universal blurred

8/9/2019 Universal Blurred

1/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

OPPOSITION TO COUNTER -CLAIMANTS’ JOINT POST-TRIAL MOTION FOR DECLARATORY RELIEF

Peter I. Ostro , SBN 45718 [email protected] E. Haddad, SBN [email protected] A. Ransom, SBN [email protected]

Michelle B. Goodman, SBN [email protected] R. Farfel, SBN [email protected] AUSTIN LLP555 West Fifth Street, Suite 4000Los Angeles, California 90013Telephone: (213) 896-6000Facsimile: (213) 896-6600

Attorneys for Counter-DefendantsSTAR TRAK ENTERTAINMENT,

GEFFEN RECORDS, INTERSCOPE RECORDS,UMG RECORDINGS, INC., and

UNIVERSAL MUSIC DISTRIBUTION

[Additional counsel listed on signature page]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

PHARRELL WILLIAMS, an n v ua ;ROBIN THICKE, an individual; andCLIFFORD HARRIS, JR., anindividual,

Plaintiffs,

vs.

BRIDGEPORT MUSIC, INC., aMichigan corporation; FRANKIECHRISTIAN GAYE, an individual;MARVIN GAYE III, an individual; NONA MARVISA GAYE, anindividual; and DOES 1 through 10,inclusive,

Defendants.

Case No. 2:13-CV-06004-JAK AGRx

Assigned to: Hon. John A. Kronstadt

COUNTER-DEFENDANTS’OPPOSITION TO COUNTER-CLAIMANTS’ JOINT POST-TRIALMOTION FOR DECLARATORYRELIEF

Date: June 29, 2015Time: 8:30 a.m.Ctrm.: 750

Action Commenced: August 15, 2013Trial Date: February 24, 2015

AND RELATED COUNTERCLAIMS

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 1 of 31 Page ID #:12200


2/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

iOPPOSITION TO COUNTER -CLAIMANTS’ JOINT POST-TRIAL MOTION FOR DECLARATORY RELIEF

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

I. The Court May Not Enter Declaratory Relief Inconsistent With TheJury’s Verdict .................................................................................................. 2

II. The Court Should Deny Declaratory Relief As To All Parties BecauseThicke And The Williams Parties Are Entitled To A New Trial .................... 7

III. The Court Should Deny Declaratory Relief Because The Jury’sVerdict Of Copyright Infringement Is Unsupported By SubstantialEvidence .......................................................................................................... 8

A. There Is No Substantial Evidence Of Extrinsic SimilarityBetween Blurred And The Deposit Copy Of Give ............................. 10

1. The Alleged Hooks Are Not Extrinsically Similar ................... 10

2. The Alleged Signature Phrases Are Not ExtrinsicallySimilar ....................................................................................... 13

3. The Lyrics Are Not Extrinsically Similar ................................. 17

B. The Other Alleged Similarities Are To Elements Not Found InThe Deposit Copy of Give .................................................................. 18

1. Theme X Is Not In The Deposit Copy ...................................... 182. The Keyboard Parts Are Not In The Deposit Copy.................. 19

3. The Bass Melodies That Finell Presented Are Not In TheDeposit Copy ............................................................................ 20

4. The Extended Parlando Section Is Not In The DepositCopy. ......................................................................................... 23

C. Witnesses Other Than Finell Also Did Not Compare Blurred ToThe Deposit Copy Of Give ................................................................. 24

CONCLUSION ........................................................................................................ 25



3/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28ii


TABLE OF AUTHORITIES

Page(s)

Cases

Accentra Inc. v. Staples, Inc.

851 F. Supp. 2d 1205 (C.D. Cal. 2011), rev’d in part on other

grounds, 500 Fed. App’x 922 (Fed. Cir. 2013) ...................................................... 4

Apple Computer, Inc. v. Microsoft Corp.,35 F.3d 1435 (9th Cir. 1994) ......................................................................... passim

Bonner v. Normandy Park , No. C07-962RSM, 2009 WL 279070 (W.D. Wash. Feb. 2, 2009) ........................ 4

Brown Bag Software v. Symantec Corp.,

960 F.2d 1465 (9th Cir. 1992) ................................................................................ 9

Dream Games of Ariz., Inc. v. PC Onsite,561 F.3d 983 (9th Cir. 2009) .............................................................................. 7, 8

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,

499 U.S. 340 (1991).............................................................................................. 14

Harper House, Inc. v. Thomas Nelson, Inc.,

889 F.2d 197 (9th Cir. 1989) .......................................................................... 1, 7, 8

Int’l Longshoremen’s Union v. Hawaiian Pineapple Co.,226 F.2d 875 (9th Cir. 1955) .................................................................................. 4

Los Angeles Police Protective League v. Gates,

995 F.2d 1469 (9th Cir. 1993) ............................................................................ 3, 4

Metcalf v. Bochco,

294 F.3d 1069 (9th Cir. 2002) .............................................................................. 21

Miller v. Fairchild Indus., Inc.,885 F.2d 498 (9th Cir. 1989) .................................................................................. 3

Newton v. Diamond ,

388 F.3d 1189 (9th Cir. 2004) ....................................................................... passim



4/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28iii


Rice v. Fox Broad. Co.,330 F.3d 1170 (9th Cir. 2003) .......................................................................... 8, 16

Sanders v. City of Newport ,

657 F.3d 772 (9th Cir. 2011) .......................................................................... 3, 4, 7

Swirsky v. Carey,376 F.3d 841 (9th Cir. 2004) ......................................................................... passim

Three Boys Music Corp. v. Bolton,

212 F.2d 477 (9th Cir. 2000) ................................................................................ 18

Zhang v. Am. Gem Seafoods, Inc.,339 F.3d 1020 (9th Cir. 2003) ........................................................................ 3, 4, 8

Other Authorities

U.S. Const. amend. VII ............................................................................................ 1, 3



5/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

28

1OPPOSITION TO COUNTER -CLAIMANTS’ JOINT POST-TRIAL MOTION FOR DECLARATORY RELIEF

INTRODUCTION

This Court should deny the Gaye Parties’ motion for declaratory relief because

the jury’s verdict does not support the requested relief and independently because the

Gayes failed to introduce substantial extrinsic evidence of copying.The Court may not enter an order declaring that Clifford Harris, Jr., and the

Interscope Parties1 “are directly liable to the Gaye family for copyright infringement”

(Decl. Mot.2 at 1) because the jury found, as to this very issue, that Harris and the

Interscope Parties are not liable to the Gaye Parties for copyright infringement. Once a

jury has decided an issue, a court may not “declare” the opposite on that same issue

without violating the prevailing parties’ Seventh Amendment right to a jury trial. That

principle applies even where, as here, the jury has returned legally inconsistent

verdicts as to different parties, because inconsistency in a jury’s verdict on a legal

issue does not permit a court to overturn that verdict. See infra Part I. The jury’s

finding of liability as to Robin Thicke and the Williams Parties also does not support

the requested declaratory relief because the failure to instruct the jury on the

distinction between protected and unprotected elements of Got To Give It Up (“Give”)

alone requires a new trial for Thicke and the Williams Parties under Harper House,

Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 207-08 (9th Cir. 1989). See infra Part II.

This Court also may not declare any of the Counter-Defendants liable for

copyright infringement because the Gaye Parties failed to introduce substantial

evidence of extrinsic similarity. The Court may apply the extrinsic test post-trial as a

matter of law, and should do so here. The extrinsic test serves the critical role of

analytic dissection, first discarding the unprotected elements of Give, and then

1 This memorandum refers to Counter-Defendants Interscope Records, UMG

Recordings, Inc., Universal Music Distribution, and Star Trak Entertainment, LLC, as“the Interscope Parties,” to Pharrell Williams and More Water from NazarethPublishing, Inc. as “the Williams Parties.”2 “Decl. Mot.” refers to Counter-Claimants’ Joint Post-Trial Motion for Declaratory

Relief, ECF No. 376.



6/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

282


objectively examining what remains for substantial similarity to Blurred Lines

(“ Blurred ”). Such filtering is vital after a trial where, from beginning to end, the Gaye

Parties rested their infringement claims on comparisons to the unprotected sound

recording of Give, and where an objective comparison of the deposit copy to Blurredreveals no substantial similarity.

Testimony from witnesses who were not musicologists, such as Thicke, Janis

Gaye, Nancie Stern, and Harry Weinger, is immaterial to the extrinsic test. These

witnesses did not compare Blurred to the deposit copy of Give. Even the Gaye Parties’

musicologist, Judith Finell, relied heavily on a comparison of Blurred to elements of

Give that appear only in the sound recording of Give.

At trial, Finell identified only three elements of Blurred —its alleged hook,

alleged signature phrase, and the lyrics—that even allegedly infringe the deposit copy;

none is objectively similar. For example, every potentially relevant aspect of the

alleged hook in Blurred —the succession of four notes and their rhythm and placement

in the song, the key, the harmony and chord progression, the surrounding structure,

and the lyrics—differs significantly from the deposit copy of Give. These aspects of

non-similarity are essential to a proper extrinsic analysis. Swirsky v. Carey, 376 F.3d

841, 847-49 (9th Cir. 2004). Because the differences between the challenged elements

of the works are pervasive, this is one of the “clear cases of non-infringement,” id. at

849-50, thus foreclosing any basis for declaratory relief.

ARGUMENT

I. The Court May Not Enter Declaratory Relief Inconsistent With The Jury’sVerdict

The jury’s verdict against Thicke and the Williams Parties is the only predicate

for the requested declaratory relief. As a matter of law, the verdict against Thicke and

the Williams Parties cannot support declaratory relief against Harris and the

Interscope Parties, because the jury expressly found the latter not liable for copyright

infringement. The Gaye Parties did not move for judgment as a matter of law against



7/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

283


Harris or the Interscope Parties. The Gaye Parties thus have no valid basis to obtain an

order declaring that Harris and the Interscope Parties “are directly liable to the Gaye

family for copyright infringement.” (Decl. Mot. at 11.)

First , once a jury decides a particular issue, the Seventh Amendment prohibitsthe Court from declaring the opposite on that issue. See U.S. Const. amend. VII. In

Los Angeles Police Protective League v. Gates, 995 F.2d 1469 (9th Cir. 1993), the

Ninth Circuit held that where a court decides equitable claims “based on the same

facts” that the jury considered, the Seventh Amendment requires the Court to conform

equitable orders to the jury’s determinations. Id. at 1473; see Sanders v. City of

Newport , 657 F.3d 772, 783 (9th Cir. 2011); Miller v. Fairchild Indus., Inc., 885 F.2d

498, 507 (9th Cir. 1989).

The Gaye Parties concede, as they must, that their “legal claims of copyright

infringement and equitable claim of declaratory relief are based on the same set of

facts.” (Decl. Mot. at 7.) But they also suggest, incorrectly, that these are two distinct

claims. They are not. The Gaye Parties asserted a single counterclaim for copyright

infringement of Give against each Counter-Defendant. Declaratory relief is merely a

form of relief they sought for that alleged infringement. Because the jury expressly

found that Harris and the Interscope Parties are not liable for infringement, this Court

may not grant the requested declaratory relief against them.3

Second , the Ninth Circuit repeatedly has held that courts have no power to alter

jury verdicts simply because they are legally inconsistent as between defendants.

Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003) (“legally

inconsistent verdicts ‘may nonetheless stand on appeal even though inconsistent’”). In Zhang, the Ninth Circuit refused to disturb an inconsistent jury verdict that exonerated

3The Gaye Parties’ argument (Decl. Mot. 2, 11) that the Court may order declaratory

relief against Harris and the Interscope Parties based on activity occurring after the jury returned its verdict is meritless for the same reason. The Gaye Parties’ claims ofcopyright infringement for Give were decided at trial, and the jury exonerated Harrisand the Interscope Parties on those claims.



8/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

284


the only individual through whom a corporate defendant allegedly acted, yet found the

corporate defendant liable for discrimination. As the court explained, “[w]e have

found no Supreme Court or Ninth Circuit cases in which an appellate court has

directed the trial court to grant a new trial due to inconsistencies between generalverdicts, and Ninth Circuit precedent dictates that we cannot do so.” Id.4 The court

cited Int’l Longshoremen’s Union v. Hawaiian Pineapple Co., 226 F.2d 875 (9th Cir.

1955), which upheld a similarly inconsistent verdict finding unions liable but not the

individuals who acted on their behalf. Although the court admitted difficulty in

understanding “why the jury found [the unions] liable and did not also hold some of

the leaders responsible,” it upheld “the jury’s prerogative” to do so. Id. at 881.

Here too it was “the jury’s prerogative” to find some of the Counter-Defendants

not liable. Because the Court may not overturn the jury’s verdict of non-liability as to

Harris and the Interscope Parties based on inconsistency, the Court also may not enter

an order declaring the opposite of what the jury found as to those parties.

The Gaye Parties cite no case in which a court entered declaratory relief

contrary to a jury’s finding of no liability; in fact, the cases they cite support Counter-

Defendants. In Los Angeles Police Protective League, for example, the Ninth Circuit

reversed a district court for granting equitable relief inconsistent with the jury’s

verdict. 995 F.2d at 1473. In Sanders, the court held that the district court was bound

by the jury’s verdict but vacated the verdict because the jury was improperly

instructed. 657 F.3d at 783. And in Accentra Inc. v. Staples, Inc. 851 F. Supp. 2d

1205, 1242-44 (C.D. Cal. 2011), rev’d in part on other grounds, 500 Fed. App’x 922

(Fed. Cir. 2013), the court adopted the jury’s finding that an inventor did not withhold

4 There is no doubt that the jury here rendered a general verdict, because the jury

applied the law to the facts and determined each Counter-Defendant’s liability forcopyright infringement. That the verdict addressed the claims against multipleCounter-Defendants and was captioned “Special Verdict” does not alter its legal statusas a general verdict. See Bonner v. Normandy Park , No. C07-962RSM, 2009 WL279070, at *2 (W.D. Wash. Feb. 2, 2009) (citing Jarvis v. Ford Motor Co., 283 F.3d33, 56 (2d Cir. 2002)).



9/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

285


material information from the Patent and Trademark Office in deciding the defense of

inequitable conduct.

Instead of citing cases that support their request, the Gaye Parties argue that

“[t]his Court already determined the Interscope Parties, and by implication, Harris,should be held liable for copyright infringement as members of the ‘Blurred Lines’

distribution chain if Thicke and the Williams Parties were found liable by the jury.”

(Decl. Mot. at 8.) This Court made no such finding. To begin with, the Gaye Parties

never presented this Court with a scenario in which some but not all of the co-authors

would be held liable, and the Court never promised to overturn a jury finding of non-

liability for Harris or any other party merely at Counter-Claimants’ request. The Gaye

Parties cite to the Court’s pre-trial statements that a defendant that distributes an

infringing work is liable for infringement, but Harris is not a distributor (he wrote the

rap vocal and co-owns the musical composition copyright), and, as to the remaining

Counter-Defendants, the Court instructed the jury on liability for distributing an

infringing work. Nowhere did the Court, prior to trial, relieve the Gaye Parties of their

obligation post-trial to provide a valid legal basis for overturning the jury’s findings.

The Gaye Parties did not provide the Court any such basis.

Finally, the Gaye Parties argue (Decl. Mot. at 2-3) that the “jury unanimously

found ‘Blurred Lines’ infringed the Gaye family’s copyright” in Give. But that, too, is

incorrect. The verdict form did not ask the jury whether the song infringed Give.

Rather, the verdict form asked only whether Counter-Defendants were liable for

infringement. (Special Verdict, ECF No. 320, at 1.) The jury’s finding that some

Counter-Defendants but not others were liable is legally inconsistent, but it containsno implicit finding about the song that would allow the Court to choose among co-

authors, or between co-authors and distributors.

To be sure, from the jury’s conclusion that Thicke and the Williams Parties

infringed, the Court could infer that the jury found that Blurred is substantially similar

to Give. But the reverse is also true. From the jury’s conclusion that Harris and the



10/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

286


Interscope Parties did not infringe, the Court also could infer that the jury found that

Blurred is not substantially similar to Give.

As between these two possible inferences, the latter is at least as well-supported

as the former. It would have been obvious to the jury that the only reason Harris andthe Interscope Parties were sued was because of their respective roles in writing part

of, and distributing, Blurred . Accordingly, had the jury actually found that Blurred

was substantially similar to Give, it should readily have found Harris and the

Interscope Parties liable. That the jury did not do so likely reflects a finding that the

songs were not extrinsically or intrinsically similar (indeed, as shown in Part III, infra,

there is no substantial evidence of extrinsic similarity), but that Thicke and Williams

nevertheless should be held liable based on their state of mind.

The jury was inundated with testimony and argument about Thicke and

Williams’ alleged subjective intent to copy. As explained by Thicke and the Williams

Parties, the jury also was erroneously instructed that “[i]n order to find that the Thicke

Parties copied” Give, “it is not necessary that you find that the Thicke Parties

consciously or deliberately copied . . . [the song]. It is sufficient if you find that the

Thicke Parties subconsciously copied” the song. (Jury Instr., at 45, ECF No. 322

(Instr. No. 42) (emphasis added); see Corrected Mot. for J. as a Matter of Law, Decl.

Relief, a New Trial, or Remittitur, ECF No. 385, at 5 (JMOL Mot.).) Under that

instruction, and given the Gaye Parties’ emphasis on intent, the jury may have

concluded that a finding of “conscious” or “subconscious” intent to copy alone

provided a “sufficient” basis to hold Thicke and Williams liable, even absent a finding

of substantial similarity.The Court can only speculate as to the reasons for the jury’s inconsistent legal

findings; it cannot alter the jury’s legal inconsistency merely for “consistency’s sake.”

The implicit basis for the jury’s inconsistent verdict is unknowable, and that

inconsistency therefore provides no legally valid basis to overturn the verdict as to

Harris and the Interscope Parties. The Court therefore should deny the Counter-



11/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

287


Claimants’ request for declaratory relief against Harris and the Interscope Parties.

II. The Court Should Deny Declaratory Relief As To All Parties BecauseThicke And The Williams Parties Are Entitled To A New Trial

The jury’s verdict cannot support the requested declaratory relief against any Counter-Defendant, including Thicke and the Williams Parties, for a separate reason.

The premise of the motion for declaratory relief is the verdict against Thicke and the

Williams Parties, but that verdict is compromised by numerous instructional and other

prejudicial errors that independently warrant a new trial for Thicke and the Williams

Parties. (See generally JMOL Mot.) Where a court should grant a party a new trial, it

may not enter equitable relief based on the jury’s verdict. Sanders, 657 F.3d at 783.

One such trial error is notable here. A bedrock principle of copyright law is that

substantial similarity must be proven as to elements protected by copyright. The Gaye

Parties’ copyright in Give lies only in the original elements of the deposit copy and

not in elements found only in the sound recording. The jury observed a protracted

battle on whether elements in transcriptions of the sound recording of Give also are in

the deposit copy, but the Court never instructed the jury on unprotectable elements or

that it had to resolve the disputes over which allegedly infringed elements of Give are

in the deposit copy. The failure to provide such instructions led the Ninth Circuit, in

Harper House, 889 F.2d at 207-08, to order a new trial. As the Ninth Circuit

explained, where the “jury instructions covering copyright infringement liability did

not adequately distinguish between protectable and unprotectable material,” and

where “[t]he jury was not told that [certain aspects of the plaintiff’s work] are not

protectable,” the jury “may have found that defendants infringed Harper House’scopyright based upon the direct copying of such unprotected material.” Id. (emphasis

added). Harper House and its progeny make clear that the court should instruct the

jury on those aspects of the plaintiff’s work that are not protectable. See id. (reversing

because district court did not instruct the jury “that blank forms, common property, or

utilitarian aspects of useful items are not protectable”); Dream Games of Ariz., Inc. v.



12/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

288


PC Onsite, 561 F.3d 983, 989 (9th Cir. 2009) (declining to reverse under Harper

House because the “district court identified in detail [in jury instructions] those

elements of the copyrighted work that are not protected” and the jury was told, e.g.,

that “‘Bingo cards, called numbers (often printed on balls), a key describing winning patterns and corresponding prizes, and the player’s balance and winnings, are all

elements of a video bingo game that are not protected by copyright’”).

Here, as in Harper House and unlike in Dream Games, the jury instructions

“did not adequately distinguish between protectable and unprotectable material,” and

did not state that the Gaye Parties have no copyright in the elements of Give found

only in the sound recording. This failure to instruct on unprotected material prejudiced

and warrants a new trial for Thicke and the Williams Parties (although not as to any

other party).5 Because the jury’s verdict against Thicke and the Williams Parties

cannot stand, that aspect of the jury’s verdict also cannot serve as a basis for

declaratory relief against any party.

III. The Court Should Deny Declaratory Relief Because The Jury’s Verdict OfCopyright Infringement Is Unsupported By Substantial Evidence

The Court should deny the request for declaratory relief for another independent

and more fundamental reason: The Gaye Parties did not present substantial evidence

of extrinsic similarity.

While intrinsic similarity is a question for the factfinder, extrinsic similarity

may be resolved by the court.6 In Newton v. Diamond , 388 F.3d 1189, 1194 (9th Cir.

5 Unlike the Thicke and Williams Parties, the Gaye Parties have not sought or evenstated (in response to this Court’s Order of March 20, 2015, ECF No. 360) their intentto seek a new trial or judgment as a matter of law as to Harris and the InterscopeParties, let alone provided the Court a valid basis for overturning the jury’s verdict asto those parties, so the jury’s verdict as to those parties should stand. See Zhang, 339F.3d at 1035 (court may not grant a new trial “on the basis of legally irreconcilablegeneral verdicts”).6 A finding of copyright infringement requires substantial evidence to support the

jury’s verdict “on both the extrinsic and intrinsic tests.” See Rice v. Fox Broad. Co.,330 F.3d 1170, 1174 (9th Cir. 2003).



13/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

289


2004), the Ninth Circuit applied the extrinsic test and affirmed summary judgment for

defendant after “filtering out the unique performance elements from consideration,

and separating them from those found in the composition” which, as here, defined the

scope of the copyright. Similarly, in Brown Bag Software v. Symantec Corp., 960 F.2d1465, 1475-77 (9th Cir. 1992), the court explained that it is “proper” for the court as a

matter of law to conduct analytic dissection both “for the purpose of defining the

scope of plaintiff’s copyright” and for “comparing the expressions” of the two works.

When this Court addressed the issue of extrinsic similarity on summary

judgment, it focused principally on the first step of analytic dissection—defining the

scope of the protected work by comparing Finell’s transcripts of the sound recording

of Give to the deposit copy. See, e.g., Order re Pls.’ & Cntr.-Defs.’ Mot. for Summ. J.,

ECF No. 139, Oct. 30, 2014 (MSJ Order), at 17-18 (finding “Theme X” is not in the

deposit copy); id. at 20-21 (“keyboard rhythms” are not in the deposit copy and “A7

chord” is not protected); id. at 23-24 (finding “triable issues as to whether the[] 11-

note signature phrase, four-note hook, four-bar bass line, 16-bar harmonic structure,

and four-note vocal melody are protectable expressions”). Although the Court found

“a sufficient showing” of extrinsic similarity to protected elements to warrant the

denial of summary judgment, (MSJ Order, at 24), the Court did not perform any

analytic dissection of the alleged similarities between the deposit copy of Give and

Blurred . Instead, the Court summarily observed that there were “competing expert

analyses” as to substantial similarity and that the expert reports did not “warrant the

exclusion” of any expert’s testimony. Id.

With the benefit of a full trial record, the Court may now evaluate the extent towhich, notwithstanding rulings prior to and during trial,7 the Gaye Parties relied on

7 Consistent with its Order on summary judgment, the Court ruled that edited sound

recordings featuring only those elements present in the deposit copy would be playedfor the jury in connection with the intrinsic test. Order re Admissibility of SoundRecording Evidence at Trial, ECF No. 231, Jan. 28, 2015, at 2, 4-5.



14/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2810


unprotected elements of Give, and may now perform the second step of analytic

dissection to determine whether Blurred is substantially extrinsically similar to those

few protected elements of Give that the Gaye Parties ultimately put at issue.

A.

There Is No Substantial Evidence Of Extrinsic Similarity Between Blurred And The Deposit Copy Of Give

In direct violation of the Court’s rulings, the Gaye Parties presented testimony,

transcriptions, and sound recordings that included unprotected elements of Give. The

Court sustained countless objections and granted motions to strike.8 Once the Court

filters out the unprotected elements of Give, the remainder is legally insufficient to

support a finding of substantial extrinsic similarity.

Only three of the elements in Give that were put at issue in trial—its alleged

hook, alleged signature phrase, and a few lyrics—are in the deposit copy. Ms. Finell

found substantial similarity to these elements in Blurred only by performing what

Swirsky aptly calls “an incomplete and distorted musicological analysis,” one that

“pull[s]” various “elements out of a song individually” while giving little or no weight

to myriad other elements that Swirsky expressly held a court must consider . 376 F.3d

at 847-49. When all pertinent elements are considered, as they must be, this case

becomes one of the “clear cases of non-infringement.” Id. at 848-49.

1. The Alleged Hooks Are Not Extrinsically Similar

Finell testified that a hook is “the most well-known or memorable theme of the

song” and that “[o]ften it’s connected with the title lyrics of the song.” (Trial Tr., Feb.

26, 2015, ECF No. 336 (Day 3), at 80:7-12.)9 Although the title lyrics of Give, “got to

8 See, e.g., Day 2 PM at 89:8-18 (testimony re: Give sound recording); Day 5 PM at48:12-17, 77:8-11 (questioning re: Give sound recording); Day 3 at 99:7-104:14(Theme X questioning); Day 4 PM at 13:14-24 (striking Finell’s testimony that“Marvin Gaye was the player of the keyboard. That’s really the only—the most truerepresentation of the music is the composer himself”); Day 4 PM at 86:7-18 (strikingMonson testimony that “while Blurred Lines was being created— Got To Give It Up was playing in the background”).9 Excerpts of all trial transcripts and exhibits cited herein are attached to the

accompanying Declaration of Amanda R. Farfel.



15/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2811


give it up,” do appear in the deposit copy, (Ex. 248-5 to -7), Finell testified that Give’s

hook is sung to the lyrics “keep on dancin’” and scale degrees 6-1-2-1. (Day 3 at 93:5-

98:17; Ex. 376, Slides 9-10.) Finell then asserted that one of two alleged hooks in

Blurred —the one embedded in Blurred ’s signature phrase and sung to the lyrics “takea good girl,” and scale degrees 6-1-1-1—was substantially similar to Give. ( Id.; Trial

Tr., Feb. 27, 2015, ECF No. 350 (Day 4 AM), at 24:12-18, 71:23-72:2.)

Swirsky makes clear that when songs are substantially similar in some

combination of elements, such as “melody, harmony, rhythm, pitch, tempo, phrasing,

structure, chord progressions, and lyrics,” they may be found substantially

extrinsically similar . 376 F.3d at 849. With the hook, none of the elements is similar .

Finell testified that “the most important element in comparing melodies is

whether or not they have a succession of similar or the same tones. None of the other

considerations beyond that are as powerful.” (Day 3 at 67:2-6.) The succession of

scale degrees 6-1-1-1 in Blurred , however, is not “a succession of similar or the same

tones” as Give’s 6-1-2-1. (Day 4 AM at 70:5-71:11.) Give’s use of the “2”—a

sustained, dissonant second scale degree—renders the hooks fundamentally dissimilar

The second scale degree in the Give hook is no mere passing note. It is, as the

deposit copy shows, the highest of the four notes and one that is held for emphasis. It

is all the more distinctive because it is (as Finell conceded) “dissonant,” not found in

the A7 chord against which it is played . (Day 4 AM at 56:7-61:9.) The second scale

degree is a fundamental melodic expression of Give that repeats throughout the

deposit copy in numerous phrases. (Trial Tr., Mar. 3, 2015, ECF No. 351 (Day 5 AM),

at 135:24-136:6.) The note is all the more important because it supports the syllable“dance,” obviously the most important word in the hook. This distinctive sustained

note is absent from the alleged Blurred hook .

Finell ignored other elements that Swirsky identifies as important and that

confirm that the hooks are not substantially similar. The rhythms of the hooks are

dissimilar. Every note in the Give hook has a different, longer, duration than the



16/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2812


corresponding notes in the Blurred hook. (Day 4 AM at 68:21-70:4; Ex. 376, Slide 9.)

Although Finell claims that the “rhythmic placement” of the notes across two

measures is a relevant similarity, (Day 3 at 95:9-25), the Give hook lasts for five beats

(two beats of the first measure and three beats of the second measure), whereas thealleged Blurred hook lasts for only three beats (one beat of the first measure and two

beats of the second measure). In the context of its placement within the alleged

Blurred Signature Phrase, the fourth note (“1”) of the alleged Blurred hook is tied to

the third scale degree at the end of the 1-5-4-3 melisma, which extends the associated

lyric “girl” an additional one and a half beats, yet another point of contrast with Give.

The rhythmic placement is therefore not substantially similar.

The “chord progression” (Swirsky, 376 F.3d at 848) also is different. Both

measures of the hook in Give are set to an A7 chord, but the first measure of the

alleged hook in Blurred is set to an E chord and the second measure to an A chord.

(Day 5 AM at 129:20-24.) The “key” (Swirsky, 376 F.3d at 848) differs as well. Give

is in the key of A, while Blurred is in the key of G.10

(Day 3 at 164:1-21.)

The “point in the song” at which the hooks “are found” (Swirsky, 376 F.3d at

848) also differs profoundly. The Give hook repeats in identical fashion. (Ex. 248-5.)

The alleged Blurred hook appears only twice. While Finell identified “variants” of the

Blurred hook throughout the song, not a single alleged variant of the Blurred hook has

the same notes as what Finell has identified as the hook itself . (Day 4 AM at 72:6-

78:7, Day 5 AM at 136:15-137:3.) Moreover, Finell testified that some of the hook

“variants” in Blurred were similar to a version of the Give Theme X found only in the

sound recording. (Day 4 AM at 77:7-9 (“That’s one of the characteristics of this song.Sometimes it’s like the signature phrase and sometimes it’s like the Theme X.”).) As

the Court ruled, and as further discussed infra Part III.B.1., Theme X is not in the Give

10For ease in comparing other elements, some transcriptions were transposed from

Blurred ’s original key of G into A, and some of the recordings were “pitch shift[ed].”(See, e.g., Trial Tr., Feb. 25, 2015, ECF No. 332 (Day 2 PM), at 73:9-74:1.)



17/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2813


deposit copy, and no substantial similarity can derive from similarities thereto. (MSJ

Order, at 17-18.) Finell’s testimony that the Blurred hook takes on multiple forms

musically and lyrically, while the Give hook repeats in identical form, is yet further

confirmation that the two hooks are not substantially similar.

2. The Alleged Signature Phrases Are Not Extrinsically Similar

Finell testified that a “signature phrase” is “an identifying or very recognizable

phrase.” (Day 3 at 60:11-16.) She described the Give signature phrase as “the first

vocal phrase that one hears in the song[,] [a]nd when one hears it, you would know

that this is—you’re about to hear Got To Give It Up.” Id . In Blurred , on the other

hand, Finell ignored the song’s first verse, and instead labeled a passage well into the

song as its signature phrase, because “it has the hook lyrics, and that’s enough to

identify it as an identifying phrase, which is what signature phrase means.” (Day 4

AM at 24:10-25:1.)

As just shown, however, Blurred ’s hook does not copy Give. That fact alone is

sufficient to demonstrate the dissimilarity of the signature phrases. Finell considered

Blurred ’s hook to be the most significant phrase in the whole song, and so a fortiori it

must be the most important part of the “signature phrase.” Because the most important

part of Blurred ’s signature phrase does not copy Give, the remainder of that short

phrase, shorn of the hook, is not significant enough standing alone to support a finding

of substantial similarity. Finell’s attempt to match the alleged signature phrases is a

paradigmatic example of “distorted musicological analysis.” Swirsky, 376 F.3d at 848.

The Give Signature Phrase, as Finell presented it at trial, has 10 notes—scale

degrees 5-5-5-5-6-1-2-1-5-6—played to the harmony of the A7 chord. (Ex. 376, Slide4; Day 3 at 72:6-79:6.) That phrase, as a whole, appears nowhere in Blurred. The

latter’s alleged Signature Phrase has 12 notes—scale degrees 3-3-#2-3-5-6-1-1-1-5-4-

3—with 7 of these notes played to the different harmony of the E chord and 5 played

to the A chord. (Ex. 376, Slide 4, Day 5 AM at 129:20-130:12.) These phrases—as

they appear in the deposit copy and in Finell’s transcription of Blurred —do not share



18/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2814


even a single note with the same pitch, rhythm, and placement. (Wilbur, Day 5 AM at

129:20-130:12.) And the first syllable of the word “ parties,” which Finell described as

the “most important word” in the Give Signature Phrase, (Day 4 AM at 60:24-61:9), is

sung to the significant and extended second scale degree that does not exist in Blurred , and for a duration of two beats, a rhythm without parallel in the alleged

Blurred Signature Phrase. This is not even a close question; on an objective basis,

these phrases as a whole are not extrinsically similar .

Finell nonetheless testified that substantial similarity could be found by

isolating four discrete fragments of the Give and Blurred Signature Phrases, and

ignoring other parts. The fragments are arbitrary. For example, Finell does not treat

the four-note Blurred hook as a discrete fragment, but combines it with two other

notes to create an arbitrary fragment that she calls “Element b.” The fragments are, in

any event, dissimilar:

“Element a.” This element simply does not exist in Blurred . Finell identified

“Element a” as “3 static pitches with identical rhythmic values.” (Ex. 376, Slides 4, 6;

Day 3 at 66:9-19.) In Give, these are the first three notes of the Signature Phrase—

consecutive eighth notes with scale degrees 5-5-5. The first three notes of the Blurred

Signature Phrase, however, are not static pitches with identical rhythmic values. They

are eighth notes with scale degrees 3-3-#2. It is only by skipping past the #2 to the

fourth note of the phrase that Finell can identify a third “3” to ostensibly match Give’s

5-5-5 structure. (Day 3 at 66:9-19; Day 4 AM at 53:1-54:10.) But because the 3

follows the #2, it is obviously an “up” pitch rather than a static pitch, as Finell

concedes.

11

(Day 3 at 66:14-19 (“it’s a repeated 3, which for a moment goes down to a11

Finell characterized “Element a” more generally in her oral testimony by observingthat “in both songs, they begin with repeated notes.” (Day 3 at 66:10-13.) But threesuch notes could be bracketed in innumerable works; three beamed eighth notes beginBeethoven’s Fifth Symphony. “Element a,” standing alone, therefore is not an originalor protectable expression. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499U.S. 340, 348-51 (1991); Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435,1443 (9th Cir. 1994). Moreover, the repeated eighth notes are otherwise different inevery way. Give’s 5-5-5 repetition has a different pitch, scale degree, rhythmic



19/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2815


2 sharp but then up to a 3”).) Although Finell characterized the #2 as a “moment” and

hence an insignificant deviation in “Element a,” it is an eighth note and thus at least as

significant a “moment” as the allegedly corresponding but different note in Give.

Finell’s testimony is also internally inconsistent on this point, because (in connectionwith Theme X) she herself characterized the #2 of the exact same 3-3-#2-3 passage as

a “red flag” that deviates from the scale and is a “broken rule.” (Day 3 at 118:20-

120:7.) Her inconsistent treatment of the #2 for purposes of “Element a” confirms that

her analysis is “incomplete and distorted.” Swirsky, 376 F.3d at 848.

“Element b.” Finell’s definition of “Element b” within the Blurred Signature

Phrase is arbitrary because it illogically combines Blurred Lines’ four-note hook with

one note that immediately precedes the hook and with another that follows it.

Recharacterized now as “Element b,” this six-note fragment is said to contain, as

compared to “Element b” in Give, “6 similar consecutive notes with 5 being identical

scale degrees.” (Ex. 376, Slide 6; Day 3 at 67:10-12.) The addition of one note to the

end of the Blurred hook makes no sense. That note is the first note of the melisma of

the signature phrase. Adding that note to “Element b” not only severs the melisma

(which Finell separately concedes is a distinct musical idea, “Element d”), but also

severs the connection between the songs’ lyrics and the underlying melodies.

Even accepting Finell’s testimony that this incoherent collection of notes

constitutes “the meat of the phrase . . . the main musical expression of that phrase as

well as in terms of lyrics,” (Day 3 at 67:10-18), “Element b” in Blurred is not

substantially similar to Give’s “Element b.” The relevant scale degrees of “Element b”

in Give are 5-6-1-2-1-5; in Blurred , the scale degrees are 5-6-1-1-1-5 (emphasesadded). Finell’s exclusive reliance on the argument that five out of six scale degrees

are identical (Day 3 at 78:18-79:6) is precisely the type of “incomplete” analysis that

Swirsky has categorically rejected. 376 F.3d at 847-48.

placement, and melodic contour than Blurred ’s 3-3-#2-3.



20/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2816


When the pitch sequence of “Element b” is viewed “in combination” with its

lyrics and melodic contour, dissonance, rhythm, and harmony, no substantial

similarity exists. See id. at 848-49 (identifying various valid elements used under the

extrinsic test). Finell admitted that, as set forth in the discussion above of the hook,the distinctive second scale degree in Give —the “2”—is played to the “most important

word” in the Signature Phrase; she also admits that it is the strongest and highest note

in the measure in Give, that it is “somewhat dissonant,” and that it is held for two

beats, the longest duration of any note in the Give Signature Phrase. (Day 4 AM at

54:12-61:9.) This dissonant extended tone, emphasized in Give, see supra Part III.A.1,

does not exist in Blurred . The corresponding scale degree in Blurred is 1, and that

note has a different placement (in the second measure of the Signature Phrase) and

duration (one beat). The final two notes of “Element b” also have different durations

in each song—in Give, two eighth notes, and in Blurred , a quarter note and a sixteenth

note. And while Give’s “Element b” plays to the harmony of A7, Blurred Lines’

“Element b” straddles the (transposed) E and A chords.

“Element c.” Finell’s “Element c,” the rhythmic use of six consecutive eighth

notes, (Day 3 at 67:20-23; Ex. 376, Slide 6), is an unprotectable idea, and Give’s

expression of that idea is any case not substantially similar to Blurred . See Swirsky,

376 F.3d at 845 n.4; Apple Computer , 35 F.3d at 1443. Rhythm is the only

characteristic that these notes share. The elements have only two scale degrees in

common, and they are in different places. Their pitch sequences (in Give, 5-5-5-5-6-1,

and in Blurred , 3-3-#2-3-5-6), melodic contours (in Give, S-S-S-U-U, and in Blurred ,

S-D-U-U-U),

12

keys, and harmonies (in Give, A7, and in Blurred , E) are all different.Sustaining a rhythm for six notes cannot alone support a finding of substantial

extrinsic similarity. See Swirsky, 376 F.3d at 847-78; Rice, 330 F.3d at 1174-75.

12 In this notation, “U” stands for up pitch, “D” stands for down pitch, and “S” stands

for static pitch.



21/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2817


“Element d.” Element d is a melisma. (Ex. 376, Slide 6.) The mere use of a

melisma is an unprotectable idea, and Give’s expression is not substantially similar to

Blurred . In Give, the melisma contains scale degrees 1-5-6. In Blurred , 1-5-4-3. (Ex.

376, Slide 6.) Finell’s only alleged similarity is the shared use of scale degrees 1-5 atthe beginning of the melismas. ( Id.; Trial Tr., Mar. 4, 2015, ECF No. 352 (Day 6

AM), at 22:12-23:4.) This hardly constitutes substantial similarity where scale degree

1 is the most stable and common note of the scale, and scale degree 5 is the second

most stable note.

A proper analysis of substantial extrinsic similarity must view the

compositional elements of both pitch sequence and rhythm, and must do so “in

combination” with other relevant factors. Swirsky, 376 F.3d at 847-48. Here, both the

pitch sequence as a whole and the rhythms of “Element d” are distinct. In Give, scale

degrees 1-5 are eighth notes, and the final note of the melisma, the 6, is held for a beat

and a half. (Ex. 248-2.) In Blurred , scale degrees 1-5 are an eighth note followed by a

sixteenth note, and these two final notes, 4-3, play together for a total duration of three

quarters of a beat. (Ex. 47A-4.) Thus, in Give, the melisma ends on an up pitch that is

held for twice as long as the two consecutive down pitches that close the melisma in

Blurred . The melismas have entirely different expressions.

3. The Lyrics Are Not Extrinsically Similar

The lyrics in the Give deposit copy and Blurred are entirely different. Nowhere

are there even two consecutive words that are the same. (Day 5 AM at 95:25-96:4.)

Finell claimed that the differing lyrics evoke the same “meaning,” (Trial Tr., Feb. 27,

2015, ECF No. 334 (Day 4 PM), at 27:2-24), but only the expression of a theme, andnot its “meaning,” is protected. Swirsky, 376 F.3d at 845 n.4; Apple Computer , 35

F.3d at 1443. Finell admitted that, in the sentences that she identified as similar, the

words are different. (Day 4 PM at 27:2-24; Ex. 376, Slide 35.)

The alleged similarity based on “word painting” has no merit. Finell claims that



22/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2818


the phrase “ Move it up, turn it ‘round, ooh shake it down” in Give is similar to “Shake

around, get down, get up” in Blurred . (Day 4 PM at 27:25-28:25; Ex. 376, Slide 32.)

But in Give these phrases have a “very, very different rhythm,” appear in a different

place (before, rather than after, the parlando/rap), and are sung to “different notes.”(Day 5 AM at 139:16-142:18.) Because “shake,” “up,” and “down” are common in

popular music, (see Day 5 AM at 139:16-142:18), the differences in accompanying

rhythm, notes, and placement are dispositive. When commonplace words support a

finding of infringement, it is because related musical elements also are identical. In

Three Boys Music Corp. v. Bolton, 212 F.2d 477, 481, 485 (9th Cir. 2000), for

example, the five commonplace words (“Love is a wonderful thing”) were copied

word-for-word, constituted the title of the song, were the hooks of each song, and had

the same words, rhythm, and pitch. None of these similarities exists for the lyrics

challenged here.

B.

The Other Alleged Similarities Are To Elements Not Found In TheDeposit Copy of Give

None of the remaining elements alleged to be substantially similar can be found

in the deposit copy of Give. For that reason alone, they cannot support the judgment.

In any event, these elements also cannot be found in Blurred .

1. Theme X Is Not In The Deposit Copy

The Court previously concluded, and Finell conceded, that Theme X—when

defined as a four-note melody containing scale degrees 3-3-#2-3 sung to the words

“dancin’ lady”—does not exist in the Give deposit copy. MSJ Order, at 17-18; (Finell

Decl., Feb. 13, 2015, ECF No. 264, at 2-3, Ex. A; Finell Decl., Feb. 18, 2015, ECF No. 271, at 2-4.). Prior to trial, however, Finell identified a new Theme X that is in the

deposit copy—a four-note melody containing scale degrees 5-5-6-5 sung to the words

“ fancy lady.” (Finell Feb. 13 Decl., at 2-3, Ex. A; Finell Feb. 18 Decl., at 2-4.)

Finell’s testimony should have been limited to this new “deposit copy Theme



23/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2819


X.” It was not.13

References at trial to the deposit-copy Theme X served exclusively

as a vehicle for renewing Finell’s argument that the sound-recording Theme X should

also be considered part of the deposit copy. (Day 4 AM at 82:6-92:19 (stating that the

sound-recording Theme X is “reflected in” and “implied” by the deposit-copy ThemeX).) Finell made no attempt to identify similarities between the deposit-copy Theme X

and Blurred . And she could not. The allegedly corresponding four-note melodies do

not contain any pitches or scale degrees in common and have different melodic

contours. They are not even “mirror” images (as Finell inaptly called them), because

Give’s deposit copy shows a whole step up (from 5 to 6) while Blurred has a half step

down (from 3 to #2, a “non-scale tone”). (Day 4 AM at 90:1-93:19.)

There is no transitive property of copyright. The Gaye Parties own only the

work as fixed in the deposit copy. Finell presented no evidence of similarities between

the deposit copy Theme X and the Blurred Theme X, and no similarities exist. Theme

X thus cannot support a finding of extrinsic similarity.

2.

The Keyboard Parts Are Not In The Deposit Copy

The Court also identified the keyboard rhythm that Finell transcribed from the

Give sound recording as unprotected. MSJ Order, at 20-21. Finell nonetheless testified

that the keyboard pitches and rhythms form the “heartbeat” of Give and testified to the

very same transcription and keyboard rhythms the Court found unprotected. (Day 3 at

135:21-142:17; Ex. 376, Slides 2, 19, 20.) This testimony also cannot support a

finding of extrinsic similarity.

On cross-examination, Finell admitted that the deposit copy does not indicate

what instrument is to play the chords, that the “specific voicing [of the A7 chord]isn’t” noted by the A7 in the deposit copy, that the A7 chord can be played on a

keyboard “[i]n a few ways,” and that different instruments could take the place of the

13 For example, Finell testified that Theme X is a “backup melody sung to the words

dancin’ lady,” that the scale degrees of Theme X are 3-3-#2-3, and that Theme X in Blurred Lines is “exactly the same.” (Day 3 at 98:23-24, 112:18-116:10, 120:14-17).



24/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2820


keyboard. (Day 4 PM at 7:16-14:22.) Finell argued that a “professional” musician

would know how to play the “right hand” based on the voicing of the “left hand,” or

bass melody. (Day 4 PM at 31:3-33:12.) But even so, the best Finell could offer was

that “[t]here are only so many voicings that the pianist can reach and play that chordand that’s a reasonable voicing.” (Day 4 PM at 9:16-18.) The Gaye Parties’ copyright

protects the expression of the elements that appear in the deposit copy; as a matter of

law, it does not extend to a “reasonable” interpretation of those elements. See Newton,

388 F.3d at 1193-94 (recognizing that plaintiff had gone “beyond the score in his

performance” and that “those performance elements are beyond consideration in

[plaintiff’s] claim for infringement of his copyright in the underlying composition”).

All testimony and evidence of alleged similarities between Give and Blurred on the

basis of the keyboard rhythm and transcription must be filtered out and cannot support

a finding of substantial extrinsic similarity.

3.

The Bass Melodies That Finell Presented Are Not In TheDeposit Copy

For her testimony about bass lines, Finell did not compare the deposit copy to

Blurred . Finell instead compared Blurred to her transcription of the sound recording

of Give.14 (Cf. JMOL Mot., at 13; Day 4 PM at 17:15-23:17; see also Day 3 at 54:20-

25.) The differences between the bass melodies that Finell presented at trial and those

in the Give deposit copy are stark. Finell’s reliance on the sound recording led to

numerous inaccuracies in the rhythmic value of the notes she transcribed. (Day 4 PM

at 15:6-23:17; Day 5 AM at 146:18-161:10; Ex. 376, Slides 16, 18; Ex. 389.) Finell’s

transcriptions also add notes that do not exist anywhere in the deposit copy andreplace notes that do exist with inaccurate scale degrees. (See id.) All of Finell’s

testimony as to the bass melodies and descending bass melodies therefore should be

14 See, for example, the timestamp on each Finell transcription presented. Ex. 376,

Slides 3-4, 6, 9-10, 15-16, 18-20.



25/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2821


filtered out and disregarded because comparisons to a sound recording that diverges

from the deposit copy is not evidence of infringement. Newton, 388 F.3d at 1193-94

(when “confined to . . . the composition itself . . . . we may consider only

[defendants’] appropriation of the song’s compositional elements and must removefrom consideration all the elements unique to [the plaintiff’s] performance”).

There is no substantial extrinsic similarity between the bass lines in the deposit

copy of Give and Blurred . Of the 21 notes in Give’s full 8-measure bass line and the

25 notes of the full 8-measure bass line in Blurred , only three notes share the same

scale degree, rhythm, and placement. (Day 5 AM at 156:14-17; Ex. 389.) Each of

these three notes is scale degree 1, the root of the chord. The root of the chord grounds

and establishes the chord, making it the most commonplace use of a bass instrument.

(Day 5 AM at 152:14-154:8.) That aspect of a bass line is so common a musical idea

and so pervasive in prior art (see Trial Tr., Mar. 3, 2015, ECF No. 337 (Day 5 PM), at

12:3-13:5) that it is unprotected. E.g., Apple Computer, 35 F.3d at 1443 (“similarities

derived from the use of common ideas cannot be protected; otherwise, the first to

come up with an idea will corner the market”); cf ., Metcalf v. Bochco, 294 F.3d 1069,

1074 (9th Cir. 2002). Regardless, the expression of the root note is not substantially

similar, because it only appears on the downbeat of the first measure in Give, whereas

in Blurred it appears on the downbeat of each of the first four measures. Swirsky, 376

F.3d at 848. The chord progression is a distinct compositional element as well—the

bass melodies in Give are played against a variety of chords, whereas in Blurred the

bass melodies are played only against two chords, A and E, which alternate every two

measures throughout the song. (Day 5 AM at 95:6-23; Ex. 369.) The bass melodies have only two other scale degrees in common, the flat 7 and

the 4. (See, e.g., Ex. 376, Slide 16.) The flat 7 is a main feature of the Give bass

melody. (Day 5 AM at 147:17-151:24.) The Give composition places special emphasis

on the relationship between the flat 7 and the 1, going back and forth between the

notes for the first three measures of the melody. ( Id.) The Blurred bass melody lacks



26/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2822


this distinguishing feature, containing only one flat 7 (in the third measure), which is

separated from the 1 by a 5. ( Id.) Not only is the 5 absent entirely from the Give bass

melody, but it is the only note played for the next three measures of the bass melody

of Blurred— three measures that Finell simply ignores. (Day 5 AM at 151:25-152:24;see Ex. 47A-3 to -4.)

Finell’s testimony that the bass melodies are similar because “both songs have a

leap up from scale degree 1 to 4” is “incomplete” because it “pull[s]” the notes out of

context. (Day 3 at 124:22-23.) Swirsky, 376 F.3d at 848. The notes she compares are

part of a different succession of notes and have a different placement in each song. In

Give, the 4 is in the fourth measure of the bass melody, which contains scale degrees

1-4-flat 3-flat 7. In Blurred , the 4 is in the second measure, which contains scale

degrees 1-4-1. This is not a succession of similar, let alone the same, tones.15

There also is no evidence of substantial similarity arising from an accurate

comparison of the descending bass melodies in measure eight. The use of a

descending bass melody also is so commonplace as to be an unprotected idea, and so

copyright protects only a particular expression. Swirsky, 376 F.3d at 845 n.4; Apple

Computer, 35 F.3d at 1443. Finell relied on the fifth scale degree as the evidence of

similarity. (See Day 3 at 129:12-130:7.) The fifth scale degree in Finell’s transcription

(Ex. 376, Slide 18), however, does not appear anywhere in the deposit copy.

Without the fifth scale degree, all that remains are “intervening notes” that

Finell conceded were “less important” (Day 3 at 129:12-130:7), and which in fact are

“trivial” and insufficient to constitute substantial similarity in a descending bass line.

See Newton, 388 F.3d at 1195. The descending bass melody in the deposit copy ofGive has only three notes, none repeated, played only for the last two beats of the last

bass measure, with scale degrees 4-flat 3-1. (Ex. 248-2.) The descending bass melody

15 Again, in Finell’s own words, “the most important element in comparing melodies

is whether or not they have a succession of similar or the same tones. None of theother considerations beyond that are as powerful as that.” (Day 3 at 67:2-6.)



27/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2823


in Blurred includes nine notes, in a pattern of two notes repeated per beat, played for

four and a half beats, with scale degrees 5-5-4-4-3-3-2-2-1, and, unlike Give, the first

scale degree of this melody is played at the end of the preceding measure. The notes

are different, the melodic contours are different, the placement is different, and theyare played to different chords. The final measure of the bass melody in Blurred is thus

not substantially similar to the deposit copy of Give.

4. The Extended Parlando Section Is Not In The Deposit Copy.

There is no extended “parlando” section in the Give deposit copy. Unlike the

composition of Blurred , which indicates when lyrics are spoken by placing the letter

“x” over the notes, (Ex. 47A-6 to A-7), the Give deposit copy does not use that

notation for the extended section that Finell identifies as the “parlando.” (See Day 5

AM at 143:3-146:15; compare Ex. 47A-6 with Ex. 248-4.) The absence of any such

notation in the alleged “parlando” section is all the more significant because the Give

deposit does use such notation elsewhere. The seventh measure on page 3 of the Give

deposit copy features the same “x-notes” over the lyrics “we heard that ” that indicate

the rap section in Blurred . (Ex. 248-4; Day 5 AM at 103:19-105:10.) This feature,

however, is simply not present in the section of Give that Finell sought to compare

with Blurred ; that section of Give is set forth in the deposit copy no differently than

are the lyrics in the rest of Give as words underneath musical notes (with the only

exception being “we heard that ”). Had the drafter of the Give deposit copy intended to

copyright a “parlando” section where Finell heard one, the drafter knew how to so

indicate. ( Id.) Once again, Finell impermissibly relied on the sound recording to

identify an element omitted from the deposit copy. (Day 4 AM at 43:23-45:6.) Newton, 388 F.3d at 1193-94.

The respective “parlando” and rap sections of Give and Blurred cannot support

a finding of substantial extrinsic similarity for yet other reasons. The only alleged

similarity between the rap and “parlando” sections is their respective placement in the

songs. (Day 3 at 152:23 -157:24.) Yet in the Give deposit copy, the “parlando” section



28/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2824


starts at the double bar line several measures before the lyrics Finell identifies as

starting the “parlando.” (Day 5 AM at 144:14-25; see Ex. 248-4.) Finell also never

testified that a “parlando” section is original to Give, that the particular measure at

which the “parlando” starts is significant to Give, or that the contents of the sectionsare similar. The mere idea of starting otherwise different sections at a specific measure

is “trivial.” Newton, 388 F.3d at 1195.

C. Witnesses Other Than Finell Also Did Not Compare Blurred To TheDeposit Copy Of Give

The Gaye Parties did present testimony from witnesses other than Finell. That

testimony cannot support a finding of substantial extrinsic similarity as a matter of

law, because those witnesses did not compare Blurred to the protected elements of the

Give deposit copy.

Ingrid Monson based her testimony, including as to mash-ups, on unprotected

elements of the Give sound recording. Monson testified that she was hired to assess

genre and prior art claims and “take a look at the originality of the keyboard and bass

lines.” (Day 4 PM at 61:4-9.) Monson’s mash-ups included the keyboard, bass lines,

and even Marvin Gaye vocals from the Give sound recording. (Day 4 PM at 79:16-

87:9; Ex. 377, Slides 1, 3, 5.) Furthermore, as discussed above, supra Parts III.B.2.,

III.B.3, the Give deposit copy contains no keyboard parts, and the bass melodies that

Finell transcribed from the Give sound recording differ materially from those in the

Give deposit copy. Because Monson’s testimony is based on the sound recording of

Give, it cannot support a finding of substantial extrinsic similarity.

The same is true of the testimony from other witnesses, including Thicke, JanisGaye, Stern, and Weinger. While the Gaye Parties placed great weight on these

witnesses’ supposed beliefs of similarity, they failed to establish that any of them

compared Blurred to the deposit copy of Give. Their testimony is not evidence that

can support a finding of substantial extrinsic similarity.

* * * * *



29/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2825


The jury must have known, from counsel’s numerous objections and argument,

that the parties had a dispute related to the deposit copy. But the jury instructions did

not guide the jury in resolving that dispute. The instructions did not tell the jurors that

it was their task, in evaluating extrinsic similarity, first to resolve the dispute over thedeposit copy by filtering out those aspects of Give that appear only in Finell’s

transcripts of the sound recording, and only thereafter objectively to compare the

protected aspects, if any, of the deposit copy of Give to Blurred. The Court should not

presume that the jury’s verdict against Thicke and the Williams Parties reflects an

extrinsic analysis that the jury was not adequately instructed to make. This Court,

however, can perform each step of that objective legal analysis now. Such an analysis

leaves no doubt that the Gaye Parties failed to introduce substantial evidence to

support a finding of extrinsic similarity. For this reason as well, their request for a

declaration of copyright infringement must be denied .

CONCLUSION

For the reasons above, the motion for declaratory relief should be denied.



30/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

2826


Dated: June 1, 2015 Respectfully submitted,

SIDLEY AUSTIN LLP

By: /s/Mark E. Haddad Mark E. Haddad

Attorneys for Counter-DefendantsSTAR TRAK ENTERTAINMENT,GEFFEN RECORDS, INTERSCOPERECORDS, UMG RECORDINGS,INC., and UNIVERSAL MUSICDISTRIBUTION

Dated: June 1, 2015 KING, HOLMES, PATERNO &

BERLINER, LLP

By: /s/Howard E. King Howard E. KingSeth Miller

Attorneys for Plaintiffs and Counter-Defendants PHARRELL WILLIAMS,ROBIN THICKE and CLIFFORDHARRIS, JR. and Counter-DefendantsMORE WATER FROM NAZARETHPUBLISHING, INC., PAULA MAXINEPATTON individually and d/b/aHADDINGTON MUSIC, STAR TRAKENTERTAINMENT, GEFFENRECORDS, INTERSCOPE RECORDS,UMG RECORDINGS, INC., andUNIVERSAL MUSIC DISTRIBUTION



31/31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

2324

25

26

27

CERTIFICATE OF SERVICE

I hereby certify that on June 1, 2015, I electronically filed the foregoing

COUNTER-DEFENDANTS’ OPPOSITION TO COUNTER-CLAIMANTS’

JOINT POST-TRIAL MOTION FOR DECLARATORY RELIEF with the Clerkof the Court by using the CM/ECF system. I certify that all participants in the case are

registered CM/ECF users and that service will be accomplished by the CM/ECF

system.

/s/Mark E. Haddad Mark E. Haddad


universal blurred

Documents