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Proving IP 2019: Proving Similarity

Episode Summary

Proving Similarity: Expert witnesses from both sides of the Blurred Lines case discuss how to analyze and communicate similarities and differences of creative works, as well as the role that technology plays in defining the works to be compared. Featuring Judith Finell (Judith Finell Music Services) and Sandy Wilbur (Musiodata), moderated by Joseph Fishman (Vanderbilt Law School)

Episode Notes

Full video of this panel is available on YouTube.


Episode Transcription

- Good morning, everyone, and welcome to day two of Proving IP. I'm Michael Weinberg. I am the executive director of the Engelberg Center here at NYU Law. For those of you who were here yesterday, you saw a really fantastic day that was breaking down a number of different elements that you have to struggle with if you are proving and dealing with real world IP litigation. And today we're gonna continue that. I'm really excited about our program today. It's more of the sort of dive into the focus of what you need to think about when you are proving or defending against IP claims in litigation. You all have the agenda. The hashtag that we're using is #ProvingIP. The agenda, if you don't have any, they're available in the back, they're available online. This is a great panel to kick it off. And I'm not gonna do the full introduction, but I will say that when we were setting up the audio this morning, this panel got, I think, one of the highest accolades that a panel can receive. Which is the tech team said they actually want to stick around for this one. This is actually, this looks great. Which is, you know, they see a lot of stuff, and so that, I think, it speaks to the interesting nature of this topic, and I think the challenging nature of this topic. So please join me in welcoming the panel for Proving Similarity.


- Thank you, good morning everyone. My name is Joseph Fishman. I'm on the faculty at Vanderbilt Law School. And before going into law, I studied musicology. And so I'm very much geeking out right now up here, about our panel this morning on proving similarity in music copyright cases. If you hear me begin to speak in syncopated rhythm, that's probably why. There's a famous quote that I'm fond of, that writing about music is like dancing about architecture. And yet that's the challenge that litigants in music infringement cases face. They need to not only assess the extent of similarity for themselves, but then they then need to communicate that assessment persuasively to non-expert decision makers. Our two panelists this morning specialize in precisely that. Each testified as a forensic musicologist on behalf of a different side of the high-profile infringement lawsuit over the song "Blurred Lines", which a jury found to infringe Marvin Gaye's song, "Got to Give It Up". Each is also a prolifically active testifying and consulting expert in various other areas of music copyright. So, immediately to my right, is Judy Finell, who is the president of the music consulting firm, Judith Finell Musicservices. She was the testifying expert on behalf of Marvin Gaye's family in the "Blurred Lines" case. Has also testified as an expert on behalf of the Duke Ellington Estate, the Beastie Boys, National Music Publishers' Association, has also worked with HBO, Disney, a number of other marquee clients. She also teaches a course at UCLA on forensic musicology. And then, to her right is Sandy Wilbur, the president of Musiodata, who served as the testifying expert on behalf of the other side of the V, Pharrell Williams and Robin Thicke. Other recent high-profile cases have included infringement claims against recording artists Ed Sheeran and Beyonce. She was the musicologist that helped prepare the soundtrack for the Coen brothers' film, "O Brother, Where Art Thou?". Where she researched which songs were in the public domain and who to give attribution to, has also composed and produced hundreds of jingles for major corporate clients, like Procter & Gamble, AT&T, performed by the likes of Tony Bennett, Kool & The Gang, and my favorite, Kermit the Frog. I will end my introductions there to make sure that we have some time for all of the audio clips that are in store for you. I will hand it over to Judy.


- Thank you. And thank you for coming. I think I'll step up to the podium. Excuse me. Thank you. First of all, I just wanted to say that it's really a challenge to be somebody with a musical, I mean, my background is really as a musicologist, which means the study of the history, theory, analysis, and style of music. And it intersected with the law later, sort of long after my musical education had been formally concluded. I started to be hearing from attorneys about serving as an expert witness in a case. And little by little, the intersection of music law and technology became the arena in which I work. As both a testifying witness, but also in many cases to prevent infringement disputes from ever arising. But, it wasn't something I expected. I guess in the great words of The Beatles, it's been a long and winding road. But we did end up with Marvin Gaye. So I wanted to talk just a little bit to you about that case, because it's gained so much notoriety. So, the challenge was, as Joe has said, the challenge was and is to make music concrete to judges and juries, who don't necessarily have any musical training whatsoever. And I've been in groups of attorneys selecting juries, and as soon as they find a potential juror with a musical education, and I do remember this very clearly from another notorious case. In which one of the potential jurors was a Julliard professor. And they could not get that person out of the room fast enough. They do not want one juror to influence the other. So they would prefer kind of a blank slate. And certainly they attempted to assemble that kind of jury in this case. So then, the job of the musicologist is to make music as concrete to them as something that they could see, as well as hear, perhaps. And be able to retain to discuss, because it's very, very fleeting if you listen to a recording and then it's over. So that's always the challenge for the musicologist is to make it concrete and understandable so reasonable decisions can be made, given the substantiation that's provided. So, that's the journey that every trial takes one way or another, as far as the musicology and the comparisons. Which I'll talk to you about now. I just need to, thank you! Okay. I just want to make it progress. It's not progressing. Technical difficulties.


- We tested this moments ago.


- Sure.


- You were here, actually.


- I refuse to admit that. There's the other one down there.


- Yeah, we'll use the other one. After all that. There you go.


- And you'll still be on--


- Yes.


- Thank you. Okay, so. In a moment I'm going to play some examples for you. But I want to just start with what I think of as basically my toolbox. And if you look at this you'll see. I mean where it really starts is I receive a phone call and subsequently materials from usually an attorney, or people involved with the writing of a song, or people involved with having been accused of copying another song. And in come recordings for listening and evaluation. So as soon that occurs, really my job is to analyze the music and evaluate whether or not song A and song B have a relationship. And it's never 100%, it's not that a four minute song copied another four minute song verbatim from beginning to end. There's some similarities, of certain passages within each of the song, and certain elements that may or may not stand up to analysis. Pardon me, but it's part of my job is to identify where they are, how significant they are, and to what extent they resemble one another. So the process is to listen carefully with knowledgeable ears, transcribe the music, because we rarely receive transcriptions of music that are accurate. Sometimes artists give us what they see as transcriptions of their work, but if you're familiar with the arena of popular music today very few artists actually read and write music. And if they do, I really can't trust those transcriptions. So it's the job of myself and my team of other musical experts, to transcribe it, note for note if necessary, rhythm for rhythm, sound for sound, so I can really look at it. And freeze it in time enough to analyze it. And then if necessary, and they're in different keys, we transpose them so that really we reduce the irrelevant dissimilarities and focus on what's really similar between them in their elements. And we begin to dissect it. And we dissect pitches, we dissect rhythms. We dissect other elements of a musical composition that gives its individual properties to it. And we evaluate, is this an important part of song A, and how is song B utilizing this material? Is it repeated, is it the key theme of the song? Which we refer to in popular music as the hook. Or is it a key identifying guitar riff that you hear in the introduction, and the moment you hear it you know what song you're about to hear? If you think of The Beatles, it's "A Hard Day's Night." Most of us when you hear that very first distinctive chord, you know that's about what you're going to hear coming out of there. And there are other songs of course, that are similar to that, perhaps. "Stairway to Heaven," is another one like that. But that's up for discussion these days. But there are certain songs that have really distinctive introductions, or really distinctive instrumental sounds. You hear certain songs by The Beach Boys, and they use the theramin, and that's unusual. Or it was unusual when they were doing it. So sometimes there's a distinctive sonority, and sometimes there's a distinctive set of pitches, or rhythms, or a vocal style. So all of that's part of the distinctiveness, but not all of it's relevant in terms of the underlying song. As you all know I'm sure, there are two copyrights we concern ourselves with and it impacts the musicologist. One is the publishing copyright, which is the underlying song. Primarily it's, or musical work if it's not a song, but it's primarily the melody, the harmony, the structure and if there are lyrics, lyrics. It is not the instrumentation. It is not the recording quality such as tempo, or dynamics, or other kinds of qualities that have to do with the arrangement. That would be more of the recording excuse me, the recording copyright. So, it's the job of the musicologist to distinguish what the properties are and what they belong to under those headlines. Pardon me. The challenge in the Marvin Gaye "Blurred Lines" case was primarily that the opposing side was able to eliminate the sound recording as what could be played and exposed to the jury. And this was a huge challenge. I've been testifying in cases like this for over 25 years, and I have never had a recording of the work that was at issue be barred from the courtroom. The judges exact words were, "I don't want to hear Marvin Gaye's voice in my courtroom." Okay. Well that makes it a little challenge for this reason. Marvin Gaye not only wrote "Got to Give it Up," but he was the main performer on it. So a number of the instrumental lines that one hears on the recording were also his composition. But Marvin Gaye did not write down the music. This was submitted in 1977. In 1978, the US Copyright Office was willing to accept recordings as what was called, the deposit copy for copyright protection of the underlying work. One year later, this would have been a completely different case in that way. But, in 1977 the deposit copy was required as what we could show that was similar to the opposing song, which did not have a deposit copy, because it had been done in I believe 2014 or earlier. And did not require, although there was a published piece of sheet music, it wasn't the deposit copy. So we had to basically, for the jury, compare a sheet of music that didn't represent many, many of the sounds that were on the recording to a recording that was fully produced with back up singers, instruments, electronic sounds, et cetera. And so we were not comparing what you would think of as apples to apples, so that was a big, big challenge. In the end the judge did permit us to create our own recording from the Marvin Gaye, actually the Marvin Gaye tracks. And we had to remove everything that was not represented on the lead sheet. So we only maintained what had been 14 similarities in what I describe as a constellation of similarities. We were only allowed to include eight of those, because those were the only similarities found on the recording that were also on the lead sheet. And so the case was reduced in a way. But we were allowed to play those recordings. So I'd like to show you now what the jury heard. So, the idea to me was, when I talk about a constellation of similarities, I don't mean a basket of just a collection of oddball similarities in fragments. I mean that they are like a constellation, meaning that the very similarities intersect with one another in similar ways. And influence both songs in similar ways as they progress. So the first example of that is the interaction between the bass and the keyboard. And what is playing throughout both of the songs for almost all bars of "Blurred Lines," Robin Thicke's song, is this bass and keyboard combination. And it's the chords that it also presents. And I called it the heartbeat of the song, because it really is basically the backdrop of the song. And the first one you're going to hear is the Marvin Gaye heartbeat, so to speak. And the second one, and that was represented on the lead sheet. And the second one is what the Pharrell Williams, Robin Thicke song used as, so to speak, their heartbeat. Okay. Okay could you start just I think that you played the wrong. Could you go back and do it again? Excuse, we're going to start again. This is Marvin Gaye. This is his bass and keyboard. The second one is Pharrell Williams and Robin Thicke's keyboard in "Blurred Lines." So, they're not identical, but they did have most of the same harmonies, these two alternating chords, between them, which did show on the lead sheet. They'd both had certain main notes, which I called target notes. They both descended going from a higher note to a lower note, the same higher note to the same lower note every several measures, et cetera. So they had a lot of similar qualities. I never claimed they were identical, I claimed they were substantially similar. And on the lead sheet this was shown for the first eight bars of Marvin Gaye's song, which was transcribed by a third party for the purposes of publishing. And then it said, simile meaning, continue similarly through the song. So that was the first pair of similarities that I noted. In the end, as I say, eight similarities were identified in what I saw as a constellation. And part of my challenge, again, was to help the jury understand in a way they could retain, with no understanding of musical theory, not necessarily any ability to retain sounds. But visually I find that people can retain information better. So I set out to create what I considered a road map of "Blurred Lines," to show in "Blurred Lines" where the material from the Marvin Gaye song was found. And this is "Blurred Lines" bar for bar from beginning to end. The black line along the bottom, which I would appreciate, there thank you. This one, thank you okay. The black line along the bottom. It doesn't seem to be doing that. Well, I'm sorry can you point to the black line? The horizontal line shows whenever that heartbeat was occurring, every bar. The horizontal black line is the composite, I'm sorry, of all the similarities. If there's a similarity at all, the black line will show you. You can see that there are only a couple of breaks in the black lines. And those represent individual bars that aren't similar. But out of all the bars here, which is over 132 bars, almost every bar had one or more of the group of similarities that I consider the constellation. The bass line and keyboard were usually there. There was a vocal hook that was often there. There were other kinds of similarities which I broke out in my analysis. But one of the most glaring similarities was the way in which the song was composed. Marvin Gaye's song stopped at a certain point, more than 80 bars into it, and used something which I called word painting. Which was to illustrate the lyrics in his song with a musical symbolism. He sang the word high, and he went up to a higher note. He sang the word low, and he went down to a lower note. He sang, turn around, and he sort of illustrated that musically. So that little word painting led right into a part that he chanted which I call parlando. Which means half spoken, half sung. It was in a monotone, it wasn't as melodious and as flowing as the material before or after that. And that occurred for a series of over 10 measures at a specific time on the record, and a specific place in the lead sheet. And in the other song, "Blurred Lines," which is a modern song, it also stopped flat at exactly the same bar, and the exactly the same timing to the millisecond in the recording. And went from melodious singing to spoken rap. And right after that happened, it also had word painting. And the words that were painted were also on the same pitches with the words, high, low and similar to round. I think he said, it's slightly different from turn around. And the order of those high, low and round were slightly different, but it was a same word painting concept and image. And book ended that spoken or chanted section. It was so powerful that I really believed that it was a way of taking the template of one song and laying the new song on top of it. And that was very, very powerful I think to the jury. And it's shown here in this section, which is hard for me to show you without standing there. But you'll see it, it's a blue horizontal, and sort of burgundy color horizontal at the bottom. And that's the section that I'm talking about as parlando, meaning half spoken, half sung in the day of Marvin Gaye before rap music, and rap. Which was a spoken presentation by another artist T.I. And then both songs went back to their singing style right after that, after they had that section. So it was pretty stunning to see that difference. So there are other similarities, but I'd like to move on from this case. But this is my list of eight similarities that I talked about. I illustrated it mostly with a piano. Because again, we could only play very, very brief snippets through the judge's very strict rules. So it was mostly illustrating to the jury so they could walk out with some kind of understanding of how one evaluates music, which to most people is completely abstract. My job was to make it as concrete as possible. And I played illustrations with songs that they would have known. "Jingle Bells," "Happy Birthday," songs that no matter what their musical background is, it would be familiar enough with them that when I explained the concept of harmony and others, they could understand it on some earlier experiential level. In general, the role of the musicologist as I've tried to illustrate, is really to assess the strengths and weaknesses of a case when a case comes in. Meaning that not every case is really a good case. Even a case in which there's a lot of similarity between the music, I often say this is a very weak case. And the attorneys will say, "But my client said "they took his or her work. "It's a slam dunk." I can't tell you how many times I've heard that. And I'm not even that big of a basketball fan. But anyway, usually that's when it's not a slam dunk. Because the similarities may be for some third party musical reason. And so in the end, really it's important not only to find similarities, but to determine if they are strong enough and original enough material that they can withstand the defense. Or if you're on the defense side, to do that same assessment, but really understand what's in the literature? What's similar about these materials that was also found in other works, et cetera? And that's really the job of an expert before a dispute begins. But after the dispute begins and it goes to trial, then it's to educate the jury, help the jury understand what is a very foreign language to them in essence. It's completely a foreign concept to think about music in a concrete way, retain it, and really come up with a meaningful decision. In closing, Professor Fishman asked me about something. He did read the testimony in the case, and I was asked on the stand, how I determined what the similarities were and why? And I talked about that I look at music in this kind of context as a hierarchy of musical elements. And to me the melody's comprised of pitch plus rhythms. I mean that's your dictionary definition of melody. Pitch plus rhythm, rhythm meaning duration. How long does the pitch last before the next pitch occurs? And the pitch is the note itself in terms of, is it a C, a D, E, et cetera? But the first and foremost part of melody to me is the pitch. So I look for pitch similarities in sequence. I then look for rhythmic similarities of those similar pitches. But if it's only rhythmic and not pitches, I don't consider it as strong a case, unless it's unpitched music such as a drumming, or percussion instrument that doesn't actually have pitches. And then rhythm becomes more primary. After that harmony, which is the you know, consolidation of many pitches at once in chords, harmony by itself is pretty formulaic in most popular music, and has been traditionalized into several major chord, main chords. But occasionally there's a very colorful chord, such as the chord in it's "A Hard Day's Night." Or in many Wagner Operas. But in any case, it's really, usually not a major issue, but occasionally it is when there's a distinctive chord. Lyrics, yes, if you have a series of lyrics that are the same, that's important to look at. But then in combination with the melody. It's not enough to have two songs to sing about love. But if they both tell a very, very similar, specific story with maybe similarly named characters, and when they're singing about it, they're singing it to very similar pitches and rhythms, then you have that combination of similar features that's important. I'd say beneath that would be metric placement. So that the location of the pitches and rhythms also have a place, because music exists in time. Is it in the beginning of the bar? Is it in the first beat, the second beat, the third beat, et cetera? But I feel that that's less pressing than the identity or similarity of pitches and rhythms. And in terms of proportion of similar elements, that goes a great deal where damages turn out. So if you have a hook that's the same between two songs, but nothing else, well how often is that hook used, and how distinctive is it? But in the case say of rap music, which has been around now for over 30 years, where it's built on repeated say two bar fragment. So it may be that a person only copied two bars out of another song, but that's repeated for four minutes, you know two bars at a time. It becomes sort of the wallpaper of the new song. So it becomes very significant even if it's short. Structure is not usually a big issue, but if there's something very, very unusual about the structure. In this case, in the "Blurred Lines" case, there was something unusual about the way it broke, both songs broke completely before and after with this spoken part. And book ended it with word painting of almost the same words on the same pitches. And that was stunning. But normally structure by itself is not a powerful, similar feature. So that's really all if have to say, and thank you for listening.


- Sandy?


- Where's the pointer?


- It's still there.


- Good morning. I have to say I really enjoyed all the panels yesterday. And it's interesting that so many of the subjects that are different from music are also part of music. I did not appreciate that Judith was gonna be talking about the "Blurred Lines" case so specifically. So I rejiggered my talk a little bit to address some of those issues myself, as I was on the other side. And I come from a different kind of background. I'm a songwriter and producer. I've had a lot of songs recorded. I've done jingles and scores, and had my own studio. And graduate work in both composing and ethnomusicology. So, let me start by saying, this is definitely something I want you to hear. ♪ Ding, ding, ding, dinga, ding dink. ♪ ♪ Ding, ding, ding, dinga, ding dink. ♪ ♪ Ding, ding, ding, dinga, ding dink. ♪ That's the way theirs goes. Ours goes ♪ Ding, ding, ding, dinga, ding dink, tick ♪ ♪ Ding, ding, ding, ding, dinga, ding dink ♪ That little bitty change. It's not the same! Ours goes ♪ Ding, ding, ding, dinga, ding dink ♪ Theirs goes. Ours goes ♪ Ice, ice baby ♪ Little bitty change. It's not the same!


- This is to let you know that I don't really pay attention to what the artists have to say. They will say anything for publicity, as Robin Thicke learned in the case. Or at least the jury learned about him. I am gonna talk about, I put some slides up here, just so that we can go through some "Blurred Lines" things. This is just to explain to a jury how songs are broken down. For instance, oop is this working? Uh-oh, okay, oop sorry. ♪ Ding, ding, ding, digga. ♪


- Sorry. The intros here are yellow, but they're not the same notes. This is just simply the way the paragraphs of a story are put together, one of the sections. You have the introduction, you have verse one, you have a pre-chorus over here, you have a 16 bar, all of these are eight bar sections. You have a 16 bar chorus. This is, I called it song, alias, I'm gonna be talking about the "Blurred Lines" thing. So this is "Blurred Lines". It's a very standard construction. We have verse one, pre-chorus, chorus, verse two, and then you have a rap section and then you come back to verse three and the chorus. So I mean this is very, very standard. The chords here are four bars of A, four bars of E, alternating throughout virtually the whole song except in one eight bar section. In this case you have an intro of eight bars. You have verse one A and B. And that means that the lyrics are different, plus the music is different in the second half of the verse. So that verse two has different lyrics, but uses the same melody as A, and the same melody as B, et cetera. So that you can get a sense of how they're put together, as a package. This is a very unique, very unique set up. The break is longer. It comes back to a verse for B again, it's not unusual. What is very unusual is that the hook is repeated at the end. Usually, the hook is repeated in a chorus, or it comes through like this. But this was very different. Another way to show chords, and I didn't have a chance to put the music up so you could hear it, is that you can see very clearly that every four bars the chords change. And in "Got to Give it Up" you have eight bars of A7, and then eight bars with a different chord, well actually it's four chords. And then it repeats the four chords. That's very, very different. The other thing I thought I'd show you is this is the deposit copy. We both, Judy and I actually did the analysis of the recording first. This came reasonably late. And you can see right here that there's a bass line in the first eight bars. And then you have the chords, the melody, the lyrics. And that's what we were told to stick with. So here I'm gonna play you both bass lines, as Judy did, but I'm gonna also show you how they, now this is the bass line in yellow. That was the Marvin Gaye bass line. You can see right away it's lower, these are the steps of the scale. And this darker area is the tonic, or the first step of a scale. You could certainly see that this has dum, well it'll play. But you have a lot of one and the flat seven here. On the "Blurred Lines" you have a lot of da-dum. And then it changes chords here and has a different passage. So, let's just play so you see what I'm talking about. Uh-oh. Uh, no, no. There's something definitely. This is "Blurred Lines". Longer notes. You can certainly see, now the bass line here was not exactly what the notes were. But that was what was in the deposit copy. And so you can see very clearly that it's lower, the notes are longer, it's a different quality of sound, even though that's not to be considered in the deposit copy. So you can see that these are different. In addition to which, oh let's see if we can't get this to go. So you get the idea that da-dum is a pretty common bass pattern. They're both sparse. And the average listener might hear them as the same, but they're not, and this helps people understand what that is. This, I put this one in, Judy I hope you don't mind that I'm showing the constellation of similar elements. This is the first thing that I saw about this, let me get that out of there. First you have, let me just see if I can see this, repeating eighth notes. Repeating eighth notes. The problem is that they're not the same. This three flat two, three, is not five, five, five. Then you've got a five, six, one, but it's not in the same place in the measure. Then you have a one five and a melisma which is a very common ending for a phrase for a singer, but they look very different. So that you have the melisma here. With due respect to Judy, this is not how I analyze music. Consecutive notes that are not in the same position in the bar, I do not consider as the same. As a forensic musicologist, I'll say this very fast, so we can get onto some musical examples. When somebody calls me, and Judy's pretty much just told you what the procedure is. You look for the similarities. Your first impression, it could be very much like what the jury hears. But when somebody calls me, whether it's an artist, or a lawyer, I would say please don't tell me anything about it. Please, I don't want to have extraneous, I don't even want to know what side you're on. I just want the music, I only want to look at the musical facts. If my opinion is the same as yours, then we can talk further. And I think that that's been very important so I can be completely unbiased in regard to these things. However, I do ask to be paid up front. In case they don't like me. If they don't like my opinion, I still get paid for my work. Sample analysis, I have a whole procedure for that where we're really decomposing, or we're actually recomposing the sample starting with the original source. And that is an oral thing. We've settled a lot of cases. Oh my goodness, sorry. Sorry. And that has proven to be very different unlike the charts that you saw to help. This is definitely something that people have to hear. I believe that people hear things differently now because they wear earbuds. And they hear the sounds, they are very familiar with keys even if they don't play an instrument. They really can identify if something's in the right key. I find that to be fascinating. Public domain is another area that I do quite a lot of. And, I would say that there are lots of stories about public domain. But needless to say, a song that's in the public domain as you know in the US, isn't necessarily anywhere else. And a good example of that is "12 Days of Christmas." Frederic Austin made his arrangement of the song in 1909. The song, using on, is the first word of all the verses, ♪ On the first day ♪ that was added, and ♪ Five golden rings ♪ was added with different chords. So, there were times when the publisher in London would go after you and make you pay a licensing fee when you used those chords. I don't know if they're still doing that. But that version doesn't go into the public domain until 2022. Researching songs I believe Joe talked about the fact that I did a lot of work on the "O Brother, Where Art Thou?" I am a song writer, I'm very interested in it, I did ethnomusicology, I love it. And that was one of the most fun things we ever did, because they thought everything was traditional. And when I met the Coen brothers, they said, "This is traditional, it says traditional." I said, "So what?" It's traditional, so what? What are we talking about? So, they had built their whole movie on these particular songs. So it took a great deal of effort in the folk archive at the Library of Congress, the field recordings at the Library of Congress to look. And we found the "Man of Constant Sorrow" that you now know. I've never heard that one before, but they used it because it was the only one we could find that wasn't copy written. So . One day I want to write the book on the story of songs. Because there were wonderful stories through this, sisters who were discovered, everybody thought it was a traditional song. They were publishers who had been publishing for 40 years a song that they really had no rights to. The public domain in the field songs, anyway. Prevention, Judy talked about this as well. I do a great deal of that. And I'm finding interestingly that artists at record companies, if they get turned down with a sample, actually they've been willing to change their song, and make sure that it doesn't infringe before its released. That's pretty new. But I do a lot of prevention to avoid problems. There's a very simple rule of thumb. If it points specifically to a song, to a singer, to a musician, to a group, you probably have a problem. If it points to a bunch, then it could be a genre. The average listener is the, this answers your question, the average listener is certainly the criteria. And so this is a very hard thing to explain to people who have composed something, that the average listener's gonna hear this differently than you do. But it's very important and our job is to be sure that we can communicate that. And frankly that's not very easy, particularly with people who do not know anything about music. So let me just go on. This is something you're probably familiar with. It's not playing the song again. Oh boy. ♪ Oh won't you stay with ♪


- Here, we're gonna go right to the music. ♪ Well I won't back down ♪ ♪ No I won't back down ♪ ♪ You can stand me up at the gates of hell ♪ ♪ But I won't back down ♪ ♪ No I ♪


- That obviously is, I don't know if you can see the red note heads here, that's why I'm using the pointer in case you don't. But, when you have 12 of the notes exactly the same in the position in the measure and duration, that's significant and Sam Smith settled on that very, very quickly. ♪ Oh won't you stay with me ♪


- Not the same key or tempo. ♪ 'Cause you're all I need ♪ ♪ This ain't love it's clear to see ♪ ♪ But darling stay with me ♪


- Okay, in a similar case that was recently settled, and this was one that I was involved in, you can also see a lot of red note heads here. ♪ So you can keep me ♪ ♪ Inside the pocket of your ripped jeans ♪ ♪ Holding me close until our eyes meet ♪ ♪ You won't ever be alone ♪


- And. ♪ How did you find me ♪ ♪ Came out of nowhere ♪ ♪ Like lightening ♪ ♪ It's cut up and blazing ♪ ♪ How you found me ♪ ♪ Through all the noise somehow ♪


- Okay. So you see how, even if somebody doesn't read music they can certainly see where the red notes are. This I thought would be fun for you. I'd be curious to know how many of you Now the other one. Okay how many of you think that that's really similar? Okay. Let's look at the actual notes. How many of you play the acoustic guitar? How many of you know how to play an A minor chord and have your pinky go all the way down the string like that? Really simple. And a dramatic downward thing. So they both share that in common. Is that protectable? I don't think so. Okay, so you can really see that this is, there's nothing unique here. Yes, they do sound similar, but is it protectable? Can you protect the chords, broken chords which don't even play the same notes, except for the first three? No. That's my opinion. It might be, I know it's been remanded, I have no idea what's gonna happen. So we'll have to see. This is, I wanted to show you something that's going on right now with songwriting. You have, we talked about, Judy talked about melody, harmony, rhythm, structure, lyrics as being kind of the backbone. What's happening now is that some hit producers, it's called beats plus hooks. And they create a track that is, got the structure built in, it's got the chords built in, it's got all the percussion built in, and see if you can figure out. This is a new technology, if you will, of how to create music. And these are the things that you might want to listen to. I'm not gonna do it very long, because I want to have some time. Come on. ♪ Remember all the things we wanted ♪ ♪ Now all our memories they're haunted ♪ ♪ We were always meant to say goodbye ♪ ♪ Even when our fists have height ♪


- Okay, I'm gonna go back, see if can get the other one. Let's see if we can. ♪ Remember those walls are built ♪ ♪ But baby they're tumbling down ♪ ♪ And they didn't even put up a fight ♪


- Okay. Did you hear the similarity? Okay. I think if you look at these music notes you'll see that they're very different in each song, even though they share the harmonic, and the tempo and the structure. There was more, but. But I just want to tell you that Bette Midler was a huge case. Stop. Huge case in advertising, because that was the beginning of no more sound alikes. She had a distinctive sound, and somebody else used her sound when she turned them down.


- All right, thank you. I have about 1,000 questions, but I'm sure that many of you do too. So I'm gonna try and restrain myself to just one or two, and then turn it over to the audience. So Sandy, you used the term at one point, musical facts. Sort of your job is just the facts, ma'am. And then I'm struck by the juxtaposition of that with, Judy your description of this hierarchy of importance. And the difference between an expert coming out of one side or the other in a musical case, seems to be this interpretive act of figuring out what's the important stuff? Because at some level of generality, sure, we can all find all kinds of similarities. But which are the important similarities? I'm wondering how you each go about figuring out what the important ones are. Sandy, you did mention the lay listener, but of course we're not, your expert methodology isn't to go out and do a survey.


- No.


- And in fact by my rough count, about half the people raised their hands for that stairway example. What do you do to decide what a lay listener--


- So sorry.


- What a lay listener would think is important or not?


- I think that the listener is always comfortable with lyrics. Reasonably comfortable with melody, if the two are combined, that's an important thing. Now whether or not that is enough, I have to determine that. And, you now we have these different things. An artist, like Bette Midler has taken a song and completely redone it. That's an artistic expression, that's not necessarily the song. It's her arrangement of the song. So, each piece that I look at, I look at the similarities, if it's a hip hop song, it might be the inflection of the rapper. The way he says the words, the rhythm becomes much more important. So when you're looking at a piece you have to decide, A, where are the similar elements, focus on those. Are they important and unique? Judy already mentioned all that. And is this enough or this something that should be filtered out? I don't know if that answers your question.


- Well I would focus on what's protectable and determine if those protectable elements, whether or not they are distinctive, say for the earlier song. And what is the driving force of that earlier song? And some it's a very catchy, four note hook, in others it's a really distinctive lyric, symbolism in a lyric, for example. Once in a while it's an unusual, colorful cluster type of chord that you don't hear everyday. But, all of those are musical properties of the underlying work. But I don't focus on, for the purpose of the underlying work the root of the copyright infringement case, are recording elements. Meaning, you know, is it at a fast pace, or have instrumentation been added? Instrumentation is important, but in the underlying work, it's the pitches and the rhythms that the instruments are playing. Not what instrument, such as a violin or flute, or electronic synthesizer, or whatever, that have been selected. So it's really important to focus on the right materials, and then determine if they're distinctive and original, in my opinion.


- And I'd like to take the couple of tech pickups that we had and turn them from a bug into a feature, if I can. I was just struck by how hard it would be for somebody to follow the visual representation often, in the absence of an audio accompaniment to it. Now you were spending a lot of time talking about "Blurred Lines," which was the relatively rare case that goes to trial where you have an opportunity to stand up and walk through all of this. How does all of this work on say summary judgment where you're just, the decision makers are just looking at a piece of paper? Maybe a CD that goes in as an exhibit as well. And how do you try and make sure that people are able to follow the visuals that you use to express the content of the works?


- You do it the best way you can. And oftentimes I have musical examples that are also part of the report. So the judge would hear the examples, as well as the visual display of what you're talking about.


- For me, I agree with what Sandy said, but the challenge is communicating with the judge who's going to make that important milestone in the case. The case can live or die if the motion for summary judgment is met or challenged, or if that's the end of the case. So, to some extent I really focus on any examples I give, I focus on to some extent, the judge him or herself. In terms of that particular generation of music. And if I do give other musical examples to make my point, I may be focusing on music of a particular era, because of that. But again, a judge is a highly educated individual who has spent a lot of time reading and thinking. So I have to find a way to verbally explain the music to somebody who may or may not be able to also listen to a piece of music and retain it enough to make a decision. So it's got to be what's on paper, visually, graphically, that will carry or not. Whether it's through the use of color, or other kinds of illustrative techniques that are not of an audio nature. Even though I also use audio exhibits.


- All right, do we have any questions in the time we have remaining, from the audience?


- [David] So I thought it was very interesting looking at the difference between your presentation today and some of the presentations we had yesterday. And especially thinking about the jump man suit. And really focusing on the differences between the images, and really cataloging all those differences and thinking about why there were different. And here the focus has been more on divining the similarities, and trying to find where are there similarities? So it's a very different approach. I wanted to step back a little bit and think about where this fits into what copyright policy should be. And almost tie it back to Judge Levalles, the keynote yesterday. Which is at some level when we're talking about fair use, but infringement, as well. What are the goals that we're trying to achieve? And I must say I have a hard time seeing that the incentive for creative geniuses to come up with these brilliant songs will be minimized by finding things like a number of the examples we've viewed today to be infringing. So, I feel like we've been a little bit in the technical weeds. And I wonder if you both could step back a little bit and talk about how you envision this from the perspective of what copyright policy really should be? Not so much what the law is. I mean I'm quite impressed as a litigator with how you're able to articulate this to a court, and get a court to see it your way. But, on my academic side I'm really thinking maybe the way the law is moving is in a way that's quite disengaged from what the law should be.


- I'd like to speak to that. I think you're right. I have to say as an overarching concept, I think as much, as much music should be in the fair use should be available to anybody as possible. I frequently ask when I look at a song, if this particular thing is locked down and protected, what does that mean? Does that mean you can't use that anymore and nobody else can use this? So, I think that that's an important thing. I think that if there were, and I've thought about it for years and years, a database of all the songs, we would find a lot of similarity. And yet, when I was associate music director at Benton & Bowles years and years ago, I would put out things for bid, and come up with 30 different ideas with one lyric. And I was amazed how almost never did you find the same melody, or the same thing. One other thing that concerns me particularly about public domain. Oral tradition pieces. I have a very hard time with the notion that a publisher can just simply publish that and own it, when it's been in the oral tradition for centuries. I think that that's a huge problem. I hope I answered your question.


- [David] Yeah, I mean it's just more of a thought piece on where we take this. But I mean Judith you were on the winning side, of course. I'm curious what your thoughts are.


- Yeah so even though Marvin Gaye's side did win, the point would really be I mean I saw my job actually not as an advocate, was to create clarity so intelligent decisions could be made. I won't say that I'm unhappy with what the jury decided, for obvious reasons, but I'm just saying my job wasn't to be the attorney or the advocate standing up there and fighting the case. My job was to create as much understanding, I believe, and musical clarity as I heard the music, and try to convey that to people who don't think about music. They don't look at a score and hear a sound the way I do, or listen to a recording and hear the pitches that they can recognize. So I had to make it as possible for them to connect to the music as possible, so an intelligent decision could be made. But I would say in terms of where the law should go, my honest belief is that if we do not protect the creators of content, music, film, et cetera, we will have no content within another generation. Because we've already gotten away from that basic musical education. I mean you have whole generations of very, very successful musicians who do not read or write music, for example. But are making millions and millions of dollars from another way that they're creating it. But part of how they're creating is by utilizing other people's materials from recordings. And so there's this whole idea of who possesses that? Well, really we've been through centuries of supporting, kings supporting composers so that composers would write things for a court, et cetera, et cetera, royalty, et cetera, and the Church. And many other sponsors of creativity. But in this country it's I think the laws that protect the creative person, who gets so little out of that creative process. That's what the whole Music Modernization Act is about, in fact.


- [Joe] Thanks.


- [Audience Member] So my thoughts are running along the same line as David's. And Judith when you played the two bass lines, just speaking for myself, they don't sound to me similar at all. And one of the reasons they don't, is because aside of the kind of pulse aspect of it, which is I think senna fair for a large range of songs in this kind of funk genre. At the end of the Thicke and Pharrell bass line is this very athletic kind of walking up and down. ♪ Um-Ba-Um-Ba-Um-Ba ♪ To me, when I heard that I thought well that's like people commenting on funk who aren't really within that genre, right? It struck me as an authentic. So the minute I heard that I thought, oh this is a pop song that is like mining funk, but isn't that. So, at least to my ear the differences really tell, and the similarities are trite. But, that's just me. Okay different people hear things differently, which sets up my point, which is what are we after? So if different people hear things differently in the way that I think they do, it's kind of a crap shoot, right? And what we're doing is kind of setting up a lottery. And we're adding risk to song writing that things that recur in a genre. Or, bits and pieces that you've heard Flotsam and Jetsam that are floating around in your brain that come out recombined in some way, are gonna be identified as similarities and condemned. Now I would understand this if, so I think of the Sam Smith, Tom Petty example where to me those melodies, the Smith melodies seems just like a re-capitulation of the Petty melody. Although the Petty melody is pretty trite generally, and I think that's part of Tom Petty's success as a songwriter. Is he writes great sounding songs that are melodically pretty trite. This is not disrespect, there's a niche for that. Okay so fine, but with respect to "Blurred Lines" the similarities and the differences if I weighed them I think the differences really jump out at me and the similarities kind of don't. So when you said these two bass lines are substantially similar, what's your metric for that? Because that sounded like a legal conclusion. And I want to know what is it that leads you to say that?


- Well, first of all, I was focusing on the similar features, they weren't identical, nor did I ever say they were striking similar or identical.


- [Audience Member] Right.


- But it wasn't a legal conclusion. Although I understand legal conclusion could be drawn from it. So what you just sang, the um-ba, um-ba is basically a descending, I mean, you know is a descending portion of a bass line with what you'd call octave displacement. So it's like G, G, a high G, low G. High F, low F, high E, low E. And I discuss that in the trial if you read my testimony. But, that's the so to speak the disguise. I'm not saying that they disguised it, but in fact that disguises the similarity, which is they both went from a five down to a one. And they're not the only two people who've ever done that, for example. But, the similarities were the target notes, and the way in which it interacted with the keyboard parts, which were always on the off beat, and were focused on two chords. So it was really that, part of that, part of the constellation. But there was nothing exact about it. It wasn't as easy in a way as the Petty case. But, I would just say this, there's a real myth about this case that has been promoted for a couple of years, frankly, that this was about genre. And even the dissenting judge on the appeal discussed that, but it was actually musically inaccurate. Because this was not a case about genre, this was a case about specific musical properties that were similar within a sphere of others that weren't. Remembering that part of the testimony was Pharrell Williams admitting that this was his favorite song by Marvin Gaye. And that Robin Thicke went on shows like Oprah, et cetera, and talked about himself as the white Marvin Gaye. This was not an accidental affiliation that this was out there because it's part of the atmophere.


- [Audience Member] No no one thought that. And saying you're the white Marvin Gaye is basically inviting disaster. And I think we agree on that.


- It didn't work out well.


- [Audience Member] I guess, you said this thing about genre I'm sorry, I just want to say one more thing. The question about genre is whether when Thicke and Pharrell looked at that Marvin Gaye song and appreciated it, that they took things from that Marvin Gaye song that are common within the genre. And that they reproduced them in their own composition, which was in many other ways quite distinctive. Now the substantial similarity question to me is whether that's something we condemn, or is that something we applaud? And that's I think the question the case raises for me.


- Well their song did make 16 million dollars. I'd say somebody applauded it, you know before the case. Okay.


- Well I think that's the perfect cadence on which to end here. I'm sure there's gonna be more more discussion that we can have during the break. But please join me in thanking our panelists.