

THE WITNESS:
THE COURT:

No.

I have 47-A2.
o

Could you please publish Exhibit 48 for

20
21

the witness.
THE WITNESS:

That's in the key of G.

Not the same

22
23

key as the key of A in the other piece.


MR. BUSCH:

Move to strike, your Honor.

THE COURT:

Well, restate the question.

24
25

02

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 63 of 66 Page ID


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87
02:

BY MR. BUSCH:
Q.
In Blurred

02:

Lines'

descending bass line, are the notes D, C,

02:

B, A, G?
A.
Can you move it up so I can see?

02:

Keep going.

There you

02:

go.

02:

D, C, B, A, G.

Yes, they are.

02:

Okay.

Q.

Thank you.
All right. Would you agree, Ms. Wilbur, that it would

02:
02:

be inappropriate

to dismiss melodic rhythm as a performance

02:

element?
A.
Can you -- can you ask that a different way?

10

02:

Dismiss--

11

02:

Would you agree that it would be inappropriate to dismiss

Q.

12

02

melodic rhythm as a performance

13

element?
02

As a performance

A.

14

element?
02

Yes.

Q.

15

THE COURT:

Do you understand the question?

16

0:

THE WITNESS:

17

THE COURT:

No.

Restate the question.


c

18
19

BY MR. BUSCH:
Q.

Did you give an affidavit where you criticized another

20
expert for dismissing melodic rhythm as a performance

element?

21
A.

I don't know what you're referring to.

It's out of

22
context.

I have no idea what you're talking about.

23
Q.

All right.

I'll see if I can refresh your recollection.

24

25

Exhibit 507 I'm going to show you.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 64 of 66 Page ID


#:10070

88
02:

In the Bourne case -- I'd like you to get in front of


1

02:

you, if you would, Ms. Wilbur, Exhibit 507.

02:

THE COURT:

It's in volume 15.


02:

THE WITNESS:

Okay.
02:

BY MR. BUSCH:

02:

I want to direct your attention to paragraph 82 of your

Q.

02:

declaration,

which is page 25 of your declaration.


02:

And do you see, Ms. Wilbur, where you write:

02:

believe

that Professor Ferrar's insistence

that performance

02:

elements are the same thing as melodic rhythm is simply another


10

02:

way to try to make -- and this is your words -- quote/unquote,


11

02:

Jew appear less similar to star than it really is?

You said

12

02:

13

that; correct?

14

A.

02:

Yes.

I obviously did.
02

THE COURT:

Excuse me.

But the context is that

15

02

paragraph

1 refers to a song I Need a Jew which is at issue and

16
17

02

it's been abbreviated to be Jew; correct?


02

MR. BUSCH:

Correct.

That's how Ms. Wilbur

18
19

0;

abbreviated

it.
0:

THE COURT:

But it's referring to a song.

MR. BUSCH:

Yes.

20

21

o
Q.

Now, Ms. Wilbur, would you agree that in bars 1 to 2 of

22
23

Blurred Lines, the keyboard plays on the offbeat?

24

A.

In the recording?

25

Q.

Yes.

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 65 of 66 Page ID


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89
1

A.

In the recording, it plays on some of the offbeats.

02:

Q.

Okay.

02:

audio clips that have been submitted by Ms. Finel1, that other

02:

than in beats 1 of bars 1 and 2, the keyboard also plays on the

02:

offbeat?

02:

A.

We're referring to the recording, correct?

02:

Q.

We're referring to the audio clips that were submitted that

02:

were taken from the recording.

A.

And would you agree that in the Got to Give it Up

Can you just tell me what specifically?

confused.

11

Q.

12

that were submitted in this case?

13

A.

15

I'm sorry.

I'm

02:
02:

10

14

02:

Did you listen to Ms. Finell's audio clips of the keyboard

The most recent ones


THE COURT:

02:
02:
02:

I mean

If you have a question about a clip, why

02:
02:

don't you play it, please.

16

MR. BUSCH:

Okay.

02:

17

THE COURT:

And what are you playing, please?

02:

18

MR. BUSCH:

We are playing the audio clips -- it's on

02:

This is Exhibit No. 376, page 19.

the board, your Honor.

20

first audio clip will be Got to Give it Up keyboard, followed by

02:

21

Blurred Lines keyboard.

02:

22

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

23

MR. BUSCH:

24

25

And now Blurred Lines keyboard.

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


BY MR. BUSCH:

The

02:

19

02:
02:
02:
02:

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 Page 66 of 66 Page ID


#:10072

90
All right.

Ms. Wilbur, do you agree that the Blurred Lines

02:

Q.

keyboard plays on the offbeat that you just heard?

A.

Yes.

02:

Q.

Do you believe -- do you agree that other than beats 1 of

02:

bars 1 and 2, the keyboard from Got to Give it Up also plays on

02:

the offbeat?

02:

A.

offbeats.

pattern but it does play on several of the offbeats.

02:

In the recording, the keyboard plays on some of the


It has -- it's definitely different from the other

THE COURT:

10
11

02:

02:
02:

Mr. Busch, let me know when you get to a

02:
02:

breaking point, please.

12

MR. BUSCH:

This is fine, your Honor.

02:

13

THE COURT:

All right.

02:

14

the day, ladies and gentlemen.

15

also plan to go tomorrow until 3:30 and I think I asked you this

02:

16

morning and I didn't hear anyone say he or she couldn't do that.

02:

17

Is that still good?

02:

18

tomorrow?

19

talk to you about that tomorrow.

We will be starting later on Thursday.

I will

02:

02:
02:

Please do not discuss the case.

02:
02:
02:

(Jury Out)
THE COURT:

23

25

We

Thank you.

22

24

See you tomorrow at 8:30.

Does anybody have any issues about 3:30

Have a nice evening.

20
21

Okay.

We are going to break here for

You may step down, Ms. Wilbur.

Watch your

02:
02:

head.
Please be seated.

02: