Pharrell Williams Et Al v Bri (5)

Paul H. Duvall (SBN 73699) E-Mail: [email protected] KING & BALLOW 6540 Lusk Blvd., Suite 250 San Diego, CA 92121 (858) 597-6000 Fax: (858) 597-6008 Attorneys for Defendants and Counter-Claimants Frankie Christian Gaye and Nona Marvisa Gaye

Richard S. Busch (TN BPR 014594) (pro hac vice) E-Mail: [email protected] KING & BALLOW 315 Union Street, Suite 1100 Nashville, TN 37201 (615) 259-3456 Fax: (615) 726-5417 Attorneys for Defendants and Counter-Claimants Frankie Christian Gaye and Nona Marvisa Gaye

Mark L. Block (SBN 115457) E-Mail: [email protected] WARGO & FRENCH LLP 1888 Century Park East; Suite 1520 Los Angeles, CA 90067 (310) 853-6355 Fax: (310) 853-6333 Attorneys for Defendants and Counter-Claimants Frankie Christian Gaye and Nona Marvisa Gaye

Paul N. Philips (SBN 18792) E-Mail: [email protected] The Law Offices of Paul N. Philips 9255 West Sunset Boulevard West Hollywood, CA 90069 (323)813-1126 Fax: (323) 854-6902 Attorney for Defendant and Counter-Claimant Marvin Gaye III

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

PHARRELL WILLIAMS, an individual;

ROBIN THICKE, an individual; and

CLIFFORD HARRIS, JR., an individual,

Plaintiffs,

vs.

BRIDGEPORT MUSIC, INC.,

a Michigan corporation; FRANKIE

CHRISTIAN GAYE, an individual;

MARVIN GAYE III, an individual;

NONA MARVISA GAYE, an

Individual; and DOES 1 through 10,

inclusive,

Defendants.

Case No. CV13-06004-JAK (AGRx) Hon. John A. Kronstadt, Ctrm 750 STATEMENT OF ADDITIONAL MATERIAL FACTS IN SUPPORT OF COUNTER-CLAIMANTS JOINT OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT

Date: October 20, 2014 Time: 8:30 a.m. Ctrm: 750 Action Commenced: August 15, 2013 Trial Date: February 10, 2015

AND RELATED COUNTER-CLAIMS.

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Case 2:13-cv-06004-JAK-AGR Document 121 Filed 09/15/14 Page 1 of 48 Page ID #:2522

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Pursuant to Federal Rule of Civil Procedure 56 and United States District Court,

Central District of California Local Rule 56-2, Counter-Claimants Nona Marvisa Gaye,

Frankie Christian Gaye, and Marvin Gaye III (collectively the Gayes), hereby submit

this Statement of Additional Material Facts in support of their Opposition to Plaintiffs

Motion for Summary Judgment (Plaintiffs Motion).

I. ADDITIONAL MATERIAL FACTS

Material Facts Supporting Evidence

98. The musical composition of Got to Give it

Up is equivalent to the recording and

there was no preexisting lead sheet for

Got to Give it Up at the time of its

recording. The composition was recorded

live by Marvin Gaye at his studio.

98. See The Declaration of Janis

Gaye (Gaye Decl.) at 5-6.

99. The lead sheet deposited with the U.S.

Copyright Office was created by an

unknown third party after the composition

was recorded.

99. See Gaye Decl. at 5-6.

100. Plaintiff Robin Thicke (Thicke) first

heard Marvin Gayes music when he was

eight or nine years old. He owned multiple

albums, including Greatest Hits, Whats

Going On, and Here, My Dear.

100. The Declaration of Richard S.

Busch (Busch Decl.) Exhibit 6 at

72:1-13.

101. Thicke admitted that Marvin Gayes

song Got to Give it Up is one of

Thickes favorite songs.

101. Busch Decl. Exhibit 6 at 17:22-

18:3; 72:14-73:12.

102. Thicke admitted that Marvin Gaye is 102. Busch Decl. see Exhibit 6 at


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one of his idols but denied, despite

contrary prior admissions, that Marvin

Gaye inspired half of his music: Ive been

called the White Marvin Gaye since I

was since I got started. So I think Ive

embraced that, consider it an honor. And

so -- so sometimes, if somebody is leading

you into, you know being compared to or

connecting with Marvin Gaye, I might

embellish. Instead of saying, Oh Marvin

Gaye is one of my favorites, I would go,

Oh, he inspires half of my,I also

embellish on many other subjects

publicly. Thicke also stated when he

listens to Marvin Gayes music he is

inspired by his greatness. He claimed he

was not familiar with the statement on

Allmusic.com that Thicke has a perpetual

Marvin fixation.

73:13-23, 74:1-24, 130:6-12, Exhibit

10.

103. Thicke stated in his verified

Supplemental Interrogatory Response to

the Gayes First Set of Interrogatories, that

he told Pharrell Williams (Williams) he

wanted to create a song that evoked the

musical era of Got to Give it Up.


14, Exhibit 16 Track 1.

104. Thicke admitted that he reviewed,

signed, and approved his Supplemental

Interrogatory Responses.

104. Busch Decl. Exhibit 1, Exhibit

6 at 68:20-71:7, Exhibit 16 Track 1.


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105. After his deposition, wherein Thicke

made admissions regarding Marvin Gayes

influence on Blurred Lines, he provided

Amended Supplemental Interrogatory

Responses, which stated that Williams

created the entire song, contradicting the

Interrogatory Responses he previously

verified.

105. Busch Decl. Exhibit 1A at

3:10-11.

106. Thicke is a co-writer on Blurred

Lines and owns part of the publishing.


85:6.

107. In a May 7, 2013 interview with GQ,

Thicke made the following statement about

the creation of Blurred Lines, Pharrell

and I were in the studio and I told him that

one of my favorite songs of all time was

Marvin Gayes Got to give it Up. I was

like, Damn, we should make something

like that, something with that groove.

Then he started playing a little something

and we literally wrote the song in about a

half hour and recorded it.


6, at 75:10-77:19, 78:3-9.

108. Thicke claimed in his deposition he

lied about the story of how Blurred Lines

was created to sell records. I thought it

would help sell records. I thought that it

being my song my idea would make it


88:19, Exhibit 16 Track 9.


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more personal because my music has

always been so personal. That this was the

first time I had a song out that wasnt

personal and had nothing to do with me,

and yet it was my biggest successful (sic),

which you know, was very tough for me.

And so I lied in my story so I could at least

make it seem like, hey, Im the guy who

came up with this great idea. And you

know what? I didnt even use the Marvin

Gaye thing until everyone starting saying

to me, Hey, its reminiscent of the

Marvin Gaye Song, And I was like,

Well, yea, that was my idea. I wanted to

do something like that. There was no other

way for me to get credit for this biggest

song of the year unless it was my idea.

109. Thicke claimed that the statements

made during his July 9, 2013 interview

with Billboard.com were untrue. In that

interview Thicke stated, Pharrell and I

were in the studio making a couple records,

and then on the third day I told him I

wanted to do something kinda like Marvin

Gayes Got to Give it Up, that kind of

feel cause its one of my favorite songs of

all time. So he started messing around with

some drums and then he started going,


6 at 101:18-102:24.


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Hey, hey, hey, and about an hour and a

half later we had the whole record

finished.

110. During his deposition, Thicke

authenticated a video clip from a 2013

interview with Inside Track on Fuse TV

wherein he stated, I said to Pharrell, you

know, Id like to do something like Marvin

Gayes Got to Give it Up, something with

that feel, and so we just started messing

with drums. Then he said, hey, hey, hey

and I was like, I love that. I hopped in

the booth, I put that down, and the rest of

the song just came flying out, like one line

after another.

110. Busch Decl. Exhibit 3, Track 4,

Exhibit 6 at 107:16-109:17.

111. Thicke claimed that he was drunk and

high during a 2013 interview with VH1,

and that the statements he made during the

interview were untrue. In the interview

Thicke stated, Well, Pharrell and I went in

the studio and, you know, I had mentioned

to him that one of my favorite songs of all

time is Marvin Gayes Got to Give it Up.

And so we tried to get a little groove like

that going and then we started dancing

around the studio like old men, hollering at

young girls from porch (sic), you know,

like hey, hey, hey, you know. We really

111. Busch Decl. Exhibit 3 Track 2,

Exhibit 6 at 111:24-114:17.


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wrote the whole song in about a half an

hour, because once we had a little track, we

went into a booth together, and, like, I

would sing a line and hed go, hey, hey,

hey or uh-huh or he would like, hey, girl,

come here. You know, we just had such a

great time that when we did the video, I

wanted to make sure we kept that energy

and that sense of humor. So I had Pharrell

do some old men dances. And when T.I.

showed up, I was like, Hey man, can you

do some old-man-like-your-grandpa-at-a-

wedding kind of dances. And T.I. went

right for it. He was fearless. He went right

for it. He gave us some Red Fox magic.

112. During his deposition, Thicke

authenticated a video clip from a 2013

interview with Twitter Take Over where he

stated, The idea, to uh, behind the song

Blurred Lines was Pharrell had been in

the studio for a couple of days, and one of

my favorite songs of all-time is Marvin

Gayes Got to Give it Up. So I came into

the studio and was like Hey, Pharrell I

wonder if we can do something with this

feel and this kind of spirit. And he started

working on the drums and about an hour

and a half later the whole song was

112. See Busch Decl. Exhibit 3

Track 3, Exhibit 6 at 115:18-116:18,

Exhibit 16 Track 6.


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finished. It was just one of those magical

days in the studio. Thicke claimed and

said that nothing said in the interview was

true, and admitted that he was drunk and

on vicodin at the time of the interview.

113. Thicke stated that when he appeared on

the Oprahs Next Chapter he was on a

Norco, which is like two Vicodin in one

pill . . . two times the power. The

following exchange took place during the

October 2013 interview:

Q: So lets talk about the Marvin Gaye

controversy.

A: Yes.

Q: Five months after its release, Marvin

Gayes family went public with

accusations that Blurred Lines sounded

strikingly similar to the legendary soul

singers classic, Got to Give it Up. I read

that you said, first of all, because I read

that and I thought one of my all time, its

my all time favorite dance song is Youve

Got to Give it Up. (sic).

A: I know, its a classic. Its one of the

best ever. And I went into the studio with


Exhibit 6 at 119:13-22.


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Pharrell and I said you know, I would love

to get something like this feel. You know,

something that makes you feel like this.

And thats what inspiration is. You know,

you cant own a feeling. You own the

melodies, the bass lines, the chord

progressions, the syncopation. You know.

Thats what makes a song.

Q: So do you think its going to get

settled like out of court? Whatever?

A: I sure hope so. Do you know how

weird it is to be in legal battles with my

idol, with the person who inspires almost

all of, you know half of my music, its

either Michael Jackson or Marvin Gaye.

Q: I know. Whats your favorite all time

Marvin Gaye song?

A: Theres something about Whats

Going On that just, it just feels like it

explains life on earth for human beings.

You know what I mean? Its pretty much

like thats a time capsule. You could send

it out into the universes and there are some

aliens that are going to hear Marvin Gaye

and go Oh thats what life is like on


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earth, you know.

114. At his deposition, Thicke authenticated

that it was his voice in the following

interview with Hot 97:

Q: Is the song, it feels, cause speaking of

old man dances and BBQ dances, it feels

sort of like Got To Give it Up Part 2.

A: Definitely. Yeah.

Q: Was that sort of the vibe, the Marvin

Gaye vibe?

A: Thats exactly what I went in, its one

of my favorite songs of all time, I went in

and I was like you know Pharrell Id love

to make something like this, you know feel

like Got To Give it Up and he started

with the percussion you know trying to get

that rhythm and then the song actually

happened we did the whole record in about

an hour. And it was one of those magical,

we were having so much fun.

In his deposition, Thicke explained that he

answered definitely because they teach

you in the entertainment and in and to

in improve to always say yes and and

move forward and instead of saying no


Exhibit 6 at 125:15-128:24.


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to things. So if they say, Hey, its

exciting, if theyre if theyre giving you

positivity, you always go, Yeah, of course,

man. Thats what we were going for. You

dont stop its that entertainment. Its

bad interview to fight and argue and

disagree. So if somebody lends me a

positive opening, I follow the positivity

with, Yeah, man. Thats exactly what we

were going for. All the way.

Thicke also stated, [A]fter so many

people, and like the interviewers were

saying, Hey man, it reminds me of that

song. It reminds me of that era, I was

going, Yeah, man. Thats what it is. Its

that era. Its and Marvin Gaye, being

one of the greatest to ever live, sure, I want

my new song to be compared to Marvin

Gaye, sure. Thicke admitted that the

reference in the interview was not to the

era but was specifically a reference to Got

to Give It Up.

115. Despite consistently stating that he

wanted to create a song like Got to Give it

Up, Thicke denied the accuracy of the

statements made in the Hot 97 interview.

Thicke claims he was never there when


Exhibit 6 at 127:7-128:24.


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Williams started creating Blurred Lines.

116. After Thicke filed the lawsuit in this

case, he gave the following interview to

TMZ:

Q: So, so when you, when you wrote it,

[Blurred Lines], do you like think of

Marvin Gaye like when you write your

music?

A: No.

Q: Are you a fan of Marvin Gaye?

A: The biggest.

Thicke claimed that his answer to the

question are you a fan of Marvin Gaye

was the one question he answered honestly

in all of his interviews.


Exhibit 6 at 131:23-132:12, 142:2-11.

117. Thicke does not consider himself an

honest person.



118. Thicke admitted that when he gives

interviews, I tell whatever I want to say to

help sell records.



119. At his deposition, after hearing a music

clip combining portions of Blurred Lines

and Got to Give it Up, Thicke was

unable to decipher from which song the

bass line was playingBlurred Lines or


4, 44:14-25, 48:12-49:11, 51:9-52:20.


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Got to Give it Up.

120. Thicke admitted that kick drum

syncopation in Blurred Lines and Got to

Give it Up were similar.


14.

121. It was Thickes idea to add the falsetto

to the second verse of Blurred Lines with

a different melody than the first.


24.

122. Thicke admitted that if he did not win

this case his ability to receive income from

Blurred Lines might be affected.


18.

123. Thicke admitted that he is familiar with

Marvin Gayes After The Dance because

it is a classic.

123. Busch Decl. Exhibit 6 at

154:11-16, Exhibit 16 Track 10.

124. Thicke claimed it was his manager and

lawyers idea to file this litigation.


157:22-158:2.

125. Thicke admitted Blurred Lines was

by far his biggest hit earning at least 12

million copies worldwide. Comparatively

his second biggest hit Lost Without You,

sold 1-2 million copies.


161:11-25.

126. When asked at his deposition if he

answered the written questions served

upon him by the Gayes, Williams admitted

that he did answer a bunch of questions

verbally, but could not remember any of

the particular questions asked of him.


22:5, 26:4-33:5, 37:3-24.

127. Williams stated that Blurred Lines 127. Busch Decl. Exhibit 7 at 47:20-


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does not use a blues chord structure. 22.

128. Williams does not know what chords

are in a 12-bar blues.


48:13

129. Williams did not know if he conducted

any personal search for documents he

personally had or that his company had in

response to the Gayes document request,

in order to ensure that he produced all

responsive documents.

129. See Busch Decl. Exhibit 7 at

49:6-25

130. Williams claimed he is able to read

musical notation, but cannot read pitches in

musical notation nor write in musical

notation. At his deposition, Williams stated

that he did not feel comfortable

identifying the names of notes requested of

him on pages 7, 11 of Judith Finells

Preliminary Report (Finell Report).

Williams also stated that he was not

comfortable because, Honestly, its

much more of an emotional answer than it

is anything else than its a scientific

answer. So I dont know if you really want

to listen to that. Williams later stated that

he could have identified the notes, If I

wanted to, but I didnt feel comfortable.


14, 54:8-10, 54:24-59:17, 139:17-

140:18.

131. Williams is familiar with Marvin

Gayes music and owned his albums.




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Pharrell stated that his Aunt used to play

Got to Give it Up all the time.

132. Williams denies Thicke made the

comments described in the May 7, 2013,

GQ article (transcribed in No. 107 of this

document), nor did Williams start playing

any music for Thicke after his comments.


7 at 62:12-63:12, 65:11-66:4.

133. Williams denied Thickes statements in

the July 9, 2013 Billboard interview:

Pharrell Pharrell and I were in the studio

making a couple records, and then on the

third day, I told him I wanted to do

something kind of like Marvin Gayes Got

to Give it Up. . . . (Full transcription in

No. 109 of this document).


7 at 66:13-67:14, 71:2-72:8, Exhibit

16 Track 11.

134. In response to a question regarding the

July 9, 2013 Billboard interview

(mentioned in No. 133 above), Williams

stated: Unfortunately, these questions that

youre asking me refer to a portion of our

business in the music industry when people

come in, sometimes they either co-write or

when they need songs sometimes they

embellish those stories. And so what

youre hanging your hat on here is a guy

that, you know, wants the world to

134. Busch Decl. Exhibit 7, at

67:16-68:15, Exhibit 16 Track 11.


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perceive that, like, you know, that song

was primarily, you know, like his his

his he had the impetus or the genesis for

it. But thats not the way I work. A. B,

again, I just highlight this to you. What

youre doing is youre taking excerpts from

a conversation of an interview where a guy

is presenting to the world that these are his

songs. So hes going to say: Yeah, I got

such A, such A, such A, such A, such A

such. But thats not the case. Im happy to

answer all these questions, but

unfortunately, this is the this is the this

is the part of it all that just makes it a little

confusing for youIts not the truth.

135. Williams repeatedly claimed Robin

Thicke, embellished the statements made

in the interviews with GQ and Billboard,

particularly with GQ because Thicke was

not there during the recording of Blurred

Lines.


7,at 69:15-70:16, 182:24-183:18,

185:9-188:11.

136. Williams denied the veracity of the

following quote from an interview Thicke

gave to Inside Track on Fuse TV, on July

29, 2013: I said to Pharrell, Id love to do

something like Got to Give it Up. Thicke

stated, Pharrell and I started messing with


Track 4, Exhibit 7 at 73:6-21.


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the drums. Then he said the Hey, hey,

hey line. I hopped in the booth and we just

came flying out.

137. Williams claimed the following quote

from Thickes GQ, interview is untrue:

Pharrell and I started messing with drums

. . . because according to Williams, that

never happens in my sessions. Further, . .

. going into the booth? Thats not how it

happened. And by the way, how am I

how was how am I in the booth, saying,

Hey, hey, hey, and he can hear me and

hes not? How can he hear me?


7 at 73:21-74:4, 78:7-16.

138. Williams denied the veracity of the

following excerpt about the creation of

Blurred Lines, from Thickes VH1

Music interview from 2013,

Q: How did the song Blurred Lines

come about?

A: Pharrell and I went in the studio and I

had mentioned to him that one of my

favorite songs of all time is Marvin Gayes

Got to Give it Up.


Exhibit 7 at 74:-21-75:25.

139. Williams said the following regarding

Thickes comments in the rest of the quote

from his interview with VH1 Music,

transcribed fully in No. 111 above, This is


Exhibit 7, at 76:2-77:1.


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a friend of mine, and unfortunately, this is

what happens when you embellish, when

you embellish like the origins of a song or

the origins of anything creative. This is

unfortunately what happens. We get in

here to places like this where you think

theres a threat of me being dishonest. And

thats not the case. He also stated that

Thickes description of the events was not

how it happened.

140. Williams denied that Thicke ever told

him during the creation of Blurred Lines,

that Got to Give it Up was one of his

favorite songs of all times.


25.

141. Williams denies the veracity of

statements Thicke made during his Twitter

Take Over interview, specifically that,

The idea, to uh, behind the song Blurred

Lines was Pharrell had been in the studio

for a couple of days, and one of my

favorite songs of all-time is Marvin Gayes

Got to Give it Up. So I came into the

studio and was like, Hey, Pharrell I

wonder if we can do something with this

feel and this kind of spirit. And he started

working on the drums and about an hour

and a half later the whole song was


Exhibit 7, at 81:5-82:1.


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finished. It was just one of those magical

days in the studio.

142. Williams claims Thickes

embellished his statements in his Hot

97 interview. Youre dealing with

embellishment, and that is not how it

happened.

The full transcription of the excerpt

referred to is below:

Q: Is the song, it feels, because speaking

of old man dances and BBQ dances, it

feels sort of like Got to Give it Up Part

2.

A: Definitely, yeah.

Q: Was that sort of the vibe, the Marvin

Gaye Vibe?

A: Thats exactly what I went in, its one

of my favorite songs of all time. I went in

and I was like, You know Pharrell, Id

love to make something like this, you

know, feel like Got to Give it Up and he

started with the percussion, you know,

trying to get the rhythm and then the song

actually happened. We did the whole


Exhibit 7 at 82:12-84:22; 195:19-

197:8.


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record in about an hour and it was one of

those magical, we were having so much

fun.

143. When asked about Thickes statements

regarding the creation of Blurred Lines

Williams stated, He is also a friend of

mine, right, and this is public record. At

the end of the day, hes a friend of mine

and Im not trying to, you know, belittle

his character in any way, shape or form.

But this is what happens every day in our

industry. You know, people are made to

look like they have much more authorship

in the situation than they actually do. So

thats where the embellishment comes in.


85:18.

144. Williams admitted that he gave the

following March 2013 interview with

XXL, referencing Marvin Gaye in regard

to Blurred Lines, stating,

Q: One of the biggest thing in production

is always sampling. Youve gotten into a

little bit of an issue with Blurred Lines

and Marvin Gayes estate. Did you see the

similarities in those tracks? How did you

deal with the fallout?

A: Well, listen, I have the utmost respect

the most utmost respect for Marvin Gaye


7 at 104:18-107:15, Exhibit 16 Track

13.


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and his music and he is one of the

patriarchs. He is one of the best. But heres

the thing. You cant trademark a groove.

If I play a song, which a lot of my new hip

and rap records are, thats done in a six-

eight time signature, Charlie Parkers

family is not going to sue me for that. Do

you understand what Im saying? If I do a

salsa beat right now, I know that Ricky

Martins family is not going to come

looking for me. Because thats what were

dealing with. Were dealing with the idea

that someone feels like a groove is

proprietary, and its not. Music is and the

notes are, and when you look at the sheet

music, then youd know. And just for a bit

of humor, the percussion that I use in

Blurred Lines, aside from the music

notation being completely different

completely different the sheet music is

available online, by the way, but the

persuasion I was trying to pretend that I

was Marvin Gaye and what he would do,

had he went down to Nashville and did a

record with pentatonic harmonies, and

more of a bluegrass chord structure. So

unfortunately, theres no comparison

between the minor, bluesy chords he was


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playing and my major bluegrass-y chords,

and thats very plain to see for anyone who

can read music.

145. Although Williams stated in his

deposition that Marvin Gayes Got to

Give it Up did not cross his mind when he

was creating Blurred Lines.

However, he admitted in an October 31,

2013 interview promoting Despicable Me

2 that Blurred Lines was inspired by

Got to Give it Up. Williams went on to

say, What I tried to do was I tried to take

the feeling that Got To Give it Up gave

me. But I also tried to blend in Southern

White Baptist harmonies on the chorus . .

.


Track 7, Exhibit 5, Exhibit 7 at

90:13-17, 107:16-23, Exhibit 16

Track 12.

146. When asked about the discrepancy

between his statements in the XXL

interview and the responses in his

deposition where he said that Marvin Gaye

did not come into his mind during the

creation of Blurred Lines, Williams

stated that he was asked whether

Got to Give it Up came into his mind,

not Marvin Gaye. He claimed he meant to

say that he was trying to create the feeling

146. See Busch Decl. Exhibit 4,

Exhibit 7 at 107:14-110:22, Exhibit

16 Track 13.


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of the music. When I looked back, when

I was answering that question, yes, it was

like -- and thats what I should have said.

And Im sorry for not being clear. But it

it should have read, It felt like Marvin

Gaye going into Nashville making a

groove. Thats what it should have said.

So if Im going to be penalized for that, I

do stand corrected[and] Im telling you

that was thats not accurate. And I did

say that.

147. During his deposition, Williams was

not comfortable defining a Bluegrass

Chord Structure, Six-eight time

signature, or pentatonic harmonies. Nor

did he feel comfortable answering if

Blurred Lines was in six-eight.


111:25-116:12.

148. Williams stated that the hook of

Blurred Lines is Good girl because,

thats what comes around as much as it

does. I mean, a chorus is honestly based on

what the author of the song deemed it

you know, deems is the chorus. So you

know, what most people would call the

chorus, some people will not. So its

obvious its subject to the author of the

song. Those things vary.


22.


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149. Williams oversaw the mixing process

for Blurred Lines by giving instructions

with the way he wants it to be mixed and

gives his notes when it comes back to him.


119:10-15.

150. Thicke told Williams that he wanted

the second verse to be sung up higher,

asking for the falsetto.


120:22-121:9.

151. The bass line descends at the end of

each section because the chord changes.

Williams said that to do so felt like the

natural thing.


122:24-123:11.

152. Williams admitted he thinks for remix

purposes, a song can be embedded into

Logic and then manipulated to create a

new song.


125:18-126:11.

153. When asked what the most important

element of Blurred Lines was, Williams

said, [T]he most important thing, its like

a mosaic. Each piece is necessary. Its the

over-arching message. Its the over-arching

feelingIts like asking yourself, whats

the favorite part of your sweater? Is it the

way that it fits or is it the color or the tag in

the backIts all just the composition is

what it is. Williams stated that in his

eyes, Thickes voice is what holds

Blurred Lines together.


129:17-130:11.


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154. Williams knew that articles in Rolling

Stone and other publications were written

where the author stated that Blurred

Lines and Got to Give it Up sound

substantially similar.


138:21-139:2, 139:5-15, Exhibits 11-

13.

155. According to Williams, a groove is, a

compilation of rhythms that give off a

certain effect that can be achieved by many

different thingsits a combination of

many different elementssoundsand

their syncopationsand most importantly,

the notationthats what helps to identify

a groove.


141:12-142:19.

156. Williams stated that all statements

Thicke made regarding the creation of

Blurred Lines and read during his

deposition, were not only inconsistent, but

also untrue because Thicke was not there

during the creation of Blurred Lines.


173:22.

157. Sandy Wilbur (Wilbur) has written

deposit copies or lead sheets for songs or

other musical work that she has composed,

but has not prepared deposit copies or lead

sheets with the copyright office for a third

party, except in cases where someone

might be trying to get a trademark. Wilbur

stated that, The lead sheet generally has

the chords, the lyrics, the melody, the


43:21, 47:9-23, 50:12-21.


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structure, the movement the if they are

appropriate to put in to the lead sheet and

they are important. Wilbur mentions that

generally the arrangements and the sound

of the artist are omitted from a lead sheet.

158. Wilbur claims that although she

scanned Plaintiffs Motion, she saw that

Plaintiffs argued that the court should

focus on the lead sheet as being the

composition in the case.


129:11-130:7

159. Wilbur admitted that a lead sheet

differs from the full score of her own

songs, because the melody, the chords, the

lyric structure, and the rhythmic elements

such as harmonic rhythm and melodic

rhythm are omitted from the lead sheets.

Wilbur further admits that the underlying

song is omitted from the full score of the

lead sheets in her own songs.


49:5

160. Wilbur admitted that in a declaration

submitted in Bourne Company v. Twentieth

Century Fox, another case where she

testified under penalty of perjury, that she

stated, Most of the differences in the lead

sheet reflect a simplified less fleshed out

chord pattern.


9 at 131:6-133:24.

161. Wilbur was aware that the copyright 161. Busch Decl. Exhibit 9 at 51:7-


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Act was amended in 1978 to allow for the

deposit of the recording to be the

composition. She also acknowledged that

before the 1978 amendment, a visually

perceptive copy, or a lead sheet, was

required.

16.

162. Wilbur did not know how the lead

sheet she reviewed for Got to Give it Up

was prepared, if it was prepared before or

after Got to Give it Up was recorded, or

if someone other than Marvin Gaye was

the one who prepared it.


162:10-25.

163. Wilbur admitted that she did not, in

fact, look at the lead sheet for Blurred

Lines when analyzing the similarities

between Blurred Lines and Got to Give

it Up, nor did she know if a lead sheet for

Blurred Lines existed. Wilbur claimed

that she downloaded the lead sheet from a

download site and did not know who

created the lead sheet that she downloaded,

and further the lead sheet was not provided

by the publisher. Further, Wilbur admits

that she did not use the lead sheet for

Blurred Lines or Got to Give it Up, but

looked at it briefly, instead, I transcribed

the song elements in lead sheet fashion

from the recordings. She also admitted


60:21, 62:16-63:2, 68:25-69:5.


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that commercially sold lead sheet for the

public does not normally represent the

most official form of the music

composition.

164. Wilbur provided her preliminary

analysis to Plaintiffs in July of 2013, but

only reviewed the deposit copy lead sheet

for Got to Give it Up recently. Her

analysis was based on the transcribing of

the recording of Got to Give it Up and

Blurred Lines, which has not been

produced to the Gayes.


8:8.

165. Wilbur did not include her

transcriptions created from the snippets of

music from Got to Give it Up and

Blurred Lines that she compared, in her

declaration. She stated that the

transcriptions she already created were

substantially the same as the copyright

deposits. Wilbur later claimed that in

determining whether two songs are similar,

she reviews a whole song to determine all

of the different similarities.


71:18, 75:9-76:3.

166. Wilbur did not conduct her own prior

art research.


81:16.

167. Wilbur did not find any prior art 167. See Busch Decl. Exhibit 9 at


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containing all eight of the similarities

between Got to Give it Up and Blurred

Lines that Finell identified in her report.

88:14-89:22.

168. Wilbur admitted she found that the

chorus, among other elements in Love

After War and After the Dance were

similar.


94:6.

169. Wilbur admitted that the decision as to

whether something rises to the level of

substantial similarity is certainly a jury

decision.


14.

170. Wilbur admitted that chord choices are

certainly a composers choice.


92:9, 94:15-95:16.

171. Wilbur admitted that it is a common

practice to put two pieces into the same

key for comparative purposes, as was done

for the comparison between Love After

War and After The Dance, in the

analysis by Judith Finell.


95:18-96:10.

172. Wilbur did not remember if the

melodies that correspond to the words

move it up in Got to Give it Up and

hey, hey, hey in Blurred Lines were

similar, stating, I dont know the answer

because I didnt look at that.


97:13.

173. In her deposition, Wilbur stated that

statements made by an alleged infringer


116:5-119:18, 121:21-123:5, 127:16-


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expressing intent to copy a particular song

have absolutely no relevance to her

infringement analysis when determining

things such as access, independent

creation, and substantial similarity between

the two songs.

128:13.

174. Wilbur admitted she was not aware of

any comments made by Thicke about his

attempt to copy, evoke, or create

something like Got to Give it Up when

creating Blurred Lines. She further

admitted that even if she were aware of any

comments Thicke made to that effect, it

would not be relevant to her analysis.


127:21-128:13.

175. Wilbur admitted that she thought she

read that Thicke was a Great admirer of

Marvin Gaye and that he was influenced

by Marvin Gaye . . .


125:24-126:14.

176. Wilbur admitted in her deposition, that

she did not know about the inverse ratio

rule and that she did not take the theory

behind the inverse ratio rule into account in

her analysis in this case.


120:15-121:17, 128:22-129:10.

177. Despite that Wilbur attended law school

and has considerable experience working

with copyright attorneys, she never studied

Ninth Circuit law on what elements courts


145:18.


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will look at to determine substantial

similarity, and did not know about the

inverse ratio rule.

178. Wilbur did not look at any Ninth Circuit

authority and did not take into account the

inverse ratio rule as stated by the courts;

that in the case of copyright infringement,

the more evidence there is of access or

intent to copy, the less substantial

similarity need be shown.


113:11-20, 128:22-129:10.

179. Wilbur admitted that she does not know

whether there is a difference under Ninth

Circuit law as to what constitutes a

composition in the musical sense, versus in

the legal sense under California law.


18.

180. After initially denying the accuracy of

the following statement, Wilbur eventually

had to acknowledge that it appeared her

own website: A thorough comparison of

two or more pieces of music which

examines all the pertinent music and vocal

elements including melody, harmony,

rhythm, instrumentation, lyrics, musical

style, samples, vocal sound and style, etc.

in order to determine if there are

problematic similarities between the

works.


137:8, 138:24-140:15.


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181. After initially denying the accuracy of

the following statement, Wilbur eventually

had to acknowledge that it appeared her

own website: It is the unique combination

of elements some of which could be

common on generic that defines

originality.


137:21-138:13, 142:22-144:8.

182. Wilbur admitted that melodic rhythm

and harmonic rhythm are rhythmic

elements that are part of a composition.


7.

183. Wilbur was not aware if there was any

Ninth Circuit California courts that had

recognized the elements listed as actually

parts of a composition that can be

considered. She did, however agree that a

combination of elements absolutely must

be considered in determining whether two

songs are compositionally similar.


150:12-25.

184. Wilbur was able to recognize a Mozart

variation on Twinkle Twinkle Little Star,

despite intervening notes not in the original

version.


165:9.

185. Wilbur admitted that musicologists

weigh the factors of similar series of

pitches, similar series of durations within

similar pitches and similar rhythmic

placement positioning within similar series


13.


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of pitches and durations.

186. Wilbur admitted that the eight

Similarities between Blurred Lines and

Got to Give it Up were primarily

melodic, despite prior claims of no

substantial similarity between the two

songs, and despite the contradictory

assertion in Plaintiffs Motion.


16 (or through 178:16).

187. Wilbur admitted that both Blurred

Lines and Got to Give it Up contain a

three three sharp two three scale degree

that is missing in Working in a Coal

Mine, although in different positions.

Wilbur admitted that she incorrectly

transcribed the scaled degrees for dancing

ladies in Got to Give it Up as three,

three sharp, two, one when instead of the

correct, three, three sharp, two, three, in

paragraph 183 of her declaration.


204:10, 206:9-24, 208:24-209:18; Dkt

No. 91-1.

188. Wilbur states that the average listener

would not hear the less significant and

immaterial differences, which contradicts

the many minor differences she pointed out

with her rigid criteria in comparing

Blurred Lines with Got to Give it Up.

188. Busch Decl, Exhibit 8, Exhibit

9, at 215:16-217:23.

189. Wilbur admitted that in the Bourne 189. Busch Decl. Exhibit 8 at 44,


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affidavit, a case in which she found

substantial similarity, she found only 25

out of 65 chords to be the same, also

accepting similar chord tones even if the

chord names were different.

Exhibit 9 at 224:22-226:17.

190. Wilbur admitted in her Bourne

declaration that an acceptable manner of

determining substantial similarity is to

overlay of chords from one song with the

melody of another in a mashup.Indeed

except for measures 21 and 22 in the B

section of Jew, all of Star can be sung

using the chords found in Jew and vice

versa.


45, Exhibit 9 at 227:5-232:23.

191. Wilbur admitted that the for the hooks

in Got to Give it Up (keep on dancin)

and Blurred Lines (take a good girl),

that the numbers above the notes show

three out of four pitches with the identical

scale degree of 6121 in Got to Give it Up

and 6111 in Blurred Lines, in the

transcription examples.


237:24-239:19.

192. Wilbur admitted that even if an element

is a common device, like a vocal backup, it

can still be expressed in a unique way, and

that both Got to Give it Up and Blurred

Lines did so.


15.


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193. Wilbur admitted that using a

descending bass melody in the funk or soul

genres is a creative choice.


245:21-25.

194. Wilbur admitted that the same scale

degrees are used in the bass lines of Got

to Give it Up and Blurred Lines.


248:13-22.

195. Wilbur admitted that the descending

bass melodies in both Blurred Lines and

Got to Give it Up begin and end in the

same place, specifically that they begin at

five on the pitch and end on one.


251:23-253:23.

196. Wilbur admitted that the keyboard parts

in Blurred Lines and Got to Give it Up

share three notes.


258:10-25.

197. Despite her analysis of Low Rider in

her declaration, Wilbur admitted that Low

Rider is not substantially similar to Got

to Give it Up.


259:10-22.

198. Despite her analysis of Superfly in

her declaration, Wilbur admitted that

Superfly does not contain vocal melodic

material similar to Got to Give it Up.

Wilbur was unsure as to whether

Superfly contained a descending bass

line, whether it contained similar keyboard

parts as Got to Give it Up, or whether the

drum beat is different in the introduction


260:17-264:19.


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than it is in the main body of the song.

199. Despite her analysis of Funkytown in

her declaration, Wilbur admitted that

Funkytown does not contain the hook

and accompanying backup vocals found or

the open hi-hat found in Got to Give it

Up or Blurred Lines. Wilbur further

admitted that Funkytown does not

contain any of the signature phrases found

in Got to Give it Up.


268:17.

200. Despite her analysis of Working in a

Coal Mine in her declaration, Wilbur

admits that both Blurred Lines and Got

to Give it Up begin with a rest and that

Working in a Coal Mine does not.


268:18-269:5.

201. Wilbur admitted that there were

harmonic similarities between Love After

War and After the Dance. After hearing

a recording with the melody of Love

After War over the chords of After the

Dance, Wilbur admitted that the two

songs have a similar chord structure.


15, 283:24-284:13.

202. During her deposition, Wilbur did not

remember why she discussed the cowbell

part in her Declaration, but omitted the

second hand percussion part in her

transcription of Blurred Lines.


290:12-25


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203. In listening to Blurred Lines and Got

to Give it Up, the ordinary or lay

listener would recognize similarities

between them.

203. See The Declaration of Judith

Finell (Finell Decl), Exhibit 1 at

8.

204. Blurred Lines and Got to Give it

Up both contain substantially similar

defining compositional elements that are

the result of many of the same deliberate

creative choices made by their respective

composers, far surpassing the similarities

that might result from attempts to evoke an

era of music or a shared genre.

204. See Finell Decl. at 15, 141.

205. Audio Engineer, Thomas Court, was

asked to create a mashup of Blurred Lines

and Got to Give it Up for this case, by

the Gayes counsel. A mashup represents a

composite of both songs, which allows the

listener to recognize the similarities in the

two works. Mr. Courts analysis was

conducted primarily by working on an

Apple computer using Pro Tools digital

audio software.

205. See generally The Declaration

of Thomas Court (Court Decl), at

2-10.

206. The Gayes counsel provided Court

with the Blurred Lines and Got to Give

it Up files released by iTunes. The first

tracks supplied were the stereo-mixed

releases. Mr. Court was then provided with

separate digital and audio multi-track

206. Court Decl. at 11-13.


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recording for Blurred Lines in Pro Tools

in a finished master-session format, as

would be delivered to a record company.

Mr. Court was able to separate just the

Blurred Lines vocals and instrument

tracks into separate monaural track-stems,

one vocal-only and one music-only. Music-

only refers to a track with the instrument

accompaniment track and not the vocal

tracks.

207. Mr. Court listened and compared all of

the tracks, the released versions and the

separated stem versions, in order to verify

if the tracks were one and the same. Mr.

Court determined that the tracks were

identical to the commercially released

versions.

207. Court Decl. at 14.

208. Mr. Court then isolated vocal and music

stems, revealing that there was something

interchangeable between Got to Give it

Up and Blurred Lines, like a puzzle cut

with the same jigsaw. Mr. Court stated, I

could move the Got to Give it Up vocal-

only (Example 3) from the songs,

measures 108 through 124 (16 Bars), and

have it play back simultaneously with the

Blurred Lines music-only from that song,

measures 105 through 121 (16 Bars). The



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result, without any pitch manipulation,

played as if they were one song.

209. Because Mr. Court had access to the

separated music and vocals from both

Blurred Lines and Got to Give it Up,

he did not have to remix or add any special

effects to the songs or use any specialized

software. The Blurred Lines multi-track

was well balanced and Mr. Court only had

to mute the music to create his vocal-only

track, and then mute the vocals and create

the music-only track. Both the Got to

Give it Up tracks were already pre-mixed

with ambient reverb for the vocal-only,

which is common for that era of music.

Reverb is an audio-engineering term, for

creating an audio recording experience that

contains reverberation, creating the

impression that one is at a live concert.


210. The only minor adjustment Mr. Court

made was to the Beats Per Minute (BPM)

of each song through a process called

beat-mapping. This process took place

on Pro Tools where Mr. Court was able to

determine and adjust the BPM for both

Blurred Lines and Got to Give it Up,

which revealed that both song recordings

were within 1% of each others tempo.

210. Court Decl. at 17-20.


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Mr. Courts adjustment was to conform

each songs tempo to a solid 120 BPM.

The Blurred Lines iTunes release was at

119 BPM and the multi-track, which is the

most authentic track, was at 120 BPM,

verifying that Courts approach was

accurate. Mr. Court found that the

discrepancy in tempo can occur from

transferring a master recording to a CD and

then digitizing it to an MP3. Got to Give

it Up iTunes release was slightly faster at

approximately 122 BPM, and had a

varying tempo that is typical of recording

sessions with live musicians.

211. Mr. Court used the Pro Tools software

to import all four isolated audio tracks

from the two separate recordings of Got

to Give it Up and Blurred Lines, then

edited a 16-bar phrase from each song.

After which, he played them exactly as is,

with no alterations, with the two different

songs playing together in parallel. This is

called a true composite and not

mashed or altered from the original.


212. In order to display the tracks outside of

Pro Tools visually and audibly, Court

exported the selected 16-bar phrases for

playback in any music-player, utilizing



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Apple iTunes player. Court then used a

computer-screen-capturing software,

ScreenFlow, to visually record the

playback in iTunes one track at a time, for

both Got to Give it Up vocals-only, and

Blurred Lines music-only. Mr. Court

was able to align both playback visual

screen-captures for each song to start at

00:00 time, because iTunes player has a

time counter. As a result, Mr. Court was

able to play both players at the same time,

an identical result as in Pro Tools without

the audio-waveform displays.

213. Simultaneously playing the selections

enables the listener to gain an

understanding of the correlation between

the song Got to Give it Up vocals

(phrasing of the lyrics) and the Blurred

Lines instrumental music. The

comparison revealed the songs unique

ability to synchronize with one another,

and whether the files are played in Pro

Tools or on individual music players

playing at the same time, the resulting

mashup composite is the same.


214. Mr. Court concluded that the phrase in

Got to Give it Up and Blurred Lines,

seem to be framework-alike as a literal



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map.

215. Sound editor, and studio musician, Ron

Aston, was asked by the Gayes counsel to

create three audio examples (mixes) in

such a way that demonstrated the

similarities between Blurred Lines and

Got to Give it Up. In addition to many

years of performing on television shows,

motion pictures, and commercials, Aston

has spent that last seven years doing sound

editing on motion pictures and television

productions. After more than 40 years in

the music industry, Aston is very familiar

with R&B music, as well as the original

recorded version of Blurred Lines by

Robin Thicke and Got to Give it Up by

Marvin Gaye.

215. See generally The Declaration

of Ron Aston (Aston Decl.) at 5-

11.

216. Using the software platform Pro Tools,

Aston produced two separate musical

exhibits. Aston has been a member of the

Pro Tools beta team for the past ten years,

and was involved the testing and

development of Pro Tools. Pro Tools is the

world standard for digital audio editing

programs. He also provides feedback and

new feature suggestions to Avid (the

company that makes Pro Tools).

216. See Aston Decl. at 12.

217. Aston examined the audio tracks 217. Aston Decl. at 13.


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provided to him by the Gayes counsel, and

compared them to the original,

commercially released tracks. Aston

determined that the tracks were identical to

the commercial releases of each song. All

examples created by Aston were created

from the original source material he was

provided, and nothing was done to alter the

sound of the source files of the two songs.

218. The Gayes counsel also supplied Aston

with several music tracks, including the

original multi-tracks of Blurred Lines,

including all of the vocal and instrumental

tracks, in a Pro Tools session. A Pro

Tools session is a file that contains all of

the individual vocal and music tracks, as

well as the effects (reverbs, delays, etc.)

along with the automation data that

controls the volume, pan and other

parameters or each track, which ultimately

contributes to the creation of the final mix

of a song. Aston was able to open the

session on his Pro Tools system the way a

record company would open it to create the

master. The Gayes counsel also provided

Aston with two stereo mixes of the original

release version of Got to Give it Up.

Mix-A contained just the instruments and

218. Aston Decl. at 14-15, 17.


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background vocals with no lead vocals,

and Mix-B contained only Marvin Gayes

main vocals.

219. From the Blurred Lines Pro Tools

session, Aston created two stereo mixes.

Mix-1 contained just the mix of vocals

only with no music, and Mix-2 contained a

mix of just the music tracks with no vocals.

219. Aston Decl. at 16.

220. Using the source material provided,

Aston mixed the instrumental tracks and

the vocal tracks from both Blurred Lines

and Got to Give it Up to where he could

mix and match between the two songs to

create the requested audio examples.

Specifically, he could play the instruments

only track from one song along with the

vocals only track from the other song, or

vice-versa, in either songs original or

transposed key.


221. In creating Examples 1 & 2, Aston used

Pro Tools for editing, which included beat

matching, and he used Blurred Lines as

the master reference for tempo. After

which, he lined up Got to Give it Up to

perfectly match the exact constant tempo

of Blurred Lines because both songs

were very close in the tempo of 120 Beats

Per Minutes (BPM), within 1 to 3 BPM.

221. Aston Decl. at 19-23.


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The beat matching aligned the songs

tempos, and starting with the music track

of Got to Give it Up, Aston used the

Elastic Audio function of Pro Tools to

match the track to be in perfect sync with

the tempo of Blurred Lines.

222. Example-1 is a mashup (combination)

of the Got to Give it Up music-only track

transposed down to the key of G, with the

Blurred Lines vocals-only track in its

original key of G. Aston used the Pro

Tools audio suite plug-in, Pitch n Time

(Serato) to transpose the Blurred Lines

music only track from its original key of A

down to G, which is the original key of

Blurred Lines. After which, he combined

the transposed, key of G, Got to Give it

Up music with the vocals-only track of

Blurred Lines, in its original key of G, to

create the resulting mix referred to as

Example-1.


223. Example-2 is a mashup of Got to Give

it Up vocals, and Blurred Lines music

mixed in the songs original keys. Aston

first beat matched the vocal only track of

Got to Give it Up, in its original key of

A to be the exact 120 BPM tempo of the

Blurred Lines music track, in its original



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key of G. He then combined the two

elements creating a mix of the combination

resulting in the mix referred to as

Example-2.

224. Example-4 contains the full songs of

both Got to Give it Up and Blurred

Lines, back-to-back original mixes in

their original keys.


225. After he finished all of the editing,

Aston created a stereo mix for Examples

1, 2, and 4. He then exported each of the

three example mixes as mono MP3 music

files to Thomas Court, a Music

Technologist also working on this project

with the Gayes counsel. Mr. Court then

added a video player to the examples

Aston provided.


226. Ethnomusicologist, Dr. Ingrid Monson,

created an audio example for the Gayes

counsel, comparing the two compositions,

After the Dance by Marvin Gaye, and

Love After War by Robin Thicke. The

resulting audio example is named the

After the Dance Audio Example.

226. See The Declaration of Ingrid

Monson (Monson Decl.), at 84.

227. In creating her audio example, Monson

imported an m4a file of After the Dance

into Apple Logic. As After the Dance

227. Monson Decl. at 84.


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played back, she performed the melody to

Love After War on a MIDI keyboard.

The resulting tracks were mixed and then

exported as an AIF file, and then converted

to an m4a format to be compatible with

iTunes.

228. Monson found that the melody to Love

After War can be sung along to the chorus

of After the Dance. The After the Dance

Audio Example performs the melody to

Love After War (on keyboard) over the

recording of the hook/chorus to After the

Dance. In order for this to be possible, the

harmonic progressions must be

functionally equivalent and the melodies

compatible.


229. In her Declaration, Monson states that

the detailed discussion in her declaration

explains how this strong aural similarity is

possible, even though the underlying chord

progressions are slightly different.


Dated: September 8, 2014 Respectfully submitted,

KING & BALLOW

By: /s/ Richard S. Busch

RICHARD S. BUSCH

PAUL H. DUVALL


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WARGO & FRENCH, LLP

By: /s/ Mark L. Block

MARK L. BLOCK

Attorneys for Defendants and Counter-Claimants

Nona and Frankie Gaye

THE LAW OFFICES OF PAUL N. PHILIPS

By: /s/ Paul N. Philips

PAUL N. PHILLIPS

Attorney for Defendant and Counter-Claimant

Marvin Gaye III


General Information

Court United States District Court for the Central District of California;United States District Court for the Central District of California

Nature of Suit Property Rights - Copyrights[820]

Docket Number 2:13-cv-06004

Pharrell Williams et al v. Bridgeport Music Inc et al, Docket No. 2:13-cv-06004 (C.D. Cal. Aug 15, 2013), Court Docket

2014 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 49

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