Pharrell - Williams and Thicke v. Gaye - Order On Evidence Order 138 PDF

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4112.060/822464.1

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
individual; and CLIFFORD HARRIS,
J R., 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-J AK (AGRx)
Hon. J ohn A. Kronstadt, Ctrm 750

ORDER RULING ON PLAINTIFFS
AND COUNTER-DEFENDANTS
EVIDENTIARY OBJECTIONS IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, PARTIAL
SUMMARY JUDGMENT (DKT. 136)
_

Date: October 20, 2014
Time: 8:30 a.m.
Ctrm: 750

Action Commenced: August 15, 2013
Trial Date: February 10, 2015

AND RELATED COUNTERCLAIMS.

/ / /
/ / /
Case 2:13-cv-06004-JAK-AGR Document 138 Filed 10/30/14 Page 1 of 191 Page ID
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4112.060/822464.1 1
KING, HOLMES,
PATERNO &
BERLINER, LLP
Plaintiffs and Counter-Defendants PHARRELL WILLIAMS, ROBIN
THICKE and CLIFFORD HARRIS, J R. and Counter-Defendants MORE WATER
FROM NAZARETH PUBLISHING, INC., PAULA MAXINE PATTON
individually and d/b/a HADDINGTON MUSIC, STAR TRAK
ENTERTAINMENT, GEFFEN RECORDS, INTERSCOPE RECORDS, UMG
RECORDINGS, INC., and UNIVERSAL MUSIC DISTRIBUTION
(Plaintiffs/Counter-Defendants) submitted Plaintiffs and Counter-Defendants
Evidentiary Objections in Support of Motion for Summary J udgment or, in the
Alternative, Partial Summary J udgment on September 22, 2014, Document 126.
The Court rules on the objections as follows:
DECLARATION OF RON ASTON
DECLARATION OF RON ASTON OBJECTION RULING
I, Ron Aston, declare as follows:
1. I am over the age of 18 and not a
party to this action. I have personal
knowledge of the facts set forth
herein, which are known by me to be
true and correct, and if called as a
witness, I could and would
competently testify thereto.

2. I began my music career as a
drummer, starting at the age of 10. I
took private drum lessons in Hartford,
Connecticut, and eventually took
private drum and percussions lessons
at the Hartt School of Music in
Hartford.

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4112.060/822464.1 2
KING, HOLMES,
PATERNO &
BERLINER, LLP
3. I am a member of the Motion
Picture Editors Guild Local 700 Los
Angeles, as well as a member of the
Musicians Union Local 47 Los
Angeles.

4. I moved to Los Angeles in 1972,
and began touring as the drummer for
several pop and jazz recording artists,
including Seals & Crofts, The Hues
Corporation, Minnie Riperton and
Tom Scott. After playing drums for
many groups and individual recording
artists of various genres including
several R&B groups and artists; I am
very familiar with that genre of
music.

5. After several years of touring as a
drummer, I became a studio drummer,
playing drums on various records,
motion pictures and television music
scores. I recorded with Barry White,
Hamilton J oe Frank & Reynolds,
Minnie Riperton and Tom Scott, as
well as others recording artists.

6. In 1979 I began playing drums and
percussion on motion picture scores,

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4112.060/822464.1 3
KING, HOLMES,
PATERNO &
BERLINER, LLP
television scores, and commercials
including the TV shows, Simon and
Simon, In the Heat of the Night and
NCIS.
7. In the 1980s I was the house
drummer on the music variety show,
Solid Gold and played drums on
backing tracks for the top recording
artists of the day for five years.

8. I was one of the first Los Angeles
studio drummers to adapt to
drums/percussion programming using
computers, which is when I began
learning the art of audio sound editing
for music-related purposes and have
been doing this for least 25 years.
Since then, Ive played drums and/or
programmed drums and percussion
for movies including Apollo 13,
Courage Under Fire, Ransom, I.
X-Files: I Want to Believe, and The
Wolfman.

9. For the past seven years I have
worked in the field of sound editing
for motion pictures and television
post production sound. This involves

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4112.060/822464.1 4
KING, HOLMES,
PATERNO &
BERLINER, LLP
creating sound effects and
atmospheres, and editing dialog in
motion picture and television
productions.
10. I am very familiar with R&B
music as well as the original recorded
versions of the hit records Blurred
Lines by Robin Thicke and Got to
Give It Up by Marvin Gaye.

11. [Objection No. 1] I was asked to
create three audio examples (mixes)
in such a way that demonstrates the
similarities between these two songs.
1. Irrelevant. FRE
402. Improper expert
opinion, not helpful to
the trier of fact, and
not the product of
reliable principles or
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
extrinsic aspects of
either song.
1. Sustained for
purposes of this
Motion only. The
mashups relate to
the subjective
intrinsic test
performed by the
factfinder at the
time of trial, and
are not considered
in the extrinsic
analysis performed
in connection with
this Motion.
Swirsky v. Carey,
376 F.3d 841, 845
(9th Cir. 2004).
12. I conducted my analysis on this
project using the program Pro Tools
to produce the musical exhibits I
created. I am also a member of the

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4112.060/822464.1 5
KING, HOLMES,
PATERNO &
BERLINER, LLP
Pro Tools beta team, and have been a
member of this team for over ten
years. I am involved with the testing
and development of Pro Tools, which
is the world standard for digital audio
editing programs. I also provide
feedback and new feature
suggestions to Avid, the company that
makes Pro Tools.
13. I examined the audio tracks
provided and compared them to the
original, commercially released
tracks. I determined that the tracks
were identical to the commercial
releases of each song. All examples
were created from the original source
material that I was provided with.
Nothing was done to alter the sound
of the source files of the two songs.

14. King & Ballow supplied me with
several pieces of music that included
the original the multi-track Pro Tools
session of the song Blurred Lines,
which included all of the vocal and
instrumental tracks. They also
supplied me with a stereo mix of the

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4112.060/822464.1 6
KING, HOLMES,
PATERNO &
BERLINER, LLP
Music only and another stereo mix of
vocals only for the song Got to Give
it Up I used these elements to create
the audio Examples that I created
within a New 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, panning, and other
parameters of each track which
ultimately contribute to the creation
of the final mix of a song.
15. In the case of Blurred Lines,
the tracks were supplied to me as a
Pro Tools session. I was able to open
the session on my Pro Tools system in
the same way that a record company
would open it to create a master
recording.

16. From the Blurred Lines Pro
Tools session, I was able to create
two stereo mixes. Mix-1 contained
just the mix of vocals only with no
instrumental music. Mix-2 contained

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4112.060/822464.1 7
KING, HOLMES,
PATERNO &
BERLINER, LLP
a mix of just the instrumental music
tracks with no vocals.
17. King & Ballow also provided me
with two stereo mixes of the original
release version of Got to Give it
Up, Mix-A contained just the
instruments and background vocals
(but no lead vocals). Mix-B
contained only Marvin Gayes main
vocals

18. [Objection No. 2] Using the
source material as described
previously, I had the capability to mix
the instrumental tracks and the vocal
tracks from both Blurred Lines and
Got to Give it Up so that I could
mix and match between the two songs
to create the audio examples. In other
words, I could play the instruments
only track from one song along with
the vocals only track from the other
song, or the reverse, in either each
songs original or transposed key for
the purpose of creating the examples.
2. Irrelevant. FRE
not the product of
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
2. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
19. [Objection No. 3] I created
mashup Examples 1 & 2.A mashup
3. Irrelevant. FRE
3. Sustained for
purposes of this
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4112.060/822464.1 8
KING, HOLMES,
PATERNO &
BERLINER, LLP
is a recording that combines elements
from two or more recordings.
not the product of
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
Motion only. See
Ruling on
Objection No. 1,
supra.
20. To complete the task of creating
my examples, I used Pro Tools for
editing, which included beat-
matching. I used Blurred Lines as
the master reference for tempo. By
tempo, I am referring to the speed
of a recordings pulse, referred to as
beats per minute in the recording
industry.

21. I subsequently aligned the tempo
of Got to Give it Up with Blurred
Lines to match one another exactly.

22. This was a small adjustment
because both songs in their
commercially released recordings
were already very close to one

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4112.060/822464.1 9
KING, HOLMES,
PATERNO &
BERLINER, LLP
another in the tempo of 120 BPM,
within 1 to 3 beats per minute, or
BPM.
23. The beat-matching aligned the
songs tempos. Starting with music
track of Got to Give it Up, I first
used the Elastic Audio function of Pro
Tools to match this track to be in
perfect synchrony with the tempo of
Blurred Lines

EXAMPLE-1
24. [Objection No. 4] Example 1 is a
mashup (combination) of Got to
Give it Up music instrumental only
track transposed down to the key of G
and the Blurred Lines vocals only
track in its original key of G.
4. Irrelevant. FRE
not the product of
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
4. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
25. [Objection No. 5] To do this I
used the Pro Tools Audio Suite plug-
in, Pitch n Time (Serato) to do the
transposing of the Got to Give it Up
5. Irrelevant. FRE
5. Sustained for
purposes of this
Motion only. See
Ruling on
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4112.060/822464.1 10
KING, HOLMES,
PATERNO &
BERLINER, LLP
music track from its original key of A
down to G.
not the product of
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
Objection No. 1,
supra.
26. [Objection No. 6] I then
combined the transposed (to the key
of G) Got to Give it Up
instrumental music combined with the
vocals only track of Blurred Lines
in its original key of G to create the
resulting mix that is referred to as
Example 1.
6. Irrelevant. FRE
not the product of
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
6. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
EXAMPLE-2
27. [Objection No. 7] Example 2 is
Got to Give it Up vocals and
Blurred Lines instrumental music
mixed together in their original keys.
7. Irrelevant. FRE
not the product of
7. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 11
KING, HOLMES,
PATERNO &
BERLINER, LLP
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
28. [Objection No. 8] I first beat-
matched the vocal only track of Got
to Give it Up in its original key of A
to be in the exact 120 BPM tempo of
the Blurred Lines instrumental
music track in its original key of G
and then combined these elements,
creating a mix of this combination,
which is referred to as Example 2.
8. Irrelevant. FRE
not the product of
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
8. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
EXAMPLE-4
29. Example 4 contains the full songs
Got to Give it Up and Blurred
Lines in succession in their original
mixes and original keys.

30. After all editing was completed, I
created a stereo mix for each of the
previously described examples.

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4112.060/822464.1 12
KING, HOLMES,
PATERNO &
BERLINER, LLP
Then, I exported each of the three
example mixes as monoral MP3
music files and sent them to Thomas
Court, a music technologist also
working on this project with King &
Ballow. Mr. Court then added a
visual video player to each of the
examples I provided.
Pursuant to 28 U.S.C. 1746, I
declare under penalty of perjury that
the foregoing is true and correct.
Executed this 7th day of September
2014.

[Objection No. 9] Declaration of Ron
Aston, Exhibit 1 Mashup Examples
No. 1 (Non-paper Exhibit lodged
concurrently with this filing)
9. Irrelevant. FRE
not the product of
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
9. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
[Objection No. 10] Declaration of 10. Irrelevant. FRE 10. Sustained for
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4112.060/822464.1 13
KING, HOLMES,
PATERNO &
BERLINER, LLP
Ron Aston, Exhibit 2 Mashup
Example No. 2 (Non-paper Exhibit
lodged concurrently with this filing)
not the product of
methods. FRE 702.
The mashups do not
evidence extrinsic
similarity or any
either song.
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.

DECLARATION OF RICHARD BUSCH
DECLARATION OF RICHARD BUSCH OBJECTION RULING
I, Richard S. Busch, declare and state:
1. I am a partner in the law firm of
King & Ballow and lead counsel for
Counter-Claimants Nona Marvisa
Gaye and Frankie Christian Gaye in
the above captioned matter. My
application to appear and participate
in this action pro hac vice has been
approved by the Court. The
information contained in this
Declaration is based upon my
personal knowledge. If called as a

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4112.060/822464.1 14
KING, HOLMES,
PATERNO &
BERLINER, LLP
witness in this action, I could and
would testify competently to the
contents of this declaration.
2. Attached hereto as Exhibit 1 is a
true and correct copy of Counter-
Defendant Robin Thickes
Supplemental Responses to
Defendants and Counter-Claimants
Frankie Christian Gaye and Nona
Marvisa Gayes First Set of
Interrogatories.

3. Attached hereto as Exhibit lA is a
true and correct copy of Counter-
Defendant Robin Thickes Amended
Supplemental Responses to
Interrogatory Nos. 16 & 21 of
Defendants and Counter-Claimants
Frankie Christian Gaye and Nona
Marvisa Gayes First Set of
Interrogatories.

true and correct copy of the J uly 9,
2013 Billboard. com article, Robin
Thicke on Wifes Impact on Blurred
Lines and the May 7, 2013 G.Q.
article, Robin Thicke on That Banned

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4112.060/822464.1 15
KING, HOLMES,
PATERNO &
BERLINER, LLP
Video, in which he admits that when
creating Blurred Lines, he wanted
to do something like Marvin Gayes
Got to Give it Up.
true and correct copy of a CD
containing:
a. Track 1: Robin Thickes
interview with Hot 97, on or
about J une 11, 2013
b. Track 2: Robin Thickes
interview with VH1, on or about
May 6, 2013
c. Track 3: Robin Thickes
interview with Twitter Take
Over On or about J uly 20, 2014
d. Track 4: Robin Thickes
interview with Inside Track on
Fuse TV, on or about J uly 29,
2013
e. Track 5: Robin Thickes
interview with Oprah, on or
about October 13, 2013
f. Track 6: Robin Thickes
interview with TMZ, on or about
September 26, 2013

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4112.060/822464.1 16
KING, HOLMES,
PATERNO &
BERLINER, LLP
g. Track 7: Pharrell Williams
Admits Blurred Lines Was
Inspired By Marvin Gayes Got
to Give it Up, on or about
October 31, 2013.
true and correct copy of the March 4,
2014 XXL article Pharrell Has
Found His Happy Place in the
Mainstream, by Dan Rys, in which he
admits that he was trying to pretend
that he was Marvin Gaye when
creating Blurred Lines.

true and correct copy of the
October 31, 2013 HipHollywood.com
article Pharrell Williams Admits
Blurred Lines Was Inspired By
Marvin Gayes Got to Give it Up,
by Ashley Williams, in which he
admits that he was inspired by Marvin
Gaye and he tried to take the feeling
that Got to Give it Up gave him,
when creating Blurred Lines.

true and correct copy of excerpts of

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4112.060/822464.1 17
KING, HOLMES,
PATERNO &
BERLINER, LLP
April 23, 2014 Deposition of Robin
Thicke.
April 21, 2014 Deposition of Pharrell
Williams.

true and correct copy Declaration of
Sandy Wilbur in Bourne Co v.
Twentieth Century Fox.

August 27, 2014 Deposition of Sandy
Wilbur.

12. [Objection No. 11] Attached
hereto as Exhibit 10 is a true and
correct copy of a profile of Robin
Thicke posted on Allmusic.com,
discussing Robin Thickes perpetual
Marvin [ Gaye] fixation.
11. Irrelevant. FRE
402.
11. Overruled
correct copy of the August 8, 2013
New York Times.com article Why
Blurred Lines Wont Go Away by
Rob Hoerburger.
12. Irrelevant. FRE
402.
12. Overruled
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4112.060/822464.1 18
KING, HOLMES,
PATERNO &
BERLINER, LLP
correct copy of the August 23, 2013
Rolling Stone article Robin Thicke,
Youre No Marvin Gaye, by David
Ritz.
13. Irrelevant. FRE
402.
13. Overruled
correct copy of the J uly 30, 2013 Vice
article Why Dont We Have a Song of
the Summer Yet?, by Paul Cantor.
14. Irrelevant. FRE
402.
14. Overruled
16. Attached hereto as Exhibit 14 is
a true and correct copy of excerpts of
Trial Testimony of Sandy Wilbur in
Guzman v. Hacienda Records, United
States District Court, Southern
District of Texas, Case No. 6:12-cv-
00042, Dkt. No 148.

a true and correct copy of Sandy
Wilburs 2012 Musicology Services
Brochure for Music Suppliers and
Advertisers.

a true and correct copy of a DVD
containing Deposition Video of from

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4112.060/822464.1 19
KING, HOLMES,
PATERNO &
BERLINER, LLP
the Depositions of Mr. Thicke and
Mr. Pharrell.
2014.

[Objection No. 15] Declaration of
Richard Busch, Exhibit 10 Profile
of Robin Thicke posted on
Allmusic.com
15. Irrelevant. FRE
402. Lacks personal
knowledge. FRE 602.
Inadmissible hearsay.
FRE 802.
15. Overruled
Richard Busch, Exhibit 11
August 8, 2013 New York Times
article Why Blurred Lines Wont Go
Away by Rob Hoerburger
16. Irrelevant. FRE
402. Lacks personal
knowledge. FRE 602.
Improper lay opinion.
FRE 701.
FRE 802.
16. Overruled
Richard Busch, Exhibit 12
August 23, 2013 Rolling Stone article
titled Robin Thicke, Youre No
Marvin Gaye, by David Ritz
17. Irrelevant. FRE
402. Lacks personal
knowledge. FRE 602.
FRE 701.
FRE 802.
17. Overruled
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4112.060/822464.1 20
KING, HOLMES,
PATERNO &
BERLINER, LLP
Richard Busch, Exhibit 13 J uly 30,
2013 Vice article titled Why Dont We
Have a Song of the Summer Yet? by
Paul Cantor
18. Irrelevant. FRE
1402. Lacks personal
knowledge. FRE 602.
FRE 701.
FRE 802.
18. Overruled

DECLARATION OF THOMAS COURT
DECLARATION OF THOMAS COURT OBJECTION RULING
I, Thomas Court, declare as follows:

2. I am a field trained audio engineer,
and I have a GED from the United
States Coast Guard where I schooled
first in electronics as a fire-control
technician but due to war I changed
my study and graduated as corpsman.
I was honorably discharged after two
years. After my service in 1972, I

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4112.060/822464.1 21
KING, HOLMES,
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installed, wired and ran a recording
studio called Fiddlers Music, in
Detroit.
3. In the mid-1970s, I was invited to
create a music-sound-design
laboratory for disco producers at a
large studio, Electronic Music
Laboratories (Mouth Music). This
allowed opportunity for beta testing
of emerging musical-instrument
technology for large companies, and
subsequently I was invited to multiple
studios in the Detroit-region to help
wire up modern technology as
technology progressed.

4. From 1978-1981 I toured the
United States as a front of house
sound mixer for Detroits Rockets
and Figures on a Beach. I also
served as a live-production
synthesizer musician with The
Eurge.

5. I progressed in my career when
asked to work fulltime-freelance
(International Alliance of Theatrical
Stage Employees local 812) at the

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4112.060/822464.1 22
KING, HOLMES,
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General Motors Headquarters in
Detroit, Michigan, where my position
as chief audio engineer for industrial
training aligned me with filmmakers,
videographers, and top engineers for
satellite communications (long
distance learning broadcasting).
6. This expanded my experience into
optical-audio prints for film and
positioned me at the dawn of an
industry going from audio tape
recorders to digital audio technology.
This led me to begin working with
SoundTools and the beta-test period
that became Pro Tools in the early
1980s. My tenure with GM
(Photographic division) lasted over 18
years when GM downsizing closed
their studio down.

7. Pro Tools is the digital audio
workstation-standard for computer
software in the music and film
industry that runs on multiple types of
platforms, Windows or Macintosh. It
is essentially the modern
tape_recorder for making

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4112.060/822464.1 23
KING, HOLMES,
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(recording and finishing) music.
8. In the late 1990s I was invited and
then appointed to develop and run the
Music Technology Program at Wayne
State University, Department of
Music in Detroit, Michigan, where I
have spent the last 16 years as the
primary educator in charge of the
Music Technology Program. Due to
my non-academic in-field-training
experience my academic title
continues as full-time lecturer.

9. [Objection No. 19] After my
retention with King & Ballow, I
created a mashup of the songs
Blurred Lines and Got to Give it
Up. A mashup represents a
composite of both songs, which
allows the listener to recognize the
similarities in the two works.
19. Irrelevant. FRE
402.
Improper expert
not the product of
methods. FRE 702.
Unsupported and
improper expert
opinion or conclusion.
Walton v. U.S.
Marshals Service, 492
F.3d 988, 1008 (9
th

19. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 24
KING, HOLMES,
PATERNO &
BERLINER, LLP
Cir. 2007)(excluding
expert testimony on
summary judgment
where expert failed to
give a factual basis for
his opinion); Samuels
v. Holland American
Line-USA Inc., 656
F.3d 948, 952-53 (9
th

Cir. 2011) (same).
10. I conducted my analysis by
primarily working on an Apple
computer, using Pro Tools digital
audio software.

11. When I first started working on
this project, King & Ballow supplied
me with files released from iTunes,
Got to Give It Up and Blurred
Lines.

12. The first tracks were supplied to
me were the stereo-mixed releases.

13. King & Ballow also provided me
with a separate digital audio multi-
track recording for Blurred Lines in
the Pro Tools session-format so that I
did not have to change any format and

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4112.060/822464.1 25
KING, HOLMES,
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I could open them on my research
system. The audio files were a
finished master-session as would be
delivered to a record company. This
allowed me to separate just the
Blurred Lines vocals and
instrumental tracks into separate
monaural track-stems. One vocal-
only and one music-only.
1
1
By music-only, I am referring
in this document to the
instrumental accompaniment
tracks, rather than the vocal
tracks.
14. I listened and compared all og the
tracks (released versions and
separated stem version) in order to
verify they are one and the same. I
determined that the tracks provided
were identical to the commercially
released versions.

15. [Objection No. 20] My approach
using isolated vocal and music stems
revealed that there was something
interchangeable between the two
pieces, Blurred Lines and Got to
20. Irrelevant. FRE
402.
Improper expert
20. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
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4112.060/822464.1 26
KING, HOLMES,
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Give it Up. Like a puzzle cut with
the same jigsaw, 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 result, without any
pitch manipulation, played as if they
were one song.
not the product of
methods. FRE 702.
Unsupported and
improper expert
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53.
supra.
16. Having access to the separated
music and vocals from both songs and
because they were delivered in
finished-master-archive format, I did
not remix or add any special effects or
use any specialized software. The
Blurred Lines multi-track was
wellbalanced and I only had to mute
the music to create my vocal-only
track, and then mute the vocals and
create the music-only track for my
analysis. The Got to Give it Up
tracks were already pre-mixed with
ambient-reverb
2
for the vocal-only
(common for the era of the music).

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4112.060/822464.1 27
KING, HOLMES,
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The music-only track was also pre-
mixed.
3

2
Ambient reverb is an audio
engineering term for creating an
audio recording experience that
contains reverberation, and
creates the impression of a live
concert halls echo/reverberation
environment. It is one of the
tools used for most recording
artists in the studio.
3
Pre-mixed refers to the
pre-blending of multiple tracks
of instrumental lines in this case.
Instead of receiving individual
instrumental lines, for example,
of the drums, cowbells,
percussion, and other
instruments, they had already
been blended into a single unit.
This blending process is required
of all finalized recordings, and is
referred to as a mix.
17. A minor adjustment was made to
the BPM (beats per minute) of each
song. I used a process called beat-

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4112.060/822464.1 28
KING, HOLMES,
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mapping on Pro Tools to determine
and adjust the BPM for both Blurred
Lines and Got to Give it Up.
18. The beat-mapping revealed that
both song recordings were within 1%
of each others tempo. My
adjustment was to conform each
tempo to a solid 120 beats per minute
(BPM).

19. The Blurred Lines iTunes
release was at 119 BPM. However,
the multi-track master for Blurred
Lines BPM (the multi-tracks being
the most authentic) were set at 120
BPM, which verified that my
approach was accurate. The tempo
discrepancy could have been from the
transfer of master recordings to CD
format, then digitized to mp3 or other
web-compressed formats.

20. The Got to Give it Up iTunes
release was slightly faster at
approximately 122 BPM. I can only
give an approximate BPM because it
had varying tempo, typical of
recording sessions with live

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4112.060/822464.1 29
KING, HOLMES,
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musicians.
21. For my mashup I used Pro Tools
software to import all four isolated
audio tracks (one vocal-only and
music-only for each song) from the
two separate recordings of Got to
Give it Up and Blurred Lines. I
then edited a 16-bar phrase from each
song (as discussed in paragraph 15
above). [Objection No. 21] I then
just played them exactly as-is with no
alterations, namely two different
songs playing together in parallel. It
is what I would call a true
composite, and not mashed or
altered from the original.

21. Irrelevant. FRE
not the product of
methods. FRE 702;
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53. The
mashups do not
evidence extrinsic
similarity or any
either song.

21. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
22. To display visually and audibly
the tracks outside of Pro Tools I

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4112.060/822464.1 30
KING, HOLMES,
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exported my selected 16-bar phrases
for playback in any music-player, I
utilized the widely used Apple iTunes
player. I used computer screen-
capturing software (SreenFlow)
visually recording my playback in
iTunes one track at a time for both
Got to Give It Up Vocals-only and
Blurred Lines Music-only. Because
the iTunes player has time counters, I
could then align both playback visual
screen-captures (one for Got to Give
it Up and the other for Blurred
Lines) to start at 00:00 time. This
allowed both players to be played and
heard at the same time. This is the
identical result as in Pro Tools
without the audio-waveform displays
which some may not understand.
23. [Objection No. 22]
Simultaneously playing the above-
described 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
22. Irrelevant. FRE
FRE 702; Walton, 492
F.3d at 1008; Samuels,
656 F.3d at 952-53.
The mashups do not
22. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 31
KING, HOLMES,
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instrumental music. This comparison
revealed their unique abilities to
synchronize with each other.
However these files are played,
whether in Pro Tools or as individual
music players playing at the same
time, the resulting mashup
composite is the same.
evidence extrinsic
similarity or any
either song.
24. [Objection No. 23] The two song
phrases Im analyzing seem to be
easily aligned.
23. Irrelevant. FRE
402.
Improper expert
not the product of
methods. FRE 702.
Unsupported and
improper expert
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
23. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 32
KING, HOLMES,
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either song.
2014.

Tom Court, Exhibit 1 Mashup
Example No. 3 (Non-paper Exhibit
lodged concurrently with this filing)
24. Irrelevant. FRE
not the product of
methods. FRE 702;
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53. The
mashups do not
evidence extrinsic
similarity or any
either song.
24. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.

DECLARATION OF JUDITH FINELL
DECLARATION OF JUDITH FINELL OBJECTION RULING
I. MATERIALS REVIEWED
1. The following documents were

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4112.060/822464.1 33
KING, HOLMES,
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provided by King & Ballow for
review:
a. Williams v. Bridgeport Motion
for Summary J udgement
b. Williams v. Bridgeport
Wilbur Declaration
c. Audio Exhibit: CD filed with
MSJ
d. Williams v. Bridgeport
Stockett Declaration
2. The musical works discussed
below will be referred to as follows:
a. Got to Give it Up, by Marvin
Gaye
b. Blurred Lines, by Robin
Thicke and Pharrell Williams
c. After the Dance, by Marvin
Gaye and Leon Ware
d. Love After War, by Robin
Thicke

3. The Motion for Summary
J udgement will be referred to in the
report below as the MSJ .

4. The Declaration of Sandy Wilbur
will be referred to below as the
Wilbur Declaration. It will be cited

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4112.060/822464.1 34
KING, HOLMES,
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as WD, followed by the paragraph
number.
II. CONCLUSIONS
5. I have reviewed the MSJ , the
Wilbur Declaration and deposit
copies of Got to Give it Up and
After the Dance accompanying the
Stockett Declaration.

6. Nothing stated in the MSJ , the
Wilbur Declaration, or the deposit
copies changed my findings or
conclusions as stated in my
preliminary report of October 17,
2013.

7. [Objection No. 25] In addition to
the numerous substantial similarities
and findings already identified in my
preliminary report, I believe that my
final report will identify additional
similarities between the works. It will
also further address the quantitative
and qualitative significance of the
similar material. My Preliminary
Report, and its findings, is
incorporated herein. My Preliminary
Report is attached hereto as Exhibit 1.
25. Irrelevant. FRE
402. Unsupported and
improper expert
656 F.3d at 952-53.
25. Sustained
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4112.060/822464.1 35
KING, HOLMES,
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A. Overall Findings
8. [Objection No. 26] The findings
and conclusions of the Wilbur
Declaration and the MSJ are flawed
as they are based on faulty premises
and methodology.
26. Unsupported and
improper expert
656 F.3d at 952-53.
26. Overruled
9. [Objection No. 27] Neither
document credibly nor accurately
responded to the substantial
similarities already discussed in my
preliminary report, nor do they fully
address the overriding basis for my
conclusion of substantial similarity.
This conclusion is based on my
finding that the similar features
operate in combination with one
anotherintersecting and co-
existingand they permeate Blurred
Lines. They are undeniably linked to
Got to Give it Up. Blurred Lines
simply would not be recognizable
without them.
27. Unsupported and
improper expert
656 F.3d at 952-53.
27. Sustained in
part
10. [Objection No. 28] This
aggregation of similar features in the
two works results in their two
substantially similar Constellations.
28. Unsupported and
improper expert
28. Overruled
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4112.060/822464.1 36
KING, HOLMES,
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This Constellation is greater and
more significant than any of the
individual, substantially similar
features.
656 F.3d at 952-53.
11. [Objection No. 29] Both the
MSJ and the Wilbur Declaration
distract from this collective similarity,
instead focusing myopically on its
isolated individual elements. The
Constellation is mischaracterized as
a random assembly of individual
features, and both the MSJ and the
Wilbur Declaration overlook the
magnitude of the similar musical
content embedded in Blurred Lines.
This is largely a result of an
inappropriate methodology that drives
the MSJ and Wilbur Declaration. As
discussed below, this methodology
attempts to deny the similarities by
the following means:
a. To deconstruct and
microscopically dissect the
individual similar features in
isolation, outside the context of
the overall musical work
29. Unsupported and
improper expert
656 F.3d at 952-53.
29. Sustained in
part
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4112.060/822464.1 37
KING, HOLMES,
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b. To dismiss and obscure the
individual similarities by
applying irrelevant and
inappropriate criteria to the
comparison process
c. To define as ideas rather than
expression the musical content of
the works
d. To mischaracterize the similar
musical features as collections of
commonplace devices
e. To mislead by disregarding the
continuous integrated presence
of the similarities and their
significance to Blurred Lines
f. To separate the Copyright
Deposit from the recording of
Got to Give it Up, attempting
to disqualify the recording from
the comparison process
1

g. To cite irrelevant prior art that:
i. does not meet the comparison
criteria and standards that the
Wilbur Declaration and the
MSJ apply to the two songs at
issue, and
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4112.060/822464.1 38
KING, HOLMES,
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ii. lacks the collective
similarities present in these
songs.
1
This report This report refers to the
Copyright Deposit for Got to Give it
Up (PART 1) as found in Exhibit C
of item 1d above: Williams v.
Bridgeport - Stockett Declaration.
Got to Give it Up (PART 1)
correlates to the recording I reviewed
in my preliminary report of
October 17, 2013.
12. This flawed methodology will be
discussed in greater detail below.

B. Flawed Methodology
i. To deconstruct and
microscopically dissect the
individual similar features in
isolation
13. The eight intersecting similarities
discussed in my preliminary review
recur repeatedly and often
simultaneously throughout Blurred
Lines. They are not one-time
occurrences or random fragments.
Rather, together, they form the

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4112.060/822464.1 39
KING, HOLMES,
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identity of Blurred Lines,
occupying its essence in vocal
melodies and instrumental material,
occurring throughout the chorus and
verse sections.
2
They are the song.

2
A melody is defined as pitch (or
tone) plus rhythm (meaning the
duration of each successive pitch).
Harvard Dictionary of Music, Second
Edition by Willi Apel, Harvard
University Press, 1979. Musical
works are divided into smaller
sections, much as books are divided
into chapters. In popular songs, these
sections are often alternating
choruses and verses, as well as
transitional sections such as bridges
and interludes, and ending sections
called codas or outros.
14. [Objection No. 30] These eight
features, and their variations, weave
together to form the vocal and
instrumental fabric of Blurred
Lines. Their substantial similarity to
Got to Give it Up is undeniable.
30. Unsupported and
improper expert
656 F.3d at 952-53.
30. Overruled
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4112.060/822464.1 40
KING, HOLMES,
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15. [Objection No. 31] The MSJ s
implication that so many coinciding
similarities occur as a result of mere
shared generic features is incorrect
and misleading.
3
Rather, it is the
result of many similar deliberate
creative choices.

3
In this report, when discussing the
MSJ as it repeats the Wilbur
Declaration, this will be referred to
collectively as the MSJ . In cases
where findings are specific to only
one of these documents, the document
will be specified.
31. Unsupported and
improper expert
656 F.3d at 952-53.
31. Sustained in
part
16. [Objection No. 32] The faulty
approach in the MSJ is to separate
each of the eight similar features, and
then further dissect each feature
individually, reducing it to many
small compositional elements. Each
of these elements is then dismissed as
an ordinary building block,
device, or idea.
32. Unsupported and
improper expert
656 F.3d at 952-53.
32. Overruled
17. [Objection No. 33] Reducing
elements of the musical expression to
33. Unsupported and
improper expert
33. Overruled
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4112.060/822464.1 41
KING, HOLMES,
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common devices or building blocks is
inaccurate. Due to flawed
methodology, the resulting
conclusions presented in the MSJ are
faulty.
656 F.3d at 952-53.
18. [Objection No. 34] If this same
methodology were applied, for
example, to assessing the originality
and artistic expression embodied by
the Guggenheim Museum in New
York, the resulting conclusion would
also be faulty. One could deconstruct
and reduce its brilliantly curved walls,
skylight, and distinctive rotunda to
mere elements of concrete, glass, and
metal, namely common building
blocks. With this approach, one
could erroneously claim that Frank
Lloyd Wrights iconic design is not
an original, but rather an assembly of
architectural materials and
devicesideas rather than
artistic expression. This inaccurate
conclusion would be the result of the
same faulty methodology that the
MSJ and the Wilbur Declaration
34. Unsupported and
improper expert
656 F.3d at 952-53.
Irrelevant. FRE 402.
This case does not
involve buildings.
34. Sustained
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4112.060/822464.1 42
KING, HOLMES,
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apply to the musical works in this
case.
19. [Objection No. 35] Likewise,
here, the microscopic approach leads
to a misrepresentation of the actual
musical material found similarly in
Lines, and provides an inappropriate
basis for comparison.
35. Unsupported and
improper expert
656 F.3d at 952-53.
35. Overruled
ii. To dismiss and obscure the
individual similarities by
applying irrelevant and
inappropriate criteria to the
comparison process
20. [Objection No. 36] Ms. Wilbur,
as reflected in the Wilbur Declaration
and the MSJ , has misapplied musical
criteria, thus invalidating the resulting
conclusions regarding similarity.

36. Unsupported and
improper expert
656 F.3d at 952-53.

36. Sustained in
part
21. When comparing two melodies,
the assessment involves a hierarchy
of three factors. These factors carry
unequal weight and are
interdependent. To determine
substantial similarity, these factors

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4112.060/822464.1 43
KING, HOLMES,
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must be applied correctly. Ms. Wilbur
has not done so.
22. Melodies are comprised of two
elements: pitch plus rhythm (duration
of each pitch). In comparing melodies
for similarities, pitch is normally the
more important element.

23. The hierarchy of factors in
assessing compared melodies for
substantial similarity is:
A. Similar series of pitches
B. Similar series of durations
within similar pitches
C. Similar rhythmic placement
(positioning) within similar
series of pitches and durations.

24. Factor C (rhythmic placement)
does not apply unless Factor A is
present, and to a lesser extent Factor
B. In other words, if two melodies do
not contain a high degree of similar
pitches (Factor A), in a similar
rhythm (Factor B), then their location
within the bar or section (Factor C)
does not make them any more
similar.
4
Likewise, two melodies can

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4112.060/822464.1 44
KING, HOLMES,
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be substantially similar with only
Factors A and B, even if their
locations (Factor C) differ.
[Objection No. 37] In comparing the
8 Similarities in Got to Give it Up
and Blurred Lines, where certain
shared pitches are not in the exact
same location within the bar, this is
often due to minor rhythmic
displacement and does not impact
their similarity. For example, the
placement is often shifted to the
neighboring beat or half-beat, while
many of the individual note rhythms
remain identical. The Wilbur
Declaration and the MSJ do not
recognize this due to faulty
methodology.

4
Musical works are divided into
groups of beats, and each group is
referred to as a bar or measure. In
describing a musical piece, one
usually refers to the location within a
piece by bar number. The number of
beats per bar is usually 2, 3, 4, or 6. In

37. Unsupported and
improper expert
656 F.3d at 952-53.

37. Overruled
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4112.060/822464.1 45
KING, HOLMES,
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musical notation, bars are separated
by vertical lines called bar lines.
Rhythmic placement describes the
location within a bar of a particular
tone. For example, 2 tones with the
same rhythmic placement would
occur on the same beat, such as beat
1, 2, 3, or 4, or on subdivisions of that
beat.
25. [Objection No. 38] Ms. Wilbur
has over-emphasized Factor C
(rhythmic placement), thereby
discrediting, and disqualifying the
many similarities in pitch and rhythm
found in Got to Give it Up and
Blurred Lines. In other words, Ms.
Wilbur insists that the only basis for
similarity is that in which all 3
factors, A, B, and C apply to every
note in a melody.
38. Unsupported and
improper expert
Walton, 492 F.3d at
1008; Samuels, 656
F.3d at 952-53.
38. Overruled
26. [Objection No. 39] This over-
emphasis on less important
comparison factors, and rigid
insistence on literally 100% identical
material pervades the entire Wilbur
report, distorting all of Ms. Wilburs
39. Irrelevant. FRE
402.
Unsupported and
improper expert
39. Sustained in
part
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4112.060/822464.1 46
KING, HOLMES,
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findings, and, consequently, the MSJ . F.3d at 1008; Samuels,
656 F.3d at 952-53.
27. [Objection No. 40] I know of no
other music copyright infringement
case in which every melodic factor
was identical in comparing two
musical works. Other than in digital
sampling cases, copyright infringers
are rarely found to have copied
verbatim entire passages from another
work. Again, small rhythmic
placement differences do not change
or reduce the similarity between
pitches and their rhythms, which
comprise a melody.
5

5
This is more obvious in digital
sampling cases. For example, if a
sample lifted from the Beatles
recording of their songs hook phrase
I want to hold your hand were
interpolated into another recording, it
would be immediately recognizable,
regardless of its rhythmic placement
on the new recording. For example,
even if the hook phrase in the original
40. Irrelevant. FRE
402. This case does
not involve digital
sampling.
Unsupported and
improper expert
656 F.3d at 952-53.
40. Sustained
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4112.060/822464.1 47
KING, HOLMES,
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Beatles recording occurred beginning
on beat 1 of the measure, and in the
new recording, its interpolation began
on beat 3, it would remain fully
identifiable due to its identical
melody, lyrics, and individual note
rhythms. For this reason, Factor C
would be entirely irrelevant.
28. [Objection No. 41] This can be
likened to a comparison in visual
expression. For example, if one were
to compare two paintings, one with a
figure of a young red-haired woman
in a blue floral dress in the center of
the painting, standing before a tree,
the other of a young red-haired
woman in a blue floral dress on the
lower left corner of the canvas,
standing before a tree, the similarities
of the woman, her dress, and the tree
would supersede the difference in
location on the canvas. The same is
true here. The consistent similarities
in pitches, rhythms, and function of
the primary melodic material in
Blurred Lines compared to Got to
41. Irrelevant. FRE
402. This case does
not involve visual art.
Unsupported and
improper expert
656 F.3d at 952-53.
41. Sustained
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4112.060/822464.1 48
KING, HOLMES,
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Give it Up far override the
differences in minor details, including
rhythmic positioning.
29. In sum, Ms. Wilburs and the
MSJ s application of every factor
indiscriminately to the musical
features in this case obstructs arrival
at accurate conclusions and misleads.

iii. To define as ideas rather
than expression the
musical content of the works
30. Mischaracterizing the melodic
material as ideas rather than
creative expression, as done in both
the MSJ and the Wilbur Declaration,
is inaccurate and misleading. A song
is traditionally defined by its vocal
melodies (pitch and rhythm),
harmonies, lyrics, and structure.
6

Additional distinctive features in the
instrumental content may contribute
to the identity of a work. The specific
way in which these elements are
created is the embodiment of the
expression, and this is the reason why
we can recognize a musical work and

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4112.060/822464.1 49
KING, HOLMES,
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distinguish it from another.

6
Harmony is the chordal
accompaniment to a melody. A chord
is the simultaneous sounding of three
or more tones. A series of chords is
called a chord progression, or
harmonic progression.
31. For example, we recognize the
distinction between Happy
Birthday and J ingle Bells because
of their differing expression, namely
their specific melodies, harmonies,
and lyrics. They do contain some of
the same building blocks or ideas
such as major chords, repeated notes,
and quarter note rhythmsbut the
specific way their composers used
these building blocks surpasses ideas,
and results in their differing
individual expression.
7

7
In traditional harmony, three-note
chords, called triads, are either
major or minor, differing from
one another with the middle note

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4112.060/822464.1 50
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being lowered (flattened) in the minor
chord, and raised in the major chord.
Consequently, a C major chord
comprises the pitches C-E-G, and a C
minor chord comprises the pitches C-
E flat-G. Rhythm describes the
duration of one note or rest (silence)
followed by the next. Rhythms are
defined by the length of beats they
occupy. In a traditional four-beat bar,
for example, a quarter note would
occupy one beat, a half note, two
beats, and a whole note, four beats.
The beats may also be subdivided, for
example, into eighth notes (each are a
half beat), sixteenth notes (each are a
quarter beat), and so on.
32. The same is true here. The vocal
melodies, harmonies, and
instrumental parts in Blurred Lines
and Got to Give it Up are specific
creative expression, and form their
respective underlying songs. These
elements are much more than a mere
concept or an assembly of pre-
existing musical ideas or devices. To

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4112.060/822464.1 51
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define it otherwise, as stated in the
MSJ , is misleading and erroneous.
33. [Objection No. 42] The MSJ
misleads by exploiting the ambiguity
of the term idea in Ms. Wilburs
report, especially when imbuing it
with legal implications in the MSJ by
combining it with the word
unprotectable.
42. Unsupported and
improper expert
656 F.3d at 952-53.
42. Sustained
iv. To mischaracterize the
similar musical features as
collections of commonplace
devices
34. The MSJ mischaracterizes the
similar features discussed in my
report as mere devices, which
misleads. Terming these features as
devices distorts, and implies that
they are ideas, not meaningful
expression.

35. Merely using the same device or
building block would not alone result
in two songs sounding substantially
similar enough to support a claim of
infringement. All composers share
devices and building blocks, but it is

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4112.060/822464.1 52
KING, HOLMES,
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the way in which they use them that
distinguishes their musical works.
36. For example, Beethovens
famous theme in his Fifth Symphony
is a 4-note melody, comprised of 3
repetitions of the pitch G followed by
the pitch E-flat, with common
rhythms.
8
Yet, applying the
methodology of the Wilbur
Declaration and the MSJ would
reduce Beethovens masterpiece of
musical expression to a commonplace
device or idea comprised of a C-
minor chord (arpeggio) with a
repeated first note.
9

8
If a tone is raised, it is referred to as
sharp, indicated with a # symbol.
If it is lowered, it is referred to as
flat, and is indicated with a b
symbol.
9
Arpeggios are chords played with
the notes sounded in succession rather
than simultaneously. The theme in
Ludwig van Beethovens Fifth
Symphony to which I refer above
.
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4112.060/822464.1 53
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contains an arpeggio of a C minor
chord, using the pitches G-G-G-E-
flat.
37. This is precisely what the MSJ
has done in discussing Got to Give it
Up and Blurred Lines. Again, it is
how the device is used that
determines its distinctiveness and
original expression, and when two
songs use devices in similar ways,
such as in the case of Got to Give it
Up and Blurred Lines, this results
in substantially similar expression.

v. To mislead by denying the
constant integrated presence
of the similarities and their
significance to Blurred
Lines
38. The MSJ grossly undervalues the
magnitude of similar material
throughout Blurred Lines, both as
to its quantity and significance. The
eight Similarities specified in my
preliminary report were meant as
examples of the shared similar
features, but were by no means the

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4112.060/822464.1 54
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only occurrence of these features, or
their related variations. Rather,
because Blurred Lines is a
repetitive work, built on recurring
sections, phrases, and melodic
themes, the similar features already
noted are ubiquitous throughout
Blurred Lines and the very
foundation of the entire song.
10

10
A phrase is a passage within a
longer melody, similar to a sentence
within a paragraph or a line within a
poem. In vocal music, phrases are
often determined by the pauses
between lyric lines as the singer takes
a breath.
39. [Objection No. 43] It is a major
error to state, as Ms. Wilbur has, that
the melodies from all of the major
sections of Blurred Lines
including the hook, most verse
material, the backup hook, and the
similar bass melodiesdo not
encompass significant material.
11

[WD 63.]
43. Unsupported and
improper expert
656 F.3d at 952-53.
43. Sustained in
part
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4112.060/822464.1 55
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11
A hook is the term used in
popular and commercial music for the
most important melodic material of
the work, which often becomes the
memorable melody by which the song
is recognized. In the case of songs, it
is usually the passage in the chorus in
which the title lyrics are sung, such as
in the hit recording Girls J ust Want
to Have Fun (1979, recorded by
Cyndi Lauper). In instrumental music,
it is the signature theme by which the
listener recognizes which song is
being performed.
vi. To separate the Copyright
Deposit from the recording of
Got to Give it Up,
attempting to disqualify the
recording from the
comparison process
40. [Objection No. 44] The
recording of Got to Give it Up
represents the work in its most
complete form. I did not have access
to the Copyright Deposit in

44. Irrelevant. FRE
401. The Gayes do not
own the copyright in
the sound recording of
Got to Give It Up.

44. Sustained for
purposes of this
Motion only. See
Order re Plaintiffs
Motion for
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4112.060/822464.1 56
KING, HOLMES,
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conducting my preliminary review.
However, having reviewed it as
attached to the Stockett Declaration,
nothing in the Copyright Deposit
changes my findings or conclusions.
The Copyright Deposit
is only sheet music.

Summary
J udgment at pp.
8-12.
41. [Objection No. 45] As a
musicologist, I rarely if ever find that
a Copyright Deposit fully defines the
entire composition. It is normally
termed a lead sheet, and it is not
intended to represent fully the
composition. At best, it is a skeletal
representation or sketch, and usually
shows only the most basic vocal
melodies, typically only a single
iteration of the beginning sections,
some beginning lyrics, and chord
indications.
45. Irrelevant. FRE
Got to Give It Up.

45. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 44,
supra.
42. [Objection No. 46] Most often,
lead sheets were notated after the
composition was completed and
recorded, in order to fulfill music
copyright registration requirements.
They were often notated by music
copyists employed by the music
publishers rather than by the artists
46. Irrelevant. FRE
4021. The Gayes do
not own the copyright
in the sound recording
of Got to Give It Up.
46. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 44,
supra.
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4112.060/822464.1 57
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themselves. Certainly in this case, the
recording itself is a fuller
manifestation of Got to Give it Up
as a composition, and the most
complete and appropriate means for
comparing the work to the Blurred
Lines recording.
43. [Objection No. 47] While the
Copyright Deposit of Got to Give it
Up does verify many of the
similarities already noted and
transcribed from the recording in my
report, this Copyright Deposit lead
sheet is only a partial and incomplete
sketch of the fuller work as embodied
in the recording.
12
The recording of
Blurred Lines corresponds more
closely with the recording of Got to
Give it Up, thus allowing the more
informative and complete comparison
of the two.

12
A transcription is a written
representation of the sounds heard in
a musical performance. To the extent
that the sounds are unclear or
47. Irrelevant. FRE
Got to Give It Up.
47. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 44,
supra.
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4112.060/822464.1 58
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inaudible, this will be reflected in the
transcription.
44. Ms. Wilburs claim that the
Copyright Deposit alone qualifies as
the composition does not accurately
acknowledge the material in the
underlying song. She states: The
Copyright Deposit for GIVE is the
composition: the Copyright Deposit
contains the melody, rhythm,
harmony, structure, and lyrics of
GIVE. [WD, 30.] [Objection
No. 48] While the Copyright Deposit
does contain some melodic features, it
is incomplete because it does not
include all of the compositional
properties essential to Got to Give it
Up. Ms. Wilbur also contradicts
herself when she states that one must
rely only upon the Copyright Deposit,
but in an effort to point out
differences in harmony and structure
between Blurred Lines and Got to
Give it Up, she refers to the
recording of Got to Give it Up, for
example. [WD, 39-42 and 48-49.]

48. Irrelevant. FRE
Got to Give It Up.

48. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 44,
supra.
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vii. Irrelevant Prior Art
45. None of the prior art in the MSJ
and its attached audio exhibit, or the
Wilbur Declaration, changes my
opinion.

46. First, none of it contains the same
or even close to the multitude of
similar coinciding features found in
Lines.

47. Second, most of the examples of
prior art do not meet the rigid
standards and criteria for finding
similarity that Ms. Wilbur and the
MSJ have applied in assessing Got
to Give it Up and Blurred Lines.

48. Third, most of the prior art cited
contains no substantiation,
transcriptions, or recordings. See
below for a fuller assessment of the
prior art.

C. Findings on the Constellation of
8 Similarities
The MSJ and the Wilbur Declaration
have disputed the Constellation of 8
Similarities discussed in my

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preliminary report. This has been
done in misleading and distorted
ways. See below for further details.
i. Similarity 1: Signature Phrase
in Main Vocal Melodies
49. The MSJ erroneously recognizes
only one shared note in the signature
phrase
13
of Got to Give it Up (sung
to the lyrics I used to go out to
parties) and Blurred Lines (sung to
the lyrics And thats why Im gon
take a good girl). The MSJ specifies:
There is only one note that has the
same pitch and placement (but not the
same duration) in both songs. [MSJ ,
p. 14, lines 16-17].
14

13
The signature phrase is a primary
identifying feature of a song and one
of its most important elements.
14
[MSJ , p. 14, lines 16-17] refers to
the Motion for Summary J udgement,
page 14, lines 16-17.

50. [Exhibit No. 49] The MSJ s
conclusion here is the result of faulty
methodology in which the criteria for
49. Unsupported and
improper expert
49. Sustained in
part
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similarity is so narrow that most of
the actual similar content is entirely
excluded. By narrow, I refer to the
distorted methodology that the Wilbur
Declaration and MSJ apply to
melodic comparisons as discussed
above. The methodology is built on
requiring absolute identity in all 3
melodic comparison factors of (A)
pitch or scale degree,
15
(B) duration,
and (C) rhythmic placement for every
single note in order to be considered
similar. To imply that only one note is
shared here misleads, because the
signature phrases of the two songs
share many pitches, rhythms, and
other distinctive elements.

15
Scale degrees refer to the
position in a particular pitch (tone)
within a scale. The traditional scale
contains 7 consecutive tones. For
example, in the scale of C major, the
tone C is scale degree 1, D is scale
degree 2, E is scale degree 3, and so
on. Two melodies containing a
656 F.3d at 952-53.
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4112.060/822464.1 62
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similar series of scale degrees with
similar rhythms usually sound
similar.
51. The MSJ s own musical
examples contradict its denial of
similarity. For example, as shown in
Musical Examples 1A and 1B on
page 15 of the MSJ : element b
displays a series of 6 tones, of which
5 are identical, and only one differs.
Specifically, the 6 scale degrees of
element b shown here are 5-6-1-
(2/1)-1-5 (identical scale degrees are
in bold and underlined).
16
The first 3
identical scale degrees (5-6-1) are
also identical in rhythm, namely all
are eighth notes in both songs. Their
rhythmic placement is shifted by a
half beat in Blurred Lines. Element
b begins on the first half of beat 3
in Got to Give it Up and on the
second half of beat 3 in Blurred
Lines. This is a very minor
difference. Disqualifying any similar
series of pitches and rhythms based
on a half-beat positioning shift, as

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4112.060/822464.1 63
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done in the MSJ , is misleading.
Overall, for element b the similar
rhythmic placement in both Got to
Give it Up and Blurred Lines is:
(a) identical scale degrees 5-6-1
occurring in beats 3 and 4 of the first
bar, and (b) identical scale degrees 1-
5 occurring in beats 2 and 3 of the
second bar.

16
Here, Got to Give it Up contains
scale degree 2; Blurred Lines
contains scale degree 1.
52. The signature phrases in both
songs are substantially similar not
only because of their shared content,
but also because of their similar
functions within their respective
songs. In both songs, the signature
phrase heralds a new primary section
of the song (introducing the first
vocal phrase in Got to Give it Up,
and introducing the chorus and hook
in Blurred Lines). It is one of the
pivotal elements of the song. Both
songs contain vocal material

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4112.060/822464.1 64
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elsewhere that evolves from the
signature phrase. In Got to it Up,
this material occurs throughout 83 out
of the songs 118 bars. The hook in
Blurred Lines is found embedded
within its own signature phrase and in
numerous variations throughout the
song as a key identifying feature.
None of these similarities or their
significance is considered in the MSJ .
53. The MSJ , in discussing Similarity
1, lists the 5 identifying elements
shared by Got to Give it Up and
Blurred Lines described in my
preliminary report, and then
trivializes them as commonplace
musical devices and generic ideas
with differing expression. [MSJ , p.
16, lines 4-11.] The MSJ achieves this
by extracting and microscopically
analyzing each compositional element
in isolation, rather than evaluating the
full combination of all 5 component
elements within the same phrase.

54. This typifies the faulty
methodology present throughout the

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4112.060/822464.1 65
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MSJ and the Wilbur Declaration. For
another example, the MSJ refutes the
similarity in melismas in the signature
theme. The MSJ states only that the
melismas end on a different pitch
(scale degree), disregarding that the
melismas begin with two identical
scale degrees, 1-5.
17
[MSJ , p. 16, line
18.] This means that 2 out of 3
pitches in the melisma in Got to
Give it Up are also found in the
parallel melisma in Blurred Lines.
[Objection No. 50] Most importantly,
the individual differences emphasized
in the MSJ do not outweigh the
substantial similarity of the signature
phrases.

17
A melisma describes a vocal
melody in which one syllable or lyric
is held while sung with several
successive pitches, rather than a
single pitch for each syllable. As
shown in Musical Examples 1A and
1B of my preliminary report, the
melisma in Got to Give it UpGot

50. Unsupported and
improper expert
656 F.3d at 952-53.

50. Sustained

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4112.060/822464.1 66
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to Give it Up contains the pitches A-
E-F#(on scale degrees 1-5-6), and
the melisma in Blurred Lines
contains the pitches A-E-D-C#(scale
degrees 1-5-4-3).
55. Finally, the MSJ s inaccurate and
misleading use of highlighting in its
musical examples further confuses.
For example, there is an obvious
contradiction with the MSJ s own
written analysis, when it highlights
the transcription of the compared
signature phrases. This transcription
itself [MSJ , p. 14] demonstrates 5
identical pitches (E-F#-A, A-E) with
similar rhythms and placement, yet
the MSJ only highlights one identical
pitch.

ii. Similarity 2: Hooks
56. The MSJ reports incompletely on
the hooks. It misleads by reporting
only differences between the hooks,
and does not describe a single
similarity between them. For
example, as shown in the MSJ
transcription on page 17, the hook

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4112.060/822464.1 67
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melodies are sung to the lyrics keep
on dancin (in Got to Give it Up)
and take a good girl (in Blurred
Lines). Here, 3 out of 4 pitches in
Got to Give it Up are also found in
Blurred Lines. The MSJ fails to
indicate the identical scale degrees for
the pitches here, which are 6-1-2-1 in
Got to Give it Up and 6-1-1-1 in
Blurred Lines (identical scale
degrees in bold and underlined; the
identical pitches here are F#, A, and
A). The rhythmic placement is also
similar: the first two identical scale
degrees (6-1) are placed immediately
before the bar line and the final
identical scale degree (1) enters in
beat 2, in both songs. Further, this
similar material is significant to both
songs and repeats in both songs,
including a total of 7 times in Got to
Give It Up.
57. [Objection No. 51] To
summarize, the MSJ does not deny
the substantial similarity here
discussed in my report, but rather
51. Unsupported and
improper expert
51. Sustained
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applies incorrect methodology, and
even contradicts itself with its own
musical examples.
656 F.3d at 952-53.
iii. Similarity 3: Hooks with
Backup Vocals
58. In discussing Similarity 3, the
MSJ misleads by trivializing, stating:
Backup vocals are a commonplace
device. [MSJ , p. 18, line 28]. This is
a distortion. In my preliminary report,
I never stated that the concept of
backup vocals itself originated with
either song. Rather, one must
compare how they are expressed
melodically, and how they function.
In this case, it is the way in which the
backup vocals are combined similarly
with the hooks lead vocals to amplify
the primary message of the lyrics. In
addition to sharing identical scale
degrees and similar rhythmic
placement, this leads to substantial
similarity between Got to Give it
Up and Blurred Lines.

59. The MSJ disregards the actual
similarities of content between the

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4112.060/822464.1 69
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two songs here. For example, both
songs contain 2 notes preceding the
bar line with identical scale degrees
6-1 in the lead vocal melody (sung to
keep on in Got to Give it Up and
take a in Blurred Lines). Then, on
beat 1 of the following bar, both
songs contain scale degree 6 in the
backup vocals (dancin Got to
Give it Up and good in Blurred
Lines), followed by simultaneous
scale degrees 1 and 5 in the lead and
backup vocals (-in in Got to Give
it Up and girl in Blurred Lines).
The shared scale degree 6 on beat 1 in
the backup vocals is omitted in the
MSJ transcription.
60. [Objection No. 52] Further, the
placement of 2 notes before the bar
line and 2 notes after the bar line is a
defining creative choice that the
songs share here. In both songs, this
shared creative choice impacts stress-
points in the lyricsparticularly
emphasizing the key message lyric in
Blurred Lines which is good (of
52. Unsupported and
improper expert
656 F.3d at 952-53.
52. Overruled
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4112.060/822464.1 70
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the hooks good girl) on the strong
downbeat.
18

18
The first beat of the first full bar of
a section or an entire work is called
the downbeat. The downbeat is
considered a strong beat, and notes
placed on it are stressed more than
subsequent ones.
61. The backup vocals link to the
hook in Blurred Lines as they
accentuate and harmonize with it. The
MSJ omits the similar and identical
material here in the two songs.

iv. Similarity 4: Theme X (Core
Theme in Blurred Lines
and Backup Hook in Got
to Give it Up)
62. In discussing Theme X
(sung to the lyrics Dancin lady in
Got to Give it Up, and first with the
lyrics If you cant hear in Blurred
Lines), the MSJ states: The GIVE
Theme X does not appear in
BLURRED. [MSJ , p. 19, line 18.]
This is inaccurate and contradicts the

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4112.060/822464.1 71
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MSJ s own findings. For example, the
transcriptions shown in the MSJ on
page 20 demonstrate identical scale
degrees and rhythms in selected
variations of Theme X in Blurred
Lines. The MSJ further distorts by
highlighting only one of four notes as
similar in Got to Give it Up, even
though all 4 identical scale degrees
and rhythms are shown in the MSJ s
transcription of Blurred Lines.
63. Theme X is highly significant to
both songs, quantitatively and
qualitatively. Sung to the lyrics
Dancin lady in Got to Give it
Up, Theme X occurs 28 times
consecutively in Got to Give it Up
and is one of the hooks in the song,
occurring at the end so that it
resonates and is memorable to the
listener. Theme X in Blurred Lines
(first sung to the lyrics If you cant
hear) recurs throughout the song in
numerous variations, forming the
very core of the entire verse.

64. In the MSJ , this similarity is
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4112.060/822464.1 72
KING, HOLMES,
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discussed in isolation, outside the
context of the overall songs, as if the
excerpts shown in the transcriptions
on page 20 of the MSJ represent the
full extent of the similarities between
Lines. This is misleading, as quite to
the contrary, Theme X is ubiquitous
in Blurred Lines.
65. In discussing Theme X in both
songs, the MSJ misleads by
trivializing chromatic movement as a
mere commonplace musical idea or
device.
19
[MSJ , p. 19, line 23.] Of
course, by itself, the use of
chromaticism (a series of chromatic
pitches) alone does not dictate that
two musical works are substantially
similar. Rather, it is the way that the
chromaticism is expressed and the
creative choice that the usage
represents that defines a melody.
Chromaticism is used in a
substantially similar way in Got to
Give it Up and Blurred Lines. To
state that this does not constitute
.

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4112.060/822464.1 73
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substantial similarity is misleading,
and contradicts the MSJ s own
musical examples.

19
A chromatic series of pitches is one
in which the pitches immediately
adjacent to one another are sounded,
and as such deviate from the standard
series of pitches in a traditional scale.
For example, a chromatic scale
played on the piano would be
performed by striking consecutive
black and white keys in succession,
such as C-C-sharp (#), D-D#-E, and
so on.
The pitches in Blurred Lines are not
always sung precisely. Sometimes the
chromatic feature in Theme X of
Blurred Lines is less pronounced.
66. Specifically, as shown in the
transcriptions on page 20 of the MSJ ,
Got to Give it Up shows the scale
degrees 3-3-#2-3 sung to the lyrics
dancing lady, and in Example 4C
Blurred Lines contains the scale
degrees 3-3-#2-3-[repeat: #2-3], sung

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4112.060/822464.1 74
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to the lyrics okay now he was close.
In a later iteration, Blurred Lines
contains the identical scale degrees
and durations as in Got to Give it
Up, as shown with the lyrics And
thats where Im in Example 4D in
the MSJ .
20
All of the same scale
degrees in Got to Give it Up are
also found in Blurred Lines in
Theme X, and in both songs, these
scale degrees are in identical eighth
note rhythms.

20
The transcription in Musical
Example 1B of my preliminary report
contains the lyrics, And thats why
Im; the transcription in the MSJ
contains the lyrics And thats where
Im.
67. [Objection No. 53] To
distinguish Blurred Lines more
from Got to Give it Up, the creators
of Blurred Lines could have chosen
to express the lyrics okay now he
was close with scale degrees 5-3-1-
2-(1-2), or chromatic scale degrees 6-
53. Irrelevant. FRE
402.
Unsupported and
improper expert
53. Overruled
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4112.060/822464.1 75
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7-7-1-(7-1), using different
rhythms, such as sixteenth note or
dotted rhythms combined with eighth
notes.
21
Instead, they chose the same
scale degrees and rhythms as in Got
to Give it Up. This constitutes
substantial similarity.

21
Dotted rhythms are patterns of
rhythms of uneven value, creating an
uneven pattern of long-short or short-
long durations.
656 F.3d at 952-53.
68. Regarding Musical Example 4E
[MSJ , p. 20], this phrase is a
transposed variation of the similar
Theme X described above in Blurred
Lines.
22
[Objection No. 54] The
MSJ confuses by erroneously adding
additional notes (from the backup
vocals) in the transcription for this
particular phrase, which obscures the
similar contours.
23
The choice of a
precise contour is another creative
choice that the writers of both songs
shared.

54. Irrelevant. FRE
improper expert
656 F.3d at 952-53.

54. Sustained in
part

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4112.060/822464.1 76
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22
Transpose refers to the process of
changing a melody line (or chords) to
another key or another starting
position within the same key or
musical work. This does not change
the recognizability nor internal
relationships between notes. In other
words, a transposed melody sounds
virtually the same as its original
version. An example of a transposed
melody that is recognizable as
virtually the same as its original
iteration is found in the anthem
America, for the 2 phrases (a) land
where our fathers died and (b) land
of the pilgrims pride.
Key refers to the tonal center or
primary pitch of a musical
composition, and to the scale or series
of pitches that create the melodic and
harmonic material of the music.
23
Melodic contour describes the
overall shape of a melody, whether
it rises or lowers in register (going up
to a higher note or down to a lower
note) as it progresses on its course
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4112.060/822464.1 77
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from one note to the next.
69. The MSJ s prior art example for
Theme X misleads. In referring to
prior art, the MSJ and Ms. Wilbur did
not adhere to their own strict
standards of comparison as they
applied to Got to Give it Up and
Blurred Lines. For example, the
song Working in a Coal Mine
[MSJ , p. 19, line 27, through p. 20,
line 19; WD 180-183.] is discussed.
This song differs from both of the
songs at issue. For example, while
both Got to Give it Up and
Blurred Lines begin their phrases
with rests, followed by scale degree 3,
the comparable phrase in Working
begins with scale degree #2 and no
rest.
24

24
A rest is a period of silence within a
melody. Rests are assigned specific
rhythmic values, as if they were
notes. Consequently, a whole rest in a
traditional four-beat bar would last
four beats, a half rest two beats, a

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4112.060/822464.1 78
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quarter rest one beat, and so on. A
rest has expressive impact. The rests
in the songs at issue are distinctive
features in both songs, and their
similarities are significant to the
similar expression in Got to Give it
v. Similarity 5: Backup Hooks
(Theme X in Got to Give it
Up)
70. The MSJ again focuses only on
differences between the backup
hooks, disregarding their similarities
and their significance within the
Constellation of 8 Similarities and the
works as a whole. [MSJ , p. 20, line
24, through p. 21, line 7.] The backup
hooks are sung to the lyrics Dancin
lady in Got to Give it Up and
hey, hey, hey in Blurred Lines.

71. In dismissing these themes as
different, the MSJ omits the following
similarities: in both songs, the similar
phrase is sung to a series of half-step
tones in eighth notes, followed by two
quarter note rests (silence), and these

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4112.060/822464.1 79
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two elements repeat in alternation.
25

The backup hooks function similarly
in both songs. This theme is a
distinctive feature of both songs
identities, repeating a total of 28
times in Got to Give it Up and 21
times in Blurred Lines. The MSJ
does not deny the obvious
relationship here, but rather ignores it.

25
Half steps describe the movement
in a melody to the nearest adjacent
tone, either higher or lower. For
example, moving from the tone F to
F-sharp describes moving a half-step
higher; moving from B to B-flat
describes moving a half-step lower. A
series of half-step movements in a
melody is often described as
chromatic movement.
vi. Similarity 6: Bass Melodies
72. In comparing the bass melodies
in Bars 1-4, the MSJ states: There
are no similarities between the bass
patterns other than playing the root.
[MSJ , p. 17, lines 27-28.] This is

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4112.060/822464.1 80
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glaringly inaccurate and highly
misleading. The bass melodies here,
as shown in the MSJ s transcription
on page 18, actually contain several
significant concrete similarities:
a. both songs contain the same
idiosyncrasy: the bass plays one
note, followed by rests, then 2
notes, followed by rests, then 2-3
notes (2 in Got to Give it Up, 3
in Blurred Lines),
26
followed
by rests, then 2-3 notes (3 in
Got to Give it Up, 2 in
Blurred Lines). This is
important, as it demonstrates
consecutive similar creative
choices in distinctive traits. It is
highly unlikely to be a result of
coincidence.
b. both contain scale degree 1 (the
root) as an anchoring tone
c. both play this identical scale
degree 1 on the first downbeat,
as well as on the second half of
beat 4 in Bars 1 and 2, in
identical rhythms

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4112.060/822464.1 81
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d. both depart from scale degree 1,
moving to scale degree flat
(lowered) 7 and returning to 1, as
well as to scale degree 4, then
returning to 1 (sometimes with
intervening scale degrees)
e. where they contain scale degree
flat (lowered) 7, this occurs in
beat 4 of both songs
f. identical rhythms (including
pitches and rests) are found in 3
out of 4 beats in Bars 1-3
g. both songs contain a quarter rest
on beat 2 in all 4 bars.

26
One iteration of this melody in
Blurred Lines contains 2 notes here,
as found in Got to Give it Up.
73. The MSJ s inappropriate
methodology results in an erroneous
dismissal of nearly all of the above
similar features, literally because all 3
factors of melodic similarity do not
occur on every single note.

74. Further, the MSJ misleads by
grossly trivializing the significance of

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4112.060/822464.1 82
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this similarity, by limiting its
description to the first 4 bars of the
song, implying that this is an isolated
occurrence. Rather, the similar bass
material occurs in Blurred Lines in
a total of 62 barsnearly half of the
songs 130 bars.
27
It is reiterated a
total of 15 times at regular intervals
throughout Blurred Lines, forming
cohesion and structure. Its reiteration
functions similarly in Got to Give it
Up, where it also provides an
important melodic/harmonic anchor
for the song. This significance is not
addressed in the MSJ .

27
These bars in Blurred Lines are:
1-4, 9-12, 17-20, 25-28, 33-36, 41-44,
49-52, 57-60, 65-68, 73-76, 81-84,
97-100, 105-108, 113-116, 121-124,
and 129-130.
75. Based on its erroneous dismissal
of all of the above similarities, the
MSJ mistakenly concludes: The only
minimal similarity in the bass lines
relates to commonplace ideas

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4112.060/822464.1 83
KING, HOLMES,
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(playing the root on or before the first
beat) that are not protectable in
GIVE. [MSJ , p. 18, lines 18-19.] On
the contrary, the bass melodies
contain significant similarities in
concrete content and function,
proving that they are mischaracterized
as ideas. Rather, the bass melodies
represent a series of shared creative
choices, resulting in similar
expressive content.
76. There are many available melodic
possibilities that can be chosen in
creating a bass melody, even within
the funk or soul genres. The
genre does not dictate the specific
pitches of a bass melody. [Objection
No. 55] For example, instead of the
scale degrees 5-7-1 in Bars 3-4, the
creators of Blurred Lines could
have chosen scale degrees 3-2-1.
The choice to use the same scale
degrees here as did Got to Give it
Up (7-1) along with many similar
rhythms throughout Bars 1-4,
represents a deliberate choice, and

55. Irrelevant. FRE
improper expert
656 F.3d at 952-53.

55. Overruled
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4112.060/822464.1 84
KING, HOLMES,
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this constitutes substantial similarity.
Despite the incidental notes that the
writers of Blurred Lines added to
their bass melody, this does not
obviate that they still captured both
identical primary pitches and many of
the distinctive syncopated rhythms in
this bass melody of Got to Give it
Up.
28

28
If a tone is raised, it is referred to as
sharp, indicated with a # symbol.
If it is lowered, it is referred to as
flat, and is indicated with a
symbol.
77. Even where the MSJ does find
similarity in the bass melodies, they
are misleadingly trivialized as
devices. For example, the MSJ
states: it is a commonplace musical
device to have the bass play the root
note [scale degree 1] on the first beat
of a measure. [MSJ , p. 17, lines 23-
24.] However, in comparing both
Lines, the similarities surpass the

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4112.060/822464.1 85
KING, HOLMES,
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first scale degree on the first beat. As
shown throughout this review, the
MSJ again misleads by
deconstructing and isolating one
element within one similarity,
whereas, in truth, this element is
found combined with many other
similar elements in the bass melodies.
This constitutes substantially similar
expression.
78. Further, the MSJ overlooks the
shared creative choices in pitch and
distinctive rhythms, including
syncopations and rests, present in
Blurred Lines, but not in the prior
art song Superfly, cited on page
18.
29
In this statement, the MSJ
erroneously claims that Blurred
Lines is more similar to Superfly
than it is to Got to Give it Up, even
though the MSJ s own transcription
demonstrates that Superfly lacks
the similar elements a, d (scale degree
4), e, f and g as described in
paragraph 72 above. This is incorrect

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4112.060/822464.1 86
KING, HOLMES,
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and misleads.

29
Syncopation refers to a
disturbance of the normal pulse
within the music, which creates an
uneven effect, such as a short rhythm,
followed by a long rhythm. This is
found in such songs as George
Gershwins I Got Rhythm.
vii. Similarity 6C and 6D:
Descending Bass Melody
79. The MSJ finds that Got to
Give it Up and Blurred Lines
share only one note in their
descending bass melodies. This is
inaccurate and misleading. Here, the
MSJ erroneously omits the similar
scale degrees: 5-4-3-1 in Got to
Give It Up, compared to 5-5-4-4-3-
3-2-2-1 in Blurred Lines.
30

Analytically, the addition of each
repeated pitch before descent to the
next pitch in Blurred Lines is
irrelevant, and does not make
Blurred Lines less similar to Got
to Give it Up in a material way. In
Improper expert
opinion. FRE 702.

Sustained in part
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4112.060/822464.1 87
KING, HOLMES,
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addition, the scale degree
designations as found in my
preliminary report in Musical
Examples 6C and 6D are even
omitted in the transcription on page
21 of the MSJ . This obscures.

30
In comparing Got to Give it Up
and Blurred Lines, scale degrees
3 and 3 are not identical; however,
they both descend stepwise from the
identical preceding scale degree 4 and
arrive at the same target of scale
degree 1. Stepwise ascent or descent
is the movement of tones in a melody
to an adjacent scale degree, either to a
higher register (ascending) or lower
register (descending).
80. Further, the descending melody in
Blurred Lines takes on a
significantly high quantitative
significance, occurring regularly at 8-
bar intervals (throughout the entire
song, a total of 15 times). Together,
the two bass melody similarities
discussed above are found in 77 out

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4112.060/822464.1 88
KING, HOLMES,
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of 130 bars in Blurred Lines, or
nearly 60 % of the song. This is an
unusually high proportion of similar
material, even in a copyright
infringement case.
81. The MSJ dismisses the
similarities here, stating: It is a
commonplace musical device to have
a descending bass line at the end of a
phrase. [MSJ , p. 21, lines 11-12.]
This is an over-simplification and
misleads. This descending bass
melody is much more than a device.
In minimizing its importance, the
MSJ obscures.

.

82. The MSJ s own transcription on
page 21 contradicts its claim that the
two bass lines have only one note in
common. Rather, the transcription
demonstrates the identical pitches E,
D, and A.

83. Both songs express similar
creative choices here. Nothing in the
genre dictates the use of a descending
bass melody. [Objection No. 56]
Rather, the writers of the phrase in

56. Irrelevant. FRE
402.

56. Sustained for
purposes of this
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4112.060/822464.1 89
KING, HOLMES,
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Blurred Lines could instead have
chosen to end the phrase with: (a) an
ascending melody, or (b) repeats of a
single note, or (c) a melody that first
descends, then ascends, and so forth.
Instead, the creators of Blurred
Lines chose to use a bass melody
that descends from scale degrees 5 to
1, as did Got to Give it Up.
Unsupported and
improper expert
656 F.3d at 952-53.
Motion only. The
descending bass
melody does not
appear in the Got
to Give It Up
copyright deposit.
See Ruling on
Objection No. 44,
supra.

84. The MSJ s use of highlights here
is again misleading and inaccurate. In
its musical example of the descending
bass melody on page 21, the MSJ
highlights only one note, ignoring the
similarities discussed above. This is a
result of the distorted methodology in
which similar features are reduced to
isolated elements and finally, note by
note, characterized as mere devices or
ideas, none of which the MSJ or the
Wilbur Declaration have
substantiated.

85. This similar descending bass line
plays a pivotal structural role in
Blurred Lines, as it recurs at the

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4112.060/822464.1 90
KING, HOLMES,
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end of each section to herald the
beginning of a new portion of the
song.
86. [Objection No. 57] In sum, the
two overriding similarities here,
namely (a) the bass melody first heard
in Bars 1-4 (shown in Musical
Examples 6A and 6B in my
preliminary report) and (b) the
descending bass melody ending
(shown in Musical Examples 6C and
6D in my preliminary report), are
combined in both songs and found
repeatedly. They are substantially
similar.
57. Unsupported and
improper expert
656 F.3d at 952-53.
57. Sustained in
part for purposes
of this Motion
only. The
descending bass
melody does not
appear in the Got
to Give It Up
copyright deposit.
See Ruling on
Objection No. 44,
supra.
viii. Similarity 7: Keyboard
Parts
87. The MSJ mischaracterizes the
keyboard parts as different and omits
the transcription found in the Wilbur
Declaration. Significantly, Ms.
Wilburs own transcription
contradicts this statement in the MSJ ,
showing all 3 pitches in every single
chord iteration in Blurred Lines to
be found in Got to Give it Up (the

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4112.060/822464.1 91
KING, HOLMES,
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shared pitches are shown as A/C#/E
for each chord). [WD, 224.] This
omission in the MSJ is misleading.
Ms. Wilbur finds the keyboard parts
to be even more similar than shown in
my preliminary report, and the MSJ
obscures this.
31

31
In Musical Examples 7A and 7B of
my preliminary report, I find 2 out of
3 simultaneous pitches in every chord
iteration in Blurred Lines also in
Got to Give it Up: the pitches being
C#/ E, or scale degrees 3 / 5.
Regardless of this discrepancy, both
Ms. Wilbur and I agree that the songs
both contain the same basic chord, A
major, and that Blurred Lines omits
one pitch found in Got to Give it
Up (G).
88. Concerning the rhythms in the
keyboard parts, the Wilbur
transcription is incorrect. [WD, 224.]
This error leads to a faulty
conclusion. In comparing Bars 1-2 of
both songs, while Got to Give it Up

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4112.060/822464.1 92
KING, HOLMES,
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does contain a chord on the first
downbeat, all of the remaining chords
are on offbeats just as in Blurred
Lines.
32
In Blurred Lines, the
keyboard does not play on the fourth
beat (as erroneously shown in the
Wilbur transcription). This is
significant, because both songs share
a distinctive feature of rhythmic
suspension here (as discussed in
paragraph 32b of my preliminary
report), and that similarity is
incorrectly omitted in the MSJ .

32
Musical phrases are divided into
groups of beats, which alternate
between strong and weak beats. The
offbeat represents a tone that is
struck after the main part of the beat
and is considered to be in a weaker
position than if it were to occur
immediately on the beat. This
technique often results in a distinctive
rhythm, as is the case here. In Got to
Give it Up, the offbeats are in beats
2, 3 and 4 of Bar 1, and beats 1, 2,
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4112.060/822464.1 93
KING, HOLMES,
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and 3 of Bar 2. In Blurred Lines,
the offbeats are in beats 1, 2, and 3 of
both Bar 1 and Bar 2.
89. While the MSJ does agree that the
keyboard parts in each song include
chords played on the offbeats, its
mischaracterization of this material as
a commonplace musical idea
misleads. [MSJ , p. 21, lines 27-28.]
[Objection No. 58] The keyboard
material represents much more than a
mere idea of placing chords on the
offbeat, rather, this comprises similar
compositional content. Again, in this
example, the songs keyboard parts
share identical scale degrees,
rhythmic duration, rhythmic
placement, and a distinctive rhythmic
suspension feature, meaning that they
share meaningful expression, content
that far exceeds an idea.

58. Unsupported and
improper expert
656 F.3d at 952-53.

58. Sustained for
purposes of this
Motion only. This
keyboard material
does not appear in
the Got to Give It
Up copyright
deposit. See
Ruling on
Objection No. 44,
supra.

90. [Objection No. 59] The creators
of Blurred Lines could have chosen
a different keyboard rhythm than that
found in Got to Give it Up, and in
so doing would have differentiated
59. Irrelevant. FRE
improper expert
59. Sustained for
purposes of this
Motion only. This
keyboard material
does not appear in
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4112.060/822464.1 94
KING, HOLMES,
PATERNO &
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their works from one another. For
example, the writers of Blurred
Lines could have chosen to write a
succession of rhythms, comprised of
one quarter note, followed by two
eighth notes, then one offbeat, and
one quarter note. Instead, they used
the same rhythms, scale degrees, and
distinctive feature of rhythmic
suspension that are found within the
same function (keyboard) in Got to
Give it Up, thereby making the same
creative choice. This constitutes
substantial similarity.
656 F.3d at 952-53.
the Got to Give It
Up copyright
deposit. See
Ruling on
Objection No. 44,
supra.

91. Citing irrelevant prior art in Low
Rider [MSJ , p. 21, line 28, through
p. 22, line 1], the MSJ provides an
example that is dissimilar from the
songs at issue because it has far fewer
pitches and rhythms in common with
Got to Give it Up or Blurred
Lines than do these two songs with
one another. Misleadingly, the MSJ
also omits the dissimilar transcription
of Low Rider found in the Wilbur
Declaration. [WD, p. 12.]

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4112.060/822464.1 95
KING, HOLMES,
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92. Low Rider is irrelevant prior
art, containing only an electric piano
part with chords on some offbeats,
but also on beats 3 and 4 (not
offbeats), and therefore lacks the
similarity in pitches and rhythms
found between Got to Give it Up
and Blurred Lines. The pitches are
altogether different in Low Rider
compared to Got to Give it Up and
Blurred Lines, which are vastly
more similar to one another.
Specifically, the pitches in Ms.
Wilburs own transcription of Low
Rider are: C#/E - D/F#- E/G - E/G -
D/F#- C#/E - D/F#- E/G - E/G -
D/F#, whereas the pitches shared in
Lines are C#/E, repeated (or,
according to Ms. Wilbur, A/C#/E,
repeated). The transcription of Low
Rider shown in the Wilbur
Declaration actually demonstrates
that the overall scale degrees and
rhythms are different in Low Rider,
whereas they are much more similar

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4112.060/822464.1 96
KING, HOLMES,
PATERNO &
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to one another in comparing Got to
Give it Up and Blurred Lines.
ix. Similarity 8: Unusual
Percussion Choices
93. The MSJ points out that the
cowbell sound was produced with a
Coke bottle in Got to Give it Up.
[MSJ , p. 22, lines 12-13.] This is not
something that is perceived by the
listener, as the Coke bottle in Got to
Give it Up and the cowbell in
Blurred Lines share both their sonic
quality and function here. Further,
both instruments play syncopated
rhythms and are an indispensable
identifying feature. However, the
MSJ confuses, stating: In GIVE,
there is no cowbell; this statement
is tantamount to claiming that there is
no violin in a song where the violin
sound is actually produced by a
synthesizer containing a violin
sound function.

94. The MSJ misleadingly reduces the
open hi-hat on the second half of beat
4 to an idea that predates Got to

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4112.060/822464.1 97
KING, HOLMES,
PATERNO &
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Give it Up.
33
[MSJ , p. 22, lines 10-
12.] [Objection No. 60] This shared
open hi-hat element is actually the
result of a specific creative choice
that contributes to the character of
both songs, and is not dictated by any
genre. Importantly, this similarity is
part of the Constellation of 8
Similarities between Got to Give it

33
A hi-hat is one of the instruments
found in a standard drum set. It is
constructed of two cymbals placed
horizontally on a stand and connected
to a pedal that, when pressed and
released, opens and closes the two
cymbals against each other to create a
muted percussive sound. It can also
be played by striking it with a
drumstick or brush, either with the
cymbals brought together (closed)
or kept apart (open), as is the sound
represented here described as an
open hi-hat..

60. Irrelevant. FRE
improper expert
656 F.3d at 952-53.

60. Sustained for
purposes of this
Motion only. This
open hi-hat
element does not
appear in the Got
to Give It Up
copyright deposit.
See Ruling on
Objection No. 44,
supra.
x. Additional Distinctive
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4112.060/822464.1 98
KING, HOLMES,
PATERNO &
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Similarities
95. [Objection No. 61] Got to Give
it Up and Blurred Lines share
additional features that enhance the
similarity of the two songs. The
similar use of these specific collective
traits reflects the same creative
choices. The MSJ disregards the
significance of these enhancing traits,
and again applies the same distorted
methodology described above,
isolating and dissecting each of these
features, and overlooking their
relevance and significance to these
particular songs, as discussed below.

61. Irrelevant. FRE
improper expert
656 F.3d at 952-53.

61. Sustained in
part
96. The MSJ states: Falsetto singing
predates GIVE. [MSJ , p. 22, line 28,
through p. 23, line 1.] This distorts
my point in paragraph 37 of my
preliminary report. [Objection
No. 62] I never claimed that the
writers of Got to Give it Up
originated the use of the falsetto voice
in their scoring, but that it is a
distinctive sound and functions
similarly in both songs.
34
When

62. Irrelevant. FRE
improper expert
656 F.3d at 952-53.

62. Sustained for
purposes of this
Motion only. The
use of falsetto
voice does not
appear in the Got
to Give It Up
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4112.060/822464.1 99
KING, HOLMES,
PATERNO &
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compounded with some of the other
distinctive scoring choices, and
especially with the multitude of
substantially similar content in most
of the primary vocal and instrumental
melodies in Blurred Lines, the
choice of falsetto voice additionally
suggests the likelihood that Blurred
Lines modeled its recording after
Got to Give it Up. There is nothing
in the style of either song that dictates
the choice of a male falsetto voice,
and the writers of Blurred Lines
could easily have chosen instead to
use a high soprano or mid-range male
voice instead, but they made the same
creative choice as in Got to Give it
Up.

34
Falsetto describes an artificial
method of singing, used mostly by
male singers to reach notes above
their ordinary range. It was used in
the 16
th
century in Italian opera, and
remains a popular special vocal effect
today. Harvard Dictionary of Music,
copyright deposit.
See Ruling on
Objection No. 44,
supra.
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4112.060/822464.1 100
KING, HOLMES,
PATERNO &
BERLINER, LLP
Second Edition by Willi Apel,
Harvard University Press, 1979.
97. The MSJ states that there is no
party noise in Blurred Lines.
[MSJ p. 23, line 1.] This contradicts
the Wilbur Declaration which does
acknowledge vocal whoops in
Blurred Lines. This is significant.
[WD 245.] These whoops are
followed by a percussive jangle
sound, emulating the clinks of
drinking glasses, and in combination
these sounds evoke a party
atmosphere similar to the one in
GoGot to Give it Up. It is
misleading to omit Ms. Wilburs
finding that includes whoops, and
to ignore the actual sounds found on
Blurred Lines.

98. The MSJ has criticized my
description of the omission of guitar.
[Objection No. 63] To clarify, it is as
much a deliberate creative choice to
depart from the norm as it is to
remain within it.
35
The choice to
deviate here, by omitting the standard

63. Irrelevant. FRE
improper expert

63. Overruled
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4112.060/822464.1 101
KING, HOLMES,
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guitar in both songs, and the resulting
specific sonority that both songs share
contributes to their similarity.
36
Had
the writers of Blurred Lines chosen
to include a guitar, or instead use
another stringed instrument such as a
banjo or harp, or even a brass
instrument such as a trumpet, the
resulting song would have differed in
this respect from Got to Give it Up.
Instead, the writers of Blurred
Lines made similar creative choices
to the creators of Got to Give it Up.

35
The MSJ mentions that GIVE
Part 2 has a guitar. [MSJ , p. 23, line
2.] This is referring to another version
of Got to Give it Up that I did not
study for my preliminary report and
has no bearing on the similarities
found between Give Part 1 and
Blurred Lines.
36
Sonority refers to the quality of a
sound, such as that of a particular
instrument, and is one element that
contributes to the distinctiveness of a
656 F.3d at 952-53.
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4112.060/822464.1 102
KING, HOLMES,
PATERNO &
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given recording.
99. The MSJ further trivializes these
similar choices as an arrangement
choice, not an element of the musical
composition. [MSJ , p. 23, lines 2-
4.]. [Objection No. 64] This is
misleading. As stated above under the
description of the falsetto vocal
choice, nothing in the genre controls
the exact instrumentation or scoring
chosen by the composer. This is the
decision and creative choice of the
individual songs creator. Certainly
the timbres of the instruments and
vocalists chosen especially when
compounded with the high degree of
similar musical content that they are
performing do represent significant
artistic expression.
37
The writers of
Blurred Lines could have chosen
from an abundant array of
instrumental and vocal alternatives.
Instead, the writers of Blurred
Lines chose similar melodic
material, instrumental timbres, sound
effects, and vocal colors as did the

64. Irrelevant. FRE
improper expert
656 F.3d at 952-53.

64. Sustained in
part as to the
struck-through
text, and sustained
for purposes of
this Motion only
so far as the
timbres refer to
elements of the
sound recording as
opposed to the
copyright deposit.
See Ruling on
Objection No. 44,
supra.
#:3676
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4112.060/822464.1 103
KING, HOLMES,
PATERNO &
BERLINER, LLP
creators of Got to Give it Up and
this constitutes shared creative
expression.

37
Timbre describes the distinctive
character of a musical instrument or
vocal sound. For example, a violin
and trumpet differ from one another
in their timbres, even if they are
playing the same melodies. Likewise,
a male falsetto voice differs in timbre
from a baritone voice.
D. Findings on Prior Art
100. The MSJ and the Wilbur
Declaration find no prior art that
disproves substantial similarity
between Got to Give it Up and
Blurred Lines, as explained below.

101. None of the prior art presented in
the MSJ and the Wilbur Declaration
demonstrates all of the features that
are combined in Got to Give it Up
and Blurred Lines. For example, in
discussing the Constellation of 8
Similarities, the MSJ lists elements
contained in the three songs Low

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4112.060/822464.1 104
KING, HOLMES,
PATERNO &
BERLINER, LLP
Rider, Superfly, and
Funkytown. [MSJ , p. 11, line 23,
through p. 12, line 9.] All of the prior
art examples lack substantiation.
Regardless, considering the MSJ s
lists of elements contained in the
three prior art songs, none of them
contains even close to all of the 8
Similarities found thus far in Got to
Give it Up and Blurred Lines. For
example:
a. Low Rider does not
contain the hook, descending bass
melody, open hi-hat rhythm, and the
back-up vocals within the hook. This
means that Low Rider lacks nearly
half of the Constellation of 8
Similarities, and is not remotely as
similar to Got to Give it Up as is
Blurred Lines. I have reviewed the
recording of Low Rider, which was
attached as an audio exhibit to the
MSJ . This recording has confirmed
my findings as to its irrelevance to the
songs at issue here.
b. Superfly contains no
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4112.060/822464.1 105
KING, HOLMES,
PATERNO &
BERLINER, LLP
similarities as found in the vocal
melodic material (Similarities 1-5),
nor the descending bass lines or
keyboard parts.
c. Funkytown does not
contain the hook and accompanying
backup vocals, most of the signature
phrase, Theme X, the keyboard parts
or the open hi-hat.
102. No substantiation is provided for
most of the prior art in the Wilbur
Declaration. There are no
transcriptions or recordings attached
for the vast majority of the songs
cited, such as those performed by
Chuck Berry, the Beatles, Barry
White, Stevie Wonder, and others.
[WD 121, 132, 237, 239, and 244.]

103. The Wilbur Declaration does
provide transcriptions of prior art for
some isolated similar elements, and
most of these transcriptions are
omitted in the MSJ . The Wilbur
Declaration transcriptions show
examples of (a) similarity that does
not meet the same stringent standards

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4112.060/822464.1 106
KING, HOLMES,
PATERNO &
BERLINER, LLP
applied by the MSJ and the Wilbur
Declaration in comparing and
dismissing Got to Give it Up and
Blurred Lines, and (b) elements that
are less similar to Got to Give it Up
and Blurred Lines than the latter
two are to each other. For example:
a. The instrumental
melody in the Low Rider
transcription on page 11 of the Wilbur
Declaration (termed signature
phrase in 74) shows 6 eighth notes
in a row, but in a different placement
in the measure where both Got to
contain the same placement.
b. The piano part in the
Low Rider transcription on page 12
does not have full chords as in Got
to Give it Up and Blurred Lines,
but rather only two simultaneous
notes. These notes are altogether
different in Low Rider as compared
to the substantially similar notes in
Lines. The scale degrees in the piano
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4112.060/822464.1 107
KING, HOLMES,
PATERNO &
BERLINER, LLP
part of Low Rider differ entirely
from both Got to Give it Up and
Blurred Lines: Got to Give it Up
and Blurred Lines share the
simultaneous scale degrees 3-3-3 in
the lower line and 5-5-5 in the upper
line, repeated. In contrast, the Low
Rider transcription here contains
simultaneous scale degrees 3-4-5-5-4-
3-4-5-5-4 in the lower line and 5-6-
7-7-6-5-6-7-7-6 in the upper
line.
c. Catch A Falling Star
is transcribed on page 18 of the
Wilbur Declaration to show prior art
for repeated tones, which is only one
of the combination of 5 shared
identifying elements in the signature
phrases of Got to Give it Up and
Blurred Lines. Additionally, these
repeated tones in Catch A Falling
Star are rhythmically less similar
than are Got to Give it Up and
Blurred Lines to one another.
Whereas Blurred Lines and Got to
Give it Up both begin with an eighth
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4112.060/822464.1 108
KING, HOLMES,
PATERNO &
BERLINER, LLP
note rest on the downbeat, Catch A
Falling Star begins with scale degree
3. All three songs then continue with
eighth notes, but diverge again in
beats 3 and 4 where Catch A Falling
Star contains a quarter note, while
Lines both contain eighth notes.
d. The transcription of
Low Rider on page 30 of the
Wilbur Declaration is used to show
chromatic movement, but the scale
degrees are completely different from
Blurred Lines. Whereas Got to
Give it Up and Blurred Lines both
contain scale degrees #2 and 3 in
most of the iterations of Theme X
discussed above, Low Rider
contains scale degrees 6 and b7.
104. Ms. Wilbur provides lists with
no substantiation for the elements of
the cowbell (237), open hi-hat on the
second half of beat 4 (239), and
falsetto voice (244) discussed in my
preliminary report in paragraphs 33-

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4112.060/822464.1 109
KING, HOLMES,
PATERNO &
BERLINER, LLP
34. [Objection No. 65] To clarify, I
never stated that these were the only
songs ever written with these
sonorities and instrumentation, but
that they are further substantiation,
along with the multitude of melodic
similarities cited, that Blurred Lines
is substantially similar to Got to
Give it Up, and contains many of the
same distinctive sonic and melodic
expression choices. None of Ms.
Wilburs examples disprove this, nor
offer any substantiation that a similar
Constellation of 8 Similarities of
expressive content exists combined
anywhere else in the literature.
65. Irrelevant. FRE
improper expert
656 F.3d at 952-53.
65. Sustained
E. Additional Disagreements with
the Wilbur Declaration Statements
Excluded from the MSJ
105. The Wilbur Declaration
made some claims not yet discussed
in the report above, which either
mislead or are inaccurate.

106. The paragraph numbers below
refer to the Wilbur Declaration.

107. In 63, Ms. Wilbur states:
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4112.060/822464.1 110
KING, HOLMES,
PATERNO &
BERLINER, LLP
Similarities 1 through 8 do not
reflect material that is significant to
BLURRED. This is incorrect and
misleading. As discussed in Section C
above, this material is, rather, highly
significant to Blurred Lines. It is a
serious musicological error to state
otherwise. Ms. Wilbur is stating that
the signature phrase, hook, main
verse material (Theme X), the backup
hook (hey, hey, hey) and the bass
line are not crucial to Blurred
Lines. The similar bass melodies
alone occupy 77 bars of Blurred
Lines. Together, the Constellation of
8 Similarities permeates Blurred
Lines. Characterizing this
exceedingly high proportion of
similar material as insignificant is not
believable.
108. In 111, discussing the signature
phrase, Ms. Wilbur states: The Finell
Report fails to compare the full
melodic phrases. This is incorrect.
Musical Examples 1A and 1B in my
preliminary report detail all of the

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4112.060/822464.1 111
KING, HOLMES,
PATERNO &
BERLINER, LLP
scale degrees, rhythms, and 5
identifying elements of Got to Give
it Up and Blurred Lines. Nothing
was actually omitted from the phrase
in my report.
109. Typifying the entire Wilbur
Declaration approach, Ms. Wilbur
isolates each one of the 5 similar
identifying elements within the
signature phrase, citing prior art for
only selected elements. By doing so,
she either micro-analyzes or provides
less similar examples compared to
Lines.

110. In 179, Ms. Wilbur states that
notes in reverse order bear no
resemblance to the original sequence
if they do not have the same duration
and placement in the measure. She is
specifically discussing Theme X here,
and is incorrect in two regards. First,
the songs do share 3 out of 4 rhythms
(duration) here as well as rhythmic
placement (both songs begin their
similar scale degree sequence on beat

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4112.060/822464.1 112
KING, HOLMES,
PATERNO &
BERLINER, LLP
2). Second, in Theme X, Got to Give
it Up contains the scale degrees 3-3-
#2-3, and in some of the iterations of
Theme X in Blurred Lines, this is
reversed to 3-#2-3-3. This is a
melodic compositional technique
referred to as retrograde, and the
relationship between the original
series of pitches in Got to Give it
Up and the precise reversal of these
pitches in Blurred Lines is a known
variation method. However, this is
more than a shared retrograde device,
as the precisely identical scale
degrees from Got to Give it Up are
also found in Blurred Lines, and
this constitutes substantial similarity.
Ms. Wilburs findings here mislead.
111. In 249, Ms. Wilbur states: Any
perceived similarity in the sound of
the recordings of BLURRED and
GIVE does not relate to their
underlying compositions but instead
concerns arrangement, performance,
or production elements that are not
original to GIVE. [Objection No.

66. Irrelevant. FRE

66. Sustained in
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4112.060/822464.1 113
KING, HOLMES,
PATERNO &
BERLINER, LLP
66] This obscures, and is a thinly
veiled attempt to dismiss the
recording of Got to Give it Up from
the comparison process in favor of the
Copyright Deposit, when the
recording is the most complete
representation of the composition,
and the most valid comparison to the
recording Blurred Lines. This is
obstructive, and leads to incomplete
and unreliable findings.
402. The Gayes do
not own a copyright in
the sound recording.
is the sheet music.
part as to the
struck-through
text, and sustained
for purposes of
this Motion only
as to the remaining
text. See Ruling on
Objection No. 44,
supra.
F. Section F: The MSJ Departs
From and Distorts the Wilbur
Declaration and Finell Preliminary
Report
112. The MSJ departs from the
Wilbur Declaration and my own
preliminary report of October 17,
2013 and misleads as discussed
below.

113. The MSJ modifies and distorts
some of the findings in the Wilbur
Declaration. For example:
a. In 58, Ms. Wilbur
states: The eight Similarities are
primarily melodic. This admission

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4112.060/822464.1 114
KING, HOLMES,
PATERNO &
BERLINER, LLP
and agreement with our findings was
omitted from the MSJ .
b. In 62, Ms. Wilbur
states: Similarities 1 through 8 do
not reflect material that is original to
GIVE. First, the MSJ instead states:
Any similarities in actual expression
are insignificant and commonplace
practices and do not represent
expression that is original to GIVE
[MSJ , p. 23, lines 7-9], which is an
overstatement. It is not credibly
substantiated by the Wilbur
Declaration, the MSJ , or any of the
prior art cited by either document.
c. 253 of the Wilbur
Declaration states that the similarities
between the two songs do not
represent expression original to Got
to Give it Up. The MSJ adds words
throughout that often differ from the
Wilbur findings, however. For
example, in discussing the bass lines,
the MSJ states that the similarity
relates to commonplace ideas . . .
that are not protectable in Got to
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4112.060/822464.1 115
KING, HOLMES,
PATERNO &
BERLINER, LLP
Give it Up. [MSJ , p. 18, lines 18-
19.]
114. Ms. Wilbur claims in 64, The
constellation of those eight
Similarities, taken together, does not
comprise any substantial similarity
between BLURRED and GIVE. The
MSJ then states this as: The
constellation of eight alleged
Similarities . . . are not substantial
similarities or similarities at all.
[MSJ , p. 9, lines 12-13.] However,
the MSJ does not substantiate this
claim, but rather goes to great lengths
to analyze and dissect every element
and its component features, within the
Constellation of 8 Similarities.

115. Constellation of 8 Similarities:
The MSJ provides a misleading list of
the 8 similarities, introducing it as
the eight alleged Similarities
identified in the Finell Report, on
pages 9-10. However, the MSJ
confuses by presenting a composite of
my own statements with Ms. Wilburs
opinion as found in the Wilbur

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4112.060/822464.1 116
KING, HOLMES,
PATERNO &
BERLINER, LLP
Declaration (57) with no division
between them. This leads to a
misunderstanding of my own analysis
and assessment. This is very
important, and a significant
obfuscation. For example, regarding
Similarity 2, Musical Examples 2A
and 2B in my preliminary report show
that the two songs share 3 out of 4
scale degrees in their hook phrases.
The MSJ attempts to minimize this to
Hook phrases with some similar
notes (though with different
durations, rhythms, and placement in
the measures). Describing Similarity
7, Keyboard Parts, I stated in
paragraph 32 of my preliminary
report that The keyboard parts in
both songs are very similar,
containing chords in rhythms that
emphasize the offbeats, performed
with staccato articulation.
38
Instead,
the MSJ modifies this to a weaker
assessment: A keyboard part that
plays chords on some offbeats.
[MSJ , p. 10, lines 12-13.]
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4112.060/822464.1 117
KING, HOLMES,
PATERNO &
BERLINER, LLP

38
Articulation refers to the manner in
which a particular note or group of
notes is physically performed vocally
or on a musical instrument; for
example, short, with a sharp attack
(staccato); smoothly connected
(legato); long but separated, and so
on.
116. My own descriptions are
modified and re-configured similarly
throughout this section of the MSJ ,
changing my meaning and obscuring
my opinion. They do not accurately
represent the similarities identified in
my report, but rather distort them.

G. After the Dance v. Love
After War
117. In discussing After the
Dance as compared to Love After
War, the MSJ states: Defendants
copyright in DANCE is limited to the
material reflected in the copyright
deposit sheet music. [MSJ , p. 23,
lines 21-22.] While I already
discussed the problematic issues with

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4112.060/822464.1 118
KING, HOLMES,
PATERNO &
BERLINER, LLP
this approach above regarding Got to
Give it Up, the same applies to
After the Dance.
118. [Objection No. 67] In the case
of After the Dance, the elimination
of the recording is a critical mistake
and entirely inappropriate towards
accurately defining the underlying
song. In After the Dance, the
simultaneous lead and backup vocal
melodies intertwine in a way that they
function as a unit, alternating in their
prominence, and blending together in
their roles as primary and secondary
melodic lines. This differs from the
more standard domination of the lead
vocals and subordination of the
backup vocals.
67. Irrelevant. FRE
402. The Gayes do
is the sheet music.
67. Sustained as
to the struck-
through text, and
sustained for
purposes of this
Motion only as to
the remaining text.
See Ruling on
Objection No. 44,
supra.
119. [Objection No. 68] This is
especially important in this case
because the Copyright Deposit
represents only one vocal melody at a
time. It does not at all reflect the
complexity of the true underlying
material of the song. When the MSJ
only uses the Copyright Deposit to
68. Irrelevant. FRE
402. The Gayes do
is the sheet music.
68. Sustained as
to the struck-
through text, and
sustained for
purposes of this
Motion only as to
the remaining text.
See Ruling on
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4112.060/822464.1 119
KING, HOLMES,
PATERNO &
BERLINER, LLP
arrive at its conclusions, it is
dismissing vocal material found on
the recording that is integral to the
composition. The result is that the
MSJ s findings and conclusions are
based on incomplete materials.
Objection No. 44,
supra.
120. The MSJ mischaracterizes
After the Dance and Love After
War as disparate. [MSJ , p. 24, line
3.] This is inaccurate and misleading,
as there are obvious and material
similarities between them. The MSJ
additionally (in its own words)
speculates as to why the two songs
are found similar. [MSJ , p. 24, line 3.]
This is unnecessary, as the similarities
are contained in the content of the
vocal melodies and harmonies. The
problem is that the MSJ only
recognizes a limited part of the vocal
melodies, namely only one of the
simultaneous interlocking vocal lines,
while overlooking much of the
material containing the most
significant similarities.

121. As a result of its faulty
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4112.060/822464.1 120
KING, HOLMES,
PATERNO &
BERLINER, LLP
methodology, the MSJ finds only one
note in common between After the
Dance and Love After War. [MSJ ,
p. 24, lines 3-6.] This is because the
wrong elements have been compared
to arrive at this conclusion, as per the
MSJ transcription on page 24. The
full vocal parts (lead plus backup)
must be compared to show why these
songs sound so similar in their hooks.
I have not yet completed my
analytical comparison of these two
works, and will be able to explain
these similarities in more depth after
conducting a full review, which will
not change my findings as stated here.
122. The MSJ also states that there is
no similarity in rhythm or structure
between the two songs. [MSJ , p. 25,
lines 10-11.] This is incorrect. For
example, my preliminary review
uncovered: (a) a distinctive identical
rhythm on the last note of each phrase
iteration; and (b) melodic structure
shared in repeating the similar phrase
4 times consecutively (with some

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4112.060/822464.1 121
KING, HOLMES,
PATERNO &
BERLINER, LLP
variation) to create the entire chorus
section. [Objection No. 69] Given
the similarities found thus far, further
similarities are likely to be uncovered
with a subsequent review.

69. Unsupported and
improper expert
656 F.3d at 952-53.

69. Sustained

differences in the harmonies as
claimed in the MSJ do not detract
from the obvious similarities.
70. Unsupported and
improper expert
656 F.3d at 952-53.
70. Sustained
124. [Objection No. 71] Further, the
MSJ distracts with various irrelevant
differences found in comparing the
two songs. [MSJ , p. 25, lines 6-9.]
These are not central to evaluating the
above similarities between After the
Dance and Love After War.
71. Unsupported and
improper expert
656 F.3d at 952-53.
71. Sustained
125. Prior art in the Wilbur
Declaration: no prior art is cited with
any similar content to either After
the Dance or Love After War.
However, four songs are listed as
having a similar feel to After the

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4112.060/822464.1 122
KING, HOLMES,
PATERNO &
BERLINER, LLP
Dance, including the use of jazz-
influenced chords. [WD 312.]
Again, no transcriptions or recordings
are provided for substantiation.
III. SUMMARY
Declaration have written voluminous
denials of substantial similarities
between Got to Give it Up and
Blurred Lines.

Declaration have attempted to dismiss
every similarity in melody, harmony,
structure, and function thus far
identified in Blurred Lines, and
collectively found throughout all
major structural sections of the song.
They have refuted this by
mischaracterizing nearly every single
similar element described in my
report as either a device, building
block, or an idea.

128. [Objection No. 72] Specific
melodies, harmonies, and structure
are the basic properties of all musical
compositions that identify and
72. Unsupported and
improper expert
72. Overruled
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4112.060/822464.1 123
KING, HOLMES,
PATERNO &
BERLINER, LLP
distinguish them, and in this case,
they are substantially similar.
656 F.3d at 952-53.
and the Wilbur Declaration have used
inappropriate methodology to isolate
and dissect each similar feature, in an
attempt to obfuscate and diminish the
collective similarity found in the
Constellation of 8 Similarities
described in my preliminary report.
73. Unsupported and
improper expert
656 F.3d at 952-53.
73. Sustained in
part
and the Wilbur Declaration have
attempted to eliminate the recording
of the composition Got to Give it
Up from eligibility, even though it is
the most complete representation of
the composition, and the most
appropriate one to compared to the
recording of Blurred Lines.
74. Irrelevant. FRE
own a copyright in the
sound recording. The
Copyright Deposit is
only sheet music.
74. Sustained

131. They have provided no prior art
that contains nearly the same
collective similarities shared by Got
to Give it Up and Blurred Lines.

132. Nothing in the MSJ or the
Wilbur Declaration has changed my
findings or conclusions that Blurred

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4112.060/822464.1 124
KING, HOLMES,
PATERNO &
BERLINER, LLP
Lines is substantially similar to Got
to Give it Up.
133. This is a preliminary report, and
a fuller report would likely identify
additional inaccuracies and
misleading statements in the MSJ and
the Wilbur Declaration.

IV. AUDIO EXHIBIT: MASHUPS
DEMONSTRATING
SIMILARITIES IN GOT TO
GIVE IT UP AND BLURRED
LINES
134. [Objection No. 75] I have
listened closely to the attached audio
examples prepared by Thomas Court
and Ron Aston. I have also reviewed
Mr. Courts and Mr. Astons
descriptions of the way in which they
created the audio examples, and their
process in preparing them.
39
I have
also spoken with Mr. Court and Mr.
Aston numerous times during the
recording process in order to ensure
fully that the materials prepared by
them were trustworthy and that they
accurately reflected elements from

75. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.

75. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 125
KING, HOLMES,
PATERNO &
BERLINER, LLP
both Blurred Lines and Got to
Give it Up. I am more than satisfied
that these audio examples do
accurately reflect the music of Got to
Give it Up and Blurred Lines, and
that any minor adjustments made are
within acceptable musicological
practice.
40

39
Examples 1-3 are referred to as
mashups within music industry
tradition because they simultaneously
combine passages from two different
recordings.

40
In Example 1, where the Blurred
Lines vocals are combined with
instrumental accompaniment from
Got to Give it Up, Got to Give it
Up is transposed down one whole
step, to the key of Blurred Lines.
This is the audio equivalent of what a
musicologist does in comparing
musical works, described in
paragraph 68 and the corresponding
footnote in my Declaration above. In
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4112.060/822464.1 126
KING, HOLMES,
PATERNO &
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Examples 1-3, the tempos are
adjusted very slightly, so that the
songs can be synchronized to be
heard in the same time frame.
According to the Wilbur Declaration,
both songs are in the tempo range of
120-128 beats per minute, meaning
that the tempo adjustments for these
examples are minimal and have no
impact whatsoever in the content
compared between the two songs.
This procedure embodies standard
musicological practice, as the tempo
is not a factor in comparing musical
works for their underlying melodic,
harmonic, and other compositional
similarities.
135. [Objection No. 76] The three
examples show that when the similar
vocal melodies in Blurred Lines are
merged with the similar instrumental
melodies in Got to Give it Up, the
material sounds like a perfect, natural
match because it blends sonically.
The same natural congruence occurs
when the similar vocal melodies in
76. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
76. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 127
KING, HOLMES,
PATERNO &
BERLINER, LLP
Got to Give it Up are merged with
the similar instrumental melodies in
Blurred Lines.
either song.
136. [Objection No. 77] These
mashups demonstrate the undeniable
substantial similarity between the two
compositions. It is significant that the
two songs are so effortlessly overlaid.
As the mashups show, each songs
vocal line can be played
interchangeablyand on a sustained
basis with the instrumental
accompaniment of the other. In this
case, this is because the compositions
contain a multitude of similar
compositional features.
77. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
77. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
137. [Objection No. 78] The above
is demonstrated in Example 1, which
contains approximately the first
minute and 20 seconds of the vocal
material in Blurred Lines
superimposed over approximately the
first minute and 20 seconds of the
instrumental material of Got to Give
it Up. In this example, the
similarities from the respective parts
78. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
78. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 128
KING, HOLMES,
PATERNO &
BERLINER, LLP
in both songs occur simultaneously,
interlocking and synchronizing in the
same way as does the vocal material
with its own instrumental material in
the commercially released recordings
of Blurred Lines and Got to Give
it Up.
either song.
138. [Objection No. 79] The same is
true in Example 2, in which the vocal
material in Got to Give it Up is
superimposed over the instrumental
material in Blurred Lines.
79. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
79. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
ongoing sequence of vocal melodies
of Blurred Lines superimposed over
the ongoing instrumental material of
Got to Give it Up also shows how
continuous the similar materials are
within their own respective songs.
Further, the ongoing sections
80. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
80. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 129
KING, HOLMES,
PATERNO &
BERLINER, LLP
(introduction, verse, chorus) of
Blurred Lines in their original form
need no reorganization to co-exist
seamlessly with the instrumental parts
of Got to Give it Up. The same is
true of the vocal melodies of Got to
Give it Up as superimposed over the
instrumental material of Blurred
Lines in these audio examples.
similarity or any
either song.
140. [Objection No. 81] All eight
similarities in the Constellation of
Similarities discussed in my
Declaration above are demonstrated
in Audio Examples 1-3. Specifically:
a. Example 1 demonstrates
Similarities 1, 2, 3, 4, and 5 in
Blurred Lines, combined with
simultaneous Similarities 6, 7,
and 8 in Got to Give it Up,
transposed to the key of Blurred
Lines.
b. Example 1 begins at counter
:02 with Similarities 6 (bass
melody), 7 (keyboard parts), and
8 (percussion) in Got to Give it
Up. All of these similarities
81. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
81. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 130
KING, HOLMES,
PATERNO &
BERLINER, LLP
occur simultaneously with
Similarity 5 of Blurred Lines
(the backup hook with lyrics
hey, hey, hey) at counter :11,
followed by Similarity 4 of
Blurred Lines (Theme X,
lyrics If you cant hear) at
counter :16, and Similarities 1, 2
and 3 of Blurred Lines
(Signature Phrase, And thats
why Im gon take a good girl)
at counter :45. The songs
similarities merge together in
this mashup and clearly show the
substantial similarities between
Blurred Lines and Got to
Give it Up.
c. Example 2 merges the vocals
in the verse of Got to Give it
Up with the instrumental
accompaniment of Blurred
Lines. Here, Similarity 1
(Signature Phrase) and its
outgrowth material in Got to
Give it Up are combined
seamlessly with simultaneous
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4112.060/822464.1 131
KING, HOLMES,
PATERNO &
BERLINER, LLP
Similarities 6, 7, and 8 in
Blurred Lines.
d. Example 3 merges the vocals
in the hook of Got to Give it
Up (starting at 3:12 of the
original recording), with the
instrumental accompaniment of
Blurred Lines. Specifically,
Example 3 contains Similarities
2 (hook, Keep on dancin), 3
(hook with backup vocals), 4 and
5 (backup hook/Theme X, lyrics:
Dancin lady) in Got to Give
it Up, combined with
simultaneous Similarities 6, 7,
and 8 in Blurred Lines.
e. Example 4 contains the
commercially released
recordings of Got to Give it
Up and Blurred Lines, played
in succession.

Summary of Audio Examples 1-4
141. [Objection No. 82] The Wilbur
Declaration exaggerates the minor
dissimilarities between the two
82. Irrelevant. FRE
82. Sustained
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4112.060/822464.1 132
KING, HOLMES,
PATERNO &
BERLINER, LLP
works, including their chords (where
they actually contain the same basic
chords, embellished in Got to Give it
Up), slight rhythmic position
shifting, and intervening passing
tones (such as in the shared melisma
in Similarity 1). None of these minor
differences, however, detract from the
effortless blending of vocals of
Blurred Lines with instrumentals of
Got to Give it Up, and the reverse
with the vocals of Got to Give it Up
with the instrumentals of Blurred
Lines, in these audio examples. This
is because their overriding similarities
(as discussed in my Declaration
above) surpass their less significant
differences.
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
142. [Objection No. 83] Examples
1-3 also expose the faulty
methodology and conclusions of Ms.
Wilbur who stressed the lesser
differences, and even discounted
pitches that were identical (such as in
Similarity 1) as different,
acknowledging only one same note
83. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
83. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 133
KING, HOLMES,
PATERNO &
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instead of the five identical notes
found in comparing the Signature
Phrases of both songs.
similarity or any
either song.
143. [Objection No. 84] Examples
1-3 further discredit Ms. Wilburs
mischaracterization of the similar
features as mere ideas or devices,
as these melodies, rhythms,
harmonies, and instrumental material
are clearly the identifying features of
both songs that coincide in these
mashups.
84. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
84. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
144. [Objection No. 85] The obvious
blend of the vocals of one song with
the instrumentals of the other as
presented in Examples 1-3 reinforces
in a dramatic way my conclusions
that Blurred Lines is substantially
similar to Got to Give it Up.
85. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
85. Sustained
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4112.060/822464.1 134
KING, HOLMES,
PATERNO &
BERLINER, LLP
2014.

DECLARATION OF DR. INGRID MONSON
OBJECTION RULING
I, Ingrid Monson, declare as follows:

A. MATERIALS REVIEWED
AND RELIED UPON
2. The following documents were
provided by King & Ballow for
review:
a. Williams v. Bridgeport - Motion
for Summary J udgement
b. Williams v. Bridgeport -
Statement of Uncontroverted Facts
c. Williams v. Bridgeport-
Declaration of Sandy Wilbur

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4112.060/822464.1 135
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
c. Audio Exhibit: CD filed with
Motion for Summary J udgment
3. The following sheet music was
obtained for reference:
a. Got to Give It Up Words and
Music by Marvin Gaye, 1977
(Renewed 2005) J obete Music Co.,
Inc.
b. Blurred Lines, Words and
Music by Robin Thicke and Pharrell
Williams, 2013 EMI April Music,
Inc./ More Water from Nazareth
Publishing, Inc.

4. Full transcriptions of selected
passages from the two tunes were
made and analyzed by Ingrid
Monson.

5. Logic Pro X was used to playback
the tunes. Its EQ features enabled the
isolation of instrumental parts.

6. The tonal center of Got to Give it
Up is A; the tonal center of Blurred
Lines is G. I follow common
practice in the report below by
showing both songs in the key of A
major (the tonal center of Got to

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4112.060/822464.1 136
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
Give it Up) for ease of comparison.
7. The following musical works are
discussed:
a. Got to Give It Up by Marvin
Gaye
b. Blurred Lines by Robin Thicke
and Pharrell Williams
c. After the Dance by Marvin
Gaye and Leon Ware
d. Love After War by Robin
Thicke

8. The vocals of Blurred Lines
played over the music of Got to Give
It Up will be referred to as
Example 1.

9. The vocals of Got to Give it Up
played over the music of Blurred
Lines will be referred to as
Example 2.

10. The vocals in the hook of Got to
Give it Up merged with the music of
Blurred Lines will be referred to as
Example 3.

11. The melody of Love After War
over the music of After the Dance
will be referred to as After the

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4112.060/822464.1 137
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
Dance Audio Example.
12. The Motion for Summary
J udgment will be referred to as
Plaintiffs Motion.

13. The Statement of Uncontroverted
Facts will be referred to as SUF.

14. The Declaration of Sandy Wilbur
will be referred to as Wilbur Decl.

B. OVERALL FINDINGS
15. [Objection No. 86] To be
musically meaningful, Got to Give it
Up and Blurred Lines must be
compared based on the recordings.
To limit the composition of Got to
Give it Up to its copyright deposit is
musically misleading.
86. Irrelevant. FRE
402. The Gayes do
not own the copyright
in the sound recording.
86. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 44,
supra.
16. The findings and conclusions in
Plaintiffs Motion and SUF are deeply
flawed musically.

17. The SUF and Plaintiffs Motion
refuse to consider the multiple
redundancies between Got to Give it
Up and Blurred Lines, by
considering each part in a piecemeal
fashion. This procedure is musically
misleading.

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4112.060/822464.1 138
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
18. Plaintiffs Motion and the SUF
claim that many passages are generic
and commonplace when they are not.
The ensemble parts of a recording are
an extremely important part of the
compositional identity of popular
music compositions. Although
accompanists learn basic patterns
appropriate to particular genres, the
art of popular music ensemble playing
involves varying, transforming, and
customizing known patterns into
creative expressions appropriate to a
particular tune and recording. The
choice of accompaniment parts and
their combination is compositional.
They distill from a vast array of
possibilities into a compositional
identity for the recording.

19. Plaintiffs Motion and the SUF
claim that many prior works including
Low Rider, Superfly, and
Funkytown are as similar to Got to
Give it Up and Blurred Lines as
they are to each other, without
providing any musical substantiation.

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4112.060/822464.1 139
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
This is not true. This report provides
musical documentation to show why
Plaintiffs claims are false.
20. I have researched prior art and
cannot find any other song that
combines the elements of Got to
Give it Up that are contained in
Blurred Lines.

21. [Objection No. 87] This report
demonstrates how the redundancies
shared by Got to Give it Up and
Blurred Lines cannot be accidental.
The similarity of choices in multiple
parts; hand percussion parts, bass
lines, drum set parts, and melodies,
were conscious decisions pointing to
the conclusion that Got to Give it
Up was the direct model for
Blurred Lines. The strength of the
resemblance between the two songs
comes from the combination of parts,
rather than one part alone.
87. Irrelevant. FRE
improper expert
656 F.3d at 952-53.
87. Overruled

22. This report shows that the
copying of Got to Give it Up by
Blurred Lines is not the copying of
a genre, but the copying of a

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4112.060/822464.1 140
KING, HOLMES,
PATERNO &
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OBJECTION RULING
particular song.
23. Because the accompaniment parts
adapt stylistic features from the
musical genres of R&B/Soul, disco,
and Latin music, this report explains
how the musical composition of Got
to Give it Up contains a combination
of these styles that are closely
imitated by Blurred Lines.

i. Cowbell/Hand Percussion
24. The hand percussion parts in
Lines are taken from rhythms
associated with the Latin music
genres known as salsa. The report
shows the actual parts played in Got
to Give it Up and Blurred Lines
and provides examples of the standard
or generic versions of these rhythms.
1

1
Hand percussionists learn
standard rhythms, but are
expected to adapt them
creatively in professional
performance.

25. The Got to Give it Up hand
percussion part makes use of a

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4112.060/822464.1 141
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
cowbell rhythm similar to the
timekeeping pattern called cscara in
the son-montuno style of salsa
rhythm.
2
Example 1 transcribes the
Got to Give it Up cowbell part.
Example 2 shows the standard cascara
rhythm.
3

Example 1. Got to Give it Up,
cowbell part, 2-3 clave [Chart
Omitted.]
Example 2. Standard cscara
patterns. 2-3 clave [Chart Omitted.]
2
Son-montuno patterns make
use of a rhythmic system known
as clave. Clave rhythms consist
of two measures-an
unsyncopated measure (known
as the 2 side) and a syncopated
measure (known as the 3 side).
The patterns can be played with
either the unsyncopated measure
first (2-3 clave patterns) or the
syncopated measure first (3-2
clave patterns).
3
Rebeca Mauleon, Salsa
Guidebook for Piano and
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4112.060/822464.1 142
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
Ensemble. Petaluma, CA: Sher
Music, 2005, p. 76.
26. In Plaintiffs Motion, on page 22,
paragraph 4 (f) vi, Plaintiffs represent
that there is no similarity between the
Got to Give it Up cowbell and the
Blurred Lines cowbell. However,
Plaintiffs Motion omits the second
hand percussion line from Blurred
Lines, which is played on the agogo
bell, and is essential to seeing the
similarity. Example 3 provides
transcriptions of both parts. Blurred
Lines includes two Latin percussion
lines: a cowbell and agogo bell part,
4

and the hand percussion is also based
on salsa rhythms.
Example 3: Blurred Lines
percussion parts, bells.
5
[Chart
Omitted.]
4
Bell parts can be played on
cowbells, timbale bells, or bongo
bells, which are instruments that
are metal, hollow, and struck
with a stick. The player can play
closed or open strokes by

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4112.060/822464.1 143
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
touching the bell with hand or
fingers.
5
Notes in parentheses are not
played on the first iteration.
They are played in subsequent
repetitions of the pattern.
27. The cowbell part in Blurred
Lines is the same as the standard
bongo bell in the Puerto Rican style
called Plena.
6
(Example 4). The bell
part can be used as a variation on a
cscara pattern, but is not the standard
pattern.
Example 4: Plena standard bongo
bell pattern [Chart Omitted.]
6
Mauleon, Salsa Guidebook,
p. 213.

28. The agogo bell pattern in
Blurred Lines is similar but not
identical to a conga part played in
rumba guaguanc, another style of
Latin salsa rhythm.
7
(Example 5)
Example 5: Conga part in rumba
guaguanc. This pattern is
syncopated in the first half of the
measure (2 beats) and even in the

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4112.060/822464.1 144
KING, HOLMES,
PATERNO &
BERLINER, LLP
OBJECTION RULING
second half (2 beats). [Chart
Omitted.]
7
There are many ways to notate
the same rhythms. The Blurred
Lines bell rhythm sounds
related due to the accents on the
+of 1 and the three eighth notes
on the +of 2 and beat 3.
29. The Latin rhythms in each piece
are functionally equivalent to one
another, as they can be played to
accompany either song. See 58

ii. The Bass Lines
30. There are substantial similarities
between the bass lines to Got to Give
it Up and Blurred Lines. These
similarities include their two-measure
phrases, which leave space in the
middle of each of the bars, rhythms,
and points of harmonic arrival. It is
unusual to have bass lines in R&B
that leave this much space in the
middle of the bar. See discussion
below of SUF claims about prior
works. 63

31. Example 6 provides
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4112.060/822464.1 145
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transcriptions of the bass parts for
Lines and also includes the tom part
played by the drum set in Got to
Give it Up
Example 6: [Chart Omitted.]
32. The bass line in Got to Give it
Up is played in 2 measure phrases.
The first measure of the Got to Give
it Up bass line articulates beats 1
beat (quarter note) and 4 (two eighth
notes). This same rhythmic gesture is
repeated in bars 3 and 5. In bars 2, 4,
and 6 the bassist varies his placement
of the melodic gesture G-A, but
leaves space in the first half of the
measure. It is normal for a bassist
playing two-bar phrases to vary the
second bar more than the first bar.

33. The Blurred Lines bass line
also emphasizes beats one and four
leaving space in the second measure
of the two-bar phrase. The Blurred
Lines bass is less syncopated and
attacks the +of 4 and 1 in every bar.
The Blurred Lines bass line

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4112.060/822464.1 146
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OBJECTION RULING
displaces the rhythm of the Got to
Give it Up bass line by one eighth
note, making it less syncopated
[Objection No. 88] but clearly related
(Example 6 dotted arrows). The
human ear recognizes the similarity of
rhythmic and melodic gestures when
transformed in various ways
including rhythmic displacement and
transposition. This perceptual
capacity is the basis of creating
coherence in musical composition
through variations and development.

88. Irrelevant. FRE
402. The issue on the
Motion is extrinsic
similarity, not how the
music sounds.

88. Sustained for
purposes of this
Motion only. This
testimony
concerns the
subjective
experience of
listening to the
songs, and is not
considered in the
extrinsic analysis
performed in
connection with
this Motion. See
Ruling on
Objection No. 1,
supra.
similarity of the Got to Give it Up
and Blurred Lines rhythmic
frameworks is amplified by the tom
part played on the drum set in Got to
Give it Up.
8
The tom, in measures 2,
89. Irrelevant. FRE
402. The issue on the
Motion is extrinsic
similarity, not how the
music sounds.
89. Sustained in
part for purposes
of this Motion
only. The tom part
does not appear in
the Got to Give It
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4112.060/822464.1 147
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4, and 6 plays the same rhythm as that
of the bass line in Blurred Lines
(vertical arrows). In bars 1, 3 5, 7, the
tom plays two eighth notes on beat 4
in synchrony with the bass line. The
Blurred Lines bass line
considerably overlaps the Got to
Give it Up bass line and contributes
to the strong perception of a
relationship between the two songs.
8
It is difficult to hear the tom
part clearly without using
equalization on the track, a
capability that any recording
studio can provide. Equalization
allows a listener to increase or
the loudness of various
frequency spectrums.
Up copyright
deposit. See
Ruling on
Objection No. 44,
supra.
35. [Objection No. 90] The Got to
Give it Up and Blurred Lines bass
lines are very similar and are not
generic. They are more similar to one
another than standard R&B bass lines.
R&B and Funk bass lines tend to be
generically syncopated throughout a
two bar 18 phrase. That the Got to
90. Unsupported and
improper expert
656 F.3d at 952-53.
90. Overruled
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4112.060/822464.1 148
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OBJECTION RULING
Give it Up and Blurred Lines bass
lines both leave space where they do,
points to the conclusion that Got to
Give it Up was used as the model for
the Blurred Lines bass line, and was
not a coincidence dictated by a
specific genre.
iii. Harmony
36. The strong resemblance of Got
to Give it Up and Blurred Lines
applies despite the fact that Blurred
Lines changes to the V chord on bar
5 and Got to Give it Up does not.
Blurred Lines simplifies the
harmonic progression in Got to Give
it Up. The 16 bar verse in Got to
Give it Up is comprised of A7 for 8
bars followed by the progression
D7|E7|E7|B7/D7/E7/A7/B7
(beginning on the words But my
body). In functional terms this
progression is IV/ V of V/ V/ IV/ V/
I/ V of V/. In words: subdominant/
dominant/ dominant of the dominant/
subdominant/ dominant/ tonic/
dominant of the dominant.
9
The

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4112.060/822464.1 149
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harmonic progression in Blurred
Lines for the 16 bar verse is A/ A/
A / A/ E/ E/ E/E repeated twice, in
functional terms I-V-I-V-I-V-I-V, or
tonic-dominant-tonic-dominant-tonic-
dominant-tonic-dominant.
9
The roman numeral in words
would be four, five, five of five,
four, five, one, five of five.
37. Moving from I to V is a very
simple musical gesture. Keyboardists
or guitarists often insert chordal
variety in passages governed by a
single chord. One of the most basic
forms of variety is to move to V and
back. Indeed jazz pianists are taught
that a V can precede any harmony,
because V of any chord resolves to
that chord. In effect the harmonic
progression in Blurred Lines
reduces the Got to Give it Up
progression to an alternation from
tonic (I) to dominant (V)-- in a longer
structural sense it prolongs the tonic.
10

10
I am using the terms
structural and prolong in the

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4112.060/822464.1 150
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OBJECTION RULING
sense of Schenkerian analysis, a
recognized method of tonal
analysis that reduces tonal works
to their essential elements by
taking out local progressions and
melodic gestures. Felix Salzer,
Structural Hearing: Tonal
Coherence in Music, New York,
Charles Boni, 1952
38. [Objection No. 91] Example 1
shows this fact very dramatically with
audio. Example 1 combines the
accompaniment to Got to Give it
Up with the vocal of Blurred
Lines. The accompaniment to Got
to Give it Up includes the eight bar
passage of harmony beginning on the
subdominant as described in 37.
The melody for Blurred Lines,
beginning on the words OK, now he
was close works over the Got to
Give it Up chords until the sixth
measure of the chord progression
(A7) when a clash occurs on the
words That man is not your maker.
The clash resolves immediately and
91. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
91. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 151
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OBJECTION RULING
strongly at the entrance of the hook
on And thats why Im gon take a
good girl. This example shows a
stunning substantial similarity
between the melodies, because the
melodies work despite the differences
in harmonic progression. What this
means is that the resemblance of the
melodies is so strong that the chord
progression on Got to Give it 2 Up
can serve as a substitute progression
for Blurred Lines, with the
exception of one measure.
39. In 44 of her Declaration,
Ms. Wilbur says that because the
break section of Got to Give it Up
uses minor chords it gives a bluesy
feeling to Got to Give it Up that is
minor. This is misleading. The basic
12 bar-blues progression is comprised
completely of dominant seventh
chords. In the Key of A: four bars of
A7, 2 bars of D7, 2 bars of A7, 1 bar
of E7, 1 bar of D7, and 2 bars of A7.
These are all major chords. The so-
called blue notes (scale degrees b3,

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4112.060/822464.1 152
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OBJECTION RULING
b5, b7), are melodic inflections
played over these dominant seventh
chords, resulting in complex
dominants such as A7#9 (using b3
against the dominant), D7b9 (using
b5 against dominant 7 on scale degree
4), and E7#9 (using scale degree 7
against the dominant seventh). It is
incorrect to characterize a blues
progression as minor.
11

11
Blues progressions in minor
keys do exist. A blues
progression in A minor would be
comprised of 4 bars of Am7,
2 bars of Dm7, 2 bars of Am7,
one bar of F7, one bar of E7, and
two bars of Am7. Neither
Blurred Lines nor Got to Give
it Up are minor blues.
iv. The Drum Set Parts
40. The Got to Give it Up and
Blurred Lines drum set parts make
use of an uncommon variation of a
disco beat. The two parts resemble
each other more than they do the
generic rhythms of disco.

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4112.060/822464.1 153
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OBJECTION RULING
41. Example 7 show generic versions
of the disco beat.
12
The basic disco
beat features an open hi-hat struck on
the +of every beat. The rhythm also
requires bass drum on all four beats
and a backbeat on the snare on beats 2
and 4. Variation 1 simplifies the
basic disco beat by playing closed hi-
hat strokes on each eighth note except
the +of 4. Variation 2 removes the
continuous closed hi-hat strokes,
saving the open hi-hat sound for the +
of 4 in each measure.
12
Generic versions of the disco
beat are patterns that a musician
learning the style practices first.
They are meant to be adapted
and varied.

42. [Objection No. 92] The Got to
drum set parts use a similar and
uncommon variation of a disco beat.
Both drum set parts use the open-hi
hat on the +of 4 of every other
measure. (Example 8). In Got to
92. Unsupported and
improper expert
656 F.3d at 952-53.
92. Sustained for
purposes of this
Motion only. The
drum set parts do
not appear in the
Got to Give It
Up copyright
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4112.060/822464.1 154
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OBJECTION RULING
Give it Up this pattern is heard on
the verse and in the mid-section of the
tune. The drummer in Got to Give it
Up varies the use of the pattern. In
Blurred Lines, the pattern is heard
throughout.
Example 8: Drum set parts [Chart
Omitted.]
deposit. See
Ruling on
Objection No. 44,
supra.
43. Got to Give it Up uses
continuous closed hi-hat strokes on
the eighth notes, and reserves the
sound of the open hi-hat for the +of 4
on every other bar. In Got to Give it
Up the two measure phrase finishes
with the open hi-hat stroke on the +of
4 of the second bar. In Blurred
Lines the two measure phrase
features the open hi-hat sound on the
+of 4 in the first bar of the two bar
phrase. Blurred Lines simply
reverses the order of 2-bar phrase. In
Blurred Lines, the drummer also
leaves out the continuous closed hi-
hat sounds as in variation 2 of the
generic disco beat in Example 7.

44. Dozens of classic disco
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4112.060/822464.1 155
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OBJECTION RULING
recordings feature the basic disco beat
and variations 1 and 2. [Objection
No. 93] There are very few disco
recordings featuring open hi-hat on
the +of 4 of every other measure as is
used in both Got to Give it Up and
Blurred Lines. The drum parts to
Lines resemble each other more than
they resemble generic conventions.

93. Irrelevant. FRE
402. The testimony
has no bearing on
whether na open hi-hat
is original to GIVE.
Unsupported and
improper expert
656 F.3d at 952-53.

93. Sustained for
purposes of this
Motion only. The
drum set parts do
not appear in the
Got to Give It
Up copyright
deposit. See
Ruling on
Objection No. 44,
supra.
v. Form
45. The form of Give includes an
introduction, verse (16 bars), B
section (24 bars), the last 8 bars of the
verse section, followed by a coda.
With the exception of 12 bars all of
the chords are major. It is not correct
to say as Plaintiffs do in the SUF 7,
that the sound of Got to Give it Up
is minor. Example 9 provides a
schematic diagram of the form and
harmonic progressions.
Example 9: Got to Give it Up
form and harmonic progressions

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4112.060/822464.1 156
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OBJECTION RULING
[Chart Omitted.]
46. The form of Blurred Lines
includes an introduction (8 bars),
verse (A 8 bars), prechorus (B 8 bars),
hook/chorus (C 16 bars), a variation
on the verse (D 8 bars), prechorus
(B 8 bars), hook/chorus (C 16 bars),
Coda 1 (24 bars), verse (A 8 bars),
hook/chorus (C 16 bars), Coda 2.
Example 10 provides a schematic
diagram of the form and harmonic
progressions.
Example 10: Blurred Lines form
and harmonic progressions [Chart
Omitted.]

47. The harmonic progression in
Blurred Lines does not change from
section to section. The entire song
occurs over a repeated cycle of 4 bars
of A and 4 bars-of E.

vi. Melodic connections
48. [Objection No. 94] Blurred
Lines copies the background vocals
of Got to Give it Up on the words
hey, hey, hey, which is the same
melodic gesture heard on move it

94. Unsupported and
improper expert

94. Sustained in
part for purposes
of this Motion
only, so far as it
concerns vocals
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4112.060/822464.1 157
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OBJECTION RULING
up in the lyrics of Got to Give it
Up.
656 F.3d at 952-53. not present in the
copyright deposit.
See Ruling on
Objection No. 44,
supra.
49. In Got to Give it Up, Marvin
Gayes lead vocal melody on the
words move it up and turn it
round, chromatically ascend from
the pitch G to A. Specifically, from
the 7
th
of a dominant seventh on A
chord to the root of the chord A (the
pitches G, G#, A) (Example 11, bars
2, 4). The bass line doubles the lead
vocal on move it up indicating that
the melody was pre-planned.
Example 11: Give it Up at 2:10
[Chart Omitted.]

50. The comparable melodic line in
Blurred Lines is on the words hey,
hey, hey and occurs on the V chord.
The pitch sequence consequently
ascends chromatically from the pitch
D to E, that is, from the seventh of a
dominant chord on E to the root of the
chord. (vertical arrows Example 12,

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4112.060/822464.1 158
KING, HOLMES,
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OBJECTION RULING
pitches D, D#, E)). [Objection
No. 95] Although the chromatic
ascent is on a V chord rather than a I
chord, the repeated melodic profile
and harmonic function is
recognizably related to the passage on
move it up in Got to Give it Up.
13

This similarity cannot be accidental.
13
Transpositions of themes are
audibly similar. Such
transpositions are the basis of
thematic resemblance in many
forms of Western Art music,
including the Sonata.
95. Irrelevant. FRE
improper expert
656 F.3d at 952-53.
95. Overruled
51. A second similarity to Got to
Give it Up pertains to the
background vocals on bop, bop, bop,
du wop, which thematize a
descending chromatic half-step from
the pitch E to D#and back to E.
(Example 12 bracket). This
background vocal riff is very
prominent. [Objection No. 96] In
Blurred Lines, the melody on the
words maybe Im going deaf, maybe
Im going blind borrows from the

96. Unsupported and
improper expert

96. Sustained for
purposes of this
Motion only. The
bop, bop, bop, du
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4112.060/822464.1 159
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OBJECTION RULING
background vocal on Got to Give it
Up to the words bop, bop, bop, du
wop.
656 F.3d at 952-53.
wop melody does
not appear in the
Got to Give It
Up copyright
deposit. See
Ruling on
Objection No. 44,
supra.
52. The melody of the last four bars
of the Blurred Lines verse also
thematizes a chromatic half-step from
E to D#and back to E. In Blurred
Lines, the half-step descends from
the root of the chord. [Objection
No. 97] In Got to Give it Up, the
half step descends from the 5
th
of the
chord. The melodic shape of
Blurred Lines melody on the
second half of the verse creates a
strong audible sonic link to Got to
Give it Up.
Example 12: Blurred Lines, verse
[Chart Omitted.]

97. Irrelevant. FRE
improper expert
656 F.3d at 952-53.

97. Sustained for
purposes of this
Motion only. The
bop, bop, bop, du
wop melody does
not appear in the
Got to Give It
Up copyright
deposit. See
Ruling on
Objection No. 44,
supra.
vii. Keyboard Parts
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4112.060/822464.1 160
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OBJECTION RULING
53. Both recordings use electric
piano in rhythms emphasizing the +
of the beat on beats one two and three
of each measure (see vertical arrows,
Example 13). This is a characteristic
not dictated by a certain genre.
Example 13: Keyboard part for Got
to Give it Up (at 2 places) and
Blurred Lines [Chart Omitted.]
C. THE CONSTELLATION OF
ACCOMPANIMENT PARTS AND
MELODIES CANNOT BE
ACCIDENTAL
54. The ensemble parts of a
recording are extremely important in
the compositional identity of popular
music compositions. Although
accompanists learn basic patterns
appropriate to particular genres, the
art of popular music ensemble playing
involves varying, transforming, and
customizing known patterns into
creative expressions appropriate to a
particular tune and recording.
Professional R&B players choose a
particular combination of

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4112.060/822464.1 161
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OBJECTION RULING
accompaniment parts from a vast
array of possibilities to compose the
right sound for the recording. Since
Marvin Gaye played many of the
percussion instruments on Got to
Give it Up, he not only oversaw the
overall result, he actively participated
in creating it. In iconic popular tunes,
these choices often yield a signature
sound for the song. Got to Give it
Up is such an iconic song.
55. [Objection No. 98] Audible
proof of the relationships between
Lines is provided in the audio
Examples 1-4, which overlay the
melodies of each song with the
accompaniment of the other. The
overlay of audio parts is a heuristic
tool to help make the relationships
between the songs audible to a lay
audience. The mashups do not cut
and paste small pieces of the tune, but
rather juxtapose long intact sections
of the recordings. Combinations of
this type are similar to what teachers
98. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
98. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 162
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OBJECTION RULING
of music theory do when they play
chords on the piano and sing different
melodies over them, or sing the same
melodies and play different
harmonies. Such demonstrations help
listeners hear the similarities and
differences between pieces.
56. [Objection No. 99] I have
listened closely to the audio files
prepared by Thomas Court, a sound
engineer creating the mashup tracks
on this project, and Ron Aston, a
sound editor and studio musician,
creating the same. I have also
reviewed their descriptions of the
manner in which the audio files were
created, and the methodologies used
in creating those files. I have spoken
to Mr. Court and Mr. Aston numerous
times during the process to ensure
that the materials prepared by them
were accurately reflected elements
from both Blurred Lines and Got
to Give it Up. I am more than
satisfied that these audio file
examples accurately reflect the music
99. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
99. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 163
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OBJECTION RULING
of Got to Give it Up and Blurred
Lines and that any minor
adjustments are not significant. As
discussed below, these audio file
mashups show the striking similarities
between the two songs, and in my
view reinforce in a dramatic way my
conclusion that Blurred Lines
copies the musical composition of
Got to Give It Up.
57. [Objection No. 100] Audio
Example 1 combines the
accompaniment parts of the opening
of Got to Give it Up with the vocal
melody of Blurred Lines. The
example shows clearly that the
accompaniment to Got to Give it
Up works very well as an
accompaniment to the Blurred
Lines vocal melody. This shows that
the tunes are substantially similar.
See also 38
100. Irrelevant. FRE
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
100. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
Example 2 combines the
accompaniment to Blurred Lines
with the vocal to Got to Give it Up,
101. Sustained for
purposes of this
Motion only. See
Ruling on
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4112.060/822464.1 164
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OBJECTION RULING
It demonstrates clearly that the
accompaniment to Blurred Lines
works well as an accompaniment to
Got to Give it Up vocal melody.
Also, these two examples
(Examples 1, 2) show that the Latin
rhythms and other accompaniment
parts are interchangeable.
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
Objection No. 1,
supra.
59. [Objection No. 102] As a lay
listener can hear, the Audio
Example 1 sounds substantially
similar to Audio Example 2.
Furthermore, this mashup would not
work so seamlessly if there were not
substantial similarity between the
songs. In my opinion, the examples
in these tracks show clearly the
copying of percussion, bass parts,
melody, and the overall harmonic
frame of Got to Give it Up. The
material copied, as shown by this
audio example, is quantitatively and
qualitatively important to both songs
because each section is fundamental
to the identity of the final
composition.
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
102. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
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4112.060/822464.1 165
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OBJECTION RULING
Example 3, presents the Blurred
Lines accompaniment with the Got
to Give it Up vocals from the hook
at the end of the song (Keep on
dancing). This example also shows
that the resemblances of the two
songs are not limited to one part of
the song, but operate throughout the
whole song.
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
103. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 1,
supra.
61. Audio Example 4 provides
complete tracks of Got to Give it
Up and Blurred Lines in their
original keys.

D. CONCLUSION
62. The musical and audio examples
presented in this report have shown
the substantial similarities in the hand
percussion, bass, keyboard, and vocal
parts of Got to Give it Up and
Blurred Lines. [Objection
No. 104] Each similarity taken
separately might not seem significant,
but the similarity of the combination
of choices made in both recordings

improper expert

104. Sustained

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4112.060/822464.1 166
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point to the conclusion that Got to
Give it Up as the direct model for
principal melodies and ensemble parts
used in Blurred Lines. Blurred
Lines did not copy a genre, Blurred
Lines copied a particular song. The
chances of professional R&B
musicians independently making such
similar choices in the combination of
instrumentation, accompaniment
parts, rhythms, and signature melodic
motives without having closely
studied the specifics of Got to Give
it Up and copied them, is remote.
656 F.3d at 952-53.
63. To reiterate, the constellation of
commonalities between Got to Give
it Up and Blurred Lines identified
in this report include:
1). The use of Latin hand percussion
and Latin rhythms.
2). The use of an unusual variation
of the disco beat, featuring an open
hi-hat on the +of 4 in every other
measure of the accompaniment.
3). The use of bass lines of
substantially similar rhythmic

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4112.060/822464.1 167
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profiles in combination with the
Latin percussion and disco
variation.
4). The use the electric piano on off
beats in both compositions in
combination with the Latin
percussion, disco variation, and bass
line.
5). The use of key vocal themes in
the Got to Give it Up B section in
the verse of Blurred Lines amplify
the continuities listeners perceive
among the accompaniment parts to
Lines. [Objection No. 105] These
sing-able themes from Got to Give
it Up enable listeners to recognize
that Blurred Lines does not point
generally to Marvin Gaye, but
specifically to Marvin Gayes Got
to Give it Up.

improper expert
656 F.3d at 952-53.

105. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 88,
supra.
E. WORKS PRIOR TO GOT
TO GIVE IT UP
64. None of the works cited in the in
the SUF contain the same level of
redundancy in common ensemble and

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4112.060/822464.1 168
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OBJECTION RULING
melodic parts that has been
documented for Got to Give it Up
and Blurred Lines. I have
researched prior works and found
none that shares the three common
parts occurring in both Got to Give it
65. The SUF 19, 60, 66 claim that
Low Rider has several substantial
similarities with Got to Give it Up,
including a prominent cowbell part,
electric piano that emphasizes
chords on the offbeats (+), and a
bass melody emphasizing the root and
the flatted seventh.

66. Example 14 proves that these
claims are incorrect.
Example 14: Low Rider, War,
cowbell, bass, and guitar parts [Chart
Omitted.]

67. Low Rider has a prominent
Latin cowbell part, but the bass line is
very different from Got to Give it
Up or Blurred Lines. The bass in
Low Rider articulates off beats in
an ascending line throughout. Both

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4112.060/822464.1 169
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the Got to Give it Up and Blurred
Lines bass lines leave space between
beats 1 and 4 (in measure 1) and in
the first half of measure 2.
68. The guitar pattern on Low
Rider does not articulate offbeat
eighth notes similar to the keyboard
accompaniment on Got to Give it
Up and Blurred Lines as SUF 19
claims. The guitar plays 2 eighth
notes on beat 1, three eight notes
beginning on the +of 2, 3 eighth
notes beginning on the +of 4, and 5
eighth notes beginning on the +of 2
in measure 2.

69. Only one part in Low Rider can
be said to be similar to Got to Give it
Up or Blurred Lines, and that is
the cowbell.

70. The SUF 53 claims that
Superfly uses a cowbell and open
hi-hat on the +of 4 without providing
musical documentation to support this
claim. This is not correct.

71. Example 15 transcribes the drum
set part in Superfly. The hi-hat part

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4112.060/822464.1 170
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in Superfly is played on a closed hi-
hat omitting the signature open hi-hat
sound of the disco beat. The SUF 20
incorrectly claims that Superfly
uses an open hi-hat. There is only
one open hi-hat sound used in
Superfly--on the first bar of the
drum set entrance. The main beat
uses a closed hi-hat. Both Got to
Give it Up and Blurred Lines use
an open hi-hat.
Example 15: Superfly, drumset
[Chart Omitted.]
72. The second bar of hi-hat part in
Superfly is not consistent with
disco. Neither is the snare drum,
which plays on all four beats, instead
of the 2 and 4 backbeat essential to a
disco-beat and present in the drum
parts of Got to Give it Up and
Blurred Lines. The Superfly hi-
hat and snare drum are not the same
as that used in Got to Give it Up
and Blurred Lines, or even close to
a disco sound.

73. The cowbell at the opening of
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4112.060/822464.1 171
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OBJECTION RULING
Superfly plays a varied pitch
introductory idea, not a timekeeping
pattern. The cowbell is not used to
play Latin rhythms like Got to Give
it Up or Blurred Lines. The use of
the cowbell is functionally different.
The pitch variation of the cowbell in
Superfly is too large to be a single
cowbell; perhaps an array of similar
instruments was used. The Latin
percussion after the horns enter (0:17)
centers on the bongo.
74. The SUF 21 claims that
Funkytown has a cowbell part and
bass line that resemble Got to Give it
Up. These claims are false.

75. Example 16 transcribes the
rhythms of the cowbell, bass, and
drum set in Funkytown.

76. The cowbell on Funkytown
plays continuous sixteenth notes
rather than a Latin time keeping
rhythm. The continuous sixteenth
notes are consistent with a disco feel.
Here they are played on the cowbell

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4112.060/822464.1 172
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OBJECTION RULING
rather than the hi-hat or snare as
would be expected generically in
disco. The bass line for much of the
tune is a pedal point of continuous
eighth notes. The descent in octaves
beginning at 0:36 is indeed a common
bass gesture in many styles of music.
77. The drum set playing a standard
backbeat pattern and bass drum on all
four beats is the only common link
between Funkytown and Got to
Give it Up/Blurred Lines.

78. The claims that Low Rider,
Superfly and Funkytown are
prior works substantially similar to
Lines are false. None of the
examples has more than one part of
the ensemble texture in common with
either Got to Give it Up or Blurred
Lines.

79. Ms. Wilburs choice of prior
work examples show the weakness of
her assertions, instead highlighting
how rare it is to find two popular
tunes that have three levels of

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4112.060/822464.1 173
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redundancy; timekeeping patterns,
bass line, and keyboard/guitar
accompaniment parts in common.
The use of melodic themes from Got
to Give it Up in Blurred Lines,
along with the ensemble
redundancies, strengthen the
argument that Blurred Lines copied
from Got to Give it Up.
F. COMPARISON OF AFTER
THE DANCE AND LOVE
AFTER WAR
80. [Objection No. 106] To be
musically meaningful, After the
Dance and Love After War must
be compared based on the recordings.
To limit the composition of After the
Dance to its copyright deposit is
musically misleading The SUP 82
claims that there are no substantial
similarities between the melodies of
After the Dance and Love After
War. This claim is false. The
melodies are inversions of one
another.

402. Defendants do
After the Dance.
Improper expert
opinion. FRE 702.
Unsupported and
improper expert
Walton, 492 F.3d at
1008; Samuels, 656

106. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 44,
supra.
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4112.060/822464.1 174
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F.3d at 952-53.
81. The melody of the hook to After
the Dance rises from scale degree
1(E) to scale degree 3 (G#). The
hook to Love After War descends
from scale degree 5 (B) to scale
degree 3 (G#). In both songs, the
sustained pitch is G#(Example 17
dotted line). The Love After War
hook is an inversion of the After the
Dance hook melody. The landing
note of each phrase is the same.
Example 17: Comparison of hooks
to After the Dance and Love After
War [Chart Omitted.]

82. The SUF 83 claims that the
return to the pitch B in the Love
After War opening melodic gesture
renders the melody of Love After
War and After the Dance, very
different. The interpolation of one
pitch before descending to the G#
does not hide the fact that the
governing gesture is a descent from
B-A-G#, an inversion of the After
the Dance gesture.

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4112.060/822464.1 175
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83. The SUF 84-85 claim that the
melodies in Love After War and
After the Dance interact with the
harmonic progression in different
ways. The two pieces share the same
harmonic rhythm in the first bar of the
chorus with 2 chords of 2 beats in
length. In the second bar, Love
After War holds the Emaj7 for four
beats; and After the Dance holds
the Emaj7 chord for 2 beats and uses
a chromatic passing chord on the last
two beats. This is a minor variation.
Each song has the melody move on
the first bar of the phrase and holds an
extended note on the second bar. The
extra notes in first measure the Love
After War are a product of different
number of syllables in the Love
After War lyric.

i. Harmony/Form
84. [Objection No. 107] The melody
to Love After War can be sung
along to the chorus of After the
Dance. After the Dance Audio
Example performs the melody to


107. Sustained for
purposes of this
Motion only.
After the Dance
Audio Example
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4112.060/822464.1 176
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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. The detailed technical
discussion following explains how
this strong aural similarity is possible,
even though the underlying chord
progressions are slightly different. I
created the After the Dance Audio
Example. An m4a file of After the
Dance was imported into Apple
Logic. As After the Dance played
back I performed the melody to
Love After War on a MIDI
keyboard. The resulting tracks were
mixed and then exported as an AIF
file. The AIF file was converted to an
m4a format in order to be compatible
with iTunes.
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
similarity or any
either song.
relates to the
subjective intrinsic
test performed by
the factfinder at
the time of trial,
and is not
considered in the
extrinsic analysis
performed in
connection with
this Motion.
Swirsky v. Carey,
376 F.3d 841, 845
(9th Cir. 2004).
85. Wilbur Decl, 266 mislabels the
first harmony in bars 1, 3, and 5 of the
musical transcription of Love After
War. The progression is a II-V-I in

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4112.060/822464.1 177
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the key of E. In bar 1, the chord is
F#m7sus4. In bar 3, the chord is
F#m7/A. In bar 7, the chord is
F#m7sus 4. The label presented in
Wilbur Decl. 266, is Esus4/F#.
Although this label contains the same
pitches as F#m7sus4 (F#ABE), the
Esus4/F#label is incorrect because it
obscures the harmonic function of the
chord, which is a II, in a II-V-I
progression.
86. Love After War uses a II-V7-I
progression in E major (F#-7 B7/E
maj7).
14
After the Dance uses an
altered II-V-I progression (Am7 Bm7
/Emaj7 Bb7#5). The progression in
After the Dance is a substitute for a
normal II-V-I.
15
To explain why the
two seemingly different progressions
are functionally equivalent requires
looking at the more complex tonal
framework of After the Dance. The
form and harmonic progression of the
tune are provided in Example 18.
The form to After the Dance
consists of an introduction

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4112.060/822464.1 178
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(prechorus) (A), chorus (B), and verse
(C). The sections proceed as follows:
Prechorus/Chorus/Verse,
Chorus/Verse, Chorus/reprise of
prechorus/Chorus repeated until the
end.
Example 18: Form and harmonic
progression of After the Dance.
[Chart Omitted.]
14
I am using the convention of
using upper case Roman
numerals for all chord, whether
major or minor. Love After
War is not in Bb flat minor
despite the assertion in the
Wilbur Decl, 255. There is a
Bb minor scalar run in the
introductory bar. The
progression of the disputed
section in Love After War, is
cm7, F7, Bb Major 7. This is a
cadence in Bb major. The piece
is in Bb major.
15
J azz and popular musicians
make extensive use of chord
substitutions to enliven the
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harmonic palette of their
compositions and performances.
Knowledge of chromatic
harmony enables musicians to
link remotely related chords
through chromatic alterations
and common tone voice leading.
87. The SUF 80 claims that there is
no substantial similarity between the
structures of After the Dance and
Love After War. This claim is not
true. The length of the two chorus
phrases is the same, which is 8 bars.
After the Dance differs only in
adding a tag bar before the verse.
16
A tag bar is something added
at the end or beginning of a
phrase of regular periodicity.
Four bar, eight bar, and sixteen
bar phrases are considered to be
of regular periodicity.

88. After the Dance moves
between the keys of C#minor and E
major, from the minor to the relative
major.
17
The 2 bar progression of the
introduction moves from C#m7 to

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F#m7 sus, that is from I to IV. The
hook modulates to E major. A
standard way to get E major would be
a II-V-I cadence in E (F#-7 B7/E
maj7). Instead, After the Dance
substitutes Am7 Bm7/E maj7.
17
Relative minor and major
scales share the same key
signature. In this example, the
key signature is four sharps. E
major contains the pitchesE F#
G#A B C#D#. C#natural
minor contains the pitches C#D#
E F#G#A B C#. In other words
they are the same scale starting
at different places. The relative
minor is always 2 steps below its
relative major. In practice,
minor scales usually raise their
7
th
degree (B here) by half a step
to B#, which is the same as C
natural. A minor scale with a
raised 7
th
degree is called a
harmonic minor scale.
89. More specifically, the IV in C#
minor serves as the pivot chord

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F#m7b5 (F#-A-C-E).
18
The
keyboardist in After the Dance
plays a F#m7sus chord (F#-A-B-E) as
the IV chord, leaving out the fifth of
the chord. In the harmonic minor
scale, the 5
th
of the IV chord in C#
minor would be B#(C). As shown in
example 19, this IV chord 2 (F#-A-C-
E) has three tones in common with
Am7.
Example 19: Modulation in After
the Dance [Chart Omitted.]
18
A pivot chord is one that is
common to two keys. Composers
use pivot chords to move
smoothly into new key areas.
90. The common tones are what
make the Am7 in the hook an
effective substitute for the II chord in
E major (F#m7). Delaying the arrival
of the pitch C to the hook creates a
more startling shift into the new key
when Am7 arrives. This modulation
is part of what creates the haunting
quality of the hook in the After the
Dance.

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91. After the Dance also uses a
Bm7 chord in the voices rather than
the expected dominant chord B7.
They vocal harmony moves from Am
to Bm to E major. The bassist,
however, plays chromatically from D
to D#to E, providing a dominant
quality for the bass line (see
Example 17, arrows). The tension
between D natural in the vocals and
the D sharp in the bass create a
passing B7#9 sonority on beat 4 of
measures 1, 3, 5, and 7. The bassists
Bb in the last half of the second
measure of the progression, likewise,
creates a passing Bb7#5 chord.

92. These technical details establish
that the chord progressions of the
hooks to After the War and Love
After War are functionally
equivalent. Love After War uses
the simplest version of a II-V-I
progression in E. After the Dance
uses a substitute II-V-I to heighten the
contrast of its modulation from
C#minor to E major.

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93. The SUF 80 claims that there is
no substantial similarity between the
structures of After the Dance and
Love After War. This is not true.
The forms are similar consisting of an
alternation of chorus and verse two
times and ending in an extended
repetition of the Chorus.
(Examples 18, 20). After the
Dance differs by having the verse
and introduction in a different key.

94. After the Dance prepares the
ending repetitions of the chorus by
reprising the introduction, which uses
only half of the progression used in
the verse. Love After War prepares
the ending repetitions of the chorus
with an improvisation section on the
2-bar progression of the chorus.
After the Dance has longer verse
sections and irregular phrasing, but
the basic organization of the
arrangements is very similar.

95. Love After War is comprised of
an Intro phrase/Chorus (A)/Verse
(B)/Improvisation section (C). The

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sections proceed as follows:
Intro/Chorus/Verse/Chorus/Verse/
Chorus/Improvisation /Chorus a
capella/Chorus repeat to the end as in
Example 20 below.
Example 20: Love After War
Form and harmonic progression.
[Chart Omitted.]
96. The resemblance of Love After
War to After the Dance is
heightened by their common tempo,
use of thick vocal harmonies, quasi-
Latin drum accompaniment, and the
prominence of the hook section in the
arrangement of the tune. Both fade
out after long repeats of the hook.

G. LOVE AFTER WAR
SUBSTANTIALLY COPIES THE
CHORUS OF AFTER THE
DANCE
97. [Objection No. 108] The fact
that the melody to Love After War
can easily be sung to the recording of
After the Dance makes its
resemblance to the After the Dance
immediately recognizable to a lay

improper expert

108. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No. 88,
supra.
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listener. This report has shown that
the reason that the melody to Love
After War can be sung with the
accompaniment of After the Dance,
is that their harmonic progressions are
functionally equivalent and the
harmonic rhythm very similar.
656 F.3d at 952-53.
melodies and melodic rhythms of the
two songs are clearly related. The
Love After War chorus melody
inverts the After the Dance melody.
An inversion is a musical relationship
that the average listener can hear.
Both melodies move in the first bar
and rest on G#in the second bar. The
variations in rhythm of the melodies
are due to the different number of
syllables in Love after War. The
relationship between the melodies is
audible nevertheless.
improper expert
656 F.3d at 952-53.
109. Sustained in
part for purposes
of this Motion
only. See Ruling
on Objection No.
88, supra.
99. [Objection No. 110] Love After
War also copies the instrumentation
and general accompaniment of After
the Dance. These elements include
thick vocal harmonies, quasi-Latin
improper expert
110. Sustained in
part for purposes
of this Motion
only. The vocal
harmonies and
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drum accompaniment, and the
prominence of the hook section in the
arrangement of the tune.
656 F.3d at 952-53.
drum
accompaniment do
not appear in the
copyright deposit
to After the
Dance. Cf.
Ruling on
Objection No. 44,
supra (discussing
similar issues with
regard to the Got
to Give It Up
copyright deposit).
H. CONCLUSIONS ON
FINDINGS OF SIMILARITY
hook/chorus to Love After War
directly copies the hook/chorus to
After the Dance. The melody of
Love After War can be sung to the
accompaniment After the Dance.
The hook/chorus section in each tune
is the most prominent part of the
composition and is arranged in similar
ways.
improper expert
656 F.3d at 952-53.
111. Overruled
101. [Objection No. 112] Got to 112. Unsupported and 112. Sustained in
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share a constellation of similarities in
accompaniment parts, vocal melodies,
backup vocals, instrumentation that
cannot be accidental. Got to Give it
Up served as the specific model for
Blurred Lines.
improper expert
656 F.3d at 952-53.
part for purposes
of this Motion
only. See Ruling
on Objection No.
110, supra.
102. [Objection No. 113] Blurred
Lines is substantially similar to Got
to Give it Up because it copies so
many of the compositional ideas of
Got to Give it Up. Got to Give it
Up as a composition includes
melodies, rhythms, harmonies, bass
lines, a keyboard part, and a particular
instrumentation: keyboard, bass,
drums, Latin hand percussion, lead
vocal, background vocals, and
ambient sounds that are unique to that
song.
improper expert
656 F.3d at 952-53.
113. Sustained in
part for purposes
of this Motion
only. See Ruling
on Objection No.
110, supra.
103. The musical parts of Got to
Give it Up draw from larger genres,
but customize and configure them in
very specific ways to accompany
Got to Give it Up. These
customizations and configurations are

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compositional, and the resulting
ensemble texture of the recording is
compositional and should be
recognized as such.
104. Got to Give it Up was such an
iconic song that it influenced many
subsequent R&B artists who have
attempted to make themselves sound
similar to Marvin Gaye. [Objection
No. 114] Blurred Lines, however, is
not a case of influence, but of direct
copying. Blurred Lines borrows far
more than generic rhythmic
frameworks or grooves, far more than
general instrumentation and
organization.

improper expert
656 F.3d at 952-53.

114. Sustained

105. [Objection No. 115] The fact
that the Blurred Lines melody can
be sung to the Got to Give it Up
accompaniment, and vice versa
despite differences in harmonies; the
fact that background vocal parts from
Got to Give it Up are copied and
thematized in Blurred Lines; the
fact that the hook melodies make use
of the same melodic gestures; and the
improper expert
656 F.3d at 952-53.
115. Sustained
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fact that the bass rhythms are nearly
identical; all enable a lay listener
familiar with Got to Give it Up to
immediately recognize that Blurred
Lines directly emulates Got to Give
it Up, not R&B in general.
106. [Objection No. 116] There is a
truly remarkable degree of substantial
similarity that cannot be minimized
by simply saying that the
commonalities are generic.
improper expert
656 F.3d at 952-53.
116. Overruled
2014.

Ingrid Monson, Exhibit 1 After the
Dance Audio Sample (Non-paper
Exhibit lodged concurrently with this
filing)
656 F.3d at 952-53.
The mashups do not
evidence extrinsic
117. Sustained for
purposes of this
Motion only. See
Ruling on
Objection No.
107, supra.
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similarity or any
either song.

IT IS SO ORDERED.

DATED: October 30, 2014
HON. J OHN A. KRONSTADT
UNITED STATES DISTRICT J UDGE

#:3764

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