Blurred Lines Trial - transcript Exhibit K.pdf

EXHIBITK

Case 2:13-cv-06004-JAK-AGR Document 347-6 Filed 03/17/15 of 66 Page ID #:10007

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

THE HONORABLE JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE PRESIDING

7 Pharrell Williams, et al.,8 Plaintiffs,

12 Bridgeport Music, Inc., et al.,

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

23 Roybal Federal Building255 East Temple Street

24 Room 181-1Los Angeles, California 90012

25 (213) 687-0446

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vs. Case No.

cv 13-06004-JAK(AGRx)

Defendants.

REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS

Day 5 - P.M. Session

Los Angeles, California

Tuesday, March 3, 2015

United states District Court, Central District of California


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note.Q. That's one of the earlier chorus sections where it's not

the same note --

A. Right. Well, there were three notes that were the same in

that.Q. And now let me play the chorus section from Love After War,

which is Exhibit 530, just at the beginning.

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

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Q. So in that comparison of those two recordings you can hear

how in the first recording, as you testified, the chords are

changing with each vocal note sung, and in Love After War, apart

from being a different melody, the chords change before the

vocal comes in; correct?

A. Correct.

MR. MILLER: I have no further questions.

THE COURT: All right.

Cross-examination, Mr. Busch?

MR. BUSCH: Yes, your Honor.

CROSS-EXAMINATION

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I have been playing very close 00:Q. Good afternoon, Ms. Wilbur.

attention to your testimony, and I believe I heard you say

multiple times, upon questioning by Mr. Miller, that if the

chord had been notated in the deposit copy, that it would look

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exactly as the notation they showed you from the recording of

Got To Give It Up.

Do you recall that?

A. Not specifically, but go ahead.Q. Do you agree with me that it is your testimony that if the

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

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

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

MR. MILLER: Objection. It misstates the testimony.

The question is whether the piano part.THE COURT: Okay. Restate the question. If you're

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

please.

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THE COURT: There's no question pending.

BY MR. BUSCH:Q. Ms. Wilbur, you began your testimony today by saying that

when you are retained by someone to analyze two pieces of

work

A. Right.Q. __ you approach it neutrally; correct?

A. I do.Q. And you said that you look at things objectively; is that

right?

A. That's correct.

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Q. And you know that in this case, the Thicke parties are

contending that the notes in the deposit copy need to be -- or

the deposit copy needs to reflect notes, certain specific notes

in order to be protected in this case.

You understand that; correct?

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Q. So in your testimony, you went through at great length a

comparison of the notes that you claim are in -- or not in the

deposit copy and you've compared those to a notation of the

recording of Got To Give It Up; correct?

A. No. That's not correct.

Q. That's not correct?

A. No. I

THE COURT: Restate -- next question, please.

BY MR. BUSCH:

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Q. You, in the last four hours, went through and compared how

notes and how elements are transcribed in the deposit copy and

you compared that to, for example, the recording of Got To Give

It Up and how those notes appear in Got To Give It Up.

Did you not do that?

A. No. I compared the deposit copy of Got To Give It Up with

the recording of Blurred Lines, as I was instructed to do.

Q. Okay. You didn't compare how the notes also appear in the

recording of Got To Give It Up with the deposit copy? You

didn't do that?

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A. I certainly did do a transcription earlier of the

recording, yes.Q. Okay. Now, isn't it true, Ms. Wilbur, that a lead sheet

just reflects a simplified, less fleshed-out version of a chord

pattern in a composition? Isn't that true?A. I think you know, it's difficult to answer the question.

I mean, deposit copy and lead sheet and sheet music are all

different things. So can you just clarify for me what you mean

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

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

version of a chord pattern in a composition. Yes or no?

THE COURT: Do you understand the question?

THE WITNESS: I do.

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BY MR. BUSCH:Q. And isn't it true, Ms. Wilbur, that a chord notation is

merely representational? Isn't that true?

MR. MILLER: Objection. Vague.

THE COURT: sustained.

BY MR. BUSCH:Q. Isn't it true that you've stated in the past that chord

notation is merely representational?THE COURT: Do you understand the question?

THE WITNESS: Yes.

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00:THE COURT: You may answer.

THE WITNESS: Yes.

BY MR. BUSCH:

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Q. And isn't it true, Ms. Wilbur, that it is your opinion that

reasonable experts can disagree as to how a chord should be

notated? Isn't that true?

A. That's correct.Q. And isn't it true, Ms. Wilbur, that differently notated

chords can and often do sound similar or even identical? Isn't

that true?

A. Often, yes.Q. And isn't it true, Ms. Wilbur, that in this case, you first

transcribed the Got To Give It Up composition as it appears in

the sound recording of Got To Give It Up? Isn't that right?

A. I did.Q. And isn't it true, Ms. Wilbur, that later you received the

lead sheet deposit copy that you've been talking about here

today? Isn't that true?

A. Yes.

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MR. MILLER: Objection to lead sheet. Form of the

question. Objection to the form of the question.

THE COURT: All right. You need to define the term

you're using.

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Q. Isn't it true, Ms. Wilbur, that later after initially


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transcribing the composition as it appears in the sound

recording, you transcribed the deposit copy lead sheet from

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

been talking about here today?MR. MILLER: Same objection to the form.

THE COURT: Why don't you identify it as Exhibit 248.

Is that to which you're referring?

MR. BUSCH: Yes.Q. Isn't it true that you later received Exhibit 248 and

compared that transcription with your earlier transcription of

the composition as embodied in the sound recording of Got To

Give It Up? Isn't that true?

A. I don't believe I ever did do that.

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

concluded that the two, the notation from the composition as

embodied in the sound recording and the composition as embodied

in Exhibit 248, were substantially the same?Isn't it true, Ms. Wilbur, that that happened?

A. I could have said that, yeah.

Q. It's not that you could have said that, Ms. Wilbur --

THE COURT: Excuse me. Don't argue with the witness.

What's your next question, please.

BY MR. BUSCH:Q. You actually did say that, didn't you?

THE COURT: Sustained. Sustained. 00

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BY MR. BUSCH:Q. In fact, you said that under oath, didn't you?

THE COURT: sustained. 00:

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If you want 00:Mr. Busch, don't argue with the witness.

to read from a deposition, do that, please.MR. BUSCH: Yes, your Honor. I'd like to read from

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

MR. MILLER: Which deposition?

MR. BUSCH: Her August deposition.

THE COURT: Just a moment, please. Do you have a copy

of the transcript, please? Thank you.

Any objection to that being read?

MR. MILLER: Yes. My objection is that it's being

taken out of context. I would start it at page 70, line 4, to

explain what she's answering.

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I need to see page 70, line 4.THE COURT:

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THE COURT: WellMR. MILLER: I'm also not sure it's impeaching her

last answer.THE COURT: That's all right. Just read page 70, line

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

and 13 on page 71. It's overruled.MR. BUSCH: Let's put it on the screen.

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Q. Beginning at page 70, line 4.Q. Okay. What transcriptions did you choose to

include in the declaration?

A. There were transcriptions of, you know, the

melodies side-by-side along with prior art examples to

illustrate points that I was trying to make. You know, there

were -- you know, basically comparing lead sheets with -- with

chords, melodies, lyrics.

Q. What lead sheets?

A. In the declaration, there were snippets that were

used.

Q. Snippets of what?

A. Of the things and actually they were --

Q. Of the things?

A. in response to the Finell report.

Q. The things -- what do you mean by 'the things'?

There were snippets of the things?

A. There were snippets of music that I compared.

Q. Okay. What I want to know is:

Did you include transcriptions, your transcriptions

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

transcription of the recordings of 'Blurred Lines' or did you

include transcriptions from the lead sheet that was deposited

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

affidavit, declaration?

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Q. Go ahead.

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

turns out that they were substantially the same as the copyright

deposits.

All right. So I want to step back now, having gone

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

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

have you?

A. I actually have.

You have?Q.

A. Uh-huh.

Okay.Q.

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

deposition, sworn deposition testimony, page 76, lines 4 through

6.

THE COURT:

MR. BUSCH:

August deposition.

THE COURT:

MR. MILLER:

THE COURT:

MR. BUSCH:

Is this the same date?

Yes. First deposition, your Honor.

Any objection to that being read?

No, your Honor.

You may read that.

Thank you.

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

BY MR. BUSCH:

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

you?A. No, I have not.

I have been hired as a transcriber .


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

your college and your Master's degree.Isn't it true, Ms. Wilbur, that you took no courses

during your Master's work in popular music?

A. They weren't being offered.Q. So the answer to my question is no, you never took any

courses since they weren't being offered; correct?

A. That's correct.THE COURT: Could you speak into the microphone,

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

MR. BUSCH: Yes.

THE COURT: Thank you.Q. And you did not take any classes in urban music either, did

you?A. No. Unfortunately, I was too early for those courses.

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

or soul; isn't that right?A. I've done a lot of that, but I did not take courses, no.

Q. And your specialty, your thesis was in the Pawnee Indians

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A. Correct.Q. Now, as Mr. Miller asked you, isn't it true you worked for

the advertising firm of Foote, Cone & Belding?

A. I have done a lot of work for Foote, Cone & Belding.

Q. And it's true, is it not, Ms. Wilbur, that while doing work

for Foote, Cone & Belding, you designed a program where you

listened to all the music in the advertisements before they

aired in an effort to avoid litigation; correct?

A. That's correct.

Q. And you -- and while working -- doing work for Foote,

Cone & Belding, you would often deal with an agency that tried

to unsuccessfully license a piece of music and then create

something that sounded like it; correct?

A. You know, again, you have to be more specific than that,

but that certainly was sometimes the case, yes.

Q. Okay. And you agree, Ms. Wilbur, that it would be foolish

to try to create something like an existing piece of music

without permission; isn't that right?

MR. MILLER: Objection.


BY MR. BUSCH:

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Q. If an advertiser wanted to recreate a song and this is

I'm talking now about your work at Foote, Cone & Belding they

might use a temp track as a reference track; isn't that right?

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MR. MILLER: Objection. Relevance.

THE COURT: Overruled.

Do you understand the question?

THE WITNESS: Yes.

THE COURT: You may answer.

THE WITNESS: Yes.

BY MR. BUSCH:

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Q. And temp tracks are music tracks that are temporarily used

in a film or TV spot as a placeholder for a similar piece of

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

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used as a placeholder for sure.Q. Okay. And in your experience, you found temp tracks to be

problematic because you said that way too often, the client

falls in love with the temp track and then later has a problem

getting away from it; isn't that right?

A. That's often true.Q. And if a piece of music took too much of the fabric of

another song where you could not separate copied elements from

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

start allover; isn't that right?MR. MILLER: Objection. 403. Going beyond

musicology.THE COURT: I understand. Just a minute.

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You may answer this and then let's move.

THE WITNESS: Can you ask the question, again.

(Record Read.)


THE WITNESS: It's a little convoluted, but if it

points specifically to another piece, yes, I would say that they

should start over.

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Q. In fact, your criteria, wasn't it, Ms. Wilbur, that

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

a recording, a song, a group or an arrangement; isn't that

right?

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THE COURT: Pardon?

MR. MILLER: 403.THE COURT: Restate -- I don't understand the question

as stated. The foundation for the question isn't established.

BY MR. BUSCH:

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

you told them your criteria was that anything that they used

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

arrangement; isn't that right?

A. This is because

Q. Yes or no.

THE COURT: Excuse me. Don't interrupt the witness.

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And after you have answered, you may explain. Go ahead.

THE WITNESS: Yes. And that is because advertisers

are extremely vulnerable to legal action.THE COURT: All right. Stop there. Thank you.

Next question, please.

BY MR. BUSCH:

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Q. Now, Ms. Wilbur, when you were deposed in this case in

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

about the cases in which you have previously served as an

expert; isn't that right?

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

the cases on which you worked, Berlent --

THE COURT: Sustained, improper. It's improper

impeachment.

BY MR. BUSCH:Q. Did you identify all of the cases that you worked on?

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

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

right?

A. Correct.Q. And one of them was smithKline Beecham vs. Watson

Pharmaceuticals; correct?

A. Correct.

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1 And in both of those cases, you were on the side of theQ.

2 party bringing the infringement claim alleging infringement of

3 their property, intellectual property; isn't that right?

4 A. The -- the first one was a sample case where they had

5 literally taken 30 seconds of the recorded piece. So that was

6 the -- the Nicorette Klein Beecham one. The other one, yes, I

7 was definitely on that side.

9 cases you were on the side of the person alleging infringement;

10 correct?

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Q. Okay. So in both -- the answer to my question is in both

A. Correct.

Now, did you leave those cases off of your resume becauseQ.

you employed a different methodology in those cases on behalf of

the plaintiff than you are doing here on behalf of the Thicke

parties?

A. Absolutely not.

Okay.Q.

THE COURT: Excuse me.

Ms. Wilbur, just respond, please, without argument.

Thank you.

BY MR. BUSCH:

Q. Because you agree that using a different methodology

depending on which side of the case you're on would not be

appropriate; right?

A. I give an opinion based on my opinion. It has nothing to

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do with what side it is.Q. Okay. So the answer to my question is you agree it would

be inappropriate for you to use a different methodology when

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

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

MR. MILLER: Argumentive.

THE COURT: Overruled.You may answer. Do you understand the question?

THE WITNESS: I use the same methodology no matter

what the side is.00:

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00:Q. Would you please, ma'am -- my question is --

THE COURT: There has been a response to the question.

Please move on.

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Q. And so you never do employ a different methodology

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

A. Never.Q. Ms. Wilbur, isn't it true that you believe that it is

inappropriate to transcribe songs in a way that overemphasizes

minor performance elements in the songs such as pauses or rests

to overstate differences?A. I didn't follow you. Can you just ask that again.

Q. Isn't it true that you believe that it is inappropriate to

transcribe songs in a way that overemphasizes minor performance

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

differences?THE COURT: Do you understand the --

BY MR. BUSCH:Q. Do you think it's wrong to do that?

THE COURT: Do you understand that question?

THE WITNESS: Yeah.THE COURT: You can answer the question.

THE WITNESS: I think so. I think I would agree with

that.

BY MR. BUSCH:

Q. Okay.And would you also agree that you believe it is

inappropriate to focus on less significant or immaterial

differences between songs?THE COURT: Do you understand the question?

THE WITNESS: I generally don't focus on differences.

I focus on the similarities.

BY MR. BUSCH:Q. So the answer to my question is you believe it's

inappropriate to focus on less significant or immaterial

differences between songs; correct?A. It really depends on the circumstance. You know, each

situation is very, very different.Q. Okay. In the Bourne case, you gave an affidavit, did you

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not?01:

A. I did.Q. And in that affidavit, did you criticize the opposing

expert for focusing on less significant or immaterial

differences between the songs?A. That was a fair use case really, about satire and parody,

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

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

Q. Did you criticize the opposing expert for doing that in

that case, yes or no?

A. Yes.Q. And would you agree that it's inappropriate to emphasize

differences in compositions in an effort to make the songs

appear more different than they really are? Would you agree

that's inappropriate?

A. It depends on the circumstance.Q. Can you tell me what circumstance it would be okay to

emphasize differences in an effort to make the songs appear more

different than they are?MR. MILLER: Vague. Incomplete hypothetical.


THE WITNESS: If you're referring to the Bourne case

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

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

I would say that's correct.

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01:BY MR. BUSCH:

01:Q. And you examined -- speaking of the Bourne case, you

examined the number of chords the songs in Bourne had in common;

correct?

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01:A. I did.Q. And you believed that -- you concluded in that case that

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

correct? Were the same?A. If you say so. I'd have to review my report.

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

extremely similar in Bourne; isn't that right?

A. If you say so.Q. And in Bourne, is it true that you found that there were

similarity in chords where they shared three of the same chord

tones? Isn't that right?A. That is correct. This was a fair use case and the question

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

MR. BUSCH: Move to strike, your Honor.

THE COURT: Next question.

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Q. And you also found, in connection with your finding that

the two pieces were extremely similar, that other chords shared

two of the same chord tones in common; isn't that right?

A. Yes.Q. In this case, you have stated, agreed, that the hooks in

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

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

A. . Totally different and out of context.

Q. Can you answer the question, ma'am?THE COURT: Excuse me. If you have a motion to make,

you make it to me. Do not argue with the witness. And I

shouldn't have to remind you of this.MR. BUSCH: I move to strike that as nonresponsive,

your Honor.THE COURT: All right. Restate the question, please.

BY MR. BUSCH:

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Q. Isn't it true, Ms. Wilbur, that in this case, you have

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

three out of four notes in common?THE COURT: Do you understand the question?

THE WITNESS: I do.

THE COURT: You may answer.THE WITNESS: The tones are the same. The durations

and the placement and the measures are not.

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01:Q. And isn't it true that you agree that in the Bourne case,

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

songs to be extremely similar?A. You know, you can't combine melodies and chords.

THE COURT: Excuse me, Ms. Wilbur. If you understand

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the question, please respond. After -- after Mr. Busch has

finished, Mr. Miller can ask you other questions.

Read the question, please.

(Record Read.)


THE WITNESS: Yes.

THE COURT: You may answer.THE WITNESS: Yes, because the melodies were the same.

BY MR. BUSCH:

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01:Q. And you keep saying the Bourne case was a fair use case.

But isn't it true that fair use was being used as a defense to a

copyright infringement case in that Bourne matter?


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

plaintiff in Bourne?

A. It probably was.Q. And in Bourne, you found that chords that only had three

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

MR. MILLER: Asked and answered.


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

distinguish those same types of similarities of chords in

Blurred Lines and Got To Give It Up?

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A. I don't see how it's relevant. They're using -- I've made

the colors on my charts very clear. The A7th chord and the A

chord are related. One has four notes, one has three.

MR. BUSCH: Move to strike as nonresponsive,

your Honor.THE COURT: I'm going to strike I don't see how it's

relevant, they're using, and then the rest of it will stand.

Q. Ms. Wilbur, the keyboard in Blurred Lines uses an A major

triad and Got To Give It Up uses an A7 chord and those have

three chord tones in common; isn't that right?

A. You're talking about the recording now; right?

Q. I'm talking about the composition as embodied in the

recording, the keyboard in Blurred Lines uses an A major triad

and Got To Give It Up uses an A7 chord which have three chord

tones in common?

MR. MILLER: I'm going to object.

THE COURT: Sustained as framed.

BY MR. BUSCH:Q. Okay. Is it true that the keyboard in Blurred Lines uses

an A major triad?

A. It's not part of the composition, so, no.

Q. In Blurred Lines, an A major triad is not part of the

composition?A. You're asking about the keyboard. The keyboard is not part

of the composition.

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Q. Assume for purposes -- we have a dispute about that,

Ms. Wilbur.What I'm asking you is is it true that the keyboard in

Blurred Lines uses an A major triad?

A. In the recording.

Q. Okay. And isn't it true that in Got To Give It Up, there's

an A7 chord?THE COURT: Are you -- be specific as to what you're

referring to as to Got To Give It Up.

BY MR. BUSCH:

Q. In Got To Give It Up, does the composition --

THE COURT: Are you referring to the deposit copy or

something else? Restate your question, please.

MR. BUSCH: Your Honor, we have a dispute about

whether it's there or not.

THE COURT: Well, but the question you asked was

ambiguous. You didn't make clear whether you were referring to

one or the other. Please make that clear.

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01:BY MR. BUSCH:

Q. The Got To Give It Up musical composition uses an A7 chord,

does it not?

A. Yes, it does.

Q. Okay. And the A major triad and the A7 chord have three

chord tones in common; isn't that right?

A. That's correct.

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Q. Whereas in the Bourne case, you said that a chord having

three tones in common was evidence of similarity, in Blurred

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

chord tones being in common showed differences, didn't you?

THE COURT: Okay. 403, it's cumulative. Let's move

on, please.

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01:BY MR. BUSCH:

Q. In Blurred Lines, the three note triad is A, C sharp, E;

correct?

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01:A. In the recording.

Q. Okay. And in Got To Give It Up, the A7 chord is A, C 01:

01:sharp, E, G; correct?

MR. MILLER: Objection. Vague as to what he's 01:

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01:THE COURT: sustained.

BY MR. BUSCH:01:

Q. In the composition, the musical composition of Got To Give

It Up, the A7 chord, the notes are A, C sharp, E, G; correct?

A. That's -- those are the notes in an A7 chord.

Q. Okay. And the additional note heard in the A7 chord, the

7, is purely decorative, is it not?

A. I wouldn't call it decorative, no.

Q. Okay. Now, I want to move on to something else.

Ms. Wilbur, you have reviewed Ms. Finell's report and

the eight constellations, as she called them, of similarities

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

correct?A. Those constellations -- I've reviewed her constellations

but they refer to the recording.MR. MILLER: I was going to object on that ground.

MR. BUSCH: Move to strike, your Honor, that comment.

MR. MILLER: He's referring to

THE COURT: Excuse me. Excuse me. I'm not going

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

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

the deposit copy and the commercial recording or the recording

that's been made for this case.

MR. BUSCH: Right.

THE COURT: So you need to do that.

BY MR. BUSCH:Q. Ms. Finell has identified eight similarities that she says

are in the constellation of similarities for which she has

stated in testimony those similarities -- those constellations

are in the deposit copy lead sheet; correct?MR. MILLER: Objection. Vague as to what chord he's

referring to.THE COURT: Yes, sustained.

BY MR. BUSCH:

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A. No, I was not.

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Q. You read her testimony?

A. I read part of it, yes.Q. You read the transcript? That's what Mr. Miller asked you

during his direct examination.

A. Yes.Q. And you heard Ms. Finell explain why each of those

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

sheet filed in the copyright office.

You read that; correct? 01:

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01:A. I did.Q. Okay. Now, with respect to --

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01:THE COURT: There's no question pending.

BY MR. BUSCH:Q. With respect to those constellation -- with respect to

those similarities, I should say, you have stated that they

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

building blocks of musical composition that are present, if not

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

MR. MILLER: Objection.

THE COURT: Sustained. sustained.

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

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

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

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THE COURT: sustained. You need to identify what

you're talking -- to what your question refers.

BY MR. BUSCH:

Q. Have you stated

THE COURT: Because you need to be specific.

BY MR. BUSCH:Q. Have you stated in your report -- have you stated in this

case, Ms. Wilbur, that the similarities that Ms. Finell has

identified are simply a few of the basic building blocks of

musical composition that are present, if not inevitable, in many

songs? Have you made that statement?

THE COURT: Just a minute.

MR. MILLER: My objection is it should be related to

what she said in trial and not --

THE COURT: No. Overruled.

THE WITNESS: Can you name the constellation, the

eight or whatever number so that I can respond to each one of

them?

BY MR. BUSCH:Q. Do you believe there's a different answer for different

ones of the constellation?

A. Well, some of them --

THE COURT: Excuse me, excuse me, excuse me.

Why don't you identify these. It would just

streamline this, please.

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

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

A. No.

Q. Okay. Are the vocal melodies that Ms. Finell identifies as

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

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

if not inevitable, in many songs?

A. They're simply different.

Q. That's not my question.

THE COURT: I don't understand --

MR. BUSCH: Move to strike, your Honor.

THE COURT: r don't understand your question.

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

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

similar; correct?

A. That is her opinion.Q. Okay. And you know that Ms. Finell has identified that the

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

similar; correct?

A. That is her opinion.Q. Okay. with respect to those two items, are those melodies,

those vocal melodies, basic building blocks of musical

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

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MR. MILLER: Objection. It's vague, your Honor.


THE WITNESS: It's not comprehensible at all to me.

THE COURT: Okay. Restate the question, please.

THE WITNESS: Building


BY MR. BUSCH:

Q. When you said that in this case that the similarities

represent a few of the basic building blocks of musical

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

were you referring to the vocal melodies of the hook or the

signature phrase?

A. No.

Okay.

But they're different.

What similarity were you referring to?

You'd have to give me the constellation of eight things and

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I would tell you.

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

and it wasn't the vocal melodies, what was it?

MR. MILLER: Objection, argumentive.

THE COURT: Sustained.

BY MR. BUSCH:

Q. Can you identify one of the similarities that you believe

represent a few of the basic building blocks of musical

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

A. I don't know what it's referring to. I'm sorry. I am just

completely baffled.Q. Have you dismissed in this case any similarity between Got

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

simply basic building blocks?

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

me get this right -- excuse me. That you believe it is

inappropriate for a musicologist to reduce similar elements to

common musical choices because all music contains common musical

choices?

A. SO your question isTHE COURT: Read the question.

(Record Read.)

THE WITNESS: It depends on what those choices are. I

didn't really understand what you're asking.THE COURT: Excuse me. If you don't understand a

question, please let me know.

THE WITNESS: Okay.THE COURT: Otherwise, it will -- thank you.

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case, Ms. wilbur.THE COURT: Is that an exhibit?

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MR. BUSCH: Yes, it is.

THE COURT: What is the exhibit, please?

MR. BUSCH: It is Exhibit Number 1721.

MR. MILLER: Your Honor, I would object to it being

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published.THE COURT: Don't publish it. Not yet. If you wish

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

Volume 17.THE WITNESS: What number?

THE COURT: 1721. Do you have the book?

THE WITNESS: Yes. I have it.

THE COURT: Would it be easier if we moved the

keyboard?THE WITNESS: It would be easier, yes.

THE COURT: And Mr. Busch, when you get to a break

point, let me know, please.MR. BUSCH: Now is as good as any, your Honor.

THE COURT: Let's take our second break here, ladies

and gentlemen. We will resume in 20 minutes. Thank you.

(Jury Out.)

THE COURT: Please be seated.

You may step down, Ms. wilbur.

(Recess taken.)

(Jury In)

THE COURT: Please be seated. All eight jurors are

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back.01:And, Ms. Wilbur, would you please restate your name.

THE WITNESS: Sandra Wilbur.

THE COURT: And do you understand that you remain

under oath?

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THE COURT: Okay.

Please proceed, Mr. Busch.

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

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

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

the deposit copy?MR. MILLER: Objection, vague.


THE WITNESS: No.

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

the A7 chord have a relationship in which they are together

without any intervening chords throughout the deposit copy lead

sheet?A. Let me just think about that a second.

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

the -- at the deposit copy again. Maybe if you can just let me

do that.

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Q. Sure.A. Yes. There is an E7 followed by an A7 in the eight chords

that are together.Q. Okay. And in Blurred Lines, is the same true with respect

to the A and E chords?A. There's a completely different pattern.

Q. Is -- please -- move to strike, your Honor.THE COURT: Well, I don't understand -- restate the

question, please.

BY MR. BUSCH:Q. In Blurred Lines, are the two alternating chords of Blurred

Lines A and E chords?

A. Yes.Q. Okay. Now, Ms. Wilbur, before the break, we were looking

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

Focus Features.

Do you have that in front of you?

A. I do.Q. And that is your signature on the first page?

A. It is.Q. So this is an affidavit that you gave under oath?

A. Yes.THE COURT: It's a declaration.

THE WITNESS: It's -- I don't actually

THE COURT: Excuse me.

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THE WITNESS:

THE COURT:

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Q. Do you see where it says above your signature I declare

under penalty of perjury that the foregoing is true and correct?

A. I do.Q. Okay. Would you turn to paragraph 5 of your declaration,

please.

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declaration: By looking at the musical elements --

THE COURT: Just have the witness review this, please,

and then pose your question.

BY MR. BUSCH:Q. Okay. Would you please read to yourself paragraph 5 of

your declaration.

Yes, you've read it?

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elements as independent and unrelated to one another?

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same. The harmony was the same.

BY MR. BUSCH:Q. And you also criticized the expert on the other side of,

quote, attempting to reduce these elements to common musical

choices; is that right?

A. I very well might have, yes.Q. Well, if you look at paragraph 5 which I just asked you to

read to yourself, you in fact did do that?

A. Yes. I did do that.Q. Because you said in your own words in this declaration

under oath, quote --THE COURT: No. Ask a question, please.

BY MR. BUSCH:

Q. All music

THE COURT: Ask a question, please. This declaration

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

BY MR. BUSCH:Q. Is it true that it is your view that, quote, all music

contains common musical choices?

A. Yes.Q. Okay. And isn't it true, Ms. Wilbur, that you believe that

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

common, that can make a musical composition unique?

MR. MILLER: Objection. Vague.

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THE WITNESS: It's very vague.

THE COURT: All right. Restate it, please.

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

the combination of musical elements, some of which that can be

common, that can make a musical composition unique?

A. Yes. And I said here the combination of these elements,

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

that, yes.Q. And you agree that melodies and rhythmic similarities in a

short phrase can be original; correct?

A. It depends on the situation.

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

expression?

A. No. It was not just an ut-oh.

Q. It was the vocal melody and rhythm tied to the phrase

ut-oh; isn't that right?MR. MILLER: Objection. Argumentive.


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

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

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MR. MILLER: Objection. 403, your Honor.


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THE COURT: No. Overruled.

You may -- do you understand the question?

THE WITNESS: Yes.

THE COURT: You may answer.THE WITNESS: It was a very specific rhythm of a

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

was what the phrase was.

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

of how it was combined with the particular phrasing, rhythm,

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

A. Correct.Q. And in that matter, the other side submitted multiple other

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

A. I don't recall.Q. And you dismissed all of those other examples because the

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

your song; correct?MR. MILLER: Objection.THE COURT: sustained. 403. Let's move on, please.

MR. BUSCH: All right.

Q. You agree that musical analysis must focus not only on

constituent elements but how those elements are combined;

correct?

A. Correct.

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Q. And you believe that it is the unique combination of

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

defines originality; correct?THE COURT: Do you understand the question?

THE WITNESS: Yes.

I think that's fair to say.

BY MR. BUSCH:

Q. That is fair to say?

A. Yeah.Q. Okay. In fact, you wrote that statement on your website;

correct?

A. If you say so.Q. You don't know what's on your own website?

A. I haven't memorized it, no.

THE COURT: Sustained. sustained.

BY MR. BUSCH:Q. And isn't it true, Ms. Wilbur, that you believe it is

essential to recognize that musical originality often is borne

of the combination of elements which, although individually not

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

A. That's correct.Q. And you also agree that composers and songwriters regularly

create highly original material by combining in new ways

melodies, harmonies and rhythm that individually are common;

correct?

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A. Or have been used before, yes.Q. And you also agree, Ms. Wilbur, that a thorough comparison

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

and vocal elements in order to determine if there are

problematic similarities between the works; correct?

A. That was designed specifically for advertising agencies,

yes.Q. It's on your website; right?

A. Probably, yeah.Q. And your website does not include any qualifications or

limitations on that statement, does it?

A. I don't -- I don't recall.Q. It doesn't say this statement only applies to advertising

agencies; correct?THE COURT: sustained. It's hearsay. Next question,

please.

BY MR. BUSCH:Q. So you agree that in order to do a full comparison, it is

not appropriate to do a microscopic examination but rather to

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

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

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

A. Yes.Q. Okay. And with respect to your examination in this matter,

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

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attempted to find prior art; correct?

A. Yes.Q. Okay. And you actually engaged three other people to look

for prior art pieces.That's not something you did on your own; isn't that

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THE COURT: Ms. Wilbur, could you speak into the

microphone or just move it closer to you? Thank you.

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

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

constellation of similarities identified by Ms. Fine11; isn't

that correct?THE COURT: sustained. sustained.

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

artists like Stevie Wonder and Curtis Mayfield; correct?

MR. MILLER: Objection, your Honor. Beyond the scope,

this is the prior --THE COURT: sustained.

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All right. Please proceed.

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

examination of you; correct?

A. Correct.Q. And you had created some mash-ups as part of your report in

this case; correct?MR. MILLER: Objection, your Honor. Objection, that

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was --01:THE COURT: sustained. As with the -- there was some

testimony concerning mash-ups and there was also some limited

testimony on prior art. So focus your questions on those,

please, if you wish to pursue that.

MR. BUSCH: That's fine.Q. In this case, Ms. Wilbur, you have -- you know that there

were statements made by Mr. Thicke and Mr. Williams about the

creation of Blurred Lines outside of this case; correct?

A. I learned that much later in the fact.

Q. Okay.A. I certainly didn't know anything about that.

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

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

statements; isn't that right?

MR. MILLER: Irrelevant.


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trying to accomplish when creating their song?

A. Absolutely not. I found that a lot of people don't

understand music. They don't have any idea what they're talking

about. I let the music speak for itself.Q. So you don't think it is relevant at all to your analysis

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

to create a song like Got to Give it Up? That was not relevant

at all?

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Q. Did you review Mr. Williams' deposition testimony as part

of your analysis?A. Not as part of my analysis, no.Q. So you do not know that Mr. Williams stated that he

understands when people say the bass lines between Got to Give

it Up and Blurred Lines sound the same --THE COURT: sustained. Let's move on. The objection

will be stained to each question in this form.

BY MR. BUSCH:Q. Do you know who is credited on the Got to Give it Up

commercially-released album as playing the keyboards?

MR. MILLER: Relevance.


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be recognized in two compared works even if the works' overall

structures are different?

MR. MILLER: Objection. Incomplete hypothetical.


THE WITNESS: Yes.


THE WITNESS: Yes.

BY MR. BUSCH:

Q. And would you agree that it is possible to recognize that a

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

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

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

MR. MILLER: Objection. It's not extrinsic testimony,

your Honor.THE COURT: Sustained. As framed.

BY MR. BUSCH:

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

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

given a different rhythmic placement in the second song?

THE COURT: Do you understand?

MR. MILLER: Same objection.


THE WITNESS: It's very incredibly vague. I mean, it

really depends on theTHE COURT: Excuse me. Excuse me. If you don't

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understand, that's all I need to know. Thank you very much,

Ms. Wilbur.Restate the question, please, Mr. Busch.

BY MR. BUSCH:Q. Okay. Let me put it this way, Ms. Wilbur. If you're

comparing two songs and a certain melodic phrase appears in the

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

would you still consider that use similar?

MR. MILLER: Vague, your Honor.


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would consider them. In this case, they're not the same.

MR. BUSCH: Move to strike the second

THE COURT: Strike the response to the extent it says

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

not the same. Pardon me.Again, Ms. Wilbur, Mr. Miller will have the

opportunity to ask you further questions. Thank you.

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

this matter, Ms. Wilbur.You would agree that the hook is generally one of the

most important and vital parts of a song; correct?

A. Yes.Q. And you would agree that while hooks are relatively short

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musical phrases when taken out of their musical context, each is

the most vital and important element of the song in which it

appears?

A. Taken out of its context?

Q. Would you agree with that statement?

A. I don't know what you mean by that.

Q. Okay.

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In the Burrell case, you did an affidavit; correct?

A. I believe so.Q. Okay. And did you say in your affidavit in that case that

you must emphasize that while both hooks are relatively short

musical phrases, when taken out of their musical context, each

is the most vital and important element of the song in which it

appears?

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THE COURT: sustained. sustain the objection.

BY MR. BUSCH:Q. In the Burrell case, did you find that the hooks, the

ut-oh, were relatively short musical phrases when taken out of

their musical context but that each represented the most vital

and important elements of the songs in which they appeared?

MR. MILLER: Same objection.

THE COURT: It's cumulative. This has been covered

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

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A. Yes.Q. Do you agree the hook of Blurred Lines is take a good girl?

A. I would say the hook is good girl.

Q. And do each of these hooks appear several times within

their respective songs?A. I don't remember exactly how many times keep on dancin' is

in the deposit copy. I could certainly look it up and see.

Good girl is -- is -- if that's the hook, those two

notes or the melisma afterward, you know, it changes each

each repetition and it's on a different chord as well, if I am

not mistaken.Q. Isn't it true that it's actually take a good girl that's

the hook of Blurred Lines?

A. No.

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MR. BUSCH: Your Honor, I would like to read, if I

could, Ms. Wilbur's deposition testimony at page 237, line 24 to

page 238, line 6.MR. MILLER: Is this the August 27th?

THE COURT: Which date -- which transcript -- to which

transcript are you referring?

MR. BUSCH: The first one. The August 1st that

your Honor has.MR. MILLER: I'm sorry. You're reading through what

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MR. BUSCH: Page 237, line 24 to page 238, line 3.

THE COURT: Any objection to that being read?

MR. MILLER: No objection.

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

BY MR. BUSCH:

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Would you agree, Ms. Wilbur, that the -- that take a good 02:Q.

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

1, on B2? I'm sorry. Let me rephrase this.Would you agree that those hooks use an identical

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

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

half of beat 2?MR. MILLER: Objection. Vague and compound.


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Q. Well, I'd like to read Ms. Wilbur's deposition testimony, 02:

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MR. MILLER: Your Honor, there is nothing to impeach.

THE COURT: Just a minute.

MR. MILLER: What's the page?

MR. BUSCH: Page 243, line 13 to line 20.

THE COURT: Any objection to that being read?

MR. MILLER: It's -- she is not a party witness,

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02your Honor. It's not impeachment.

THE COURT: You may read this.


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MR. BUSCH: Thank you.(Whereupon, the video was played for the jury.)

BY MR. BUSCH:Q. Ms. Wilbur, do you agree that a backup hook can be

expressed in a unique way?A. I don't believe that's part of the deposit copy. Are you

asking a general question?Q. We have a dispute about that, Ms. Wilbur.

Move to strike that. Answer, your Honor

THE COURT: Restate the question, please.

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

unique way?Objection, vague.

Do you understand the question?

Yes, I understand the question.

MR. MILLER:

THE COURT:

THE WITNESS: It's

relating to the recording.THE COURT: Excuse me. It's not tied to anything at

this point.MR. BUSCH: I move to strike, your Honor.


Are you seeking to have this question -- is this

question supposed to do more than ask a general question --

MR. BUSCH: Yes.THE COURT: Excuse me -- - unrelated to any of the

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exhibits in the case at this moment?MR. BUSCH: This initial question, yes.

THE COURT: Okay. Read the question, please.

(Record Read.)


THE WITNESS: A backup hook can be expressed in a

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Q. And do you agree that the backup hook in Got to Give it Up 02:

and the backup hook in Blurred Lines are both expressed in a

unique way?

MR. MILLER: Objection, vague.


MR. BUSCH: Your Honor, I would like to read page 244,

line 11 to 15.

MR. MILLER: 244, line 11?

MR. BUSCH: I'm sorry. 244, line 11, to 244, line 15.

THE COURT: It's not impeaching. And it's out of

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Q. Would you agree, Ms. Wilbur, that if an element like a 02:

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

unique way?

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Lines both expressed in a unique way?THE COURT: To what are you referring?

MR. BUSCH: I'm referring to what is being called

Theme X in this caseTHE COURT: No. No. To what exhibit are you

referring? Are you referring to sheet music? Are you referring

to a recording --MR. BUSCH: I'm referring toTHE COURT: -- what exhibits are you referring?

please restate your question.

BY MR. BUSCH:Q. Do you agree that the backup hook as referenced in

Exhibit 248 and the backup hook in Blurred Lines are both

expressed in a unique way?A. I don't have 248 in front of me so I don't know what you're

referring to.THE COURT: Exhibit 248 is the deposit copy of the

sheet music for -- excuse me. The deposit copy for the --

THE WITNESS: For Got to Give it Up?

THE COURT: For Got to Give it Up.

Do you agree with that, Mr. Busch?

MR. BUSCH: Yes.

THE COURT: Thanks.THE WITNESS: There is no backup hook in the deposit

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

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

disagrees with that. You know that; right?

MR. MILLER: Argument.


BY MR. BUSCH:Q. Would you agree that what Ms. Finell identifies as the

backup hook as it appears in the composition within the

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


BY MR. BUSCH:Q. Have you reviewed the edited audio clips that have been

submitted in this case by Ms. Finell?

A. I have heard some of them.Q. Okay. And you know the edited audio clips -- one of the

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

correct?

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

talking about. I'm not sure whatTHE COURT: Can you speak into the microphone, please.

THE WITNESS: I don't understand what you're speaking

about. Can you specify? The audio -- there are several audio

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

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02:Q. You don't know that one of the audio clips that has been

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

Give it Up?

MR. MILLER: Argumentive.


BY MR. BUSCH:Q. putting on the screen Exhibit 376. This is the backup hook

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

Have you listened to these edited audio clips?

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

dancin' lady; correct?Q. Let's play -- let's go through each one. Let's play the

first audio clip for dancin' lady.


MR. BUSCH: And then from Blurred Lines.

MR. MILLER: Your Honor, there's no question.

MR. BUSCH: I'm playing the backup hooks, your Honor.

THE COURT: That's fine.(Whereupon, the audio was played for the jury.)

MR. BUSCH: And the second and third one.


BY MR. BUSCH:Q. Are those three audio clips -- are those three clips

expressed in a unique way?MR. MILLER: Objection. Vague, compound.

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Do you agree that the first fQur notes are u~e same i~--==--===I~~'---------~

1THE COURT: Do you understand the question?

2THE WITNESS: I don't know what you mean by unique

3 way. I mean --

4 THE COURT: stop there.

5 Next question, please.

6 BY MR. BUSCH:

7 Q. Let's go to the next slide.Now I'm going to play the MIDI synthesizer of the

8backup. Play them one after the other, please. First one is

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10 from Got to Give it Up.

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

MR. BUSCH: Now play from Blurred Lines.

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

MR. BUSCH: Now, the last of Blurred Lines.

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

16 BY MR. BUSCH:

17 Q.

18 those edited audio clips?

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

20 all.THE COURT: Excuse me. Excuse me. Do you understand 0:

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22 the question?

23 THE WITNESS: Yes.

24THE COURT: Would you read the question, please.

25(Record Read.)

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MR. BUSCH: Yes or no, ma'am.THE COURT: That's -- Mr. Busch, I don't think I need

to tell you this again. Ask questions. If you have an issue,

talk to me about it. Thank you.Do you have the question in mind?

THE WITNESS: Yes.

THE COURT: You may answer.THE WITNESS: The four notes are not the same because

they do not appear on the same beats in the measure. They're

taken out of context without any harmonic context, without any

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

BY MR. BUSCH:

Q. The first few

A. The tones are the same.Q. The tones are the same. Okay. Let's go to the next.

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

Blurred Lines, vocal lines on the individual track. Play Got to

Give it Up first.(Whereupon, the audio was played for the jury.)

MR. BUSCH: Play it again, please.


MR. BUSCH: Now play --(Whereupon, the audio was played for the jury.)

BY MR. BUSCH:Q. Are those tones from the melody the same?

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

and on the wrong stress points.

Q. Okay.

You may answer.THE WITNESS: It's -- I don't know how many times it

occurs, but it's only in the recording.

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Next. Now we are going to play from the MIDI

synthesizer the notes that we just heard again.(Whereupon, the audio was played for the jury.)

MR. BUSCH: And from Blurred Lines.


MR. BUSCH: Got to Give it Up one more time again,

please.THE COURT: This is cumulative. Next question,

please.

BY MR. BUSCH:Q. Are those tones the same

THE COURT: This is cumulative. Next question,

please. Let's move on. This has been asked five times.

BY MR. BUSCH:Q. Do you know how often dancin' lady appears throughout the

musical composition of Got to Give it Up?

MR. MILLER: Objection. Mischaracterizes her

testimony.THE COURT: No. Overruled.

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MR. BUSCH: I move to strike that last as02:

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nonresponsive.MR. MILLER: Your Honor, her testimony is not in the

deposit copy.THE COURT: Just a minute. By musical composition, to

what are you referring?MR. BUSCH: The musical composition -- let's start

with the phrase --THE COURT: Well, restate your question.

BY MR. BUSCH:Q. Do you know how many times the phrase and that's why I'm

appears in Blurred Lines?

THE COURT: To what are you referring?MR. BUSCH: I'm referring to the musical composition,

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

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

THE WITNESS: I think it's twice.

MR. BUSCH: Okay.Q. Do you know how many times the lyrical phrase but you are

an animal appears in Blurred Lines?

A. I think twice.Q. Do you know how many times okay, noW he was close appears

in Blurred Lines?

A. I think twice.Q. And do you know how many times the -- let's talk about the

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descending bass melody, if we could.Would you agree that both the descending bass melody

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

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

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2324 a G in different octaves. So it's not -- it's hypothetical and,

MR. MILLER: Objection. Vague, your Honor.


THE WITNESS: Yes.


THE WITNESS: I think they both end on the tonic --

THE COURT: Would you speak into a microphone, please.

THE WITNESS: I think they both end on the toni cal 1.

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notes?

Are the notes D, C, G descending? Are those descending02:

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THE COURT: sustained. sustained as framed.02

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BY MR. BUSCH:

THE COURT: Are you asking again as to a specific

issue in this case or are you asking a general question?

MR. BUSCH: I'm asking a general question.


THE WITNESS: It could be ascending from a D to a C to

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

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02:Q. Okay. Does D, C, A -- are those descending?

MR. MILLER: Incomplete hypothetical.


BY MR. BUSCH:

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

G in the descending bass line descending?MR. MILLER: Mischaracterizes the document.

THE COURT: Ask it ask it one at a time with

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

ask about these three notes.

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

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

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

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

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

bars 4 and 7 in the deposit copy of Got to Give it Up?

A. I don't believe so. You have a C natural and you have a G

natural, and neither of those, if I'm not mistaken -- I don't

think either one of those is.Oh, maybe __ it starts with E, upper E, D, upper D, C

sharp, upper C sharp, B, upper B, and then A. That's the

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1descending pattern. It's not the same.

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02:MR. BUSCH: Your Honor, I would like to read

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Ms. Wilbur's testimony from her deposition. This is the second02:

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4deposition of Ms. Wilbur, page 476.

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Page 476 to line what?6 02:

Line 14 to page 477, line 3.7 MR. BUSCH:

THE COURT:

MR. MILLER:

THE COURT:

MR. BUSCH:

14.MR. MILLER:

THE COURT:

read it, please.

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Any objection to that being read?02:

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9 02:You may read that.

10 I'll just read it myself. Page 476, line02:

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12Objection to it being published.

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16This begins at page 476, line 14:

17 Q.

18Q. Can you then again read bar 4 and 7 in part 1 of

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20 A. D, C, Band D, C, A.

21 Q. Is that B that you mentioned, not a G?

22 A. I'm sorry.

23Q. You said B. Did you mean G?

24A. I'm sorry. G. I'm sorry.

Q. Can you read it for me again?25


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A. Dr Cr

G, and Dr C, A. Of courser one is in the key 02:

of A and one is in the key of G.

Ms. Wilbur, in -- one second.In Blurred Lines at the descending bass line, are the

notes D, C, B, A, G?

A.In __ in you mean the key of G? The original key?

I'm just asking you if the notes are D, C, B, A, G in theQ.descending bass line of Blurred Lines.

THE COURT: Are you referring to the sheet music? To

what are you referring?MR. BUSCH: I'm referring to the Blurred Lines sheet

music, Exhibit 91-B.THE COURT: Do you have that?MR. BUSCH: I'm sorry. Exhibit -- what is it?

Exhibit 48. My mistake, your Honor. Exhibit 48.

MR. MILLER: Objection. Vague. It depends on what

key this is.

THE COURT: Do you have Exhibit 48?

THE WITNESS: No. I have 47-A2.

THE COURT: Could you please publish Exhibit 48 for

the witness.THE WITNESS: That's in the key of G. Not the same

23 key as the key of A in the other piece.MR. BUSCH: Move to strike, your Honor.

THE COURT: Well, restate the question.24

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BY MR. BUSCH:Q. In Blurred Lines' descending bass line, are the notes D, C,

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

go.

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02:D, C, B, A, G. Yes, they are.

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

be inappropriate to dismiss melodic rhythm as a performance

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

Q. Would you agree that it would be inappropriate to dismiss

melodic rhythm as a performance element?

A. As a performance element?

Q. Yes.

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expert for dismissing melodic rhythm as a performance element?

A. I don't know what you're referring to. It's out of

context. I have no idea what you're talking about.Q. All right. I'll see if I can refresh your recollection.

Exhibit 507 I'm going to show you.


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

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

THE COURT: It's in volume 15.

THE WITNESS: Okay.

BY MR. BUSCH:Q. I want to direct your attention to paragraph 82 of your

declaration, which is page 25 of your declaration.And do you see, Ms. Wilbur, where you write: I

believe that Professor Ferrar's insistence that performance

elements are the same thing as melodic rhythm is simply another

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

Jew appear less similar to star than it really is? You said

that; correct?A. Yes. I obviously did.

THE COURT: Excuse me. But the context is that

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

it's been abbreviated to be Jew; correct?MR. BUSCH: Correct. That's how Ms. Wilbur

abbreviated it.THE COURT: But it's referring to a song.

MR. BUSCH: Yes.Q. Now, Ms. Wilbur, would you agree that in bars 1 to 2 of

Blurred Lines, the keyboard plays on the offbeat?

A. In the recording?

Q. Yes.

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02:A. In the recording, it plays on some of the offbeats.

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

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

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

offbeat?A. We're referring to the recording, correct?

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

were taken from the recording.A. Can you just tell me what specifically? I'm sorry. I'm

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

that were submitted in this case?

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THE COURT: If you have a question about a clip, why

don't you play it, please.

MR. BUSCH: Okay.

THE COURT: And what are you playing, please?

MR. BUSCH: We are playing the audio clips -- it's on

the board, your Honor. This is Exhibit No. 376, page 19. The

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

Blurred Lines keyboard.(Whereupon, the audio was played for the jury.)

MR. BUSCH: And now Blurred Lines keyboard.


BY MR. BUSCH:

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02:Q. All right. Ms. Wilbur, do you agree that the Blurred Lines

keyboard plays on the offbeat that you just heard?

A. Yes.Q. Do you believe -- do you agree that other than beats 1 of

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

the offbeat?

A. In the recording, the keyboard plays on some of the

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

pattern but it does play on several of the offbeats.

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

breaking point, please.

MR. BUSCH: This is fine, your Honor.

THE COURT: All right. We are going to break here for

the day, ladies and gentlemen. See you tomorrow at 8:30. We

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

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

Is that still good? Does anybody have any issues about 3:30

tomorrow? Okay. We will be starting later on Thursday. I will

talk to you about that tomorrow.

Have a nice evening. Please do not discuss the case.

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Thank you. 02:

(Jury Out)

THE COURT: You may step down, Ms. Wilbur. Watch your

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head. 02:

Please be seated.


Blurred Lines Trial - transcript Exhibit K.pdf

Documents

Transcript of Blurred Lines Trial - transcript Exhibit K.pdf