Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 1 of 149 Page ID
#:2785 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 2 of 149 Page ID #:2786 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 3 of 149 Page ID #:2787
Exhibit 12 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 4 of 149 Page ID #:2788 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 5 of 149 Page ID #:2789 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 6 of 149 Page ID #:2790
Exhibit 13 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 7 of 149 Page ID #:2791 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 8 of 149 Page ID #:2792 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 9 of 149 Page ID #:2793 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 10 of 149 Page ID #:2794
Exhibit 14 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 11 of 149 Page ID #:2795 WILBUR - DIRECT 147 1 could have a one-minute restroom break, I'll be right back, 2 Judge. 3 THE COURT: Sure. Sure. 4 (Mr. Showalter and Mr. Garcia exit and enter courtroom; 5 discussion off record.) 6 MR. GARCIA: May I proceed, Your Honor? 7 THE COURT: Yes. 8 MR. GARCIA: We next call Sandy Wilbur. Has she been 9 sworn in? 10 THE WITNESS: Yes. 11 MR. GARCIA: Okay. 12 SANDY WILBUR, DEFENDANT'S WITNESS, SWORN 13 DIRECT EXAMINATION 14 BY MR. GARCIA: 15 Q Good morning, Ms. Wilbur. 16 A Good morning. 17 Q Would you please state your full name for the Court. 18 A Sandra Beth Wilbur. 19 Q And what is your current employment, Ms. Wilbur? 20 A I'm president of MusioData, which is really Sandy Wilbur 21 Music, Inc., d/b/a MusioData for forensic musicology purposes. 22 THE REPORTER: Can you speak into the microphone a 23 little more, please? 24 BY MR. GARCIA: 25 Q And please inform the Court about your educational
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 147 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 12 of 149 Page ID #:2796 WILBUR - DIRECT 148 1 background. 2 A Okay. I was classically trained. I was, in high school, 3 chosen as one of two to study with the head of the Yale Music 4 Department, Classical Piano, for the last two years of high 5 school. That was an honor. 6 I also was a folk singer. I started as a teenager, and we 7 were -- we were awarded the best folk duo for the State of 8 Connecticut and managed to go on the Hootenanny Road Show back 9 in the day. 10 And then I went to Sarah Lawrence College where I studied 11 music as well as other things. I was awarded a Hertz Fellowship 12 in composing. I went to the University of California at 13 Berkeley and did that where I found that the atonal nature of it 14 was not as appealing to me as I had hoped. 15 I was offered a teaching assistantship at UCLA, and I 16 received my master's degree in music with a specialization in 17 musicology. At the time I wanted very much to -- to do song 18 studies -- regional and popular song studies, but I wasn't 19 really allowed at the time. So I did my dissertation on Pawnee 20 American Indians with reference to present-day Oklahoma 21 practices and lived with these folks for part of the summer to 22 collect data on them. 23 Q And have you also had training in the music business field? 24 A I have. I -- I was a songwriter for quite some time. I was 25 associate music director of one -- at the time the fifth largest
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 148 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 13 of 149 Page ID #:2797 WILBUR - DIRECT 149 1 ad agency in the country. 2 It was there that I was first asked to speak in a case in 3 Los Angeles -- in Los Angeles to explain to a jury what the 4 facts were in a case brought against Benton & Bowles Advertising 5 and Schlitz -- Schlitz beer. 6 Q Have you done work for other advertisers and film companies? 7 And give us some flavor of that background. 8 A Okay. I -- I worked for music publishers, record companies. 9 I do -- advertising agencies, lawyers who call. Basically, I 10 started an entire preventative program. 11 When the Bette Midler sound-alike case happened in the late 12 '80s, I was asked to put together a preventative program so that 13 they wouldn't have so many litigations. And I put that into 14 practice in the late '80s, and now that's been universally 15 accepted at other agencies. 16 I listen to -- I work with a lot of ad agencies and a lot 17 of music producers, and I listen to be certain that they don't 18 sound like other pieces of music so that there won't be some 19 problem. I have a form that basically says if it sounds like 20 something else, please let me know. If you are asked to make it 21 sound like something else, please let me know, et cetera, so 22 that I can actually do that. 23 But even without that I have a team of people who listen to 24 works that are in particular fields so that we can be sure that 25 the work is sufficiently generic, shall we say.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 149 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 14 of 149 Page ID #:2798 WILBUR - DIRECT 150 1 Q Or whether or not -- 2 A Or unique. 3 Q Or unique; is that right? 4 A Right. I've also worked with the Coen brothers on their 5 award-winning film "O Brother, Where Art Thou." I did the 6 research on all the songs on that soundtrack, including their 7 next documentary, "Down from the Mountain," so that -- and it 8 took a year and a half. 9 And what happened in my first meeting with the Coen 10 brothers was they said, "Well, these are all traditional songs. 11 It says so right on the CD. It says 'Traditional.'" 12 And I said, "So what?" It doesn't matter what it says on 13 the label. It really matters what is the song. 14 And so I spent a lot of time in the Library of Congress 15 listening to field recordings and comparing field recordings to 16 the actual songs that they had chosen. We ended up choosing -- 17 their main song was a song that I knew with a completely 18 different melody and lyric, but this happened to have been the 19 only song that hadn't been copyrighted. So they were able to 20 use it. 21 But -- but the bottom line is -- is that it was a 22 tremendous amount of work. One day I'd like to write the book 23 on the -- on all the songs that I've -- that I've researched for 24 this film because every song is a story, and they evolve -- they 25 evolve from -- I found songs with the same titles that were
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 150 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 15 of 149 Page ID #:2799 WILBUR - DIRECT 151 1 public domain but didn't sound anything like the way they had 2 evolved over time. So -- so songs have always been my interest. 3 I am a songwriter. I've had over 40 songs recorded, some 4 chart success. I've had an album of my work where I've played 5 all the parts released. I've -- I have done hundreds of jingles 6 and scores for television. 7 I've had my own production company and my own studio. I'm 8 a thousand years old so -- so I've had -- you know, I've worn a 9 lot of hats in this business. And my most recent project, as I 10 was mentioning, is doing educational music videos for kids 11 with -- with the idea of teaching kids history so that -- so 12 that -- we have a song I composed and produced the videos using 13 the arranger from the Saturday Night Live band, the 14 cinematographer and video editor from Kevin Burns Production 15 Company. 16 So these are -- these are things that are meant to be 17 distributed as tools to teachers and students. The first one 18 has, the last time I looked, about 168,000 hits on YouTube. And 19 I auditioned to kids and recorded kids doing these things. 20 Q Have you won any awards for any of your work? 21 A Yes. I've -- I've won CLIO recognition for a body of 22 Schlitz ads that used recording artists -- used 35 different 23 recording artists. I went to their studios and recorded them 24 and let them spend as much time as they wanted EQ-ing their 25 drums or whatever. And, basically, I paid them for one hour of
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 151 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 16 of 149 Page ID #:2800 WILBUR - DIRECT 152 1 studio session time because I could have gotten musicians to do 2 it. 3 Q Have you testified in other copyright infringement cases? 4 A I have. This will be the seventh. 5 Q Have you been hired as an expert witness in other copyright 6 cases? 7 A I've been a consulting witness in hundreds of cases. 8 And I'd like to -- I'd like to also mention that when a 9 lawyer calls me and asks me if I will work for them or listen to 10 their material, my protocol is as follows: 11 I ask them not to tell me anything. I ask them not to tell 12 me what side they're on. I will take it and I will do my 13 analysis, and I will call them and read orally what my report 14 is. And if it turns out to be it's the same opinion as their 15 own, then I will go forward with the case. I will not -- I will 16 not take on a new case if I've -- obviously, if I've told them I 17 don't believe -- believe it has merit. 18 So that's -- that's how I -- how I do it. And I do the 19 same thing with the advertising agencies. If I think they've 20 made a mistake, I'll do a copyright evaluation to tell them 21 where I think there's a problem. 22 There has been a tremendous rise in litigations in the last 23 couple of years. I think that's because the music industry has 24 really had a very, very hard time, and so that's -- that's one 25 of the things.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 152 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 17 of 149 Page ID #:2801 WILBUR - DIRECT 153 1 I also do a lot of prior art research. I also do a lot of 2 public domain research. I advise -- I advise clients on what 3 songs they might want to license, and I've done a lot of 4 licensing work as well. Song licensing primarily. 5 Q And in your litigation expert witness work, is it mostly on 6 the plaintiff's side or the defense side, or how would you -- 7 A It doesn't matter. It's -- it breaks down about 50/50. 8 Q You mentioned the concept of a -- of a prior art. Would you 9 explain to the judge what is prior art and what is a prior art 10 search and what's the significance of that. 11 A I do prior art searches regardless of if it's on the 12 plaintiff's side or the defendant's side because I think if -- 13 if there's a plaintiff case, then I want to be certain that I've 14 done enough due diligence to be certain that there are not prior 15 art -- existing pieces before I would go forward. If there are, 16 then, of course, I let them know that. 17 Prior art is work that appears before the two works or 18 three works in question that has some of the same 19 characteristics. 20 Q Have you ever researched songs from Mexico? 21 A I have. I worked for three or four advertising agencies 22 that concentrate on the Latin American market or the Mexican 23 market. 24 Now, I've had opportunities to compare Mexican songs, and 25 what I -- and to deal with the Performing Arts Society in Mexico
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 153 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 18 of 149 Page ID #:2802 WILBUR - DIRECT 154 1 City. I do not speak Spanish, but I do have somebody who 2 translates for me. 3 And what I found is that Mexico is an especially difficult 4 market because so much is oral. There is not a lot of 5 documentation of songs. And so it's -- it's sometimes difficult 6 to find examples because so much of Mexican music has not been 7 written down. 8 Q So what does that mean? It's just -- just played over 9 the -- 10 A It's played. It's folk music that's been around sometimes 11 for generations, passed along, and it's -- it's, you know, 12 played -- played and known, but, you know, not necessarily 13 copyrighted or notated or even recorded. 14 Q What are some of your notable engagements, if you can just 15 give us a few? 16 A Well, one, I worked with you on the BMI Beyonce Knowles 17 case. I felt that that had absolutely no merit whatsoever. I 18 worked -- I worked on an interesting case in the Central 19 California court where the Judge basically said -- this was 20 Frank Gari Productions versus Coca-Cola Company where -- where 21 the judge basically said, "I don't understand either one of 22 these experts. I don't understand you, and I don't understand 23 you. So the two of you are going to have to decide who you will 24 agree to use for me so that I can have the advice of a 25 musicologist who will then, you know, help me -- help me
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 154 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 19 of 149 Page ID #:2803 WILBUR - DIRECT 155 1 understand what you're saying." 2 I ended up doing about two months' worth of prior art 3 research before I came to my conclusion. 4 Q So you were -- you were the -- you were the musicologist 5 that the two sides agreed should be hired for -- 6 A Right. 7 Q -- advising the judge? 8 A So the judge would be able to be helped to understand what 9 they were saying. 10 Q Currently, how many copyright matters are you engaged in? 11 A Litigation matters, six. 12 Q And we have other examples of your qualifications and your 13 background. 14 MR. GARCIA: Your Honor, they're in Exhibit 22 and 23. 15 I won't go over it or read it all into the record, but would 16 move to admit Exhibit 22 and 23, her resume. 17 THE COURT: All right. It's admitted. 18 BY MR. GARCIA: 19 Q Ms. Wilbur -- 20 MR. SHOWALTER: No objections to 22 and 23. 21 THE COURT: They're admitted. 22 BY MR. GARCIA: 23 Q Ms. Wilbur, there was some discussion -- or did you sit 24 through and listen to the testimony of the plaintiff's expert, 25 Robert -- Dr. Robert Gross?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 155 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 20 of 149 Page ID #:2804 WILBUR - DIRECT 156 1 A I did. 2 Q And there was some discussion about musicologists and 3 forensic musicologists and music theorists. 4 Could you explain to the Court what is a musicologist and 5 the body of music -- forensic musicology and -- 6 A Right. 7 Q -- what a forensic musicologist does versus what a music 8 theorist does. 9 A The reason it's called forensic musicology is that it's -- 10 it's distinguished from musicology as it's known in academic 11 circles, which is the study of history of music. I did not 12 study the history of music. I studied composing and 13 ethnomusicology. 14 Forensic musicologists look -- compare works and contrast 15 them in -- the forensic part is it looks for fingerprints and 16 sees if there's -- if there's examples of copying. It's -- it 17 deals with copyright issues, basically -- basically -- and prior 18 domain, you know, public domain and prior art in some of these 19 other issues that relate to copyright. 20 Q And music theory, is that a practice used in the forensic 21 setting or academic, or could you please explain? 22 A There -- there are several fine forensic musicologists who 23 have a background in theory. One of them was head of the theory 24 department for the school of music for many years. So theory is 25 certainly a background for it.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 156 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 21 of 149 Page ID #:2805 WILBUR - DIRECT 157 1 I certainly didn't study forensic musicology. It's not 2 something you study. I got involved in it because I was asked 3 to be involved in it and the lawyers were happy with what I 4 said, and I was able to explain to the lay jury how the music 5 was put together. 6 And then I was asked to do this preventative program, and 7 then, you know, things -- I've never -- I've never been as busy 8 as I am currently and with as many clients and with this many 9 litigation matters, but that seems to be the -- the direction 10 that things are going. 11 Q Are there other -- 12 THE COURT: So you've had -- in other cases you've 13 been involved in, music theorists have testified or been 14 designated as experts? 15 THE WITNESS: Absolutely. Well, yes. Now, if you 16 ask -- I guess I'll let the lawyers ask. 17 BY MR. GARCIA: 18 Q No, you may answer the judge's question. Please elaborate. 19 THE WITNESS: I have never seen Schenkerian analysis 20 in any of the cases I've been involved in. We're talking about 21 basic music theory. Schenkerian analysis is something that I 22 did in graduate school and composing, and it was really used to 23 understand highly complex classical and atonal works. 24 The idea of consonant substitutions is completely and 25 totally -- certainly even the concept of it I have never seen in
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 157 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 22 of 149 Page ID #:2806 WILBUR - DIRECT 158 1 any of these cases. And I've -- I've been in many. I've read 2 many expert reports, and -- and this is simply not a methodology 3 that makes -- makes any sense to me at all. And it goes against 4 the whole idea of copyright because if you can say that any note 5 in a chord could be substituted, then what are we talking about 6 in terms of the melody? It doesn't make any sense. 7 BY MR. GARCIA: 8 Q Is a -- is a melody a -- well, explain what a melody is and 9 whether a melody includes substituted notes, or is it a fixed 10 melody? What is your -- what is the copyrightable melody? 11 A Well, unlike Dr. Gross, I do not think of melody as clumps 12 of notes. I think of them as relating to the harmonic 13 structure. That's the context, if you will, the bones. 14 Sometimes you've got -- you've got -- you've got various 15 elements that you're examining, including the melody, the 16 harmony, the rhythm, the structure, melodic contour, harmonic 17 rhythm, arrangement, lyrics -- you know, a number of -- of 18 various things. 19 And how these elements relate to one another, how they are 20 put together are all relevant, and every single case is 21 different. 22 Q Have you ever seen an expert report or a forensic -- or a 23 copyright music setting in which notes have been swapped out to 24 show comparison to another work? 25 A No. Absolutely not. And the notion of "swapped out" seems
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 158 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 23 of 149 Page ID #:2807 WILBUR - DIRECT 159 1 to imply that somebody knowingly took notes and decided to 2 change them and -- and use different notes that would really 3 create the -- a copy without it seeming like a copy. That -- 4 that doesn't make sense to me in this case whatsoever. 5 Q Are you familiar with the element of song description? 6 A Yes. 7 Q And what is that? 8 A Well, the first thing -- first thing you do -- or the first 9 thing that I do is get the songs, the recording or whatever 10 other material. 11 In this case I got two recordings and a lead sheet that was 12 the copyrighted version of -- of "Triste." 13 Q Well, I'll get to what you did, but -- 14 A Okay. 15 Q -- in terms of the generic, what does that mean? Song 16 description, what does that mean? 17 A That really means what are the basic general outlines, what 18 kind of genre, style, key, tempo, you know, structural elements, 19 and what is your first reaction to it. Because very often I've 20 found that the first reaction might be the reaction that the 21 layperson has, and so, you know, I -- I -- I -- before I delve 22 deeply into it, I listen to the two works and say, "Are these 23 two works similar," or "What -- what ways are they similar?" 24 I focus, then, on the similarities and compare and contrast 25 them, and I look at them in relationship to: Are they generic
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 159 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 24 of 149 Page ID #:2808 WILBUR - DIRECT 160 1 with the style? Is it something that comes out of a genre, 2 or -- and, also, how important are these similarities in 3 relationship to the whole work? 4 So you're looking at a lot of -- a lot of information, and 5 you organize it in such a way that -- that it makes sense and so 6 that you weigh those various things and determine how important 7 they are. 8 One of the things that we use and -- certainly not 9 consonant substitution, but one of the -- one of the ways of 10 looking at melody is to look at important weighted notes. Where 11 are the important notes in a piece? Where is it basically 12 going? 13 In -- in this kind of a -- kind of simple folk-type songs, 14 I would say that the first note in the measure -- and if it's 15 not a chord tone, then the -- well, I'm trying to be general. 16 Q Yeah. Be general with it. 17 A So -- so important weighted notes is one of the things that 18 I look at. 19 Q So then -- now let's be specific. 20 Did you look at the three works that are at issue in this 21 case? 22 A I did. 23 Q Okay. You were provided a copy of the "Triste" -- 24 A Right. 25 Q -- copyrighted lead sheet, correct?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 160 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 25 of 149 Page ID #:2809 WILBUR - DIRECT 161 1 A Correct. 2 Q You reviewed that? 3 A I did. 4 Q Were you provided a copy of the "Triste Aventurera" sound 5 recording by Mr. Guzman? 6 A Yes. 7 Q Did you review that? 8 A I reviewed it, and I transcribed it. 9 Q Did you receive and review a copy of the sound recording of 10 "Cartas de Amor" recorded at Hacienda Records? 11 A I did. 12 Q And did you transcribe that? 13 A I transcribed it. I transcribe all the recorded things that 14 I get. 15 Q What does that mean, for the Court? What does that mean, 16 "transcribed it"? 17 A That means to put in notation. Now -- 18 Q Do you have an illustration of your transcriptions? 19 A Yes. They're in the report. They're in the report. 20 Q That's in -- 21 A The first thing you do is you transcribe in the original 22 key. So Triste's was in the key of A flat major, so it's 23 transcribed in the key of A flat major. The other song was in 24 the key of C. 25 Q Which song?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 161 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 26 of 149 Page ID #:2810 WILBUR - DIRECT 162 1 A "Cartas." 2 Q Okay? 3 A And after you transcribe them in the original key, you -- 4 you transpose, generally, one of them to the key of the other. 5 In this case we transposed the A flat major to the C major so 6 that it would match the "Cartas" song. 7 I consider the transcriptions very important even though 8 they don't -- they're -- they're illustrating what the melody 9 does. Obviously, if a singer changes the way they sing a 10 particular note or stops short -- so I -- I -- I agree with 11 Dr. Gross that the attack points are -- are important. 12 I -- I feel very strongly that the transcriptions have to 13 be factually correct. 14 Q Let's look at those transcriptions. And do you have an 15 opinion whether Dr. Gross's transcription was correct? 16 A Okay. 17 Q First, let's pull up the "Triste" -- the sound recording 18 is -- your transcription is appendix -- appendix -- 19 A I think that -- 20 Q Which one should we pull up? 21 A (Indicating.) 22 Q Okay. You want to pull up that one? 23 A Yes. 24 Q Okay. That is -- 25 MR. GARCIA: That was the original exhibit up here,
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 162 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 27 of 149 Page ID #:2811 WILBUR - DIRECT 163 1 the big one. 2 A This one. 3 BY MR. GARCIA: 4 Q Oh, is that the exhibit? No, that's your copy. 5 THE WITNESS: That's my copy. 6 MR. GARCIA: Mr. Rivers, the exhibits were -- 7 originals were here. Do you remember the ones we marked 8 yesterday? 9 THE CASE MANAGER: Oh, I think I put them up on 10 Judge's -- 11 MR. GARCIA: The big over-sized copy. There was a big 12 one. We marked it yesterday, a couple of demonstrative -- yeah, 13 that one. Thank you. 14 BY MR. GARCIA: 15 Q Okay. You have -- can you see the one on the screen, or 16 would you prefer -- 17 A Just show the -- can I see the title? Yeah. That's the 18 correct one. 19 Q That the one? 20 A Yeah. 21 Q Okay. We have on the screen -- this was a -- an exhibit 22 prepared by Dr. Gross. 23 Do you remember that? 24 A Yes. 25 Q And we marked this as Defendant's Exhibit 82.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 163 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 28 of 149 Page ID #:2812 WILBUR - DIRECT 164 1 And did you have an opportunity to study this document? 2 A I did. 3 Q And what did you observe? 4 A I observed that it was not accurate. First of all, I have 5 never seen transcriptions that are marked in this kind of way 6 that obscures the notes and you have to look so hard at what's 7 happening. 8 I remember that Dr. Gross said that there were 81 -- he 9 counted 81 cons- -- I can't remember the term. Consonance 10 substitutions -- which he called chord tones, and I would say 11 that there are quite a few mistakes here. 12 Q What -- where are the mistakes? 13 A Okay. In the -- I think you went over some of them. The 14 last two lines were not in the line, some of those kind of 15 things. And the notes -- any lines on the angles were not 16 reasonable because they weren't happening simultaneously. 17 But the bigger issue, because we want to be sure we're 18 talking about the musical facts in the case and as objectively 19 as possible, is that the part on the second line -- well, as you 20 can see, you have repeated sections, one, two, three, four, 21 five -- six notes, and then they're repeated, and then there are 22 measures in which they continue. 23 The second lane -- the whole first -- 24 Q Do you want to come over here and point to what you're -- so 25 we can know what you're referring to, or do you want me to
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 164 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 29 of 149 Page ID #:2813 WILBUR - DIRECT 165 1 point? 2 A Yeah. If you could do that, that would be fine. 3 Q All right. Where are you at? 4 A Okay. On the second line -- I just wanted to say in the 5 first case that everything on the first line is in the -- in 6 the -- using the chord C. 7 Q So -- 8 A The second -- 9 Q -- this upper line (indicating) -- 10 A Right. 11 Q -- is the chord of C? 12 A Right. Now, there are differences, and I'm going to go over 13 the harmonic differences, and I'm going to go over the 14 structural differences as well. But I just want to point to 15 some of these things now so that we can get these straight right 16 away. 17 In the first -- in the first line -- the first melody line, 18 it goes -- I'm going demonstrate it on the keyboard. Three 19 (playing keyboard) -- okay? 20 That's the key of C (playing keyboard). That's the C chord 21 (playing keyboard). So it's 3, 6, 5, 6, 5, 3. 22 Q Are you at the upper line or the lower line? 23 A Right. The upper line right there. Those are the notes 24 right there. 25 Q So 3, 6, 5, 6, 5, 3?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 165 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 30 of 149 Page ID #:2814 WILBUR - DIRECT 166 1 A Right. 2 Q Those right there? 3 A Right. 4 Q All right. 5 A Now, in the second line he goes -- I'm just going to -- 6 Q Down here (indicating)? 7 A No. Next line down, the staff -- 8 Q Oh, this? 9 A -- right there. 10 If you'll notice that, he has (playing keyboard) -- okay? 11 Now, that actually -- he made quite a big deal about the 12 repeated B, A, B and the odds of that happening. The only -- 13 only problem with that is that that's the harmony part. It's 14 not in the -- this is not the melody in the recorded version, 15 which is what he's calling the arrangement. Rather, the notes 16 are (playing keyboard). 17 I have to look at my transcription. 18 We'll put it up later. In other words, those notes are 19 wrong. They're actually supposed to be a third below that. 20 Q So the -- 21 A So instead of B, A, B -- 22 Q -- the line -- 23 A -- they really are G, F, G. So 5, 4, 5, not 7, 6, 7 as he 24 has indicated. 25 Q That's on the "Triste"?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 166 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 31 of 149 Page ID #:2815 WILBUR - DIRECT 167 1 A That's on the "Triste" recording. 2 Now, another -- 3 Q So I'm showing Exhibit 33 -- your Exhibit 33. 4 A Yeah. That would be good to show as well. 5 Q And that -- so in the "Triste" -- 6 A Into the -- 7 THE REPORTER: I'm sorry. One at a time. 8 BY MR. GARCIA: 9 Q You have to let me finish before you start speaking. 10 So for sake of comparison, you said the upper line was 11 using the melody. The second line then swaps to the harmony; is 12 that true? 13 A Correct. In those two sections, yes. 14 Q In these two sections. 15 But -- and -- so, actually, in the melody -- if you are 16 consistently comparing melody, you're saying, then, these are 17 really not B, A, B notes in the -- in the melody of "Triste"; is 18 that true? 19 A Correct. 20 Q So where is the B, A, B, then, or where -- where are the 21 true notes of the "Triste" sound recording in the second line 22 here that's been -- 23 A Okay. 24 Q -- not used? 25 A What I have done on this -- on this graph, which we will
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 167 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 32 of 149 Page ID #:2816 WILBUR - DIRECT 168 1 refer to often -- and, sadly, it has only my scribbling -- 2 writing on top to show you what the notes are. But I have 3 another graph that just uses those notes. 4 On the very top staff all the way through it is the 5 copyrighted version in C. I've transposed it to the key of C, 6 but it's actually the same notes as what appears in the 7 copyrighted version of "Triste." 8 Q This top line -- 9 A Yes. 10 Q -- is the copyrighted version of "Triste"? 11 A Right. And if you go down to in the next grouping of 12 staffs -- no. No. No. That one. 13 Q Yes. 14 A -- that continues, and the next grouping of staffs. So the 15 top line of the grouping of staffs is the copyrighted version of 16 "Triste." 17 On the second line is the recording. 18 Q Right here (indicating)? 19 A Right. 20 Q And what I've done is the bigger notes are the -- the 21 melody, and the harmony part is above it, generally. Yeah. The 22 harmony part is above it. 23 And on the third line is the "Cartas" -- the melody of the 24 "Cartas" recording, and it -- including its -- the chords. 25 Q Okay.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 168 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 33 of 149 Page ID #:2817 WILBUR - DIRECT 169 1 A So -- yes. Right there. 2 So if you look at the second line -- I'm sorry. That's not 3 correct. 4 Q Of -- of this one on the -- 5 A Right. What happens is I have them grouped in four -- in 6 four measures across. So the third line down -- 7 Q Right here (indicating)? 8 A Yes. And then the second staff -- right -- where the 9 recording is, you can see that I've written those notes 5, 4, 5. 10 If you look above to the copyrighted version, B, A, B is in 11 the copyrighted version, but it doesn't use the melody -- the 12 copyrighted version doesn't have the same melody as the recorded 13 version. 14 So, in other words, what Dr. Gross did was he used the 15 melody of -- in the beginning (playing keyboard), if you go to 16 the top of the page right there. So the recorded -- no. That's 17 the copyright. That one. Is (playing keyboard). 18 Q Right here? 19 A Is (playing keyboard) okay? And -- 20 Q So 3, 6, 5, 6, 5, 3? 21 A Yeah. 22 Q 3, 6, 5, 6, 5, 3? 23 A Right. And then it's repeated again (playing keyboard) a 24 second time. And then if you go to where the second part occurs 25 right there -- that's right. (Playing keyboard) Okay?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 169 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 34 of 149 Page ID #:2818 WILBUR - DIRECT 170 1 Q Right here? 2 A 2, 5, 4, 5, 4, 5, 5, okay? 3 Q Right. 4 A So -- so that's the correct song melody. 5 And the other one that he indicated was (playing keyboard). 6 Q But yet the -- but it has the B, A, B, which is -- really 7 should be the 2, 5, 4, 5, 4 -- 8 A Correct. 9 Q I got you. 10 A Right. Right. Now, the biggest -- 11 Q So the -- the -- to be clear, then, the two -- the -- the 5 12 is what note? 13 A G. 14 Q This is a G. The next note, 4, is what note? 15 A F. 16 Q And the next note is what note? 17 A G. 18 Q G. 19 So instead of B, A, B, the true melody in the sound 20 recording is G, F, G is what you're saying? 21 A That's correct. 22 Q And we'll get to that in a minute, but just some big 23 picture -- did you want to say any other big picture issues on 24 this one? 25 A Yeah. The other thing that was very -- a very serious
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 170 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 35 of 149 Page ID #:2819 WILBUR - DIRECT 171 1 mistake, if you go -- push that up a little further, you'll see 2 where the break is right there. 3 Q Yes. 4 A And the top line is the "Triste Aventurera." This is the -- 5 he's saying that this is the recorded melody on the top. 6 Q Right here (indicating)? 7 A And the -- that entire section all the way through to the 8 bottom of the piece, there and the next staff grouping on the 9 top -- right there all the way to the end -- all those notes are 10 incorrect -- well, most of them are incorrect. 11 And more -- 12 Q And why is that? 13 A They simply weren't transcribed correctly. 14 Q Oh, the transcription is wrong? 15 A The transcription is wrong. I don't know where he got these 16 notes from. I know when you asked him he said he thought that 17 the copyright version was incorrect, but the whole thing was 18 incorrect. 19 But the truth is that the recording did not sing those 20 notes, and -- and much more to the point, he moved the entire 21 line -- the entire melodic line over one measure so that it 22 lines up with the pickup measure, which is -- which is simply 23 not correct. 24 Why he might have done that, I'm going to show you on my 25 transcriptions and show you the difference, but, nonetheless,
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 171 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 36 of 149 Page ID #:2820 WILBUR - DIRECT 172 1 in -- in -- in that whole section -- now, this is the refrain 2 section. This is the part that's the chorus. This is the part 3 that's repeated. This is the most important part of the song. 4 The -- the chords in the introduction, the chords in the 5 instrumental break are the same chords as used in this refrain 6 section. So to get these notes wrong is -- is a pretty big 7 mistake, but to move them over a measure so that they line up 8 over the pickup three notes below, is -- 9 Q So, in other words, Dr. Gross [sic], you're saying -- excuse 10 me. What Dr. Gross did was that -- as I understand it, to do an 11 apples-to-apples comparison, you compare the simultaneously 12 occurring notes in the two songs? 13 A Right. 14 Q But what he did was he took the two songs and he shifted 15 part of it over, then, to line up? 16 A That is exactly right. He lined -- he lined up those -- the 17 downbeat of the refrain in "Triste" with the wrong notes to the 18 pickup measure. So you don't -- you don't start a chorus with 19 (playing keyboard). 20 So if you're playing the chorus -- I'm just going to do it 21 an octave lower (playing keyboard) -- okay? That's -- that's -- 22 those three first notes are called pickup notes. He has it 23 correctly indicated in the very first note of the piece. It 24 comes before the bar line. 25 Q This note right here is called a pickup note (indicating)?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 172 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 37 of 149 Page ID #:2821 WILBUR - DIRECT 173 1 A That's a pickup note. 2 Q Okay. 3 A (Playing keyboard.) And you can hear it. The downbeat is 4 (playing keyboard), okay? And what you have in the refrain is 5 you have three pickup notes (playing keyboard), which is 6 correctly notated. 7 His "Cartas," the one that he did himself, is correctly 8 notated, although I will also say that this is another thing 9 that is kind of a dead giveaway. He writes down here "Cartas de 10 Amor omits this filler measure." It doesn't omit a filler 11 measure. He had to add a measure there so that it would line 12 up. 13 Q Right here? Is this the part you're talking about 14 (indicating)? 15 A Right. That's what I'm talking about. Those measures, 16 there's -- there's no break. If you notice, the pickup measures 17 come right after it. So it's this (playing keyboard), okay, 18 which is correct. But he wanted to have a space in there. I 19 played it all as one unit, which is the way it is heard on the 20 recording. 21 So, in other words, by shifting it over one measure, he had 22 to add that issue there to make it work. Now, these are pretty 23 serious -- these are pretty serious errors. And I know that he 24 said that some graduate student or somebody did -- did the 25 transcriptions. He didn't -- he did the "Cartas"
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 173 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 38 of 149 Page ID #:2822 WILBUR - DIRECT 174 1 transcriptions, but he didn't do the other ones. But he's still 2 responsible for -- and there's nothing wrong with somebody else 3 doing transcriptions, by the way. 4 If I have a lot of work to do, I have somebody who I trust 5 do transcriptions, and then I verify them to be certain that 6 they're accurate. I mean, because I think that that's the 7 most -- one of the most important things -- tools, if you will, 8 in the tool box of a forensic musicologist is that you have to 9 transcribe the music as accurately as you can. 10 Q Now, we may be breaking shortly for lunch, but before we do, 11 did you prepare a sound demonstration for the Court that 12 illustrated the -- what -- well, let me back up and say this: 13 Did you do a prior art search on the melodies of these songs? 14 A I certainly did. 15 Q And as part of a forensic musicological analysis and 16 methodology, is there always a prior art search done? 17 A Yes. Well, certainly, here -- yes. 18 Q In a copyright infringement setting? 19 A Yes. It's in much more detail on the defendant's side than 20 the plaintiff's side usually, but yes, always. 21 Q And did you -- 22 A If -- pardon me. 23 Q Go ahead. 24 A If there's any similarity at all. 25 Q So if they are just totally dissimilar, there may not be a
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 174 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 39 of 149 Page ID #:2823 WILBUR - DIRECT 175 1 need? 2 A In the Armour/Knowles case there wasn't. 3 Q So was there, in fact, some similar melody between the two 4 in that -- did you notice any in that first verse? 5 A The -- the similarities -- well, the recorded versions have 6 very, very few similarities, but the -- the melody is closer to 7 the copyrighted version because that has (playing keyboard). 8 You know, it has the 5, 1, 7, 1. 9 Those four notes are the same in the copyrighted version, 10 and also (playing keyboard) the -- the second theme, if you 11 will, with the other chord goes down a step. There's a common, 12 what I call, compositional device. It's -- I found examples 13 that show this device very clearly. 14 Q So -- 15 A Certainly, there's nothing unique about 5, 1, 7, 1, and 16 certainly as a compositional device, going down a step when 17 you're going into a different chord, G (playing keyboard). 18 So, in other words -- (playing keyboard) -- if you go to G 19 -- (playing keyboard) -- it's -- it's a parallel pattern using 20 the chord tones of the G scale as opposed to the C scale. 21 Extremely common. 22 Q Now, as to the 5, 1, 7, 1 that you observed -- 23 A Uh-huh. 24 Q -- in the "Cartas" piece -- 25 A Right.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 175 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 40 of 149 Page ID #:2824 WILBUR - DIRECT 176 1 Q Actually, let's go ahead and look at that. 2 In the beginning of the song -- 3 A Right. 4 Q -- 5, 1, 7, 1, 2, 3, do you see that? 5 A Right (playing keyboard). 6 Q Is that the "Cartas" -- 7 A Yes. I'm sorry (playing keyboard). That's the melody of 8 "Cartas." 9 Q The "Triste" copyright also has a 5, 1, 7, 1; is that true? 10 A (Playing keyboard) Correct. 11 Q And that was the melody that you actually -- 12 A Well, this is the first four notes (playing keyboard) -- is 13 the one of "Cartas" -- (playing keyboard) is the copyrighted 14 version of "Triste." 15 Q Now, as to that common melody in the beginning measure -- 16 A Uh-huh. 17 Q -- the 5, 1, 7, 1 that is common to the copyright version 18 and to the "Cartas" sound recording -- 19 A Right. 20 Q -- were you able to locate prior art -- 21 A Many examples. Many examples. 22 Q Is the 5, 1, 7, 1 combination of notes unique to either 23 "Cartas" or "Triste"? 24 A No. In fact, the Nutcracker Suite, bum, bum, bum, bum, bum, 25 bum, bum, bum, bum -- I mean, it's a very common blend.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 176 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 41 of 149 Page ID #:2825 WILBUR - DIRECT 177 1 MR. GARCIA: Your Honor, we have a short audio we 2 would like to demonstrate for Your Honor, the 5, 1, 7, 1, and 3 the melodies contrasting the two, similar to what Dr. Gross did. 4 THE COURT: Sure. 5 MR. GARCIA: We'd like to play that at this moment. 6 THE COURT: Which exhibit? 7 MR. GARCIA: I am going to find it. It is Exhibit 34 8 on our exhibit list. It's an audio file. It wouldn't be in 9 the -- so I'll play that now. 10 (Exhibit 34 plays.) 11 MR. GARCIA: Your Honor, we could go on, or did you 12 want to -- 13 THE COURT: Yeah. Let's go ahead and break. This is 14 a good stopping point. Let's return at -- at 1:30. 15 You may step down. 16 (Lunch recess taken from 12:32 p.m. to 1:35 p.m; the Court 17 heard another matter.) 18 THE COURT: All right. You can be seated. 19 You can continue. 20 You can come back up. 21 MR. GARCIA: May I proceed, Your Honor? 22 THE COURT: Yes. 23 BY MR. GARCIA: 24 Q Ms. Wilbur, before the break you were giving us some 25 background. What -- I'd like to then, now, go into some of your
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 177 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 42 of 149 Page ID #:2826 WILBUR - DIRECT 178 1 observations. 2 First, did you make some observations regarding the song 3 description between the two works? 4 A What I regularly do as a methodology is to, you know, kind 5 of look at the general scope of the song and then work into the 6 details. 7 So I look at, you know, the tempo, the duration of the 8 song, what type of style it's in, and do a little background 9 research. But, basically, I -- I determined that "Triste" was 10 109 beats. It was 2 minutes and 38 seconds long. It was in a 11 Norteo style, and that was the -- the "Triste" and the "Cartas" 12 was in a much more contemporary style, and it was -- 13 Q Well, first, what you just described was the "Triste" 14 copyright? 15 A No. That was the recorded -- recorded song. 16 Q The "Triste" recorded -- 17 A I also -- I also looked at the copyrighted version and 18 determined that they were not the same, but the harmony part in 19 the recorded version hit rather closely to the copyrighted 20 version. 21 The last few notes in the copyrighted version were 22 incorrect. They were probably -- if you -- if you recognized 23 how closely it cued to the harmonic -- harmony part of the 24 recording, it's pretty easy to deduce what those notes are. 25 But -- but, generally, that -- those were the over-- overarching
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 178 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 43 of 149 Page ID #:2827 WILBUR - DIRECT 179 1 things. 2 I also felt that the harmonic instrumental parts and the 3 introduction and the instrumental breaks of both songs used the 4 same chords as the refrain or the chorus section. The chorus or 5 refrain is the most important part, generally, of a song. It's 6 the part that's repeated. 7 Then the next step that I do after just getting kind of a 8 general sense of the songs is I do -- and after I've transcribed 9 them, I look closely at their -- their structures. The 10 structures are on page 6 of my report. 11 Q Well, before you get to that on the song -- before we get to 12 the structure, on the song descriptions did you have opportunity 13 to do any research regarding the historical origin and 14 background of the two songs? 15 A Yes. Yes. Because this is, you know, not a style that I 16 was completely familiar with, I did some -- some research. And 17 I found, actually -- if you wouldn't mind playing a YouTube -- a 18 couple minutes of a YouTube -- 19 Q Did you locate a YouTube document which gave information on 20 the historical origins of Tejano music? 21 A Yes. 22 Q Okay. 23 MR. GARCIA: Your Honor, that is Exhibit 44. We're 24 not going to play the whole -- the whole segment, but the 25 beginning part of it.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 179 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 44 of 149 Page ID #:2828 WILBUR - DIRECT 180 1 MR. SHOWALTER: We object to some YouTube video coming 2 into trial we know nothing about, no opportunity to 3 cross-examine it, the basis for this person's statements, 4 qualifications, credentials, and it's -- 5 THE COURT: I mean, it does seem like classic hearsay. 6 How do you get around that, Mr. Garcia? 7 MR. GARCIA: It's part of her research. You read a 8 book. You talk -- you make an interview. You don't, you know, 9 pile everything in -- 10 THE COURT: Well, she can say what she's learned about 11 Tejano music, but I think playing the recording -- that would 12 swallow the hearsay rule if you could publish anything -- 13 anything an expert relied on. So you can ask her what her 14 understanding is based on her research in Tejano music, whatever 15 the point you want to bring out. 16 MR. GARCIA: Well, as a demonstrative may we play it? 17 THE COURT: No. 18 BY MR. GARCIA: 19 Q And from your research and observing that video, what did 20 you learn, Ms. Wilbur? 21 A This -- this was -- Narcissus was the name of the person 22 being interviewed, and this YouTube clip was -- and he's a 23 respected Norteno musician. 24 He said -- and I've learned subsequently that -- that a lot 25 of Germans and Eastern Europeans settled in the northern part of
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 180 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 45 of 149 Page ID #:2829 WILBUR - DIRECT 181 1 Mexico and along the border towns, and the German folk songs and 2 the accordion, in fact, were introduced into Mexican music, and 3 this was a very important part of -- of the influence on the 4 music. 5 So the polka and the accordion both originated from -- from 6 Germany, really, and Eastern European countries. And they 7 produced the waltz, the accordion, and the -- and the polka. 8 So both of these use that 2/4 meter, which is a polka kind 9 of style. They use the accordion that was introduced by -- by 10 German -- and German folk songs also had an important part. 11 Now, the other thing, of course, is that -- is that music 12 isn't static. It's influenced by all kinds of things. And, 13 certainly, the Tejano music has been influenced by -- has had 14 pop influences and rock and roll influences and those kind of 15 influences as well. But, certainly, the German and Eastern 16 European influence was very major. 17 Q The -- would you say the origin and roots for the Tejano 18 music originated from Germany and Eastern Europe? 19 A Well, it -- it was part of a -- of formation of the Norteo 20 style, which was the more traditional Mexican style that was in 21 the northern part of Mexico, with the -- with the German and the 22 Eastern European influences. And then as time went on, more 23 rock influences and pop influences from the United States. 24 Q Did you conduct any other research to -- regarding the 25 historical origins of Tejano music?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 181 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 46 of 149 Page ID #:2830 WILBUR - DIRECT 182 1 A I did. Once I had done my analysis of the song, I contacted 2 Dan Sheehy, who is head of the Smithsonian Folkways Records 3 [sic], who I happen to know well -- and he got his Ph.D. in this 4 very music, and I've known him for years. He graduated from 5 UCLA in the same musicology department, and he -- he shed some 6 similar light on it. 7 I also asked him -- he confirmed that -- that there were 8 many -- that Mexican music is very oral, and there is not a lot 9 of documentation on it. He's recorded himself hundreds of 10 pieces of Tejano music. He's very well aware of it. He did his 11 Ph.D. in it, and he said that these were both extremely common 12 forms -- extremely common Tejano -- Tejano-type folk songs that 13 would have been part of this genre. 14 Q When you say "both of these" you mean "Triste" -- 15 A Both "Cartas" and the -- both recordings. 16 Q "Cartas" and "Triste"? 17 A Right. 18 Q In fact, did Dr. Sheehy confirm that to you in writing? 19 A He certainly did. He sent a letter to me -- I spoke to him 20 first, and he told me. And then I asked him if he would send me 21 a letter confirming our conversation, and he did so, and it's -- 22 it is in one of the exhibits, I believe. 23 MR. GARCIA: Well, Your Honor, Exhibit 24 -- 24 MR. SHOWALTER: We object to this exhibit on the same 25 grounds.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 182 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 47 of 149 Page ID #:2831 WILBUR - DIRECT 183 1 THE COURT: Sustained. 2 MR. GARCIA: I'll move on, Your Honor. 3 BY MR. GARCIA: 4 Q Did you also conduct any research regarding similarities of 5 the two songs, anything regarding harmony or chords or anything 6 of that style? 7 A Well, I certainly determined that the -- the harmony is 8 very, very common. I think that's your question. 9 Q Yes. 10 A The harmony is very common. It uses the three basic chords 11 in the C scale. That would be the 1 chord, the 5 chord and the 12 4 chord. And it is a very simple harmonic structure where it 13 has eight measures of the C chord and -- approximately. 14 Now, they are different. They -- they are not exactly the 15 same, and I can go through the breakdown later. But generally 16 speaking they have eight measures with -- or four measures if 17 you think of it as 4/4 time, but eight measures of the C chord. 18 And then it goes generally to the G chord, which is the 5 chord. 19 So you have the C chord (playing keyboard). Then it goes 20 to the G chord (playing keyboard) for eight measures 21 approximately, and then it goes to the 4 chord (playing 22 keyboard) in the refrain. 23 Q Is there anything unique to either two songs regarding the 24 1, 5, 4 chord usage -- 25 A No. Absolutely not.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 183 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 48 of 149 Page ID #:2832 WILBUR - DIRECT 184 1 Q -- in the C scale? 2 A No. And, in fact, the reason that Dr. Gross found so many 3 consonant substitutions was because they are playing one chord, 4 and the notes that would go with that one chord would be 5 consonant to it. And then when you go to the G chord, there 6 would be a lot of notes that would be consonant to that as well. 7 These are -- these are what I would refer to as 8 harmonically based -- I mean, the harmonies are important in 9 these songs. 10 Q The -- as far as the 2/4 beat ranchera polka -- 11 A Uh-huh. 12 Q -- is there -- is that unique to either song? 13 A No. 14 Q Is that also common? 15 A Very common. It's a polka, basically. The tempos are 16 different in the two songs. "Cartas" is slower. I think one 17 was -- I think it was 101 beats per minute, and one was 109 18 beats. 19 So "Triste," the recording was 109 beats per minute, and 20 "Cartas" was 101 beats per minute. 21 Q So did you -- we would like for you to elaborate on some of 22 the differences you now found between the two songs. 23 A Uh-huh. 24 Q And when I say "two," I guess it's the three "Triste" -- 25 there's three "Tristes," and then there's the "Cartas de Amor."
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 184 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 49 of 149 Page ID #:2833 WILBUR - DIRECT 185 1 A Right. 2 Q So would you identify for the Court some of the differences 3 you found. 4 A Okay. I found that the refrain sections were quite 5 different using different melodic patterns, different chords, 6 and even though the structure of the songs were -- are common, 7 they were also quite different. 8 I found that the -- the refrains were different and the 9 instrumental parts of both songs in terms of the introduction, 10 the instrumental breaks -- there were two instrumental breaks in 11 "Cartas" and one instrumental break and an introduction in 12 "Triste." 13 These -- these were quite different. They both are on the 14 4 chord and -- they start on the 4 chord, pardon me, and then 15 they have different chords throughout and different melodies 16 throughout. 17 The instrumental intros are related to the refrains in that 18 they use the same chords and melodic material, and both of them 19 are different. 20 I found it interesting structurally that the -- the refrain 21 in the -- the instrumental parts that related to the refrain 22 were in "Cartas," 95 of the measures out of the 127 measures. 23 And in "Triste" they were 79 measures out of a total of 138. So 24 "Cartas" used 75 percent of the body of the song on material 25 that relates to the refrain.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 185 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 50 of 149 Page ID #:2834 WILBUR - DIRECT 186 1 Now, the reason that refrains, of course, are very 2 important is that they're repeated, and they tend to be the 3 focus. And you certainly find in both songs that the 4 introductions and the repeated refrains and the instrumental 5 break between the -- the refrains are -- are different, but they 6 also have other differences. 7 The -- the "Cartas" structure has an instrumental 8 introduction, and then it has the -- what I call the verse 1A, 9 which is the theme -- the theme one, which is on the C chord. 10 Then it has -- 11 THE COURT: Why don't we do it this way. Let's break 12 it up. It's getting a little long. Do it by question and 13 answer. 14 And I don't -- I mean, it looks like you're basically 15 just reading your report into the record. 16 THE WITNESS: Oh, I'm not. 17 THE COURT: Well, you're reading something. 18 But just go ahead and break it up and ask her some 19 questions. 20 BY MR. GARCIA: 21 Q Yeah. Let's talk first about the song structure. 22 Regarding the -- 23 A Can you just put that up on the screen so -- 24 Q Yes. Yes. We'll make sure -- 25 A So I don't have to read the notes out of my chart.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 186 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 51 of 149 Page ID #:2835 WILBUR - DIRECT 187 1 Q This is the page -- Exhibit 21, page 6. 2 Did you, in fact, analyze the structure between the two 3 songs? 4 A I did. 5 Q And did you, in fact, find differences between the structure 6 of "Triste" and the structure of "Cartas"? 7 A I did. 8 Q Um -- 9 A They both started with -- okay. You can see -- 10 Q First, let's talk one at a time here -- that the -- were the 11 instrumental introductions different -- 12 A Yes, they were. 13 Q -- between the two? 14 That's what you were describing a moment ago? 15 A Yes. 16 Q When you said verse A1, is this the timing difference here? 17 A Those both are theme one. The theme ones are different in 18 each piece. 19 Q And then the -- what are some of the other major structural 20 differences you -- you have identified? 21 A You'll see that in "Triste" you have verse 1A and 1B. That 22 simply means the theme that's played on the C chord and the 23 theme that's played on the G chord. 24 Then you have instrumental breaks that are considerably 25 longer in Tristas -- "Triste" than in "Cartas." You have -- you
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 187 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 52 of 149 Page ID #:2836 WILBUR - DIRECT 188 1 have a full second verse, verse 2A and verse 2B. Then you have 2 a refrain, which is 17 measures, and then you have an 3 instrumental break and then the refrain. 4 The instrumental -- the instrumental -- first instrumental 5 intro and the instrumental between the two refrains are very 6 similar, and they use the chords of the refrain. 7 On the "Cartas" side you have a verse 1 and a verse 2 with 8 a smaller filler, if you will, after the introduction. Then you 9 have what I call a pre-refrain. And the reason that I call it a 10 pre-refrain is that it has very different chords leading up to 11 the -- it uses some of the same chords as -- as the beginning of 12 the verse, but it goes into four measures that are different and 13 lead up to the refrain. 14 Again, you can see that there are filler -- filler 15 instrumentals of two measures each on the "Cartas" side and 16 eight or seven on the other, so that's different. 17 You have -- another difference here. You have the refrain 18 and instrumental break, a pre-refrain again, an instrumental 19 break of two measures, and then you have the refrain again, and 20 then you have another instrumental break, which is related to 21 the previous one. 22 So you have two repeated pre-refrain sections. You have 23 two refrains and two instrumental breaks and -- and an 24 additional instrumental introduction, all of which are related 25 to the refrain section.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 188 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 53 of 149 Page ID #:2837 WILBUR - DIRECT 189 1 Q So if -- you basically dissected the song? 2 A Yeah. I literally went -- 3 Q In other words -- 4 A -- through it measure by measure by measure. It gave 5 approximate times where the -- the changes of the sections would 6 occur and how many measures were in each section. 7 THE COURT: So given that there are, as you said, some 8 similarities -- I know you don't think -- 9 THE WITNESS: Of course. 10 THE COURT: -- it gets anywhere close to substantial 11 similarity. 12 THE WITNESS: No. 13 THE COURT: But given that there are some musical 14 similarities, and then you add onto that the fact there are 15 these four lines of lyrics that are with -- you know, but for an 16 "S" or two are identical -- 17 THE WITNESS: I agree. 18 THE COURT: At the end of the day the question is: 19 Was this copied from Mr. Guzman's song? And you think it's 20 possible that the four same -- virtually same lines of lyrics 21 and these other -- some similarities in the music could have 22 been generated completely independently? 23 THE WITNESS: It's a tough one, but yes, I do. I have 24 seen -- I have seen instances of coincidence like this. But 25 there's no question that those lyrics are virtually the same.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 189 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 54 of 149 Page ID #:2838 WILBUR - DIRECT 190 1 THE COURT: And you would agree in assessing 2 substantial similarity or copying -- I mean, you look -- you 3 said you looked at everything, and you think there are some 4 things that you think are more important to look at than 5 others -- 6 THE WITNESS: Sure. 7 THE COURT: -- but you look at the lyrics, you look at 8 the music, the harmony -- all these different things you talked 9 about -- 10 THE WITNESS: Right. 11 THE COURT: -- structure, harmony. You don't just 12 look at one and say -- 13 THE WITNESS: No. 14 THE COURT: -- is it substantially. You look at it 15 all in totality? 16 THE WITNESS: Correct. And the lyrics of the rest of 17 the piece are substantially different. They are -- and the 18 meaning of the lyric. And I agree with you that those -- those 19 first -- the first half of the first verse lyrically are -- are 20 the same except for the fact that one is singular and one is 21 plural. 22 That has some different meaning in terms of what's the 23 rest of the lyric, and I have -- I have a lyric. It might be 24 useful just to put it up now so you can see the translation as 25 well --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 190 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 55 of 149 Page ID #:2839 WILBUR - DIRECT 191 1 THE COURT: Right. That would be helpful. 2 THE WITNESS: -- a side-by-side comparison. 3 MR. GARCIA: We might as well jump to the lyrics, 4 Judge, if you don't mind. 5 THE COURT: Sure. Please. And just before you show 6 that -- but so you basically -- for it to be a coincidence, the 7 same person -- I think Mr. Ortiz -- who came up with these 8 same -- very similar four lyrics at the beginning of the song 9 writing the lyric as Mr. Guzman also, coincidentally, had, I 10 think what you'll agree, are some musical similarities. 11 THE WITNESS: Oh, yeah. Sure. 12 THE COURT: You have to think both of those things 13 were coincidental -- all right. Show me the lyrics. What did 14 you want to point out there? 15 MR. GARCIA: Mr. Rivera, we'll switch to the computer. 16 Thank you. 17 A It's hard to see. 18 THE COURT: Probably blow it up more. 19 MR. GARCIA: The ELMO might be more -- 20 THE COURT: Yeah. You can blow it up easier on the 21 ELMO. 22 MR. GARCIA: Let's just use the ELMO. 23 A I'd like to look at lyrics on a page because it helps 24 clarify. Those first two lines are obviously similar. 25 THE COURT: Right.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 191 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 56 of 149 Page ID #:2840 WILBUR - DIRECT 192 1 A And the translation -- the literal translation is: I have 2 in my possession a love letter that you have sent me asking for 3 compassion. 4 The other one is: I have in my possession your love 5 letters that you sent me -- have sent me asking me for 6 compassion. 7 The way you might translate that in English is: I have 8 your love letter asking for forgiveness. 9 The -- the idea -- 10 BY MR. GARCIA: 11 Q Are the themes different in these lyrics between the two 12 songs? 13 A Well, what I -- what I also look for in a lyric is rhyme 14 scheme because if, in fact, it's trying to copy, you want to see 15 where -- where -- if there's a rhyme scheme in here. That's one 16 of the things -- you know, the A, A -- you know, whatever. 17 Those are the kind of fingerprints that I'm talking about, 18 and I don't see -- I don't see any correlation in terms of -- of 19 rhyme scheme. 20 In terms of the real meaning of the lyric, you have the -- 21 "Triste" is a very angry one saying, "You're poison, you're 22 deceitful, you're deadly and destructive, and it's useless for 23 you to keep on insisting because your fate has changed. Your 24 path in life -- you are going to live this -- I -- you're going 25 to be the sad wanderer, adventurer for the rest of your life."
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 192 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 57 of 149 Page ID #:2841 WILBUR - DIRECT 193 1 The other one is basically, "You played me for a fool, and 2 don't beg me because I've learned my lesson. You really hurt 3 me, and how does it feel to be on the other side of the equation 4 now?" 5 Those -- those are -- those are different, but it -- it -- 6 there's no question that those first two lines -- and, yes, the 7 first four notes -- are -- are are the same. 8 Q Looking at the overall melody, the overall theme, the 9 overall structure, do those -- does it seem, in your opinion, to 10 be substantially similar between the two works? 11 A No. 12 MR. GARCIA: Your Honor, since we have -- 13 THE COURT: I think I asked Dr. Gross the same 14 question. I mean, "substantially similar" is just words, right, 15 like all these legal standards. 16 How similar -- is there another way you can explain 17 what you -- how you evaluate what substantial -- substantially 18 similar is? And I'm sure you've done cases where you found 19 where it's substantially similar. That's what you've done for 20 years. 21 THE WITNESS: Sure. 22 THE COURT: What's the threshold? I don't know if 23 you're able to give it more -- I think Dr. Gross said you know 24 it when you see it. I don't know if there's a way to do better 25 than that, but -- because almost all songs are going to have
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 193 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 58 of 149 Page ID #:2842 WILBUR - DIRECT 194 1 some similarity, right? 2 THE WITNESS: Let's put it this way: If this were a 3 deliberate effort to copy the other song, why would you be so 4 foolish as to copy the exact words, you know? That doesn't make 5 sense to me. So that certainly from the standpoint, you know, 6 of copying, it would have been foolish to do that. So, I mean, 7 that's -- that's -- that's one thing. 8 Could it be coincidence? Yes. I look for 9 fingerprints. That's why I'm a forensic musicology -- 10 THE COURT: I guess I'm saying -- and forgetting this 11 case for a second -- 12 THE WITNESS: Yeah. 13 THE COURT: -- just in general. I mean, how many 14 fingerprints -- because I'm sure a lot of these comparisons have 15 some similarities. 16 THE WITNESS: Sure. 17 THE COURT: So how many fingerprints does it take to 18 hit that substantial threshold? I mean, there's probably -- you 19 know, there's two songs that are musical and lyrics word for 20 word, 100 percent similarity. 21 THE WITNESS: Right. 22 THE COURT: Then there's probably two songs that have 23 nothing do with each other, 0 percent. I'm sure most songs fall 24 somewhere in the middle of zero and 100. Again, I don't know if 25 you can pinpoint any more specifically, but if -- I don't know
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 194 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 59 of 149 Page ID #:2843 WILBUR - DIRECT 195 1 if you have a sense of how -- you know, what -- how many 2 fingerprints does it take to be substantial. 3 THE WITNESS: No. It's difficult because each case is 4 so different. 5 THE COURT: Right. 6 THE WITNESS: And, you know, I try to look at the 7 musical facts in isolation from any of the other -- other 8 things. But, you know, in sitting here for the last week -- I 9 mean, or the last several days -- 10 THE COURT: Right. 11 THE WITNESS: -- I -- it doesn't pass my threshold 12 that there was access. That's -- I mean, even if it was played 13 locally I just, you know -- 14 MR. SHOWALTER: I've got to object on her -- 15 THE COURT: Well, I agree. You don't need to get into 16 the access issue. But on the similarity issue -- 17 THE WITNESS: Okay. 18 THE COURT: I mean, it sounds like you are, at least 19 on that, agreeing with Dr. Gross. You have done this a lot, and 20 you know when it's substantially similar, and you have a sense 21 when it isn't. 22 THE WITNESS: Yes. I think you form -- you form an 23 opinion. When I first listened to the two songs -- and I did 24 not have the lyrics at first, obviously. I listened to the two 25 songs. I said, "These songs aren't the same." They've got
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 195 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 60 of 149 Page ID #:2844 WILBUR - DIRECT 196 1 different melodies. They're using different chords and 2 different melodies in the refrain, different melodies in the 3 introduction. They're using different melodic contours. 4 They're based on simple -- very simple folk melodies that are 5 common." 6 So I didn't feel that there was anything particularly 7 special about the -- or protectable, really, in terms of the 8 melodies. 9 When I did find out that those two lyric lines were 10 the same, you know, I wanted to know more about that. I -- I 11 did do some research on -- on that. I did not find another song 12 that had exactly the same lyric. 13 I certainly was -- was told that there's a lot of oral 14 tradition, and I know from my work with both the blues and with 15 folk music as I -- and I've done a ton of that work, that you 16 find these expressions in -- in oral traditions. There's now a 17 blues database that I've used a lot. 18 And a lot of these lines can be passed on in the oral 19 tradition, and -- and this is something that very well might 20 have been the case. I've certainly found in the blues and folk 21 that that is often the case, that it's something that goes back 22 a long time. 23 People will say, "Well, my 90-year-old grandmother 24 remembers that line." I didn't do field research in this, 25 but -- but it's the kind of thing that could have come out of
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 196 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 61 of 149 Page ID #:2845 WILBUR - DIRECT 197 1 the oral tradition. And I found in many cases -- and 2 particularly one which I can't go into great detail -- but to 3 say that there was a -- a private equity company that bought a 4 huge catalog, and they also made a claim. 5 And when I -- and they hired me to do the research. 6 And I found, to their dismay, that every single one of these 7 lines in this -- this piece could be found in other works, much 8 that predate it. And I have -- I had a hard time getting paid 9 for that, but -- but, I mean, I try to tell the truth. This 10 sounds like something that could have come out of oral tradition 11 to me. 12 THE COURT: Okay. 13 BY MR. GARCIA: 14 Q In terms of maybe this not exact sequence of words, but the 15 words and the theme -- some of the themes, like love letters or 16 compassion or those -- is there anything -- 17 A Well, I did do research on that. 18 Q -- unique -- 19 A I looked -- I looked for -- I put in, you know, a Google 20 search that said love letter compassion, love letter forgiveness 21 lyric, and I found an overwhelming number of -- of those. 22 So -- so needless to say these are common everyday 23 expresses. I looked for "yo tengo mi poder." Forgive my 24 pronunciation. I looked for that phrase because the translation 25 I have in my possession seemed so incredibly formal, and I found
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 197 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 62 of 149 Page ID #:2846 WILBUR - DIRECT 198 1 that that was a very, very common -- very, very common phrase. 2 Literally millions of -- I mean, I just couldn't keep going on. 3 There were millions of them. 4 In connection with a love letter, I did not find that. But 5 certainly love letter forgiveness, love letter compassion, lots 6 and lots of examples. In terms of -- in terms of -- 7 Q So the combination -- 8 A Even though -- the whole attitude, if you will, there's 9 songs such as, "You had your chance," which is the same kind of 10 thing. You know, "You're coming back begging, and you had your 11 chance. How does it feel to be on the other side?" There 12 were -- there were -- there were, you know, songs with that kind 13 of an attitude. 14 So the -- they are -- they are -- except for those first 15 two lines, they are very different in attitude, and they are 16 very different in -- in sentiments, one being very angry and one 17 being, you know, "You were so beautiful and gorgeous, and I was 18 such a fool," and, you know, these are common -- these are 19 common. 20 Q So the -- so some of the groupings within the grouping you 21 would say are certainly in the public domain. Yo tengo mi 22 poder, for example? 23 A Very much a common expression. 24 Q That's not unique to either writer? 25 A No. And a love letter or love letters --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 198 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 63 of 149 Page ID #:2847 WILBUR - DIRECT 199 1 Q Una carta de amor, I mean, that in itself is not unique to 2 either writer? 3 A No. 4 MR. GARCIA: Your Honor, since we have been looking at 5 this document, I'd like to mark it just for demonstrative so we 6 have it in the record. 7 THE COURT: Sure. 8 MR. GARCIA: So I move to admit -- I think the next 9 number's 84. Move to admit Defendant's Exhibit 84. 10 THE COURT: All right. That'll be admitted for 11 demonstrative purposes. 12 A I think it also shows the structural elements. The lyrics 13 show quite a bit of the structural elements here. You have 14 repeating refrain. 15 MR. SHOWALTER: Object to her just talking and talking 16 and talking without responding to questions. 17 THE COURT: No. That's -- you can -- you can finish 18 your thought if it's not too long. 19 A Simply that the repeating sections are obviously the ones 20 that are important as well, and there were two pre- -- 21 precourses that were repeated, and then -- and a broke -- broke 22 up. "But, woman, don't beg me. I don't want your love. Don't 23 you see that with my soul, I want to forget you. But now you 24 come into my thoughts. Tell me, how does it feel to be on the 25 other side."
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 199 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 64 of 149 Page ID #:2848 WILBUR - DIRECT 200 1 I mean, basically, that's the one that's repeated. So -- 2 and on the other side it's, "It's useless for you to keep 3 uninsisting [sic] because your fate has changed, your path in 4 life. Keep on living your life as a sad adventurer. You will 5 never get anything from men just like me." Those are pretty 6 different. 7 BY MR. GARCIA: 8 Q And as to the melodic considerations, have you already given 9 us your input on the -- of your findings regarding melodic -- 10 not prior art, melodic considerations? 11 A I think if -- if I may, if you wouldn't mind just showing 12 the melodic contour chart, which was -- 13 Q Okay. 14 A -- page 9. 15 Q Oh, I see. 16 A But I think everybody can -- 17 Q Sure. 18 A You can only hear the differences in the terms of melodic 19 contour. 20 Q What is -- we're at page -- 21 A It's supposed to be color-coded. 22 Q I think -- it's in color, but it's -- you can barely see the 23 color, but what does this chart show? 24 A This chart shows -- 25 Q And we're at page 9 of your Exhibit 21.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 200 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 65 of 149 Page ID #:2849 WILBUR - DIRECT 201 1 A The recording is the lower notes, 3, 6, 5, 6 -- 3, 6, 5, 6, 2 5, 3. The two record -- the copyrighted version, the harmony 3 part of the recording has the same 5, 1, 7, 1, and then they 4 diverge. One goes up; one stays the same, bum, bum, bum, bum, 5 bum, bum; the other one goes, bum, bum, bum, bum, bum, bum. 6 Q Right. 7 A Well, actually, it goes bum, bum, bum, bum, bum, bum. 8 Bottom one goes, bum, bum, bum, bum, bum, bum. And the 9 copyrighted one goes, bum, bum, bum, bum, bum, bum. 10 Q So red being -- 11 A Those are different. 12 Q Red being the "Cartas," so here you have your 5, 1, 7, 1, 2, 13 3? 14 A Right. And you can see there are two numbers in each of 15 those because they -- they are the same in the copyrighted 16 version, which is the harmony part of the recording. 17 Q So the copyrighted version has those same four notes 5, 1, 18 7, 1? 19 A Correct. As does -- 20 Q 5, 1, 7, 1? 21 A Uh-huh. 22 Q But, of course, the copyrighted version's not the one we're 23 hearing in our ear? 24 A No. 25 Q You just -- you were playing those notes from the
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 201 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 66 of 149 Page ID #:2850 WILBUR - DIRECT 202 1 copyrighted version; is that correct? 2 A That's correct. 3 Q The one we hear on the sound recording -- 4 A Bum, bum, bum, bum, bum, bum. 5 Q -- is this one down here (indicating)? 6 A Right. Now, the harmony part, the second vocal which is the 7 higher vocal, is actually singing the -- the bum, bum, bum, bum, 8 bum, bum is actually singing -- not in the same rhythm, but 9 singing what is the copyrighted -- it's the harmony part. 10 Where you can certainly hear that it's a harmony part, it's 11 not as loud, and it's not as -- as strong as the -- the lead 12 singer. 13 Q Do you have any other observations regarding the melodic 14 contours? 15 A I think the most important one is the compositional device 16 that goes to the -- the second theme on the G chord. 17 Q Where is that illustrated at? 18 A Let me -- I think I have a -- well, I think I'm just going 19 to have to play it. Let me -- I did some prior art on the 20 compositional device of taking the same melodic shape, and then 21 in the G chord, it's just going to be a note lower. This is a 22 very common device. 23 "The Mexican Hat Dance" goes, ba dum, ba dum, ba dum. 24 That's similar in some ways to bum, bum, bum, bum, bum -- pardon 25 me, bum, bum, bum, bum, bum, bum.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 202 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 67 of 149 Page ID #:2851 WILBUR - DIRECT 203 1 One of the things I look at is important weighted notes, 2 dum, dum, dum -- bum, bum, bum, bum, bum, bum -- bum, bum, bum, 3 bum, bum, bum. Different -- different meters, but they still 4 have important notes. 5 The reason that's important is that "Mexican Hat Dance" -- 6 ba bum, ba bum, ba bum, ba, ba, ba, ba, ba, ba bum, ba bum, ba 7 bum, ba bum -- in the G chord it goes down, so (playing 8 keyboard) -- G chord -- sorry. 9 So in the G chord (playing keyboard) -- sorry. Holding on 10 to my pen. I can't do that. 11 (Playing keyboard ) It's a very -- it's the same device. 12 And I know that they -- they made fun of my prior art, 13 "La Cucaracha," but -- but (playing keyboard) okay? So you have 14 the C chord (playing keyboard), very similar to if you look at 15 the -- listen to the important weighted notes (playing 16 keyboard). Okay? 17 And you have (playing keyboard) -- okay? (Playing 18 keyboard) -- okay? That's -- that's the important weighted 19 notes, (playing keyboard). So you have, starting on the 5 20 (playing keyboard) -- those are all the chord notes of the C 21 chord, G, C, E. 22 Then you have (playing keyboard) -- G, B, D of the G chord. 23 It's just one step lower in the same pattern. So -- so I think, 24 again, this is one of the most rudimentary common folk patterns 25 that is the way you change a simple pattern from one chord to
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 203 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 68 of 149 Page ID #:2852 WILBUR - DIRECT 204 1 the other. 2 Now, it's not to say that you don't have other choices, but 3 you don't have twelve choices, not in a -- in a -- in a Western 4 7-note scale, and not with something that doesn't have many 5 accidentals. 6 Q The -- in terms of the melodic -- that's the contour -- 7 A Uh-huh. 8 Q -- of whether you go up or down on music -- 9 A Uh-huh. 10 Q 5, 1, 7, 1, 2, 3 or 5, 1, 7, 1, 2, 3 or 5, 1, 7, 1 -- or you 11 go down? 12 A Right. 13 Q So the contours -- 14 A Uh-huh. 15 Q -- are important to know: Is it upward, or is it downward 16 music? 17 A "Cartas" goes up. The "Triste" recorded version goes down. 18 And the other one goes up and stays flat. So (playing 19 keyboard) -- that goes up and stays flat (playing keyboard), and 20 then (playing keyboard). 21 So there really are different melodic phrases starting with 22 the same four notes, but they do have differences. I think -- 23 okay. Sorry. 24 Q So then after you lined them up and you look for common 25 melody -- or did you look for common melody?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 204 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 69 of 149 Page ID #:2853 WILBUR - DIRECT 205 1 A I always look for those areas that are similar and compare 2 and contrast them, yes. 3 Q And between the "Triste" copyright version and the 4 "Cartas de Amor," were there any same melodies between the two? 5 A They -- there was closer correlation between the "Cartas" 6 melody and the copyrighted version than there was between the 7 "Cartas" and the recorded version. 8 There were -- the recorded version's melody was quite 9 different, in my estimation, from the melody -- 10 Q So -- 11 A -- of "Cartas." 12 Q Of the common melody notes, the 5, 1, 7, 1? 13 A Right. 14 Q The -- 15 A And they also had the 7, 6, 7. 16 What Dr. Gross had made such a big deal out of with the B, 17 A, B, that was the harmony part or the copyrighted version. It 18 was not the melody of the song recording. 19 Q So giving the benefit of the doubt to the "Triste" version 20 that's most closest -- 21 A Uh-huh. 22 Q -- in melody to "Cartas de Amor," that would be the 23 "Triste Aventurera" copyrighted version, true? 24 A Yes. 25 Q Now, and of that copyright --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 205 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 70 of 149 Page ID #:2854 WILBUR - DIRECT 206 1 A And may I qualify that? 2 Q Yes. 3 A We're just talking about the verse portions. 4 Q About the -- 5 A We haven't gotten to the refraining at all. 6 Q Right. Right. 7 A Just talking about the melody notes in the verses. 8 Q In the -- the -- where you sing, the melody of the songs? 9 A Right. The verses of the songs. 10 Q And of those -- of the melody of the two songs -- 11 A Uh-huh. 12 Q -- "Triste" copyrighted and "Cartas de Amor," what -- how 13 many notes in common in sequence -- 14 A Uh-huh. 15 Q -- simultaneously played are there? 16 A Well, what happens in this kind of a piece is that you have 17 a lot of repetition. So you have 5, 1, 7, 1 repeated four 18 times. So that's 16 notes that are the same. I think he said 19 25, so there were 16 of those that -- that 5, 1 -- you know. 20 Now, if you went to the copyrighted version, you'd also 21 have the correlation between the -- not the first note, but the 22 three notes 7, 6, 7 on one of it. 23 In the recording, the harmony note actually -- 24 Q The recording of "Triste"? 25 A Yes. I'm sorry. The recording of "Triste." It's seven --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 206 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 71 of 149 Page ID #:2855 WILBUR - DIRECT 207 1 no, I'm sorry. Wrong. I'm getting it confused with -- with the 2 melody. 3 Q The "Triste" recordings -- 4 A That's -- that's -- 5 Q Hold on a second. 6 You've got the 5, 1, 7, 1 -- 7 A Uh-huh. 8 Q -- of the "Triste" copyright? 9 A Right. And you can see on the lowest line, "Cartas," you 10 have 5, 1, 7, 1. 11 Q "Cartas" also has 5, 1, 7, 1? 12 A You can also see in the next phrase 5, 1, 7, 1. 13 Q And it repeats. 14 A So the four notes are the same there. 15 When you go to verse 2 you always have 5, 1, 7, 1, but I -- 16 I don't have it on -- you know, on the next page. 17 But when you go to the G chord, which is the third line 18 down -- 19 Q G chord here (indicating). 20 A Right. 21 Q Okay. 22 A You have 5, 7, 6, 7. 23 Q 7, 6, 5, 7, 6, 7 right here (indicating)? 24 A And in the next one you only have the two 7s that are the 25 same because I heard it sung (playing keyboard) -- sorry
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 207 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 72 of 149 Page ID #:2856 WILBUR - DIRECT 208 1 (playing keyboard). 2 So that second one was, instead of (playing keyboard), it 3 was (playing keyboard). This is a perfectly decent 4 substitution. So the seven notes were the same. 5 Q But in terms of, like, a string of lyrics together or a 6 string of melody together where somebody would say, "Hey, that's 7 my song," the most in common you've identified were four 8 notes -- simultaneously notes played in common, and that was 9 just the "Triste" copyright compared to the "Cartas"; is that 10 correct? 11 A That's -- that's correct. 12 Q The -- now, we heard a demonstration of it. 13 MR. GARCIA: May I ask how much time I have left, 14 Your Honor? 15 THE COURT: Sure. 16 THE LAW CLERK: About an hour 15. 17 THE COURT: How much was it? 18 THE LAW CLERK: An hour 15. 19 BY MR. GARCIA: 20 Q In terms of the prior art melody, we -- we touched on that 21 with your audio demonstration. 22 I want to also see that visually on the notes -- on the -- 23 on the music graph, but -- so you did conduct prior art 24 research, correct? 25 A I did. And it was -- it was, of course, interesting that
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 208 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 73 of 149 Page ID #:2857 WILBUR - DIRECT 209 1 there were two German folk songs that I found that had the 2 same -- the same melody, again speaking to the German and the 3 accordion influence and the polka style. 4 So I thought that that was interesting, and, of course, 5 this are -- the other ones that I've mentioned. 6 Q And so looking at the 5, 1, 7, 1, taking that first -- 7 A Uh-huh. 8 Q -- we've identified -- 9 MR. GARCIA: We're on Exhibit 77, Your Honor, 10 demonstrative. 11 THE COURT: And how do you find these prior art? I 12 mean, you enter these note combinations and it'll pull it up? 13 I'm curious how you found these. 14 THE WITNESS: Well, some of them, you know, you 15 just -- you just pull up. 16 THE COURT: Right. But like the German folk songs, I 17 take it. 18 THE WITNESS: No. No, not those. 19 THE COURT: Right. 20 THE WITNESS: I -- I have access to a lot of melody 21 databases, and, you know, you do searches for -- for them. I 22 have -- 23 THE COURT: By note? Like I'm just curious: What do 24 you type in the database? 25 THE WITNESS: 5, 1, 7, 1.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 209 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 74 of 149 Page ID #:2858 WILBUR - DIRECT 210 1 THE COURT: Yeah. The note. 2 THE WITNESS: Yeah. Or the notes, and then you say in 3 any key. And -- but these are specific databases that are 4 proprietary that I have access to, and some of them are not. 5 Some of them you can just get online. So -- 6 THE COURT: Okay. 7 THE WITNESS: So that -- that was -- and then my 8 knowledge of folk music. 9 BY MR. GARCIA: 10 Q So then looking at Exhibit 77 on the screen, is this an 11 illustration of the 5, 1, 7, 1 melody that you located in prior 12 art? 13 A Right. Yes, it is. 14 And so what happens in this is that although there are 15 connecting notes in between, the -- the 5, 1, 7, 1, 2, actually, 16 since it goes with the "Cartas," repeats in the same place in 17 the measure. That's -- that's reasonably significant in my 18 estimation because it shows that that's a common repeating 19 pattern. It just illustrates that point, that it happens in the 20 same part in the measure. 21 Q So even Beethoven repeated the 5, 1, 7, 1? 22 A Right. Right. 23 Q Is that what you're saying? 24 A Yes. I guess, you know, a lot of prior art is -- is to 25 demonstrate that it's not original with -- with the -- either of
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 210 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 75 of 149 Page ID #:2859 WILBUR - DIRECT 211 1 these songs. 2 Q So then going to page 2 -- well, actually, you can look at 3 this document here. 4 You've got the 5, 1, 7, 1 -- 5 A Uh-huh. 6 Q -- on Beethoven, the "Triste" copyright 5, 1, 7, 1, but 7 then -- 8 A I have a graph that demonstrates the prior art that I think 9 you have. 10 Q It's in the -- it's in your report? 11 A It's the color graph. 12 Q Oh, oh. Well, it's not this one. We just looked at that. 13 A No. No. 14 It was simply to show the -- the comparisons between all 15 three of these versions, and there was plenty of prior art in 16 each one of these cases. 17 Q Was it in your report or separate? 18 A No, it was separate. It was the color -- colored blocks. 19 Q Oh, oh, oh. Well, that's in here. 20 These? 21 A Yes. 22 Q Okay. What -- this is page 1, 2 -- page 5 of Exhibit 77. 23 Could you identify for the Court what this document is? 24 A This is to show prior art examples, but this shows you the 25 pattern of notes and the numbers on -- that correspond to the
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 211 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 76 of 149 Page ID #:2860 WILBUR - DIRECT 212 1 notes in the transcription. 2 Q So this page is the -- the two -- 3 A So this just shows you the three main melodies. The melody 4 of the "Triste" recording is on the top. 5 Q And then -- 6 A The melodies in common, that is. 7 Q And you've got "Cartas" on the next page -- 8 A Yes. 9 Q -- the 5, 1, 7, 1, 2, 3. 10 A Right. 11 Q Then the next page shows "Triste," "Cartas," and the 12 Beethoven -- 13 A Uh-huh. 14 Q -- with Beethoven being on top. 15 A Okay. It's just the same thing, but it's sometimes easier 16 for people who don't read music to see it in this -- in this 17 kind of a pattern so they can see what the pattern looks like. 18 Q And then going back to the notes so -- you can see here 19 where, on page 1 of Exhibit 77, you've got the 5, 1, 7, 1. 20 A And you also have 2. 21 Q And Beethoven goes up to 2. "Cartas" goes up to 2. But 22 "Triste" diverges at that point; is that correct? 23 A Correct. 24 Q And that goes to which note? 25 A That goes to 7.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 212 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 77 of 149 Page ID #:2861 WILBUR - DIRECT 213 1 Q So that's the 5, 1, 7, 1? 2 A 7, 1. 3 Q 7, 1. Whereas the Beethoven and "Cartas" continue on with 4 5, 1, 7, 1, 2, 3 -- or 2. 5 A Well, 2. 6 Q 2. 2. 7 And the "Cartas" goes up to 3. 8 So then looking at the next page, page 2 of your 9 Exhibit 77, you were able to locate other melodies of the 5, 1, 10 7, 1, 2, 3? 11 A Correct. 12 Q Those were the Bizet "Galop," correct? 13 A Yes. 14 Q From 1835 era? 15 A Right. 16 Q And then two German folk songs; is that correct? 17 A Uh-huh. 18 Q All had the 5, 1, 7, 1, 2, 3 melody in them as well? 19 THE COURT: Aren't the vast majority of melodies going 20 to be -- you know, some combination's going to be in some other 21 work? I mean, how much is truly, you know, original in the 22 sense -- sense of no combination like -- which is what -- we're 23 only talking about six notes or something? 24 THE WITNESS: Right. 25 THE COURT: There's how many -- I know there's
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 213 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 78 of 149 Page ID #:2862 WILBUR - DIRECT 214 1 probably a lot of possibilities if you do factorials and 2 everything. 3 THE WITNESS: Sure. You're going to find, you know, a 4 lot. Although in that case where I was brought in as an expert 5 for the judge, I was only able to find six of the seven notes. 6 I could never find that -- 7 THE COURT: In a prior art? 8 THE WITNESS: Right. And for the court, you know, it 9 was a problem. 10 THE COURT: And isn't -- I mean, but isn't -- in the 11 similarity analysis, it's not just do they have the same 12 combination of notes, but the placement in the song. 13 THE WITNESS: Sure. 14 THE COURT: I mean, that -- 15 THE WITNESS: Sure. And how important it is to the 16 whole song, and all of those things are important. 17 BY MR. GARCIA: 18 Q So back to the totality of the song. 19 Is it the same deal? Is it the same song? Is that what 20 you're -- look to the entire piece? 21 A We look at the entire piece. And -- and, yes, these -- 22 these -- these opening notes are -- are important and they 23 repeat, but the fact that there are two versions of the one song 24 presents a bit of a problem. 25 Which one -- which one are we talking about? I mean --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 214 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 79 of 149 Page ID #:2863 WILBUR - DIRECT 215 1 Q You mean the two "Tristes"? 2 A The two "Tristes." 3 THE COURT: The copyrighted one and the recorded one? 4 THE WITNESS: Yeah. 5 A That's -- I mean, can you copyright all the notes of the 6 C chord? I mean, can you -- which one is the one that -- which 7 is the one that's been infringed? 8 THE COURT: Mr. Showalter, what's your -- you're 9 bringing that claim. Which one do you think's been infringed? 10 MR. SHOWALTER: Well, the -- 11 THE COURT: I don't think it's all that uncommon that 12 you write a piece of music, and every performance, you know, is 13 going to have variations in the performance. That's 14 commonplace. 15 MR. SHOWALTER: Exactly. Like if you go to a 16 Willie Nelson and he's sung "On the Road Again" 2,000 times, 17 he's requesting to sing that song, but he's going to substitute 18 consonants because he's tired of singing it the way we want to 19 hear it. He's going to sing it the way it's maybe easier to 20 sing, but it's the same song. And you wouldn't want to try to 21 sing "On the Road Again" and claim it as your own even if you 22 changed a few of the notes. 23 THE COURT: But which one -- you think the analysis 24 should be "Cartas" versus which version of "Triste"? 25 MR. SHOWALTER: I think they're both, like, similar --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 215 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 80 of 149 Page ID #:2864 WILBUR - DIRECT 216 1 substantially similar to each other. So I think you can 2 consider both of them and then see is Ortiz's work substantially 3 similar to those, or is it derivative work? 4 THE COURT: All right. 5 MR. SHOWALTER: I think we've got testimony that 6 supports either version as the principal version. 7 MR. GARCIA: Well, what is -- what is challenging for 8 defendants or really any record label or any other composer, 9 writer out there is, you know, there's this argument you heard 10 something on the radio. Well, if the copyrighted version is 11 basically a different melody, well, you don't hear a piece of 12 paper on the radio. That's filed in the Copyright Office. 13 And their argument is, well, somebody might have been 14 listening to the radio in the car at some point in time 15 hypothetically. And so even if they did, they would not have 16 heard the copyrighted version. It's a different melody. So -- 17 MR. SHOWALTER: Well -- 18 MR. GARCIA: -- they must have -- you know, it's 19 really quite a dilemma when, you know, sometimes people actually 20 deposit their -- "This is my song." 21 THE COURT: Right. 22 MR. GARCIA: Like Mr. Pena Ortiz deposited his tape, 23 "This is my creation." Some similar words in the -- you know, 24 this is not the first string of six or seven words that have 25 ever been used that are simultaneous to other songs in the
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 216 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 81 of 149 Page ID #:2865 WILBUR - DIRECT 217 1 world. 2 So overall, you know, is that -- is that substantially 3 similar? Are we going to look at the piece of paper, or are we 4 going to look at -- because the truth is the piece of paper is 5 the only thing closest to the "Cartas," as we have heard today. 6 The actual singing, the actual 45 rendition, which we're alleged 7 to have heard -- 8 THE COURT: Is dissimilar. 9 MR. GARCIA: -- is way dissimilar. Not even -- and if 10 it's the one on the radio we heard, well, that was never filed 11 with the copyright office, so there goes your statutory damages 12 as a matter of law. 13 So, I mean, it's -- it's a lot of tricky things here, 14 and we're being accused of all this nefarious stuff when the 15 song wasn't, you know -- you know, the -- the paper version was 16 not what was actually -- I'm not blaming Mr. Guzman's band for 17 messing up when they did their 45, but -- 18 THE COURT: Improving it or -- I get what you're 19 saying. 20 Do you want to say something else? 21 MR. SHOWALTER: Well, I mean, the artist was 22 interpreting the song. They really are very similar. Despite 23 their attempts to find differences in them, they're 24 substantially similar, so -- 25 MR. GARCIA: Oh, that's just --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 217 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 82 of 149 Page ID #:2866 WILBUR - DIRECT 218 1 MR. SHOWALTER: That's not a baseline or foundation 2 for it. 3 THE COURT: Right. 4 Go ahead, Mr. Garcia. You're on the clock, so -- 5 BY MR. GARCIA: 6 Q So then closing the loop, what we have is if you then go to 7 the -- you found the identical 5, 1, 7, 1, 2, 3 from "Cartas" 8 and these other works. 9 Now, when we go to the "Triste," which is not 5, 1, 7, 1, 10 2, 3, it's 5, 1, 7, 1, 7, 1 -- 11 A Uh-huh. 12 Q Now, actually, that's not even -- that's not unique to 13 "Triste," is it? 14 A No. 15 Q Did you locate prior art for the "Triste" melody of 5, 1, 7, 16 1, 7, 1 -- 17 A Right. 18 Q -- in other pieces? 19 A I did. I found the Gilbert and Sullivan, bum, bum, bum, 20 bum, bum, bum. "The Nutcracker Suite" is just another example, 21 bum, bum, bum, bum, bum, bum, bum -- same note. 22 Q And is that illustrated in this graph on Exhibit 77, page 1, 23 2 -- the fourth page here which has the Bates number HAC000716? 24 A Yes. 25 Q You've got a YouTube -- you've got a YouTube cite here. Is
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 218 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 83 of 149 Page ID #:2867 WILBUR - DIRECT 219 1 that where somebody -- 2 A Right. That's just where if somebody wanted to doublecheck 3 and hear it, they would be welcome to do so. 4 Q So if they typed this in, they could listen to the Gilbert 5 and Sullivan opera as well? 6 A Yes. 7 Q And then the -- we've already seen the -- rather than 8 musical notes, if you wanted to see the color melodic contour, 9 you could look at the last few pages; is that correct? 10 A Yes. 11 Q Other than the 5, 1, 7, 1, 2, 3, have you seen any other 12 longer strings of common melody? 13 A No. Those are the ones that are similar, and those are the 14 ones that I focused on. 15 Q Are the rest -- is the rest of the melody between the two 16 songs different or -- 17 A Well, the refrains are very different, and I wanted to 18 show -- show that. 19 Q Okay. Let's next go to -- which chart is that which shows 20 the refrain? Is there a refrain chart? 21 A The -- 22 Q I'm not seeing it in your report. 23 A The numbers, the ones -- 24 Q Oh, the new one. 25 A And I believe --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 219 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 84 of 149 Page ID #:2868 WILBUR - DIRECT 220 1 MR. GARCIA: Mr. Rivera, could you switch -- 2 BY MR. GARCIA: 3 Q Is it this one? 4 A No. It's (indicating) -- 5 Q Oh, that one. 6 This one? 7 A Yep. 8 Q Okay. I want to show -- 9 A The first -- 10 Q -- show -- show you -- 11 MR. GARCIA: Sorry, Mr. Rivera. Switching on you. 12 A This was color-coded, but we could only print it out in 13 black and white. So I've written on the side which each one is. 14 BY MR. GARCIA: 15 Q Okay. I have on the screen now a chart. 16 Is this chart prepared by you? 17 A Yes. 18 Q And would you explain to the judge what this chart 19 illustrates. 20 If you want to come down and point and explain it, you're 21 welcome to. 22 MR. GARCIA: Your Honor, may she come on down -- 23 THE COURT: Sure. 24 MR. GARCIA: -- and explain this? 25 THE COURT: Yes.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 220 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 85 of 149 Page ID #:2869 WILBUR - DIRECT 221 1 A Okay. Right here you have "Cartas." This is the refrain. 2 These are the three pickup notes. So measure one starts here 3 (indicating). "Triste" -- I'm sorry. The second one starts on 4 the one measure. As you can see it starts on the 4 here and the 5 1 here (indicating). 6 Now, what Dr. Gross did was he took the entire eight-note 7 passage here and he moved it -- advanced it one measure so that 8 it would line up with the pickup bars. This last one is the 9 transcription that Dr. Gross's, I guess, graduate student did 10 but which was completely and totally incorrect. This is both on 11 his transcription of the -- I believe it's called "Client's" -- 12 Q Composition. 13 A -- "Composition," and it is on the marked-up piece that we 14 first looked at. 15 Okay. Yeah. Okay. 16 Q On the Exhibit 33, the -- this has all three songs, and 17 we'll go to the refrain page. 18 And what does this show you? 19 A It shows that he took the -- he took the refrain, and he 20 moved it over one bar, and this -- this other -- now, in the 21 beginning of the piece -- let me just show you that, and this is 22 what I talked about initially. 23 He knew very well what pickup -- what a pickup note was. 24 That's bum, bum. This is before the bar. In the chorus -- 25 Q Actually, if I may, on Exhibit 83 --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 221 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 86 of 149 Page ID #:2870 WILBUR - DIRECT 222 1 A Okay. 2 Q -- we had Dr. Gross identify where the pickup note was. He 3 confirmed it's this first note in the measure. 4 Is that correct? Do you remember that testimony? 5 A Yes. 6 Q This is 83. Okay. So you can lay on top of there the 7 pickup note. 8 A Okay. The -- the chorus -- he has the chorus starting right 9 here (indicating), and this is in A flat major, so these are not 10 the correct notes. And what I've done is I've taken the numbers 11 of all these notes so that it might be easier to understand, and 12 I can sing them for you. 13 The chorus of "Cartas" goes like this (singing). Now, the 14 "Triste" copyrighted version goes -- I have to dig into a 15 different key. I'm sorry. Okay (singing). 16 This is -- this is what I'm assuming these notes here 17 are -- I put them in because these are the same notes as the 18 harmony notes, and I assume that those are the correct notes. 19 They were incorrect in the transcription. 20 Now, what's happened is that by offsetting -- could you 21 hear the difference in terms of the melodies? I mean, the -- 22 the -- (singing) is very different -- (singing). Very different 23 melodic contour, very different melody, very different -- if you 24 look at the important weighted notes, which is usually the first 25 note, you're going to have the chord tone F (singing).
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 222 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 87 of 149 Page ID #:2871 WILBUR - DIRECT 223 1 With this one (singing). Sorry couldn't get to that low 2 note. So those are pretty different. 3 Now, why would you move them over? Well, the reason you 4 might move them over is to see how the chords line up. See what 5 happens here when you move them over and you put them on the 6 pickup notes. The G chords line up. The C chords line up. You 7 have an F and a G here, but you have the C chords there. You 8 know, you have a lot more harmonic correspondence. 9 When you have more harmonic correspondence, they're going 10 to, obviously, sound, when you put them together, much more 11 similar because the chords are going to be the same. So by 12 doing his -- his comparison, you know, it sounded more 13 constant -- harmonic, if you will, by moving it over one 14 measure. 15 I have an audio example of what it sounds like when you put 16 the two on the downbeats, and they're quite dissonant. But we 17 can certainly play it. 18 MR. GARCIA: We can -- I believe Dr. Gross had played 19 a version of a matched-up where he put them on top -- 20 THE COURT: Right. I remember. 21 MR. GARCIA: "Hey, they sound pretty close." 22 THE COURT: Right. 23 MR. GARCIA: Well, when you actually put them together 24 when they're in the -- in the sequence of each other, that's -- 25 THE COURT: Right. I get what you're saying. You
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 223 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 88 of 149 Page ID #:2872 WILBUR - DIRECT 224 1 want to play it? 2 MR. GARCIA: If we may play it, Your Honor? 3 THE COURT: Sure. 4 (Audio plays.) 5 A That gives you an idea of what I'm talking about. 6 Now, the notes on the bottom, the incorrect transcription, 7 it starts with a chord, and the chord is F, but I honestly can't 8 figure out where this came from because I thought maybe it was 9 just a mistake and it was really A flat major. Maybe these were 10 the notes of the A flat major. But they don't really correspond 11 to any of the other notes. 12 I can sing it, but it doesn't -- it doesn't really make any 13 difference. It just is completely incorrect. 14 Q Okay. 15 MR. GARCIA: Why don't we mark this, Your Honor -- for 16 purposes of demonstrative, since she's been illustrating, if I 17 may mark this one on the -- on this -- on the ELMO as -- I think 18 the next number is -- let's see. Is it 85? Yes, the next 19 number's 85, Your Honor. We move to admit. 20 THE COURT: All right. That'll be admitted for 21 demonstrative. 22 MR. GARCIA: And then we would move to admit 86, the 23 sound file as a demonstrative, that was -- 24 THE COURT: They'll both be admitted. 25 BY MR. GARCIA:
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 224 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 89 of 149 Page ID #:2873 WILBUR - DIRECT 225 1 Q Any other observations you want to share with us on -- on -- 2 A Well, I just -- I just wanted to say that this is the 3 standard way of notating. When you have pickups, you certainly 4 never start a chorus on a rest like that. These are pickups -- 5 clearly pickups. The note starts there (indicating) as the 6 chorus note, and -- and it's very little correspondence in here. 7 There are some things that line up, you know, but really 8 they're very, very different. And because the chorus sections 9 are so different, that means that the instrumental sections, 10 which are the same chords in the same sequence as the chorus 11 sections, are always different. 12 So we focused on the similarities that we found in the 13 notes in the verses primarily to the copyrighted version and the 14 "Cartas" version, and we certainly understand that the similar 15 two first lines are -- are the -- I would -- I would agree that 16 they're pretty much the same. One is plural, one isn't, but 17 they're the same. 18 But everything else is really, really, really quite 19 different. I mean, I put the notes -- I mean the letters -- I 20 mean the numbers on here to make it easier to quickly glance 21 through it, but I think you can see -- see clearly -- obviously, 22 the copyrighted version is different. If you look at the last 23 two measures of the first line, you'll see that the recorded 24 version goes down, goes 6, 5. 25 Q Point to the 6, 5.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 225 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 90 of 149 Page ID #:2874 WILBUR - DIRECT 226 1 A Okay. These -- these notes keep going down (indicating). 2 This goes down, up and down (indicating). So there are 3 differences between them. 4 Q The two "Tristes," you mean? 5 A The two "Tristes," yes. But -- but really -- in fact, you 6 can really see that -- that the pattern of notes is really quite 7 different in both of these and the chords are different. You 8 have -- you have the F -- now I can't -- I can't find the chords 9 easily in here. 10 It's -- I have one that I haven't marked that might be 11 better to see where the chords are. But I can also show it in 12 the Harmonic analysis, too. 13 MR. GARCIA: I want to mark this, Your Honor, since we 14 have been -- it is already Exhibit 33 as a demonstrative, but 15 it's -- since it has illustrative markings, we're going to also 16 label this as Exhibit 86, which shows the shifting and the other 17 notations as a demonstrative. 18 THE COURT: It'll be admitted. 19 A This is the -- I did not deal with the filler measures. I 20 just dealt with the eight bars -- or eight measures in each. 21 As you can see here, measures 1 through 6 in both use a C. 22 On 7, "Cartas" uses an F and then goes to a G whereas in 23 "Triste" it goes C and stays on C until the eighth measure, G7. 24 On the second part of the verse where it's on the G chord, 25 you have "Triste" in G7 and "Cartas" in G. That's not very
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 226 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 91 of 149 Page ID #:2875 WILBUR - DIRECT 227 1 different, and they both go to C on 8. 2 Verse 2A you can see that, again, they -- the "Triste" goes 3 through the whole verse again whereas "Cartas" uses five 4 measures of C, then to C7, and then to the F in the 8 -- in the 5 eighth measure. And here's the refrain where the -- the chords 6 are very different. 7 They both start on the F, but you can see how the -- the 8 patterns of melody notes go F, and then "Cartas" goes to G and 9 C -- two measures of C, two measures of G -- and then back to C 10 and then C7, goes to F, G, C for two bars, G for two bars and C. 11 In "Triste" you have two bars of F to begin with, and then 12 G, C, another F, G and six-beat for two bars, and then C at the 13 end. 14 Now, you can see that if you advance -- if you advance 15 this -- the "Triste" over one measure that -- if you move this 16 over here (indicating), you're going to have the Gs lining up, 17 the Cs lining up the, Gs lining up and the Cs lining up. So 18 that that is -- that is incorrect. 19 So this is -- this is why I think that this is important to 20 show this because these -- these harmonic patterns and melody 21 patterns are different. Even though you're using very basic 22 chords, they are different. 23 MR. GARCIA: Okay. Let me just mark this one chart in 24 this as demonstrative, Your Honor, which she was just referring 25 to, as demonstrative Defendant's No. 87.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 227 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 92 of 149 Page ID #:2876 WILBUR - DIRECT 228 1 THE COURT: It'll being admitted. 2 BY MR. GARCIA: 3 Q Now, so we've covered the prior art melody. 4 Did you notice any -- have any observations regarding the 5 prior art structure and harmony, or have you already covered 6 that with -- 7 A I think we've covered it. 8 Q Okay. That's been covered? Okay. 9 And then we've already discussed the lyrics. 10 What about the chorus between the two songs? Have you 11 covered your observations on the chorus? 12 A The choruses are different in that the -- the instrumental 13 breaks in the introductions are all related to the chorus 14 sections or refrains, and they are all different from one 15 another as I've just demonstrated. 16 Q And we have seen already Dr. Gross's report. In terms of 17 your understanding of the methodology of comparing musical works 18 in a copyright setting, did -- in your view, did Dr. Gross 19 follow the generally accepted practices of -- of the elements to 20 consider on musical works in a copyright setting? 21 A No. He didn't do the transcription of "Triste" independent 22 of putting it on a chart, which he then marked in such a fashion 23 that it was extremely difficult to understand or read. 24 Q You talking about those red lines. 25 A Yes. I found that to be distracting and unusual.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 228 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 93 of 149 Page ID #:2877 WILBUR - DIRECT 229 1 Q Did -- did he perform a side-by-side comparison of 2 simultaneously occurring notes? 3 A I do not think so. I mean, it was clear that with his 4 lines, his lines were not always simultaneous. I found that 5 the -- the -- the consonant substitutions extremely problematic 6 from a copyright standpoint because if you can actually replace 7 a note with another note in the chord, and you have simple 8 harmonic patterns, that you have C chord and you can replace it 9 with any note you want, then what is protectable here? 10 I think -- I think I've shown that -- that the melody is -- 11 and harmonies are common. I would think it would be very 12 difficult to have to be able to say that nobody else could use 13 those patterns. 14 Q And on the angling -- remember that red angling that 15 Dr. Gross used -- is the -- is his angling -- 16 A That's not -- 17 Q -- methodology ever used in comparing two musical notes? 18 A No. No. I mean, that's not simultaneous. They might be 19 the same notes, but to try to draw some connection between them 20 when they're not simultaneous is -- is not relevant. 21 Q And is it appropriate to shift music over to do a 22 side-by-side comparison of two songs? 23 A Absolutely not. I found that to be the most disturbing part 24 of the report, not to mention the fact that the notes are wrong. 25 I found that to be ingenious, I think.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 229 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 94 of 149 Page ID #:2878 WILBUR - DIRECT 230 1 Q And was he using the correct refrain in the song? 2 A No. 3 Q Which refrain was erroneous, the "Cartas" or the "Triste"? 4 A No, his -- his transcription of "Cartas" was correct 5 finally. I mean, while the first one was incorrect and was very 6 confusing because I couldn't figure out where those notes came 7 from, his transcription and supplemental report for "Cartas" was 8 completely accurate. 9 So -- so if he had done the transcription of "Triste -- 10 "Triste," the recording, I would have hoped that that would have 11 been accurate, too. I -- I am simply assuming that he relied on 12 a graduate student who did not do an accurate transcription, 13 and -- so there's nothing to say about it. 14 Q And -- 15 A It's wrong. 16 Q What about the -- have you ever seen in a copyright 17 comparison setting using the practice of the swapping out notes 18 from one song to then compare to the second song? Have you ever 19 seen that before? 20 A No. 21 Q Have you ever -- in all of your years of practice as a 22 musicologist in the music industry, have you ever seen or heard 23 of Schenkerian analysis being used as a tool for comparison of 24 two works? 25 A No.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 230 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 95 of 149 Page ID #:2879 WILBUR - DIRECT 231 1 Q Do you find that to be reliable and helpful, Schenkerian 2 analysis, in this setting? 3 A These are simple songs. Schenkerian analysis is -- is 4 controversial in terms of the methodology. It allows for a lot 5 of subjective determination. There's plenty online that can be 6 read about it. 7 In one comment it said it's all reduced to 3, 2, 1 or 8 "Three Blind Mice." I don't find it helpful or illuminating in 9 this discussion at all. 10 Q Would it be misleading as well? 11 A I think it's misleading, and I think the red marks are 12 extremely misleading. 13 Q On the theory of consonant substitution, have you -- in all 14 of your years of practice and all of your cases, have you ever 15 seen anyone, any court or any expert or any party, use consonant 16 substitution as a method to compare two works in a copyright 17 setting? 18 A No. 19 Q Is that a reliable and helpful method in this -- in the 20 copyright -- 21 A I think it's extremely problematic. 22 Q -- setting? 23 Would it be misleading? 24 A I would say it would be misleading because, again, if you 25 put in red all the things that are related to the chord when you
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 231 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 96 of 149 Page ID #:2880 WILBUR - DIRECT 232 1 have a simple chord pattern, that is, a C chord and then a 2 G chord, and you put all those things that would be consonant 3 with it and you show something which has all that red on it, it 4 makes it look like there's got to be a lot of similarity. 5 You have to look through those red marks to find the little 6 dotted -- dotted lines to see where the consonant substitutions 7 are, and that's misleading. 8 Q Have -- have you -- on the topic of consonant substitution, 9 is -- I guess, is that approach, then, you take any note in a 10 chord, and you can swap it out with the other notes in the 11 chord. Is that your understanding? 12 A That was my understanding of how he defined it, and I -- as 13 I said, then we have no melody. Again, you know, if there was 14 more similarity in terms of the lyric or -- or other than simple 15 repetitive patterns that are common, I would have a very 16 different opinion. 17 Q In fact, I think we -- Dr. Gross had mentioned that for each 18 note, there were six consonant notes. 19 Do you recall that? 20 A I do. 21 Q So if in fact the song "Triste" has about 200 notes as -- 22 more or less as Dr. Gross had mentioned on the stand, so how 23 many combinations of songs would be in consonant with the song 24 "Triste" by his Schenkerian math? 25 A I think he already said it was going to be 6 to the 200th
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 232 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 97 of 149 Page ID #:2881 WILBUR - DIRECT 233 1 power or something like that. 2 Q Well, and did you do a calculation of what is 6 to the 200th 3 power? 4 A Oh, I think it was four -- wait a minute. 5 Q Four point -- does this ring a bell, 4.628 with 155 zeros 6 following it? 7 A Yes. 8 Q Something -- 9 A Something like that. I did try to calculate it last night. 10 Q So in your -- is -- is -- is it your opinion -- does -- by 11 Mr. Guzman filing his copyright to "Triste Aventurera," can he 12 claim ownership to 4.628 with 155 zeros versions of that song? 13 A That's what makes it problematic for me. I try to look at 14 what the consequences would be, and I can't find that these 15 melodic sequences and patterns can be owned by any one person. 16 Q What about the -- I heard something about a species 17 counterpoint. Have you ever seen the use of a species 18 counterpoint in -- as a method or practice of comparing two 19 musical works in a copyright setting? 20 A Absolutely not. It's a -- it's an academic exercise. I've 21 done many of them, but it's not appropriate and -- in a 22 copyright case. 23 Q Is it -- is -- would it be relevant or helpful or reliable 24 in a copyright setting case? 25 A No.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 233 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 98 of 149 Page ID #:2882 WILBUR - DIRECT 234 1 Q What about the rhythmic analysis? Do you remember that? 2 A I do. I didn't spend a lot of time on it. I think that 3 eighth notes and quarter notes are the most common notes used in 4 songs. Spanish has more words than English. You would expect 5 more eighth notes at this tempo. 6 I mean, you know, they certainly do have patterns that are 7 similar in terms of the 6 note, 6 note, you know, whatever, 8 but -- but this is -- this is not uncommon, and it's not 9 uncommon to have a string of eighth notes. 10 Q Do you have other -- let's see here. 11 Did you bring any other charts we need to cover? 12 A I think not. 13 Q Anything else that you -- okay. Ms. Wilbur, based on your 14 training and experience and education and review of all the 15 materials in this case and of both versions of 16 "Triste Aventurera" and "Cartas de Amor," have you formed an 17 opinion as to whether "Triste Aventurera," either version, is 18 substantially similar to "Cartas de Amor"? 19 A Not substantially similar. 20 Q What about strikingly similar? 21 A In all my experience and in all the -- all the consulting 22 work that I've done, I've used the word "strikingly similar" 23 only twice. I use it very carefully. It's a very damning word 24 to use, and this certainly doesn't meet that test to me. 25 Q Do you -- did you find any original elements or components
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 234 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 99 of 149 Page ID #:2883 WILBUR - DIRECT/CROSS 235 1 that are unique to Mr. Guzman and his song "Triste Aventurera"? 2 A Melodically I do not think that they're -- that they're -- I 3 think that they're common and generic patterns. 4 MR. GARCIA: Pass the witness, Your Honor. 5 THE COURT: All right. Let's -- let's take a break 6 before we start your cross, Mr. Showalter. Let's return at 7 3:25. 8 (Recess taken from 3:08 p.m. to 3:26 p.m.) 9 THE COURT: You can be seated. 10 MR. GARCIA: Ms. Wilbur's in the restroom. She'll be 11 right out. 12 THE COURT: Yeah. We'll wait for her. 13 (Witness enters courtroom.) 14 THE WITNESS: All right. Mr. Showalter, whenever 15 you're ready, you can begin. 16 MR. SHOWALTER: Thank you, Your Honor. 17 CROSS-EXAMINATION 18 BY MR. SHOWALTER: 19 Q Good afternoon, Dr. Wilbur. 20 A It's Ms. Wilbur. 21 Q Oh, it's not doctor? 22 A Nope. 23 Q Oh, I saw the reference to your dissertation, and I thought 24 it was a doctoral dissertation. 25 A It should have been, but it was a master's dissertation.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 235 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 100 of 149 Page ID #:2884 WILBUR - CROSS 236 1 Q Okay. Oh, a master -- not a master's thesis? 2 A No, it was -- 3 Q I was confused. You -- you did a dissertation, but you're 4 not a doctor, right? 5 A That's correct. 6 Q Okay. Now, how much have you been paid so far to help 7 Hacienda Records in this case? 8 A I actually have not -- not added it up. If you're asking 9 what my fee is -- is that what you're asking? 10 Q Well, no. I asked you: How much have you been paid so far 11 to help Hacienda in this case? 12 A I believe around $15,000. 13 Q Okay. And does that include your time to travel? 14 A Wait. That must be wrong. I'm sorry. I don't remember. 15 THE COURT: What's your rate? 16 THE WITNESS: My rate is $300 an hour. 17 BY MR. SHOWALTER: 18 Q Okay. And so how much have you been paid before this trial 19 started? 20 A I'm sorry to say I don't know. I have to look it up. 21 Q Okay. 22 A I'm sorry. 23 Q That's all right. 24 So how many hours have you spent since you left New York 25 for this trial?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 236 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 101 of 149 Page ID #:2885 WILBUR - CROSS 237 1 When did you leave New York? 2 A Thursday a week ago. 3 Q Oh, my. And did you go to Houston? 4 A I did. 5 Q To work with the lawyers? 6 A Actually, to see my sister, who had been in the hospital -- 7 Q Okay. 8 A -- for some of that, and then I did work with them, yes. 9 Q Okay. So you went to Houston, and you saw the lawyers, 10 right? 11 A Yes. 12 Q All right. You don't speak Spanish, do you? 13 A No. 14 Q Now, your resume says you're recognized in the forensic 15 field of musicology. Is there a textbook on forensic musicology 16 that we could look at to see that you're recognized as an 17 expert? 18 A You can certainly see that there is a field of forensic 19 musicology. In fact, the American Musicological Society 20 actually lists forensic musicologists. 21 Q So just who is it that recognizes you as a leading expert? 22 A I have a lot of clients, record companies -- 23 Q Okay. People -- 24 A -- film companies. 25 Q Okay. People who hire you --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 237 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 102 of 149 Page ID #:2886 WILBUR - CROSS 238 1 A Advertising agencies. 2 Q Excuse me. 3 A Yes. 4 Q People that hire you, like Hacienda Records, recognize you 5 as an expert, true? 6 A Yes. They call me in to... 7 Q You -- you, in 2012 alone, cleared approximately 335 pieces 8 of original music for broadcast? 9 A Yes. 10 Q Okay. And does that mean you got the clearances? As I 11 appreciate that term, you're responsible for getting the 12 licenses to use those works? 13 A No. Absolutely not. 14 Q Okay. So you were not -- 15 A And that's why it says "clearing original music." 16 Q Okay. So you weren't involved in the licensing process? 17 A I do some licensing, but I was not involved in licensing in 18 those cases. 19 Q Okay. You know that if you're going to use a copyrighted 20 work, you need a license from the owner or administrator -- 21 A I do. 22 Q -- of the copyright? And if you use it without permission, 23 you're an infringer, right? 24 A Right. 25 Q Pretty straightforward, right?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 238 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 103 of 149 Page ID #:2887 WILBUR - CROSS 239 1 A (Nods head up and down.) 2 Q Yes? 3 A Yes. 4 Q Okay. And if -- you're familiar with the concept of 5 compulsory licenses, true? 6 A Actually, that was new to me. 7 Q As an expert -- well, you're not an expert on copyright law, 8 so that would be new to you, right? 9 A No. That was new to me. 10 Q Okay. You've talked -- 11 A That was helpful. 12 Q You -- well, go to the Copyright Office Web site and 13 research it. You might find that instructive. 14 You're not a music theorist, correct? 15 A I love music theory, and I love math, but I do not count 16 myself as a music theorist, no. 17 Q And by academic training you're not a music theorist, 18 correct? 19 A That is correct. 20 Q And you wouldn't begin to put yourself on the same plane as 21 Dr. Robert Gross in the field of music theory, would you? 22 A I would hope not, no. 23 Q You've got a master's in ethnomusicology, right? 24 A No. It was in music with a specialization in 25 ethnomusicology.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 239 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 104 of 149 Page ID #:2888 WILBUR - CROSS 240 1 Q Okay. And you did your thesis on Pawnee Indians? 2 A Yep. 3 Q Okay. While you don't have a doctorate in music theory, you 4 feel free to criticize Dr. Gross who does, fair enough? 5 A I would say my practical experience and my -- the work that 6 I've done over the last 30 years should speak for itself. 7 Q Being paid by people to come to court and take one position 8 or another, is that part of it? 9 A That is absolutely not part of it. I never take a case that 10 I don't believe in. 11 Q I understand that. And have you ever -- and this case you 12 took, you were going to get paid, right? That was part of the 13 deal? 14 A I don't -- I don't really do it for that. 15 Q You don't do it for the money? 16 A No. 17 Q Okay. You know Dr. Gross used a number of techniques to 18 assess the similarities of the songs? You're aware of that, 19 right? 20 A I'm certainly aware of that. 21 Q And when we're trying to assess the similarity, isn't it a 22 good idea to compare the -- the song from every -- a number of 23 different angles? 24 A Depends on what those angles are. 25 Q Well, the more we know about a song, the more we analyze it,
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 240 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 105 of 149 Page ID #:2889 WILBUR - CROSS 241 1 the more we can understand it, true? 2 A I don't understand your question. 3 Q Well, isn't it better to know more than to make a decision 4 and rule out certain things and know less and then render 5 opinions on that? 6 A I don't understand. I'm sorry. 7 Q Let me try again. That wasn't a very good question. 8 When you're rendering opinions, it's better to know more 9 than to know less, right? 10 A Yes. And I try to learn as much as possible, which is why I 11 did what I did. 12 Q When you go to a doctor to diagnose a problem, and he thinks 13 he needs to do this test, that test, and that test, then we want 14 our doctor to know as much information as we can, right? 15 A Right. 16 Q And so that's what Dr. Gross did. He applied these 17 different techniques as he diagnosed or assessed the similarity. 18 Do you understand that? 19 A I'm aware of that. 20 Q Note-by-note analysis, is that a recognized technique in 21 music theory? 22 A "Note-by-note analysis," what do you mean by that? 23 Q Do you know what that means? 24 A Well, are you talking about note by note in a line, note by 25 note as vertical or horizontal, or what are you -- what are you
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 241 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 106 of 149 Page ID #:2890 WILBUR - CROSS 242 1 referring to? 2 Q Maybe all of that. Are those recognized techniques in music 3 theory? 4 A I don't know. 5 Q Let's -- let's just work through this list together. 6 His next diagnostic technique was consonant substitution. 7 A Right. 8 Q Now, you know what he means by that, true? 9 A Yes, I do. 10 Q Okay. And is that a recognized music theory technique to 11 analyze music? 12 A This might all be very academic. This might be something 13 that he -- first of all, he explained that he made that term up. 14 He explained that that term talks about using other notes in a 15 chord, and that's what he meant by that. 16 That might be very useful in any kind of discussion of 17 academic -- academics. 18 Q I appreciate your -- 19 A Yeah. 20 Q -- your explanation. 21 MR. GARCIA: Your Honor, he's interrupting her. She's 22 trying to explain her answer and her position on that. 23 THE COURT: All right. Let's let everyone wait for 24 the answer, but let's go back. I'll read the question. Hold 25 on.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 242 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 107 of 149 Page ID #:2891 WILBUR - CROSS 243 1 All right. I think the question was: "Is that a 2 recognized music theory technique to analyze music?" You were 3 giving your answer. "It might be very useful in any kind of 4 discussion of academics." 5 "I appreciate your" -- and then did you want to add 6 anything? 7 THE WITNESS: I -- I thought it was related more to 8 counterpoint exercises in an academic setting. It's not 9 particularly useful in analyzing two simple songs like this, no. 10 BY MR. SHOWALTER: 11 Q Do you quibble with his shorthand use of the phrase 12 "consonant substitution" as a way to refer to identifying notes 13 that may be switched around in compositions? 14 A I mean, from what he said, he basically said that any other 15 note in the chord -- any note that is consonant with another 16 note could be used. 17 Q Do you quibble with his use of that term to express that 18 concept? 19 A No. 20 Q You've coined terms yourself, haven't you? 21 A No. 22 Q Species counterpoint, isn't that a recognized music theory 23 principle? 24 A It's an academic one, yes. 25 Q Schenkerian analysis is a recognized music theory principle,
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 243 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 108 of 149 Page ID #:2892 WILBUR - CROSS 244 1 true? 2 A It is a philosophy, it is a theory, and it is a technique. 3 I haven't seen it used in these kind of cases, no, but I'm aware 4 of it because I studied it myself in graduate school. 5 Q Making audio comparisons is a -- is an accepted diagnostic 6 technique, true? 7 A Absolutely. 8 Q Statistical analysis is an accepted means in music theory 9 circles to assess a similarity of work, isn't it? 10 A Depends on how you use it. The way he used it, I found it 11 preposterous. But, you know, in terms of the odds -- you know, 12 the statistical odds of finding those notes, I found that to be 13 peculiar, but I do count numbers. 14 I do count things up in songs, and so certainly using -- 15 but using statistical probability is not something that -- that 16 I have used or I've seen used. 17 Q You -- are you particularly disliking it in this case 18 because it -- it disproves your point? Is that your problem 19 with it? 20 A I think the notes were wrong to start with, so that's a big 21 problem. 22 Q So you really didn't rely on statistic analysis like 23 Dr. Gross did, correct? 24 A Absolutely not. 25 Q Form analysis, is that an accepted means of assessing
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 244 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 109 of 149 Page ID #:2893 WILBUR - CROSS 245 1 similarity in music theory? 2 A Do you mean structural analysis? 3 Q That's part of it. 4 A Form -- 5 Q That's part of it. 6 A And what else is? 7 Q You tell us. 8 A Form is certainly part of -- part of the song. 9 Q And that's an accepted music theory, true? 10 A Yes. 11 Q As is rhythmic analysis, true? 12 THE COURT: You need to say an audible response one 13 way or the other. 14 A Yes. 15 THE COURT: Going back to the Schenkerian analysis, I 16 know you don't -- you've never seen it used in a legal 17 setting -- 18 THE WITNESS: Right. 19 THE COURT: -- and don't think it should be -- 20 THE WITNESS: No, no. That's not true. Not in 21 something like this. 22 THE COURT: Well, in a copyright analysis. 23 THE WITNESS: Not in a simple song. It's -- 24 THE COURT: Oh, if it was classical music, it might be 25 appropriate?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 245 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 110 of 149 Page ID #:2894 WILBUR - CROSS 246 1 THE WITNESS: It certainly -- it's certainly an 2 academic study for sure, and -- 3 THE COURT: In academic circles, is it an accepted 4 analytic technique? 5 THE WITNESS: It is a controversial technique, but it 6 is used in academic settings, yes. 7 THE COURT: I mean, a lot of things in academics are 8 controversial, right? 9 THE WITNESS: Of course. 10 THE COURT: That's how professors get paid, create 11 controversy. All right. 12 BY MR. SHOWALTER: 13 Q You talk a lot about the term "prior art" -- 14 A Yes. 15 Q -- is that correct? 16 A Uh-huh. 17 Q Now, I'm familiar with prior art because it talks about 18 patents. 19 Are you saying the term "prior art" refers to copyrights 20 also? 21 A All the time. 22 Q All the time? 23 A All the time. 24 Q To copyrights or to copyright litigation? 25 A I do prior art research on a regular basis. It's to
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 246 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 111 of 149 Page ID #:2895 WILBUR - CROSS 247 1 determine whether something is unique or whether it's something 2 that is generic compositional devices or other things that have 3 already entered into the public domain and are available to 4 anyone, and it's a regular part of what I do. 5 Q Mr. Guzman has a copyright. You don't dispute that -- 6 A No. 7 Q -- do you? 8 A Huh-uh. 9 Q Aren't you involved in some cases in -- in taking songs and 10 then figuring out just how much you can change them to, in your 11 opinion, avoid a copyright infringement violation? You get 12 involved in that, don't you? 13 A I do. 14 Q You help people do that, don't you? 15 A No, no, no. Let me -- let me explain because this is very 16 important. As a musicologist -- 17 Q Well -- 18 THE COURT: Let her explain. 19 A -- I don't -- you asked. 20 As a musicologist, I never get involved in the creative 21 process. I never tell them what notes to play or what they 22 should do. I identify for them the problematic areas, and then 23 let them change and let me see if it passes muster. 24 BY MR. SHOWALTER: 25 Q So it happens a lot, doesn't it?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 247 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 112 of 149 Page ID #:2896 WILBUR - CROSS 248 1 A Yeah. 2 Q And you've seen that a lot, right? 3 A Yeah. 4 Q And you weigh in on people who are trying to skirt the 5 copyright law by changing up stuff just enough, don't you? 6 A I don't -- I don't allow -- I never clear it if it's -- if 7 that's what it's -- what it's about, no. 8 Q That's the whole point of you being involved in those cases 9 is help them change it enough or tell them it's changed enough 10 so, in your words, it passes muster, right? 11 A What I do is I have a form that asks if they have used a 12 reference track. Films do this all the time. They'll use a 13 reference track in the film, and then they'll get a composer at 14 the end to -- to do the score. 15 And they've already fallen in love with the piece of music 16 that they stuck in there. They want to have that piece of 17 music. Well, they have to license that piece of music if they 18 want to. If they get a composer and the composer makes it sound 19 too close to that other piece, I say that's not okay. 20 Q So -- 21 A So I'm like a policeman. 22 Q So they know -- well, so you're working with people who have 23 taken one piece of music and realized they could be infringers, 24 and so they derive another piece of music that's enough 25 different so you can tell them, "Hey, I think you're safe,"
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 248 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 113 of 149 Page ID #:2897 WILBUR - CROSS 249 1 right? 2 A I -- if it's different enough so that I can find two or 3 three other pieces that share the same similarities, then I say 4 it's okay. 5 Q But they -- they derived it from the work they started from, 6 and then you -- you try to find other samples out there to make 7 it sound okay, right? 8 A I don't try to make it sound okay. 9 Q Let me -- 10 A I simply make an opinion. 11 Q From -- whether the -- the derived work is different enough 12 from the original work to be -- to pass muster, fair enough? 13 A There has to be substantially enough difference that it's 14 not a problem. 15 Q Well, but it's still derived from the first one, but it's 16 changed enough. So you tell them, "Hey, I think it's different 17 enough. We're okay," right? 18 A I -- I would say that, you know, there's a difference 19 between inspiration and trying to rip something off, and I make 20 certain that it has to pass muster. 21 Q Well, but they started with one work, and they know they 22 can't use it for whatever reason. But they like it, so they're 23 going to derive something that's safe to use, true? 24 A As long as it -- as long as it is generic enough and doesn't 25 point specifically -- my rule is this: It can't point to a
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 249 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 114 of 149 Page ID #:2898 WILBUR - CROSS 250 1 particular piece of music, a particular song, a particular 2 artist, a particular sound, a particular group. And if it does 3 point specifically to one of those things, they've got a 4 problem. 5 Q So they need to change it a little more, right? 6 A If I don't pass it and they change it and they -- I get -- I 7 get to see that it's okay, fine. 8 Q So you get paid to disguise music, true? 9 A No. 10 Q You -- you get paid to help -- to participate with people 11 who are deriving a work, changing it enough so in your opinion 12 they can't -- can't be traced back or tagged with infringement 13 on the original work, true? 14 A No. That's actually not true at all. I give seminars to -- 15 to ad agencies to tell them how vulnerable they are and to -- 16 and because young people seem to feel that they can take 17 whatever they want off the Internet, I try to explain to them 18 that that's not okay. And so I try give them some framework in 19 which to work. 20 If they don't -- if they don't live up to that, then it 21 doesn't pass. 22 Q Now, when you're doing this analysis which you call prior 23 work to see if the derived composition is different enough from 24 the original one, isn't it best to use works in the same genre? 25 A I don't understand the question. Isn't it best to use --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 250 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 115 of 149 Page ID #:2899 WILBUR - CROSS 251 1 what do you mean? 2 Q Well, if you're trying to change up, say, a pop song to not 3 be like another -- 4 A Let me explain something -- 5 THE COURT: Let him finish his question. 6 BY MR. SHOWALTER: 7 Q If one of your clients is trying to change up a pop song so 8 it doesn't sound so much like another pop song, aren't you going 9 to do your prior art research in the pop song genre? 10 A Not necessarily, no. 11 Q It certainly would be helpful or useful, wouldn't it? 12 A Depends on the situation. 13 Q Wouldn't it be helpful to at least start in the genre that's 14 specific to that work and see if there's -- there's other 15 similar sounding songs? 16 A In most cases I would say that's true. 17 Q So in this case what -- what prior art research in the 18 Tejano genre did you do? 19 A Not very much. 20 Q You talked about these databases that you have access to -- 21 A Uh-huh. 22 Q -- and Google. 23 What prior art research did you do in your proprietary 24 databases? 25 A I looked up some of those patterns.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 251 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 116 of 149 Page ID #:2900 WILBUR - CROSS 252 1 Q Oh, you have a Tejano proprietary database? 2 A I don't think that you have special assignments in one genre 3 of music or other. They're obviously influenced by the 4 German -- Germans, so I think that that qualifies. 5 Q Well, we're talking about Tejano music in this case, right? 6 A So -- 7 Q Or a label that's been put on regional Mexican music. We're 8 talking about two songs of that genre, agreed? 9 A They are actually different from one another from that 10 standpoint, but yes. 11 Q They're songs of the same genre, true? 12 A Generally speaking. 13 Q Okay. And what prior art research did you do in this genre? 14 A I contacted somebody with a great deal of knowledge on it. 15 Q And what else? 16 A Not much else. 17 Q Okay. Hm. Did you talk to Reynaldo Ortiz? 18 A No. 19 Q Was there some reason you would not want to get information 20 from the purported composer to see from whence he drew his 21 inspiration? 22 A That wasn't my job. My job was to look at the musical facts 23 of these two works. 24 Q Your job was to try to find differences, right? 25 A No, that's not what --
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 252 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 117 of 149 Page ID #:2901 WILBUR - CROSS 253 1 Q That's what you were paid to do, isn't it? 2 A No. I look at the similarities, and I contrast and compare 3 them. 4 Q Well -- 5 A And, of course, I look at the differences, too. 6 Q What was -- pardon? 7 A And I look at the differences, but I focus on the 8 similarities. 9 Q So you didn't talk to the man who says he -- or that 10 Hacienda says composed it, did you? 11 A No. 12 Q You don't know if Ortiz got it from Mr. Guzman, do you? 13 A I don't have any idea. 14 Q Pardon? 15 A I don't have any idea. But I'm certainly told that he did 16 not. 17 Q You don't know if he heard it on the radio, do you? 18 A No. 19 Q Or heard it in a concert? 20 A I'm told that he did not. 21 THE COURT: By whom? 22 THE WITNESS: By the lawyers. 23 THE COURT: Have they talked to him? 24 THE WITNESS: I thought that they had, yes. I was 25 under the impression they had.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 253 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 118 of 149 Page ID #:2902 WILBUR - CROSS 254 1 BY MR. SHOWALTER: 2 Q And you don't know if they changed it up enough to disguise 3 it like these other clients that you work with, do you? 4 A You're asking if I know whether it's deliberately -- was 5 deliberately copied? 6 Q Or disguised, derived? 7 A I think that there's a lot that says it was not. 8 Q You can't testify that it was not -- that the "Cartas" 9 version that Hacienda released was not derived from "Triste," 10 can you? 11 A I think it's different enough so that it was not. 12 Q "Triste Aventurera" is certainly prior art to 13 "Cartas de Amor," isn't it? 14 A Yes. It came first. 15 Q Came first. Copyrighted first. Those similarities were 16 created by Guzman before the "Cartas" version, true? 17 A Yes. 18 Q When we're looking at a song, we don't just focus on this 19 little piece or that little piece and say, "Hey, look how 20 different they are." We need to look at it as a whole, don't 21 we? 22 A That's right. That's what I do. 23 Q We need to look at music. We need to look at lyrics, right? 24 A That's correct. 25 Q And you can have an infringement of -- got entirely
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 254 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 119 of 149 Page ID #:2903 WILBUR - CROSS 255 1 different lyrics, but the music is close, right? 2 A Correct. 3 Q That happens, doesn't it? 4 A Yes. 5 Q And you can have an infringement the reverse of that where 6 you've got entirely different music, but the lyrics are close, 7 true? 8 A True. 9 Q And whenever you're using material from another composition 10 that you've derived it from, you need to give credit to the 11 original work, right? 12 A It depends on whether it's in the public domain or whether 13 you -- it was independently created. 14 Q Well, if it's in the public domain, then you don't give 15 credit or don't reference it, right? 16 A Well, you should, but you don't often. 17 Q Well, do you? 18 A I certainly do. 19 Q Okay. So if it's in the public domain, you give credit for 20 it, right -- 21 A Yes. 22 Q -- as a source material? 23 A Right. I do. 24 Q And if it's not in the public domain, you need a license, 25 right, to create a derivative work, true?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 255 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 120 of 149 Page ID #:2904 WILBUR - CROSS 256 1 A Sure. 2 Q Now, you've copyrighted some works, right? 3 A Certainly have. 4 Q And the note patterns that are in your copyrighted work that 5 you're claiming to be the original composer of, those note 6 patterns appear in other songs, true? 7 A Yes. 8 Q The words that you use, maybe not put together the way you 9 put them together, but they appear in other songs, also, true? 10 A Yes. 11 Q But yet you claim -- and yet you claim to be a claimant -- 12 original composer of those works, true? 13 A If -- if there's another source that I can give credit to, I 14 do. 15 Q Do your songs have 5, 1, 7, 1 in them? 16 A Not that I can recall. 17 Q Have you done any prior art searches on the compositions 18 you've registered copyrights in? 19 A No. 20 Q Never? 21 A Never. 22 Q Don't you think that's kind of risky for someone that has 23 your kind of knowledge and access to all of that prior art? 24 Aren't you taking a chance? 25 A I think in this business everybody's taking a chance.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 256 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 121 of 149 Page ID #:2905 WILBUR - CROSS 257 1 Q But you're not worried about it enough to do the research 2 and haven't on any of your original compositions, right? 3 A I've never -- I've never been accused of any violation 4 whatsoever. 5 Q You're familiar with the case of -- Chuck Berry sued the 6 Beach Boys on their song -- Beach Boy song, "Surfing USA," and 7 his song was "Sweet 16." 8 A I'm not familiar with that case, no. 9 Q You know he won that case, right, even though it was all 10 different lyrics and different themes? 11 A I'm not familiar with the case. 12 Q Okay. How about a Marvin Gay's case against Robin Thick? 13 Are you familiar with that one? 14 A Yes. I'm very familiar with that one. 15 Q Are you involved as an expert in that one? 16 A I'm a consulting expert at this point. 17 Q For which party? 18 A Do I have to answer that? This is kind of confidential. 19 THE COURT: Why is it confidential, that you're 20 working on the case? Have you been designated as an expert? 21 THE WITNESS: I have not yet. I'm a consulting expert 22 at this time. 23 MR. GARCIA: I don't think that's appropriate, Judge, 24 if she's a consulting expert. 25 THE COURT: Well, I don't think it's your -- it's your
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 257 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 122 of 149 Page ID #:2906 WILBUR - CROSS 258 1 privilege to assert. It's hers. 2 Do you think you know? 3 BY MR. SHOWALTER: 4 Q Well, those songs are similar, aren't they? 5 A Which songs? 6 THE COURT: What's the relevance of this other case? 7 A Yes. Please. 8 MR. SHOWALTER: Well, it shows her bias. The only 9 thing in common with Marvin Gay's song or Robin Thick's song 10 "Blurred Lines" to Marvin Gay's song "Got to Give it Up" is the 11 beat, not even the music, not even the lyrics. It's just the 12 beat. 13 A I agree with you. 14 BY MR. SHOWALTER: 15 Q Well, you've just proved our case. Thank you very much. 16 A Wait a minute. Let me be sure I -- 17 THE COURT: I'm confused, Mr. Showalter. You're 18 saying -- you're saying in that case she's a -- you think she's 19 with the plaintiff? 20 MR. SHOWALTER: I'm just asking her about the 21 similarities of those songs, and the mere fact that the main 22 commonality is a beat -- not the music, not the lyrics, but just 23 the beat is enough, in her opinion, to say they're substantially 24 similarity. 25 A Whoa. That's just the opposite of what I just said. No.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 258 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 123 of 149 Page ID #:2907 WILBUR - CROSS 259 1 You mis- -- I know that you wanted me -- to hear that answer. 2 But now I will tell you that I'm on the side of Robin Thick. 3 BY MR. SHOWALTER: 4 Q So you're -- you're going to be taking the position that 5 it's not similar and he didn't infringe on that prior 6 composition? 7 A He was clearly inspired, but he did not infringe, no. 8 There's a difference between infringe -- between infringement 9 and inspiration. 10 Q So -- so how do you know that Ortiz wasn't -- was either 11 inspired or infringed on Guzman? 12 A I have no way of knowing what the story is with him because 13 I've never met him. 14 Q Now, in your search of prior art, you said you did a Google 15 search, right? 16 A Uh-huh. 17 Q I remember seeing somewhere in your report you got a -- 18 like, 4 million hits when you put in what? You said love and 19 letters, something like that. 20 What'd you put into Google? 21 A Love letter compassion. 22 Q Okay. And did you put -- 23 A And lyric. 24 Q Excuse me. Go ahead. 25 A Love letter, compassion and lyric.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 259 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 124 of 149 Page ID #:2908 WILBUR - CROSS 260 1 Q Lyric, okay. 2 And did you put those in in English or Spanish? 3 A I did it in English. I also did the Spanish versions as 4 well. 5 Q Of those three words? 6 A Yes. 7 Q Okay. 8 A And all three spellings of compassion as well. 9 Q Very good. Okay. Now, did you put a phrase -- did you put 10 this into Google or any of your proprietary search engines? 11 A I did, and I did not find them. 12 Q So in the entire universe -- the entire universe of music 13 for all time, you put this -- 14 A I think -- 15 Q -- you put in this phrase in Spanish, right? 16 A Correct. 17 Q And you found no other songs that had these lyrics other 18 than the infringing work, true? 19 A That is correct. 20 Q Now, did you -- did you translate this to English, or did 21 somebody else do that for you? 22 A Somebody else who works with me on Spanish projects. 23 Q They're Spanish-fluent, true? 24 A Yes. 25 Q Okay. And did you put the English translation of this into
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 260 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 125 of 149 Page ID #:2909 WILBUR - CROSS 261 1 any and all available search engines to see if you could find 2 this anywhere? 3 A I did, but -- 4 Q And the results? 5 A I did not find it. 6 Q In the entire universe of music, Spanish and English, these 7 lyrics don't appear anywhere except in the infringed work, true? 8 A I don't know. I don't know if that's true. There's a lot 9 of oral tradition out there, and oral tradition means works that 10 have never been documented and are in the folk tradition in 11 Mexico, which is really a significant problem for Mexican works. 12 Q All right. Well, you -- if you would have found it, we'd 13 have heard about it, right? 14 A Absolutely. 15 Q You didn't find it, did you? 16 A No. 17 Q But you looked, didn't you? 18 A Yep. 19 Q In one of your graphs or charts, you said you disregarded 20 filler notes to -- I don't even remember the chart it was, but 21 to show the note patterns. 22 Do you remember which one I'm talking about? 23 A With the numbers on it? 24 Q I think so. 25 A Okay.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 261 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 126 of 149 Page ID #:2910 WILBUR - CROSS 262 1 Q You did disregard some of the filler notes, right, for the 2 purposes of that analysis? 3 A I believe Dr. Gross did the same thing. 4 Q I understand. You -- and I'm not criticizing you for doing 5 that. I'm just asking you to agree with me that you did 6 disregard some filler notes, true? 7 A Yes. 8 Q And the reason he did that and you did that is so it would 9 be easier to see -- to make your comparisons, true? 10 A Yes. 11 Q Now, you said these songs were a little bit different in 12 length. 13 You know what a measure of rest is -- a rest measure? 14 A Yes. 15 Q You could add a measure of rest, make a song a little bit 16 longer -- or the same song a little bit longer, but it would 17 still be the same song, right? 18 A Correct. 19 Q So you're -- you've got -- seem to have a criticism of 20 Dr. Gross because he took a measure out in order to make the 21 comparison easier between the two songs, right? You remember 22 that criticism? 23 A That wasn't the criticism. You misunderstood, obviously. 24 Q Well, what was it -- you're criticizing him for taking out a 25 measure, right?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 262 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 127 of 149 Page ID #:2911 WILBUR - CROSS 263 1 A I criticized him for putting the first measure of "Triste" 2 onto -- onto a measure that had pickup notes. By moving it over 3 in that way, that was not the way that chorus would have 4 started. 5 Q Of course, if you don't make that minor shift, it -- it 6 sounds like a mess on top of each other. But if you do make 7 that minor shift so you can be comparing apples to apples, it's 8 pretty easy to hear the similarity, isn't it? 9 A I stick with what I said earlier. 10 Q So you can -- you can add and take out filler notes if it 11 fits your purpose to synchronize the comparison, but when he 12 does it to make it obvious how similar it is, you think it's 13 just absolutely disingenuous, right? 14 A What he did was disingenuous, I believe. You don't -- you 15 don't put the start of something a measure early over pickup 16 notes. That's not the way it's done. He certainly understands 17 what pickup notes are, and he certainly did it in the verse, 18 so -- 19 Q Well -- go ahead. 20 A -- he should have known better. 21 Q Don't you think it's helpful to weed out distractions and 22 get down to the -- the DNA of the song to see how similar it is? 23 A Not by -- not by moving and shifting things around or using 24 other chord tones to replace the notes in the melody, no. I 25 don't think that that's legitimate.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 263 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 128 of 149 Page ID #:2912 WILBUR - CROSS 264 1 Q I'm talking about the shift right now. 2 All he did was, like, shift it so it would lock up, right? 3 A He shifted a measure early -- 4 Q Right. He shift -- 5 A -- in one case so that it would match up. 6 Q He shifted one measure, right? 7 A Yes. That's right. 8 Q And then it all matched up, didn't it? 9 A No, it doesn't match up. The chords matched up. 10 Q And don't you shift measures in these cases where you work 11 for your clients? 12 A Never. 13 Q Never shift a measure? 14 A Never. 15 Q So after he shifted the measure, Dr. Gross did, then his 16 similarities became striking, didn't they? 17 A No. Absolutely not. He simply put them in such a way that 18 the chords would sound the same, and, therefore, they would -- 19 they would sound more harmonious. 20 Q Well, consonant substitution is one technique that an 21 infringer could employ to create a derivative work that sounds 22 different, true? 23 A I certainly never heard of it. 24 Q You could swap out notes in a key, right, intentionally to 25 make it sound a little different?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 264 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 129 of 149 Page ID #:2913 WILBUR - CROSS 265 1 A I'm not in the business of -- of -- of, you know, making 2 something sound different, you know, no. I'm not in the 3 business of just -- you know, that kind of count. 4 Q What? 5 A I'm trying to find the words here. 6 I'm not in the business of disguising works. I'm in the 7 business of saying whether a work is substantially similar or 8 whether it really is too close to something else that needs to 9 be changed. 10 Q I'm not saying you're in the business of doing it, but you 11 represent clients who are doing it and getting your blessing on 12 a derivative work, basically? 13 A No. If it's a derivative work, they do not get my blessing. 14 They only get my blessing if it doesn't point specifically to 15 something else. 16 Q They've got to change it up enough, right? 17 A They've got to either throw it out and start again or change 18 it enough so that it doesn't point to something specific. 19 Q Would you play -- I'm sorry. Would you play "Twinkle, 20 Twinkle, Little Star" for us. 21 A (Witness complies.) 22 Q Okay. Let's take the first phrase of that, and at the end 23 of the first phrase, substitute a consonant for us. 24 A After the first phrase? 25 Q At the end of the first phrase -- last note of the first
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 265 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 130 of 149 Page ID #:2914 WILBUR - CROSS 266 1 phrase. 2 A (Witness complies.) 3 Q Okay. Now, would you clear that by somebody who liked -- 4 wanted to use "Twinkle, Twinkle, Little Star"? 5 A Well, "Twinkle, Twinkle, Little Star" is in the public 6 domain, so there's really no issue. 7 Q Okay. 8 THE COURT: Forgetting that, though. 9 BY MR. SHOWALTER: 10 Q Can you -- let's assume it's a copyrighted work, fair 11 enough? 12 A Yeah. 13 Q Okay. Would you clear that if they did a consonant 14 substitution? 15 A No, I wouldn't, because I think that this (playing keyboard) 16 is very recognizable. 17 Q Well, what about the last -- the last note? 18 A So if you changed it (playing keyboard), I mean, it's still 19 "Twinkle, Twinkle, Little Star." 20 Q Okay. 21 A Because you have (playing keyboard). You know, you have 22 six -- six notes. 23 Q You played the phrase for us, right, and you -- 24 A Uh-huh. 25 Q -- substituted a consonant for the last note of that phrase,
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 266 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 131 of 149 Page ID #:2915 WILBUR - CROSS 267 1 right? 2 A Well, actually, the last one was not a consonant. It was a 3 dissonant. 4 Q It was a dissonant. Okay. 5 Was it part of the chord, though? 6 A No. 7 Q Okay. Now, play "Twinkle, Twinkle, Little Star" for us 8 again, please. 9 A (Witness complies.) 10 Q Okay. Now, play that with [sic] us, and add a third harmony 11 to it. 12 A Okay. (Playing keyboard.) 13 Q Now -- 14 A So -- okay. So now we have the harmony part. 15 Q Maybe I'm -- maybe I misrequested my -- my song selection. 16 Play "Twinkle, Twinkle, Little Star" and put -- and add a 17 parallel line above -- a third above it. 18 A (Witness complies.) 19 Q Okay. Now, take out the melody and just play the parallel 20 motion part. 21 A (Witness complies.) 22 Q And would that pass your -- your copyright clearance muster? 23 A It probably would. 24 Q Pretty close, isn't it? 25 A No. It's in -- it's certainly -- it's minor, (playing
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 267 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 132 of 149 Page ID #:2916 WILBUR - CROSS 268 1 keyboard). 2 I mean, again, what are you driving at? 3 Q Well, that's derived from "Twinkle, Twinkle, Little Star," 4 isn't it? 5 A Yes. 6 Q Now. 7 A But if it's also similar to a lot of other things or doesn't 8 point to it, then it's okay. 9 Q Still derived from it, right? 10 A Yes. 11 Q Now, when you did your prior art comparison, you went back 12 to Beethoven; is that correct? 13 A Yes. 14 Q And you -- you seem to focus on four notes, right, not the 15 whole song? 16 A Well, that's because those were the notes that were common. 17 After that, they were different. 18 Q You know how we -- you put this (indicating) on a search and 19 found not one identical comparison anywhere else in the universe 20 except for the infringing work? Remember that? 21 A Right. 22 Q Those questions? 23 THE COURT: And for the record, he was holding up the 24 four verses of the lyrics -- or four lines of the lyrics. 25 BY MR. SHOWALTER:
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 268 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 133 of 149 Page ID #:2917 WILBUR - CROSS 269 1 Q Did you put in more than the four notes that you went back 2 to Beethoven? 3 How many notes did you put in of "Triste Aventurera" to 4 find other songs similar to that one? 5 A I used the main theme. 6 Q You're talking about the four notes? 7 A 5, 1, 7, 1, 7, 1, and I found two easy examples for that 8 that I already sang. 9 Q Well, I'm -- I'm not stopping at the 5, 1, 7, 1. 10 Beyond that -- why didn't you put in the rest of it to see 11 how similar -- what other songs popped up as similar? 12 A I don't understand your question. 13 Q Why didn't you put in more notes than just four notes to see 14 if there are all these songs out -- 15 A There were more than four notes. 16 Q Excuse me. 17 THE COURT: Let him finish his question. 18 THE WITNESS: Okay. 19 BY MR. SHOWALTER: 20 Q Why didn't you put in more than four notes to see if there 21 were so many songs out there, like you say, that are so similar 22 to "Triste Aventurera"? Why didn't you do that? 23 A I took the main theme of all -- of the -- the two that were 24 the most similar, the copyrighted version and "Cartas," I took 25 those melodies, and I found examples of those melodies in the
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 269 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 134 of 149 Page ID #:2918 WILBUR - CROSS 270 1 public domain. 2 Q The 5, 1, 7, 1? 3 A 5, 1 -- absolutely. 4 Q That's -- 5 A (Playing keyboard). That's not four notes. 6 Q Five notes? 7 A (Playing keyboard). Six notes. 8 Q Okay. Why did you stop there? That's my question. 9 Why didn't you go ahead and put in the whole first verse to 10 see what similarities there were -- 11 A Well, first of all -- 12 Q -- in other songs out there? 13 A -- the rest of the song is different. The rest of the line 14 was different. It was all in a downward direction, but it 15 didn't have any similarities. 16 Q And it didn't harmonize? 17 A No. I mean -- 18 Q Wasn't -- pardon? 19 A You know... 20 Q It did harmonize, didn't it? 21 A I'd have to look at it again. 22 Q After all this work, you'd have to look at it again? 23 A Well, I mean, you know, if you want to talk about consonant 24 substitutions. 25 Q Let's look at your report here -- or a piece of it. This is
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 270 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 135 of 149 Page ID #:2919 WILBUR - CROSS 271 1 your -- you're going back to Beethoven to show us how similar 2 these two songs are, true? Is that part of this exercise here? 3 A Correct. 4 Q Now, this is a phrase, right (indicating)? 5 A Correct. 6 Q And this is a phrase, right (indicating)? 7 A Correct. 8 Q And in "Cartas," this is a phrase, right (indicating)? 9 A Uh-huh. 10 Q Is that a yes? 11 A Yes. 12 Q And this is a phrase, right (indicating)? 13 A That's correct. 14 Q Now, on Beethoven, that's -- it's not two phrases. That's 15 one complete phrase, isn't it? 16 A That's correct. 17 Q And the two Tejano songs end on the tonic note, right? 18 A The two -- 19 Q "Triste" and "Cartas" end on a tonic? 20 A End on the tonic? What are you talking about? In the -- in 21 the phrase -- they end on the tonic in the phrase, or they end 22 on the tonic in the piece? 23 A This note right now (indicating). 24 A That's a tonic, but that's not a tonic on the bottom, no. 25 Q That's not a tonic?
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 271 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 136 of 149 Page ID #:2920 WILBUR - CROSS 272 1 A No, it's not. 2 Q Okay. 3 A That's -- that's an E, and the top one is a C. 4 Q And the Beethoven ends on a dominant, right? 5 A It ends on a B. 6 Q Is that the dominant note? 7 A In this case it is. 8 Q Okay. And does "Cartas" end on a dominant? 9 A No. 10 Q So these notes here in "Triste" and "Cartas" are pickup 11 notes, aren't they? 12 A They are. 13 Q And there's no pickup note in Beethoven, is there? 14 A There certainly is. 15 Q At the end of this -- this second theme? 16 A There certainly is at the front, at the beginning. That's a 17 pickup note. 18 Q Well, we're looking right here (indicating). We're trying 19 to compare apples to apples here, Doctor. 20 A Actually -- actually -- 21 Q There's not -- 22 A They probably -- there probably -- there might very well be. 23 I stopped there. 24 Q Well, this is all we have to go on, so that's all I'm 25 looking at.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 272 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 137 of 149 Page ID #:2921 WILBUR - CROSS 273 1 A I actually do think there is a pickup into the next phrase. 2 Q Well, there's not a pickup in this measure, true? 3 A No, because it wasn't what I was comparing. 4 Q There's not a pickup in this measure, true? 5 A That's correct. 6 Q But there are pickup notes in "Triste" and "Cartas," true? 7 A Correct. 8 Q So they're similar, but as far as your prior art reference 9 to Beethoven just in that one line, there are several 10 dissimilarities, true? 11 A It served the purpose of showing that the four notes that 12 were in common were the same in Beethoven and appeared in the 13 same place twice. 14 Q The song is more -- more than about four notes, agreed? 15 A Absolutely. 16 Q It's about -- 17 A I found other examples. 18 Q It's about lyrics, some of which are identical letter for 19 letter except for one letter, and it's about music that has 20 similarities, true? 21 A I don't think that it's identical except for one letter. 22 I'd have to look at that again, but I don't think so. 23 Q Do you have something to look at there? 24 A I do. 25 (Sotto voce discussion between Mr. Showalter and Mr. Leal.)
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 273 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 138 of 149 Page ID #:2922 WILBUR - CROSS 274 1 A There are two words that are different. One is -- two words 2 are plural, and two words are singular. 3 BY MR. SHOWALTER: 4 Q Did you have this done by a certified translator? 5 A No. I had it done by a doctoral student who is fluent in 6 Spanish. 7 Q Do -- are they a certified translator? 8 A No. 9 Q You know on something like this it can be pretty important? 10 Agreed? 11 A Well, if provided with -- I mean, I'd be happy to review 12 something else if you think this is -- this is not accurate. I 13 asked that it be translated as literally as possible. 14 Q Would you agree that these lyrics are strikingly similar 15 between the two songs? 16 A I would say that they are very similar. 17 Q Strikingly? Would you give me that? 18 A No. 19 Q Just because of those two "S"s? 20 A They're -- they're substantially similar. 21 Q But you won't go -- 22 THE COURT: But -- they're not identical because of 23 the two "S"s -- 24 THE WITNESS: They're not identical. 25 THE COURT: -- but isn't "strikingly similar" between
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 274 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 139 of 149 Page ID #:2923 WILBUR - CROSS 275 1 "identical" and "substantially similar"? 2 THE WITNESS: Isn't strikingly similar -- what did you 3 say again? 4 THE COURT: On the spectrum you've got substantially 5 similar -- 6 THE WITNESS: Well, I mean -- 7 THE COURT: -- and you've got identical. Strikingly 8 similar is somewhere between those two, right? It's not -- it's 9 not quite identical. 10 THE WITNESS: No, no, no. Striking is a legal term 11 that is very specific. It means that there is no way that you 12 could independently come up with something on your own. 13 THE COURT: Right. My point is: It's less than 14 identical, right? 15 THE WITNESS: It's less than identical. 16 THE COURT: I mean, just say identical, right? I 17 mean, why do they come up with this legal term "strikingly 18 similar" if it meant identical? 19 THE WITNESS: Because strikingly similar has a very 20 specific purpose. I mean, it's basically to say that there's no 21 way that this person could have come up with this without 22 knowing the other piece. 23 THE COURT: I know what it means. 24 THE WITNESS: But that's -- 25 THE COURT: Your testimony is it is the same as
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 275 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 140 of 149 Page ID #:2924 WILBUR - CROSS 276 1 identical. In other words, I can rephrase this. To be 2 strikingly similar, something has to be identical. Is that your 3 testimony? 4 THE WITNESS: No. My -- I guess I'm trying to say 5 that the -- that -- 6 THE COURT: Well, you just said -- 7 THE WITNESS: Strikingly similar -- strikingly similar 8 means that it had to come from that other source, and I don't 9 have the answer to that. I -- I -- 10 THE COURT: So you're saying even -- something could 11 be identical and still not strikingly similar because there may 12 have been some, you know, extreme coincidence? Is that what 13 you're saying? 14 THE WITNESS: I'm saying that there could have been 15 coincidence, right. 16 THE COURT: So it's a higher standard than identical. 17 THE WITNESS: The two -- the two phrases are very 18 close, obviously. You know, I mean, the -- that doesn't take 19 rocket science. I'm not -- I'm not trying to delude anybody, 20 and I've already said that they're similar. 21 MR. SHOWALTER: I'm going to pass the witness, 22 Your Honor. 23 THE COURT: All right. Anything, Mr. Cole? 24 MR. COLE: Just a couple of questions. 25 CROSS-EXAMINATION
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 276 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 141 of 149 Page ID #:2925 WILBUR - CROSS/REDIRECT 277 1 BY MR. COLE: 2 Q Did you make any attempt to compare the version of "Cartas" 3 that was filed with the Copyright Office to the one that was 4 performed by my client, Mr. Martinez? 5 A Let me just be sure I understand that. 6 Are you talking about the third song that I never heard 7 except in the courtroom? 8 Q I don't recall what that song would be, but there was a 9 recording of "Cartas" that had one person playing a guitar. 10 Did you hear that song? 11 A I never heard that song, no. 12 Q Okay. 13 MR. COLE: That's all I have, Your Honor. 14 THE COURT: All right. 15 MR. GARCIA: Quick response, Your Honor. 16 THE COURT: Sure. You can use all your time left for 17 redirect that you want. 18 REDIRECT EXAMINATION 19 BY MR. GARCIA: 20 Q The "Beer Barrel Polka" song -- 21 A Yes. 22 Q -- by Narciso -- who is that by? 23 A It's in my report. It's a German song. 24 Q Narciso Martinez? 25 A Oh, yeah.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 277 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 142 of 149 Page ID #:2926 WILBUR - REDIRECT 278 1 Q Is -- was that a -- is that Latin music? And 2 "La Cucaracha," was that a Latin -- Latin music? 3 Did you do -- how did you come up -- where did those, when 4 you were doing your search, but -- I thought you -- heard you 5 didn't do any search in the Latin music, or how did -- 6 A Right. Well, I certainly -- I certainly did -- did, and 7 that was one of the ones that I did, and you're absolutely 8 right. 9 That was a Spanish song that I -- that I -- "Beer Barrel 10 Polka" was done by -- yes. I had -- it had quite a bit of 11 similarity. 12 Q So your search wasn't limited to English pop. It was -- 13 A No, not by any means. 14 Q It was a global search? 15 A Right. 16 Q Okay. 17 A And I did -- and I did listen to some songs that Daniel 18 Sheehy sent to me, one of which I thought was -- was quite 19 close. But because it came reasonably late, I didn't have time 20 to do the analysis. 21 Q That -- 22 A That predated -- 23 Q -- the Tejano songs? 24 A Tejano songs, yes. 25 MR. GARCIA: Pass the witness, Your Honor.
Case 6:12-cv-00042 Document 122 Filed in TXSD on 04/04/14 Page 278 of 320 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 143 of 149 Page ID #:2927 WILBUR - RECROSS 279 1 THE COURT: Anything else, Mr. Showalter? 2 RECROSS-EXAMINATION 3 BY MR. SHOWALTER: 4 Q So you didn't identify any other Tejano song that had even 5 the -- the similarities that you concede other than "Cartas de 6 Amor" to "Triste," true? 7 A I'm sorry. I didn't understand the question. 8 Q You haven't identified any other Tejano song that is as 9 similar to "Triste" as "Cartas," true? 10 A I did get some late, and I have not had a chance to 11 completely compare them. And I did think that one actually was 12 quite close, but I didn't do it. 13 Q You haven't identified any other song, have you? 14 A Not to this time, no. 15 Q Thank you. 16 MR. LEAL: Quick moment, Your Honor. 17 (Sotto voce discussion between Mr. Showalter and Mr. Leal.) 18 MR. SHOWALTER: Nothing further, Your Honor. 19 THE COURT: All right. Anything else from anyone 20 else? 21 MR. COLE: No, Your Honor. 22 MR. GARCIA: No. 23 THE COURT: All right. You're excused, ma'am. You 24 can step down, free to go, or you can stay if you like. 25 Call your next witness.
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Exhibit 15 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 145 of 149 Page ID #:2929
>> MUSICOLOGY SERVICES FOR MUSIC SUPPLIERS + ADVERTISERS
WWW.MUSIODATA.COM 252 Seventh Ave. Suite 17G New York, NY 10001 TEL 212-217-2566 | FAX 212-217-2567 swilbur@musicolgy.com >> IF YOU WISH TO REDUCE THE RISK OF: your original work i nadvertentl y i nfri ngi ng another work your musical work getting too cl ose to a work the composer was asked to sound l i ke your piece of music soundi ng too f ami l i ar or reminiscent of a well known singer or group your version of a public domain song i nfri ngi ng a copyri ghted arrangement of the public domain song the popular song you got a synch license to use soundi ng too much l i ke the popular recording your library or source music soundi ng too si mi l ar to a particular artists or groups sound using music which has negative connotations in foreign cultures. >> OR IF YOU NEED TO: determine what the musi cal facts are determine whether probl emati c si mi l ari ti es support an i nfri ngement cl ai m, a sound- al i ke claim, or a combination of the two get an expert opi ni on as to whether the similarities between two works constitute problematic similarities or are as a result of common stylistic patterns or common compositional devices research the publ i c domai n status of a particular song or arrangement of a public domain song obtain pri or art research that is thorough, exhaustive, and accurate do a sampl e anal ysi s in order to determine whether or not a sample or possible sample can be shown to have come from the same recorded source find a musi c expert who, if in agreement with your claims, can assist in all music related aspects from tri al preparati on through l i ti gati on, and offer graphi c charts and musi cal demonstrati ons suitable for presentation to a non- musi cal j udge and j ury >> SERVICES
MUSICOLOGICAL ANALYSIS A thorough comparison of two or more pieces of music which examines all pertinent music and vocal elements including melody, harmony, rhythm, instrumentation, lyrics, musical style, samples, vocal sound and style, etc. in order to determine if there are problematic similarities between the works. An analysis is often called for if: the work is reminiscent of another work; the composer has been asked to create a work that sounds like another; or in cases where litigation is being considered or has been initiated. Works that sound very similar might only share permissible stylistic similarities with many other works while works that sound different may have borrowed copyrighted material in ways that are not at first obvious. Musiodata can help render a professional opinion as to what elements are protected by music copyright and what elements are not. Even when there appear to be musical similarities, it is sometimes not possible to render an opinion until some prior art research has been attempted (see below). In addition, if infringement is suspected prior to release or broadcast, Musiodata can point to those areas that need changing in order to avoid problematic similarities. * Reports are generally emailed or discussed verbally within five business days or on a rush basis.
ORIGINAL MUSIC CLEARANCE As a preventative measure to minimize the risk of litigation, all musical, vocal, and sound elements of the piece of music in question are reviewed to assess their originality. It is the unique combination of elements, some of which can be common or generic, that defines originality. If an infringement or sound-alike problem is suspected, changes or additional research might be warranted. In that case, you would be contacted immediately to discuss what is needed and any additional costs. Once a piece of music is clear to air, a clearance document is generally emailed to you as soon as possible but certainly within five business days, or within 24 hours if a rush report is needed.*
Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 146 of 149 Page ID #:2930 SAMPLE ANALYSIS There is increasing litigation today regarding samples or potential samples. Using a sample, or the digital reproduction of a part of a work from another recording, is a common practice today, especially in hip-hop music. Producers normally license and pay for the use of samples. If there is a question as to whether or not a sample was used in a particular recording, Musiodata will perform a thorough forensic analysis and compare the sounds using advanced technology and side-by-side comparisons to attempt to determine if they can be proven to be from the same source. In those cases where a sample license was denied, Musiodata can offer musical guidance as to what is permissible to use.*
PUBLIC DOMAIN RESEARCH Research can often determine if a piece of music is in the public domain and/or find a public domain version of the piece. Music in the public domain is no longer protected by copyright laws and can be used without permission. However, since different countries around the world have differing and changing copyright laws, it is not always possible to say with certainty a work is PD worldwide. In some of these cases, doing a risk assessment is in order. In order for a work to be in the public domain, it must exist in a public domain source. Works can be generally considered to be in the public domain if several examples of the work sharing the same elements can be found in well-respected and reliable sources. However, many popular versions or arrangements of public domain musical works are NOT in the public domain. Because a piece of music is labeled as "traditional" does not necessarily mean it can be used without any legal restrictions. This is a very thorny area and Musiodata can help clarify what versions are in the public domain and/or who has ownership of a particular work.*
PRIOR ART RESEARCH Prior art research is often an extensive and exhaustive search for examples that predate the two works in question and share the same elements ( a specific melody, lyric, etc.) If the combination of similar elements can be found in prior art, the original elements cannot have originated in either of the works being compared. In a situation where someone is accused or could potentially be accused of infringement, the presentation of prior art is an essential component of a good defense.
COPYRIGHT VALUATION Musiodata can determines the value of copyright by analyzing comparable copyrights and determining what those works earned in circumstances similar to the one in question.
SONG RESEARCH AND CONFIDENTIAL LICENSING INQUIRIES Song research can determine the authors, publishers, name and status of a piece of music, as well as its availability. Musiodata can assemble lists of appropriate songs for a specific advertising campaign, film, or other use, and follow up with confidential licensing inquiries.
VERIFICATION OF ORIGINALITY Musiodata will attempt to cite two or three other songs that share the same elements of concern as those in an original piece of music in order to determine if there has been substantial borrowing in the creation of the piece, or if it employs permissible stylistic elements shared by many works.
TRIAL PREPARATION & EXPERT WITNESS If, after careful review and analysis of the musical facts, Sandy Wilbur agrees with the point of view of the inquiring parties, she can assist them in all phases of the litigation process such as analyzing other expert reports, helping outline deposition questions, researching prior art, providing expert testimony, and preparing graphic charts, audio comparisons and musical demonstrations that are suitable for presentation to a non-musical judge and jury. She has had considerable e experience working with legal teams, helping them understand the musical theories and subtleties involved in a particular case.*
CREATIVE SUPPORT Having been an Associate Music Director at a major advertising agency, Sandy Wilbur can help you with music direction by researching appropriate songs, artists, composers, or arrangers for film, TV, or other projects.
*Sandy Wi l bur does not offer l egal advi ce and recommends consul ti ng an attorney i n conj uncti on wi th expert musi c anal ysi s and musi col ogi cal opi ni ons. Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 147 of 149 Page ID #:2931
Exhibit 16 Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 148 of 149 Page ID #:2932
Paul H. Duvall (SBN 73699) E-Mail: pduvall@kingballow.com KING & BALLOW 6540 Lusk Blvd., Suite 250 San Diego, CA 92121 (858) 597-6000 Fax: (858) 597-6008 Attorneys for Defendants and Counter- Claimants Frankie Christian Gaye and Nona Marvisa Gaye Richard S. Busch (TN BPR 014594) (pro hac vice) E-Mail: rbusch@kingballow.com KING & BALLOW 315 Union Street, Suite 1100 Nashville, TN 37201 (615) 259-3456 Fax: (615) 726-5417 Attorneys for Defendants and Counter- Claimants Frankie Christian Gaye and Nona Marvisa Gaye
Mark L. Block (SBN 115457) E-Mail: mblock@wargofrench.com WARGO & FRENCH LLP 1888 Century Park East; Suite 1520 Los Angeles, CA 90067 (310) 853-6355 Fax: (310) 853-6333 Attorneys for Defendants and Counter- Claimants Frankie Christian Gaye and Nona Marvisa Gaye Paul N. Philips (SBN 18792) E-Mail: pnp@pnplegal.com The Law Offices of Paul N. Philips 9255 West Sunset Boulevard West Hollywood, CA 90069 (323)813-1126 Fax: (323) 854-6902 Attorney for Defendant and Counter-Claimant Marvin Gaye III
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
PHARRELL WILLIAMS, an individual; ROBIN THICKE, an individual; and CLIFFORD HARRIS, JR., an individual,
Plaintiffs,
vs.
BRIDGEPORT MUSIC, INC., a Michigan corporation; FRANKIE CHRISTIAN GAYE, an individual; MARVIN GAYE III, an individual; NONA MARVISA GAYE, an individual; and DOES 1 through 10, inclusive,
Defendants.
_______________________________
AND RELATED COUNTERCLAIMS Case No. CV13-06004-JAK (AGRx) Hon. John A. Kronstadt
FILED UNDER SEAL
EXHIBIT 16 TO THE DECLARATION OF RICHARD S. BUSCH IN SUPPORT OF COUNTER- CLAIMANTS OPPOSITION TO PLAINTIFFS AND COUNTER- DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT
Case 2:13-cv-06004-JAK-AGR Document 122-2 Filed 09/15/14 Page 149 of 149 Page ID #:2933 General Information Court United States District Court for the Central District of California; United States District Court for the Central District of California Nature of Suit Property Rights - Copyrights[820] Docket Number 2:13-cv-06004 Pharrell Williams et al v. Bridgeport Music Inc et al, Docket No. 2:13-cv-06004 (C.D. Cal. Aug 15, 2013), Court Docket 2014 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 150