Universal Blurred

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 1 of 31 Page ID
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Peter I. Ostroff, SBN 45718

postroff@sidley.com
Mark E. Haddad, SBN 205945
mhaddad@sidley.com
Rollin A. Ransom, SBN 196126
rransom@sidley.com
Michelle B. Goodman, SBN 218607
mgoodman@sidley.com
Amanda R. Farfel, SBN 288126
afarfel@sidley.com
SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
Los Angeles, California 90013
Telephone: (213) 896-6000
Facsimile: (213) 896-6600
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Attorneys for Counter-Defendants

STAR TRAK ENTERTAINMENT,
GEFFEN RECORDS, INTERSCOPE RECORDS,
UMG RECORDINGS, INC., and
UNIVERSAL MUSIC DISTRIBUTION
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[Additional counsel listed on signature page]
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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PHARRELL WILLIAMS, an individual;

ROBIN THICKE, an individual; and
CLIFFORD HARRIS, JR., an
individual,
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Plaintiffs,
vs.
BRIDGEPORT MUSIC, INC., a
Michigan corporation; FRANKIE
CHRISTIAN GAYE, an individual;
MARVIN GAYE III, an individual;
NONA MARVISA GAYE, an
individual; and DOES 1 through 10,
inclusive,
Defendants.
Case No. 2:13-CV-06004-JAK (AGRx)

Assigned to: Hon. John A. Kronstadt
COUNTER-DEFENDANTS
OPPOSITION TO COUNTERCLAIMANTS JOINT POST-TRIAL
MOTION FOR DECLARATORY
RELIEF
Date:
Time:
Ctrm.:
June 29, 2015

8:30 a.m.
750
Action Commenced: August 15, 2013

Trial Date: February 24, 2015
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AND RELATED COUNTERCLAIMS
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OPPOSITION TO COUNTER-CLAIMANTS JOINT POST-TRIAL MOTION FOR DECLARATORY RELIEF

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TABLE OF CONTENTS
Page
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INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 2
I.
The Court May Not Enter Declaratory Relief Inconsistent With The
Jurys Verdict .................................................................................................. 2
II.
The Court Should Deny Declaratory Relief As To All Parties Because

Thicke And The Williams Parties Are Entitled To A New Trial.................... 7
III.
The Court Should Deny Declaratory Relief Because The Jurys

Verdict Of Copyright Infringement Is Unsupported By Substantial
Evidence .......................................................................................................... 8
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A.
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B.
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C.
There Is No Substantial Evidence Of Extrinsic Similarity

Between Blurred And The Deposit Copy Of Give ............................. 10
1.
The Alleged Hooks Are Not Extrinsically Similar................... 10
2.
The Alleged Signature Phrases Are Not Extrinsically

Similar .......................................................................................13
3.
The Lyrics Are Not Extrinsically Similar................................. 17
The Other Alleged Similarities Are To Elements Not Found In

The Deposit Copy of Give .................................................................. 18
1.
Theme X Is Not In The Deposit Copy ...................................... 18
2.
The Keyboard Parts Are Not In The Deposit Copy.................. 19
3.
The Bass Melodies That Finell Presented Are Not In The

Deposit Copy ............................................................................ 20
4.
The Extended Parlando Section Is Not In The Deposit

Copy. .........................................................................................23
Witnesses Other Than Finell Also Did Not Compare Blurred To

The Deposit Copy Of Give ................................................................. 24
CONCLUSION ........................................................................................................25
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i

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TABLE OF AUTHORITIES
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3
Page(s)
Cases
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Accentra Inc. v. Staples, Inc.

851 F. Supp. 2d 1205 (C.D. Cal. 2011), revd in part on other
grounds, 500 Fed. Appx 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
12
13
14
15
16
17
18
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21
22
23
24
25
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Dream Games of Ariz., Inc. v. PC Onsite,

561 F.3d 983 (9th Cir. 2009) .............................................................................. 7, 8
Feist Publns, 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
Intl Longshoremens 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
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1
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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
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7
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9
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11
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
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INTRODUCTION
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This Court should deny the Gaye Parties motion for declaratory relief because
the jurys 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
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Interscope Parties 1 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
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without violating the prevailing parties Seventh Amendment right to a jury trial. That
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principle applies even where, as here, the jury has returned legally inconsistent
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verdicts as to different parties, because inconsistency in a jurys verdict on a legal
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issue does not permit a court to overturn that verdict. See infra Part I. The jurys
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finding of liability as to Robin Thicke and the Williams Parties also does not support
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the requested declaratory relief because the failure to instruct the jury on the
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distinction between protected and unprotected elements of Got To Give It Up (Give)
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alone requires a new trial for Thicke and the Williams Parties under Harper House,
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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
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copyright infringement because the Gaye Parties failed to introduce substantial
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evidence of extrinsic similarity. The Court may apply the extrinsic test post-trial as a
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matter of law, and should do so here. The extrinsic test serves the critical role of
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analytic dissection, first discarding the unprotected elements of Give, and then
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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 Nazareth
Publishing, Inc. as the Williams Parties.
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Decl. Mot. refers to Counter-Claimants Joint Post-Trial Motion for Declaratory
Relief, ECF No. 376.
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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 Blurred
reveals no substantial similarity.

Testimony from witnesses who were not musicologists, such as Thicke, Janis
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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
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Give that appear only in the sound recording of Give.
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At trial, Finell identified only three elements of Blurredits alleged hook,
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alleged signature phrase, and the lyricsthat even allegedly infringe the deposit copy;
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none is objectively similar. For example, every potentially relevant aspect of the
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alleged hook in Blurredthe succession of four notes and their rhythm and placement
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in the song, the key, the harmony and chord progression, the surrounding structure,
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and the lyricsdiffers significantly from the deposit copy of Give. These aspects of
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non-similarity are essential to a proper extrinsic analysis. Swirsky v. Carey, 376 F.3d
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841, 847-49 (9th Cir. 2004). Because the differences between the challenged elements
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of the works are pervasive, this is one of the clear cases of non-infringement, id. at
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849-50, thus foreclosing any basis for declaratory relief.

ARGUMENT
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I.
The Court May Not Enter Declaratory Relief Inconsistent With The Jurys
Verdict
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The jurys verdict against Thicke and the Williams Parties is the only predicate
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for the requested declaratory relief. As a matter of law, the verdict against Thicke and
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the Williams Parties cannot support declaratory relief against Harris and the
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Interscope Parties, because the jury expressly found the latter not liable for copyright
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infringement. The Gaye Parties did not move for judgment as a matter of law against
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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 prohibits
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the 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 jurys determinations. Id. at 1473; see Sanders v. City of
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Newport, 657 F.3d 772, 783 (9th Cir. 2011); Miller v. Fairchild Indus., Inc., 885 F.2d
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498, 507 (9th Cir. 1989).

The Gaye Parties concede, as they must, that their legal claims of copyright
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infringement and equitable claim of declaratory relief are based on the same set of
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facts. (Decl. Mot. at 7.) But they also suggest, incorrectly, that these are two distinct
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claims. They are not. The Gaye Parties asserted a single counterclaim for copyright
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infringement of Give against each Counter-Defendant. Declaratory relief is merely a
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form of relief they sought for that alleged infringement. Because the jury expressly
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found that Harris and the Interscope Parties are not liable for infringement, this Court
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may not grant the requested declaratory relief against them. 3

Second, the Ninth Circuit repeatedly has held that courts have no power to alter
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jury verdicts simply because they are legally inconsistent as between defendants.
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Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003) (legally
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inconsistent verdicts may nonetheless stand on appeal even though inconsistent). In
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Zhang, the Ninth Circuit refused to disturb an inconsistent jury verdict that exonerated
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The 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 of
copyright infringement for Give were decided at trial, and the jury exonerated Harris
and the Interscope Parties on those claims.
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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 general
verdicts, and Ninth Circuit precedent dictates that we cannot do so. Id. 4 The court
cited Intl Longshoremens 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
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the leaders responsible, it upheld the jurys prerogative to do so. Id. at 881.
Here too it was the jurys prerogative to find some of the Counter-Defendants
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not liable. Because the Court may not overturn the jurys verdict of non-liability as to
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Harris and the Interscope Parties based on inconsistency, the Court also may not enter
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an order declaring the opposite of what the jury found as to those parties.
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The Gaye Parties cite no case in which a court entered declaratory relief
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contrary to a jurys finding of no liability; in fact, the cases they cite support Counter-
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Defendants. In Los Angeles Police Protective League, for example, the Ninth Circuit
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reversed a district court for granting equitable relief inconsistent with the jurys
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verdict. 995 F.2d at 1473. In Sanders, the court held that the district court was bound
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by the jurys verdict but vacated the verdict because the jury was improperly
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instructed. 657 F.3d at 783. And in Accentra Inc. v. Staples, Inc. 851 F. Supp. 2d
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1205, 1242-44 (C.D. Cal. 2011), revd in part on other grounds, 500 Fed. Appx 922
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(Fed. Cir. 2013), the court adopted the jurys finding that an inventor did not withhold
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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-Defendants liability for
copyright infringement. That the verdict addressed the claims against multiple
Counter-Defendants and was captioned Special Verdict does not alter its legal status
as a general verdict. See Bonner v. Normandy Park, No. C07-962RSM, 2009 WL
279070, at *2 (W.D. Wash. Feb. 2, 2009) (citing Jarvis v. Ford Motor Co., 283 F.3d
33, 56 (2d Cir. 2002)).
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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-
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liability for Harris or any other party merely at Counter-Claimants request. The Gaye
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Parties cite to the Courts pre-trial statements that a defendant that distributes an
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infringing work is liable for infringement, but Harris is not a distributor (he wrote the
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rap vocal and co-owns the musical composition copyright), and, as to the remaining
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Counter-Defendants, the Court instructed the jury on liability for distributing an
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infringing work. Nowhere did the Court, prior to trial, relieve the Gaye Parties of their
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obligation post-trial to provide a valid legal basis for overturning the jurys findings.
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The Gaye Parties did not provide the Court any such basis.
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Finally, the Gaye Parties argue (Decl. Mot. at 2-3) that the jury unanimously
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found Blurred Lines infringed the Gaye familys copyright in Give. But that, too, is
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incorrect. The verdict form did not ask the jury whether the song infringed Give.
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Rather, the verdict form asked only whether Counter-Defendants were liable for
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infringement. (Special Verdict, ECF No. 320, at 1.) The jurys finding that some
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Counter-Defendants but not others were liable is legally inconsistent, but it contains
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no implicit finding about the song that would allow the Court to choose among co-
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authors, or between co-authors and distributors.
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To be sure, from the jurys conclusion that Thicke and the Williams Parties
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infringed, the Court could infer that the jury found that Blurred is substantially similar
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to Give. But the reverse is also true. From the jurys conclusion that Harris and the
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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 and
the 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,
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there is no substantial evidence of extrinsic similarity), but that Thicke and Williams
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nevertheless should be held liable based on their state of mind.
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The jury was inundated with testimony and argument about Thicke and
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Williams alleged subjective intent to copy. As explained by Thicke and the Williams
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Parties, the jury also was erroneously instructed that [i]n order to find that the Thicke
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Parties copied Give, it is not necessary that you find that the Thicke Parties
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consciously or deliberately copied . . . [the song]. It is sufficient if you find that the
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Thicke Parties subconsciously copied the song. (Jury Instr., at 45, ECF No. 322
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(Instr. No. 42) (emphasis added); see Corrected Mot. for J. as a Matter of Law, Decl.
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Relief, a New Trial, or Remittitur, ECF No. 385, at 5 (JMOL Mot.).) Under that
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instruction, and given the Gaye Parties emphasis on intent, the jury may have
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concluded that a finding of conscious or subconscious intent to copy alone
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provided a sufficient basis to hold Thicke and Williams liable, even absent a finding
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of substantial similarity.
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The Court can only speculate as to the reasons for the jurys inconsistent legal
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findings; it cannot alter the jurys legal inconsistency merely for consistencys sake.
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The implicit basis for the jurys inconsistent verdict is unknowable, and that
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inconsistency therefore provides no legally valid basis to overturn the verdict as to
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Harris and the Interscope Parties. The Court therefore should deny the Counter6

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Claimants request for declaratory relief against Harris and the Interscope Parties.
II.
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The Court Should Deny Declaratory Relief As To All Parties Because

Thicke And The Williams Parties Are Entitled To A New Trial
The jurys 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
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may not enter equitable relief based on the jurys verdict. Sanders, 657 F.3d at 783.
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One such trial error is notable here. A bedrock principle of copyright law is that
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substantial similarity must be proven as to elements protected by copyright. The Gaye
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Parties copyright in Give lies only in the original elements of the deposit copy and
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not in elements found only in the sound recording. The jury observed a protracted
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battle on whether elements in transcriptions of the sound recording of Give also are in
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the deposit copy, but the Court never instructed the jury on unprotectable elements or
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that it had to resolve the disputes over which allegedly infringed elements of Give are
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in the deposit copy. The failure to provide such instructions led the Ninth Circuit, in
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Harper House, 889 F.2d at 207-08, to order a new trial. As the Ninth Circuit
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explained, where the jury instructions covering copyright infringement liability did
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not adequately distinguish between protectable and unprotectable material, and
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where [t]he jury was not told that [certain aspects of the plaintiffs work] are not
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protectable, the jury may have found that defendants infringed Harper Houses
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copyright based upon the direct copying of such unprotected material. Id. (emphasis
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added). Harper House and its progeny make clear that the court should instruct the
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jury on those aspects of the plaintiffs work that are not protectable. See id. (reversing
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because district court did not instruct the jury that blank forms, common property, or
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utilitarian aspects of useful items are not protectable); Dream Games of Ariz., Inc. v.
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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 players 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
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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
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only in the sound recording. This failure to instruct on unprotected material prejudiced
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and warrants a new trial for Thicke and the Williams Parties (although not as to any
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other party). 5 Because the jurys verdict against Thicke and the Williams Parties
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cannot stand, that aspect of the jurys verdict also cannot serve as a basis for
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declaratory relief against any party.
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III.
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The Court Should Deny Declaratory Relief Because The Jurys Verdict Of
Copyright Infringement Is Unsupported By Substantial Evidence
The Court should deny the request for declaratory relief for another independent
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and more fundamental reason: The Gaye Parties did not present substantial evidence
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of extrinsic similarity.
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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.
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Unlike the Thicke and Williams Parties, the Gaye Parties have not sought or even
stated (in response to this Courts Order of March 20, 2015, ECF No. 360) their intent
to seek a new trial or judgment as a matter of law as to Harris and the Interscope
Parties, let alone provided the Court a valid basis for overturning the jurys verdict as
to those parties, so the jurys verdict as to those parties should stand. See Zhang, 339
F.3d at 1035 (court may not grant a new trial on the basis of legally irreconcilable
general verdicts).
6
A finding of copyright infringement requires substantial evidence to support the
jurys verdict on both the extrinsic and intrinsic tests. See Rice v. Fox Broad. Co.,
330 F.3d 1170, 1174 (9th Cir. 2003).
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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.2d
1465, 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 plaintiffs 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 dissectiondefining the
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scope of the protected work by comparing Finells transcripts of the sound recording
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of Give to the deposit copy. See, e.g., Order re Pls. & Cntr.-Defs. Mot. for Summ. J.,
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ECF No. 139, Oct. 30, 2014 (MSJ Order), at 17-18 (finding Theme X is not in the
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deposit copy); id. at 20-21 (keyboard rhythms are not in the deposit copy and A7
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chord is not protected); id. at 23-24 (finding triable issues as to whether the[] 11-
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note signature phrase, four-note hook, four-bar bass line, 16-bar harmonic structure,
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and four-note vocal melody are protectable expressions). Although the Court found
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a sufficient showing of extrinsic similarity to protected elements to warrant the
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denial of summary judgment, (MSJ Order, at 24), the Court did not perform any
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analytic dissection of the alleged similarities between the deposit copy of Give and
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Blurred. Instead, the Court summarily observed that there were competing expert
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analyses as to substantial similarity and that the expert reports did not warrant the
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exclusion of any experts testimony. Id.

With the benefit of a full trial record, the Court may now evaluate the extent to
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which, notwithstanding rulings prior to and during trial, 7 the Gaye Parties relied on
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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 played
for the jury in connection with the intrinsic test. Order re Admissibility of Sound
Recording Evidence at Trial, ECF No. 231, Jan. 28, 2015, at 2, 4-5.
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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 Courts 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
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support a finding of substantial extrinsic similarity.

Only three of the elements in Give that were put at issue in trialits alleged
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hook, alleged signature phrase, and a few lyricsare in the deposit copy. Ms. Finell
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found substantial similarity to these elements in Blurred only by performing what
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Swirsky aptly calls an incomplete and distorted musicological analysis, one that
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pull[s] various elements out of a song individually while giving little or no weight
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to myriad other elements that Swirsky expressly held a court must consider. 376 F.3d
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at 847-49. When all pertinent elements are considered, as they must be, this case
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becomes one of the clear cases of non-infringement. Id. at 848-49.
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1.
The Alleged Hooks Are Not Extrinsically Similar
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Finell testified that a hook is the most well-known or memorable theme of the
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song and that [o]ften its connected with the title lyrics of the song. (Trial Tr., Feb.
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26, 2015, ECF No. 336 (Day 3), at 80:7-12.) 9 Although the title lyrics of Give, got to
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See, e.g., Day 2 PM at 89:8-18 (testimony re: Give sound recording); Day 5 PM at
48:12-17, 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 Finells testimony that
Marvin Gaye was the player of the keyboard. Thats really the onlythe most true
representation of the music is the composer himself); Day 4 PM at 86:7-18 (striking
Monson testimony that while Blurred Lines was being createdGot 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.
28
10

#:12214
give it up, do appear in the deposit copy, (Ex. 248-5 to -7), Finell testified that Gives
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
Blurredthe one embedded in Blurreds signature phrase and sung to the lyrics take
a good girl, and scale degrees 6-1-1-1was 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
10
11
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
12
whether or not they have a succession of similar or the same tones. None of the other
13
considerations beyond that are as powerful. (Day 3 at 67:2-6.) The succession of
14
scale degrees 6-1-1-1 in Blurred, however, is not a succession of similar or the same
15
tones as Gives 6-1-2-1. (Day 4 AM at 70:5-71:11.) Gives use of the 2a
16
sustained, dissonant second scale degreerenders the hooks fundamentally dissimilar.
17
The second scale degree in the Give hook is no mere passing note. It is, as the
18
deposit copy shows, the highest of the four notes and one that is held for emphasis. It
19
is all the more distinctive because it is (as Finell conceded) dissonant, not found in
20
the A7 chord against which it is played. (Day 4 AM at 56:7-61:9.) The second scale
21
degree is a fundamental melodic expression of Give that repeats throughout the
22
deposit copy in numerous phrases. (Trial Tr., Mar. 3, 2015, ECF No. 351 (Day 5 AM),
23
at 135:24-136:6.) The note is all the more important because it supports the syllable
24
dance, obviously the most important word in the hook. This distinctive sustained
25
note is absent from the alleged Blurred hook.
26
Finell ignored other elements that Swirsky identifies as important and that
27
confirm that the hooks are not substantially similar. The rhythms of the hooks are
28
dissimilar. Every note in the Give hook has a different, longer, duration than the
11

#:12215
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 the
alleged 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.
10
The rhythmic placement is therefore not substantially similar.
11
The chord progression (Swirsky, 376 F.3d at 848) also is different. Both
12
measures of the hook in Give are set to an A7 chord, but the first measure of the
13
alleged hook in Blurred is set to an E chord and the second measure to an A chord.
14
(Day 5 AM at 129:20-24.) The key (Swirsky, 376 F.3d at 848) differs as well. Give
15
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
16
17
848) also differs profoundly. The Give hook repeats in identical fashion. (Ex. 248-5.)
18
The alleged Blurred hook appears only twice. While Finell identified variants of the
19
Blurred hook throughout the song, not a single alleged variant of the Blurred hook has
20
the same notes as what Finell has identified as the hook itself. (Day 4 AM at 72:6-
21
78:7, Day 5 AM at 136:15-137:3.) Moreover, Finell testified that some of the hook
22
variants in Blurred were similar to a version of the Give Theme X found only in the
23
sound recording. (Day 4 AM at 77:7-9 (Thats one of the characteristics of this song.
24
Sometimes its like the signature phrase and sometimes its like the Theme X.).) As
25
the Court ruled, and as further discussed infra Part III.B.1., Theme X is not in the Give
26
10
27
For ease in comparing other elements, some transcriptions were transposed from
Blurreds 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.)
28
12

#:12216
deposit copy, and no substantial similarity can derive from similarities thereto. (MSJ
Order, at 17-18.) Finells 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.
5
6
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 isyoure about to hear Got To Give It Up. Id. In Blurred, on the other
10
hand, Finell ignored the songs first verse, and instead labeled a passage well into the
11
song as its signature phrase, because it has the hook lyrics, and thats enough to
12
identify it as an identifying phrase, which is what signature phrase means. (Day 4
13
AM at 24:10-25:1.)
14
As just shown, however, Blurreds hook does not copy Give. That fact alone is
15
sufficient to demonstrate the dissimilarity of the signature phrases. Finell considered
16
Blurreds hook to be the most significant phrase in the whole song, and so a fortiori it
17
must be the most important part of the signature phrase. Because the most important
18
part of Blurreds signature phrase does not copy Give, the remainder of that short
19
phrase, shorn of the hook, is not significant enough standing alone to support a finding
20
of substantial similarity. Finells attempt to match the alleged signature phrases is a
21
paradigmatic example of distorted musicological analysis. Swirsky, 376 F.3d at 848.
22
The Give Signature Phrase, as Finell presented it at trial, has 10 notesscale
23
degrees 5-5-5-5-6-1-2-1-5-6played to the harmony of the A7 chord. (Ex. 376, Slide
24
4; Day 3 at 72:6-79:6.) That phrase, as a whole, appears nowhere in Blurred. The
25
latters alleged Signature Phrase has 12 notesscale degrees 3-3-#2-3-5-6-1-1-1-5-4-
26
3with 7 of these notes played to the different harmony of the E chord and 5 played
27
to the A chord. (Ex. 376, Slide 4, Day 5 AM at 129:20-130:12.) These phrasesas
28
they appear in the deposit copy and in Finells transcription of Blurreddo not share
13

#:12217
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
8
9
isolating four discrete fragments of the Give and Blurred Signature Phrases, and
10
ignoring other parts. The fragments are arbitrary. For example, Finell does not treat
11
the four-note Blurred hook as a discrete fragment, but combines it with two other
12
notes to create an arbitrary fragment that she calls Element b. The fragments are, in
13
any event, dissimilar:

Element a. This element simply does not exist in Blurred. Finell identified
14
15
Element a as 3 static pitches with identical rhythmic values. (Ex. 376, Slides 4, 6;
16
Day 3 at 66:9-19.) In Give, these are the first three notes of the Signature Phrase
17
consecutive eighth notes with scale degrees 5-5-5. The first three notes of the Blurred
18
Signature Phrase, however, are not static pitches with identical rhythmic values. They
19
are eighth notes with scale degrees 3-3-#2. It is only by skipping past the #2 to the
20
fourth note of the phrase that Finell can identify a third 3 to ostensibly match Gives
21
5-5-5 structure. (Day 3 at 66:9-19; Day 4 AM at 53:1-54:10.) But because the 3
22
follows the #2, it is obviously an up pitch rather than a static pitch, as Finell
23
concedes.11 (Day 3 at 66:14-19 (its a repeated 3, which for a moment goes down to a
24
11
25
26
27
28
Finell characterized Element a more generally in her oral testimony by observing

that in both songs, they begin with repeated notes. (Day 3 at 66:10-13.) But three
such notes could be bracketed in innumerable works; three beamed eighth notes begin
Beethovens Fifth Symphony. Element a, standing alone, therefore is not an original
or protectable expression. See Feist Publns, Inc. v. Rural Tel. Serv. Co., Inc., 499
U.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 in
every way. Gives 5-5-5 repetition has a different pitch, scale degree, rhythmic
14

#:12218
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.
Finells testimony is also internally inconsistent on this point, because (in connection
with 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. Finells definition of Element b within the Blurred Signature
10
Phrase is arbitrary because it illogically combines Blurred Lines four-note hook with
11
one note that immediately precedes the hook and with another that follows it.
12
Recharacterized now as Element b, this six-note fragment is said to contain, as
13
compared to Element b in Give, 6 similar consecutive notes with 5 being identical
14
scale degrees. (Ex. 376, Slide 6; Day 3 at 67:10-12.) The addition of one note to the
15
end of the Blurred hook makes no sense. That note is the first note of the melisma of
16
the signature phrase. Adding that note to Element b not only severs the melisma
17
(which Finell separately concedes is a distinct musical idea, Element d), but also
18
severs the connection between the songs lyrics and the underlying melodies.
19
Even accepting Finells testimony that this incoherent collection of notes
20
constitutes the meat of the phrase . . . the main musical expression of that phrase as
21
well as in terms of lyrics, (Day 3 at 67:10-18), Element b in Blurred is not
22
substantially similar to Gives Element b. The relevant scale degrees of Element b
23
in Give are 5-6-1-2-1-5; in Blurred, the scale degrees are 5-6-1-1-1-5 (emphases
24
added). Finells exclusive reliance on the argument that five out of six scale degrees
25
are identical (Day 3 at 78:18-79:6) is precisely the type of incomplete analysis that
26
Swirsky has categorically rejected. 376 F.3d at 847-48.
27
placement, and melodic contour than Blurreds 3-3-#2-3.
28
15

#:12219
When the pitch sequence of Element b is viewed in combination with its
1
2
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 Givethe 2is 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,
10
does not exist in Blurred. The corresponding scale degree in Blurred is 1, and that
11
note has a different placement (in the second measure of the Signature Phrase) and
12
duration (one beat). The final two notes of Element b also have different durations
13
in each songin Give, two eighth notes, and in Blurred, a quarter note and a sixteenth
14
note. And while Gives Element b plays to the harmony of A7, Blurred Lines
15
Element b straddles the (transposed) E and A chords.

Element c. Finells Element c, the rhythmic use of six consecutive eighth
16
17
notes, (Day 3 at 67:20-23; Ex. 376, Slide 6), is an unprotectable idea, and Gives
18
expression of that idea is any case not substantially similar to Blurred. See Swirsky,
19
376 F.3d at 845 n.4; Apple Computer, 35 F.3d at 1443. Rhythm is the only
20
characteristic that these notes share. The elements have only two scale degrees in
21
common, and they are in different places. Their pitch sequences (in Give, 5-5-5-5-6-1,
22
and in Blurred, 3-3-#2-3-5-6), melodic contours (in Give, S-S-S-U-U, and in Blurred,
23
S-D-U-U-U), 12 keys, and harmonies (in Give, A7, and in Blurred, E) are all different.
24
Sustaining a rhythm for six notes cannot alone support a finding of substantial
25
extrinsic similarity. See Swirsky, 376 F.3d at 847-78; Rice, 330 F.3d at 1174-75.
26
27
12
In this notation, U stands for up pitch, D stands for down pitch, and S stands
for static pitch.
28
16

#:12220
Element d. Element d is a melisma. (Ex. 376, Slide 6.) The mere use of a
melisma is an unprotectable idea, and Gives 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.) Finells only alleged similarity is the shared use of scale degrees 1-5 at
the 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
10
compositional elements of both pitch sequence and rhythm, and must do so in
11
combination with other relevant factors. Swirsky, 376 F.3d at 847-48. Here, both the
12
pitch sequence as a whole and the rhythms of Element d are distinct. In Give, scale
13
degrees 1-5 are eighth notes, and the final note of the melisma, the 6, is held for a beat
14
and a half. (Ex. 248-2.) In Blurred, scale degrees 1-5 are an eighth note followed by a
15
sixteenth note, and these two final notes, 4-3, play together for a total duration of three
16
quarters of a beat. (Ex. 47A-4.) Thus, in Give, the melisma ends on an up pitch that is
17
held for twice as long as the two consecutive down pitches that close the melisma in
18
Blurred. The melismas have entirely different expressions.
19
20
3.
The Lyrics Are Not Extrinsically Similar
The lyrics in the Give deposit copy and Blurred are entirely different. Nowhere
21
are there even two consecutive words that are the same. (Day 5 AM at 95:25-96:4.)
22
Finell claimed that the differing lyrics evoke the same meaning, (Trial Tr., Feb. 27,
23
2015, ECF No. 334 (Day 4 PM), at 27:2-24), but only the expression of a theme, and
24
not its meaning, is protected. Swirsky, 376 F.3d at 845 n.4; Apple Computer, 35
25
F.3d at 1443. Finell admitted that, in the sentences that she identified as similar, the
26
words are different. (Day 4 PM at 27:2-24; Ex. 376, Slide 35.)
27
The alleged similarity based on word painting has no merit. Finell claims that
28
17

#:12221
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
10
example, the five commonplace words (Love is a wonderful thing) were copied
11
word-for-word, constituted the title of the song, were the hooks of each song, and had
12
the same words, rhythm, and pitch. None of these similarities exists for the lyrics
13
challenged here.
14
B.
15
16
The Other Alleged Similarities Are To Elements Not Found In The

Deposit Copy of Give
None of the remaining elements alleged to be substantially similar can be found
17
in the deposit copy of Give. For that reason alone, they cannot support the judgment.
18
In any event, these elements also cannot be found in Blurred.
19
1.
Theme X Is Not In The Deposit Copy
20
The Court previously concluded, and Finell conceded, that Theme Xwhen
21
defined as a four-note melody containing scale degrees 3-3-#2-3 sung to the words
22
dancin ladydoes not exist in the Give deposit copy. MSJ Order, at 17-18; (Finell
23
Decl., Feb. 13, 2015, ECF No. 264, at 2-3, Ex. A; Finell Decl., Feb. 18, 2015, ECF
24
No. 271, at 2-4.). Prior to trial, however, Finell identified a new Theme X that is in the
25
deposit copya four-note melody containing scale degrees 5-5-6-5 sung to the words
26
fancy lady. (Finell Feb. 13 Decl., at 2-3, Ex. A; Finell Feb. 18 Decl., at 2-4.)
27
Finells testimony should have been limited to this new deposit copy Theme
28
18

#:12222
X. It was not.13 References at trial to the deposit-copy Theme X served exclusively
as a vehicle for renewing Finells 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 Theme
X).) 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
Gives deposit copy shows a whole step up (from 5 to 6) while Blurred has a half step
10
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
11
12
work as fixed in the deposit copy. Finell presented no evidence of similarities between
13
the deposit copy Theme X and the Blurred Theme X, and no similarities exist. Theme
14
X thus cannot support a finding of extrinsic similarity.
15
2.
The Keyboard Parts Are Not In The Deposit Copy
The Court also identified the keyboard rhythm that Finell transcribed from the
16
17
Give sound recording as unprotected. MSJ Order, at 20-21. Finell nonetheless testified
18
that the keyboard pitches and rhythms form the heartbeat of Give and testified to the
19
very same transcription and keyboard rhythms the Court found unprotected. (Day 3 at
20
135:21-142:17; Ex. 376, Slides 2, 19, 20.) This testimony also cannot support a
21
finding of extrinsic similarity.

On cross-examination, Finell admitted that the deposit copy does not indicate
22
23
what instrument is to play the chords, that the specific voicing [of the A7 chord]
24
isnt noted by the A7 in the deposit copy, that the A7 chord can be played on a
25
keyboard [i]n a few ways, and that different instruments could take the place of the
26
13
27
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).
28
19

#:12223
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 chord
and thats 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
10
[plaintiffs] claim for infringement of his copyright in the underlying composition).
11
All testimony and evidence of alleged similarities between Give and Blurred on the
12
basis of the keyboard rhythm and transcription must be filtered out and cannot support
13
a finding of substantial extrinsic similarity.
14
3.
15
The Bass Melodies That Finell Presented Are Not In The

Deposit Copy
16
For her testimony about bass lines, Finell did not compare the deposit copy to
17
Blurred. Finell instead compared Blurred to her transcription of the sound recording
18
of Give.14 (Cf. JMOL Mot., at 13; Day 4 PM at 17:15-23:17; see also Day 3 at 54:20-
19
25.) The differences between the bass melodies that Finell presented at trial and those
20
in the Give deposit copy are stark. Finells reliance on the sound recording led to
21
numerous inaccuracies in the rhythmic value of the notes she transcribed. (Day 4 PM
22
at 15:6-23:17; Day 5 AM at 146:18-161:10; Ex. 376, Slides 16, 18; Ex. 389.) Finells
23
transcriptions also add notes that do not exist anywhere in the deposit copy and
24
replace notes that do exist with inaccurate scale degrees. (See id.) All of Finells
25
testimony as to the bass melodies and descending bass melodies therefore should be
26
27
14
See, for example, the timestamp on each Finell transcription presented. Ex. 376,
Slides 3-4, 6, 9-10, 15-16, 18-20.
28
20

#:12224
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 songs compositional elements and must remove
from consideration all the elements unique to [the plaintiffs] performance).
There is no substantial extrinsic similarity between the bass lines in the deposit
copy of Give and Blurred. Of the 21 notes in Gives 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
10
these three notes is scale degree 1, the root of the chord. The root of the chord grounds
11
and establishes the chord, making it the most commonplace use of a bass instrument.
12
(Day 5 AM at 152:14-154:8.) That aspect of a bass line is so common a musical idea
13
and so pervasive in prior art (see Trial Tr., Mar. 3, 2015, ECF No. 337 (Day 5 PM), at
14
12:3-13:5) that it is unprotected. E.g., Apple Computer, 35 F.3d at 1443 (similarities
15
derived from the use of common ideas cannot be protected; otherwise, the first to
16
come up with an idea will corner the market); cf., Metcalf v. Bochco, 294 F.3d 1069,
17
1074 (9th Cir. 2002). Regardless, the expression of the root note is not substantially
18
similar, because it only appears on the downbeat of the first measure in Give, whereas
19
in Blurred it appears on the downbeat of each of the first four measures. Swirsky, 376
20
F.3d at 848. The chord progression is a distinct compositional element as wellthe
21
bass melodies in Give are played against a variety of chords, whereas in Blurred the
22
bass melodies are played only against two chords, A and E, which alternate every two
23
measures throughout the song. (Day 5 AM at 95:6-23; Ex. 369.)
24
The bass melodies have only two other scale degrees in common, the flat 7 and
25
the 4. (See, e.g., Ex. 376, Slide 16.) The flat 7 is a main feature of the Give bass
26
melody. (Day 5 AM at 147:17-151:24.) The Give composition places special emphasis
27
on the relationship between the flat 7 and the 1, going back and forth between the
28
notes for the first three measures of the melody. (Id.) The Blurred bass melody lacks
21

#:12225
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 Blurredthree measures that Finell simply ignores. (Day 5 AM at 151:25-152:24;
see Ex. 47A-3 to -4.)

Finells testimony that the bass melodies are similar because both songs have a
6
7
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
10
Give, the 4 is in the fourth measure of the bass melody, which contains scale degrees
11
1-4-flat 3-flat 7. In Blurred, the 4 is in the second measure, which contains scale
12
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
13
14
comparison of the descending bass melodies in measure eight. The use of a
15
descending bass melody also is so commonplace as to be an unprotected idea, and so
16
copyright protects only a particular expression. Swirsky, 376 F.3d at 845 n.4; Apple
17
Computer, 35 F.3d at 1443. Finell relied on the fifth scale degree as the evidence of
18
similarity. (See Day 3 at 129:12-130:7.) The fifth scale degree in Finells transcription
19
(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
20
21
Finell conceded were less important (Day 3 at 129:12-130:7), and which in fact are
22
trivial and insufficient to constitute substantial similarity in a descending bass line.
23
See Newton, 388 F.3d at 1195. The descending bass melody in the deposit copy of
24
Give has only three notes, none repeated, played only for the last two beats of the last
25
bass measure, with scale degrees 4-flat 3-1. (Ex. 248-2.) The descending bass melody
26
15
27
Again, in Finells 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 the
other considerations beyond that are as powerful as that. (Day 3 at 67:2-6.)
28
22

#:12226
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 they
are played to different chords. The final measure of the bass melody in Blurred is thus
not substantially similar to the deposit copy of Give.
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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
10
x over the notes, (Ex. 47A-6 to A-7), the Give deposit copy does not use that
11
notation for the extended section that Finell identifies as the parlando. (See Day 5
12
AM at 143:3-146:15; compare Ex. 47A-6 with Ex. 248-4.) The absence of any such
13
notation in the alleged parlando section is all the more significant because the Give
14
deposit does use such notation elsewhere. The seventh measure on page 3 of the Give
15
deposit copy features the same x-notes over the lyrics we heard that that indicate
16
the rap section in Blurred. (Ex. 248-4; Day 5 AM at 103:19-105:10.) This feature,
17
however, is simply not present in the section of Give that Finell sought to compare
18
with Blurred; that section of Give is set forth in the deposit copy no differently than
19
are the lyrics in the rest of Give as words underneath musical notes (with the only
20
exception being we heard that). Had the drafter of the Give deposit copy intended to
21
copyright a parlando section where Finell heard one, the drafter knew how to so
22
indicate. (Id.) Once again, Finell impermissibly relied on the sound recording to
23
identify an element omitted from the deposit copy. (Day 4 AM at 43:23-45:6.)
24
Newton, 388 F.3d at 1193-94.
25
The respective parlando and rap sections of Give and Blurred cannot support
26
a finding of substantial extrinsic similarity for yet other reasons. The only alleged
27
similarity between the rap and parlando sections is their respective placement in the
28
songs. (Day 3 at 152:23 -157:24.) Yet in the Give deposit copy, the parlando section
23

#:12227
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 sections
are similar. The mere idea of starting otherwise different sections at a specific measure
is trivial. Newton, 388 F.3d at 1195.
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C.
Witnesses Other Than Finell Also Did Not Compare Blurred To The
Deposit Copy Of Give
The Gaye Parties did present testimony from witnesses other than Finell. That
10
testimony cannot support a finding of substantial extrinsic similarity as a matter of
11
law, because those witnesses did not compare Blurred to the protected elements of the
12
Give deposit copy.
13
Ingrid Monson based her testimony, including as to mash-ups, on unprotected
14
elements of the Give sound recording. Monson testified that she was hired to assess
15
genre and prior art claims and take a look at the originality of the keyboard and bass
16
lines. (Day 4 PM at 61:4-9.) Monsons mash-ups included the keyboard, bass lines,
17
and even Marvin Gaye vocals from the Give sound recording. (Day 4 PM at 79:16-
18
87:9; Ex. 377, Slides 1, 3, 5.) Furthermore, as discussed above, supra Parts III.B.2.,
19
III.B.3, the Give deposit copy contains no keyboard parts, and the bass melodies that
20
Finell transcribed from the Give sound recording differ materially from those in the
21
Give deposit copy. Because Monsons testimony is based on the sound recording of
22
Give, it cannot support a finding of substantial extrinsic similarity.
23
The same is true of the testimony from other witnesses, including Thicke, Janis
24
Gaye, Stern, and Weinger. While the Gaye Parties placed great weight on these
25
witnesses supposed beliefs of similarity, they failed to establish that any of them
26
compared Blurred to the deposit copy of Give. Their testimony is not evidence that
27
can support a finding of substantial extrinsic similarity.
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*****
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#:12228
The jury must have known, from counsels 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 the
deposit copy by filtering out those aspects of Give that appear only in Finells
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 jurys verdict against Thicke and the Williams Parties reflects an
extrinsic analysis that the jury was not adequately instructed to make. This Court,
10
however, can perform each step of that objective legal analysis now. Such an analysis
11
leaves no doubt that the Gaye Parties failed to introduce substantial evidence to
12
support a finding of extrinsic similarity. For this reason as well, their request for a
13
declaration of copyright infringement must be denied.
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CONCLUSION
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For the reasons above, the motion for declaratory relief should be denied.
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#:12229
Dated: June 1, 2015
Respectfully submitted,
SIDLEY AUSTIN LLP
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By: /s/Mark E. Haddad

Mark E. Haddad
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5
Attorneys for Counter-Defendants

STAR TRAK ENTERTAINMENT,
GEFFEN RECORDS, INTERSCOPE
RECORDS, UMG RECORDINGS,
INC., and UNIVERSAL MUSIC
DISTRIBUTION
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Dated: June 1, 2015
KING, HOLMES, PATERNO &

BERLINER, LLP
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By: /s/Howard E. King

Howard E. King
Seth Miller
Attorneys for Plaintiffs and CounterDefendants PHARRELL WILLIAMS,
ROBIN THICKE and CLIFFORD
HARRIS, JR. and Counter-Defendants
MORE WATER FROM NAZARETH
PUBLISHING, INC., PAULA MAXINE
PATTON individually and d/b/a
HADDINGTON MUSIC, STAR TRAK
ENTERTAINMENT, GEFFEN
RECORDS, INTERSCOPE RECORDS,
UMG RECORDINGS, INC., and
UNIVERSAL MUSIC DISTRIBUTION
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#:12230
CERTIFICATE OF SERVICE
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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 Clerk
of 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.
8
9
/s/Mark E. Haddad
Mark E. Haddad
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206756773
OPPOSITION TO COUNTER-CLAIMANTS JOINT POST-TRIAL MOTION FOR DECLARATORY RELIEF MOTION

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

Peter I. Ostroff, SBN 45718

Attorneys for Counter-Defendants

[Additional counsel listed on signature page]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

PHARRELL WILLIAMS, an individual;

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

June 29, 2015

Action Commenced: August 15, 2013

AND RELATED COUNTERCLAIMS

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

The Court Should Deny Declaratory Relief As To All Parties Because

The Court Should Deny Declaratory Relief Because The Jurys

There Is No Substantial Evidence Of Extrinsic Similarity

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

The Alleged Signature Phrases Are Not Extrinsically

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

The Other Alleged Similarities Are To Elements Not Found In

Theme X Is Not In The Deposit Copy ...................................... 18

The Keyboard Parts Are Not In The Deposit Copy.................. 19

The Bass Melodies That Finell Presented Are Not In The

The Extended Parlando Section Is Not In The Deposit

Witnesses Other Than Finell Also Did Not Compare Blurred To

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 3 of 31 Page ID

Accentra Inc. v. Staples, Inc.

Dream Games of Ariz., Inc. v. PC Onsite,

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 4 of 31 Page ID

Rice v. Fox Broad. Co.,

Three Boys Music Corp. v. Bolton,

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 5 of 31 Page ID

Gayes failed to introduce substantial extrinsic evidence of copying.

verdicts as to different parties, because inconsistency in a jurys verdict on a legal

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

copyright infringement because the Gaye Parties failed to introduce substantial

This memorandum refers to Counter-Defendants Interscope Records, UMG

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 6 of 31 Page ID

objectively examining what remains for substantial similarity to Blurred Lines

Parties rested their infringement claims on comparisons to the unprotected sound

reveals no substantial similarity.

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 Blurredits alleged hook,

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

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 7 of 31 Page ID

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

498, 507 (9th Cir. 1989).

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

may not grant the requested declaratory relief against them. 3

inconsistent verdicts may nonetheless stand on appeal even though inconsistent). In

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 8 of 31 Page ID

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 9 of 31 Page ID

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

authors, or between co-authors and distributors.

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 10 of 31 Page ID

Blurred is not substantially similar to Give.

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

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

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

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

Case 2:13-cv-06004-JAK-AGR Document 393 Filed 06/01/15 Page 11 of 31 Page ID

The Court Should Deny Declaratory Relief As To All Parties Because

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

not adequately distinguish between protectable and unprotectable material, and