Bryan Pringle v. William Adams Jr et al
Filing
192
DECLARATION of Alex Norris in Opposition to MOTION for Summary Judgment 159 filed by Plaintiff Bryan Pringle. (Holley, Colin)
1 Dean A. Dickie (appearing Pro Hac Vice)
Dickie@MillerCanfield.com
2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
Koppenhoefer@MillerCanfield.com
3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
225 West Washington Street, Suite 2600
4 Chicago, IL 60606
Telephone: 312.460.4200
5 Facsimile: 312.460.4288
6 George L. Hampton IV (State Bar No. 144433)
ghampton@hamptonholley.com
7 Colin C. Holley (State Bar No. 191999)
cholley@hamptonholley.com
8 HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
9 Corona del Mar, California 92625
Telephone: 949.718.4550
10 Facsimile: 949.718.4580
11 Attorneys for Plaintiff
BRYAN PRINGLE
12
13
UNITED STATES DISTRICT COURT
14
CENTRAL DISTRICT OF CALIFORNIA
15
SOUTHERN DIVISION
16 BRYAN PRINGLE, an individual,
17
18
Plaintiff,
v.
19 WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
20 JAIME GOMEZ, all individually and
collectively as the music group The
21 Black Eyed Peas, et al.,
22
23
24
25
26
27
28
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. SACV 10-1656 JST(RZx)
DECLARATION OF ALEX NORRIS
IN OPPOSITION TO
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
DATE: January 30, 2012
TIME: 10 a.m.
CTRM: 10A
1
I, Alex Norris, declare as follows:
2
1.
I have personal knowledge of the facts set forth in this Declaration.
3 If called as a witness I could and would testify competently to the following
4 facts.
5
2.
I was requested to prepare a musicological analysis of four different
6 tracks encompassing “Take A Dive” (two versions) by Bryan Pringle and “I
7 Gotta Feeling” (two versions) by the Black Eyed Peas. The reason for this
8 analysis was to ascertain the similarities, if any, between two versions of “I
9 Gotta Feeling” and two versions of “Take A Dive.” With this analysis, I was
10 asked to examine the following criteria: (a) whether there are any striking or
11 significant similarities between these four tracks; (b) whether these similarities
12 coincide with elements of the songs that are protectable or non-protectable; (c)
13 whether the similarities in the protectable elements are strong enough in
14 importance or volume to demonstrate that copying of “Take A Dive” had
15 occurred as to “I Gotta Feeling” or whether the similarities could have been
16 coincidental, and (d) if there are similarities in the non-protectable elements that
17 support evidence of copying.
18
3.
In my analysis, I compared recordings from the internet, from tracks
19 I listened to and reviewed, and my own transcriptions of sections of all four
20 works that are relevant.
21
4.
My analysis is in line with what I understand to be an allowed
22 format for claiming substantial similarity employed by the court, and should be
23 read and understood as meeting those declarations.
24
5.
Based on my review and analysis, it is my professional opinion that
25 Track #1 (“Take A Dive”), and Tracks #3 and #4 (“I Gotta Feeling”), are
26 substantially similar, if not identical. The similarities in both songs are
27 significant enough in volume, content, and peculiarity that the Black Eyed Peas
28
1
1 could not have written “I Gotta Feeling” without first having listened to and
2 then copied a certain portion of “Take A Dive.” Accordingly, I also believe that
3 these similarities could not have been coincidental.
4
6.
Originally, I viewed internet links via YouTube to two songs. One
5 link was to Bryan Pringle’s “Take A Dive” recorded in 1999 and the other was
6 to the Black Eyed Peas “I Gotta Feeling.” Afterwards, I listened to and reviewed
7 a CD recording that contained a remix of the song “I Gotta Feeling” without the
8 lyrics. Additionally, I heard a CD entitled “Deadbeat Club” from 1998, which
9 contains 18 of Bryan Pringle’s songs, including a version of “Take A Dive” with
10 lyrics, but without a critical guitar hook that I had heard before in a previous
11 version. After reviewing both the version of “Take A Dive” that I heard on
12 YouTube and the version of “Take A Dive” I heard from the CD entitled
13 “Deadbeat Club,” I have determined that the version of “Take A Dive” that I
14 first heard on YouTube which was recorded in 1999 is an obvious derivative
15 version of this version that I heard on “Deadbeat Club,” which was recorded in
16 1998. The exact same ambient sounds at the beginning of both versions, the
17 identical keyboard motifs at :09 seconds, the identical bass parts, the identical
18 chord progression, the identical sonic sweeps at similar points in time of both
19 tracks, the identical changes in the bass parts at similar points in each track, the
20 identical key, the identical tempo, and the identical timbre’s with regard to all of
21 the aforementioned similarities indicate to me that these two tracks are the same
22 song. The difference is that the derivative version contained no lyrics, contained
23 a central guitar hook, and contained a drum beat with a bass drum pattern of
24 four quarter-notes per measure (one on each beat in 4/4 time), which contributed
25 to a contemporary Dance/Pop feel. The bass drum pattern, which may seem
26 incidental, is a peculiarity in this case because the four quarter notes per
27 measure of the derivative version of “Take A Dive” bring the underlying
28 rhythmic feel of “Take A Dive” closer to the underlying rhythmic feel of “I
2
1 Gotta Feeling.”
2
7.
In this Declaration, I will be presenting analyses on four (4)
3 different submissions, and specify each of the four tracks that are in question.
4 Track #1 will be the derivative version of “Take A Dive” that I listened to on
5 YouTube; Track #2 will be the original version of “Take A Dive” that I listened
6 on the CD entitled “Deadbeat Club”; Track #3 will be the final version of “I
7 Gotta Feeling” in its completed stage (the stage that is well known to the
8 public); and finally, Track #4 will be the version of “I Gotta Feeling” via CD
9 that consists of an unfinished mix of the song with no lyrics. True and correct
10 copies of Tracks #1, 2, 3 and 4 are appended to this Declaration as Exhibits 1, 2,
11 3, and 4 respectively. My analysis was originally contained within my
12 November 28 Expert Report, a true and correct copy of which is attached to this
13 Declaration as Exhibit 5.
14
8.
Dr. Lawrence Ferrara of New York University has written a
15 musicological comparison of the same songs. I was asked to review this report,
16 and I have responded to part of Dr. Ferrara’s report.
17
9.
After careful review, I have made the conclusion that Tracks #1 and
18 Tracks #3 and #4 share significant similarities in both protectable elements and
19 the manner in which non-protectable elements surround the protectable. As will
20 be seen in my analysis below, while some of these elements, by themselves,
21 may be considered incidental, when taken into view alongside the protectable
22 elements, they demonstrate copying of parts of Track #1 in Tracks #3 and #4
23 that cannot be the result of coincidence. Throughout this Declaration, care will
24 be taken to distinguish protectable elements from non-protectable elements.
25 Although there are some dissimilarities between these two songs, these
26 dissimilarities do not detract from my conclusion that these two songs contain
27 substantial similarities, and these similarities are a result of copying rather than
28 coincidence.
3
10.
1
My conclusions and opinions are based on my opinion that Track #1
2 and Track #3 and #4 are substantially, if not strikingly, similar with regard to the
3 following protectable element, which is a major consideration. Both songs
4 contain an identical instrumental hook. In Western Pop Music, the Hook is
5 considered one of the most critical elements of a song, as it commands the
6 listener’s attention, and gives the listener a concrete element that is memorable,
7 thus giving the song its musical “fingerprint”; meaning, the element that
8 distinguished this song from other songs. In this case, the instrumental hook is
9 the eight-measure long guitar part1 in Track #1 (“Take A Dive”) that, I believe,
10 the Black Eyed Peas copied and used as a hook in Tracks #3 and #4 (“I Gotta
11 Feeling”).
11.
12
Alongside the similarities with the protectable elements of all four
13 tracks, there are similarities of non-protectable elements shared by all tracks.
14 While these similarities by themselves are not protectable, when taken into the
15 context of each song with regard to the protectable elements and in the context
16 of other similarities (i.e. tempo, key, modality, length, etc.), it appears to be very
17 unlikely, if not impossible, that the similarities of “Take A Dive” (Tracks #1 and
18 #2) and “I Gotta Feeling” (Tracks #3 and #4) are incidental or coincidental.
12.
19
The following similarities in non-protectable elements support my
20 conclusion that Tracks #3 and #4 (“I Gotta Feeling ”) were copied from Track #1
21 (“Take A Dive”):
a.
22
Both songs contain a nearly identical tempo between 128-130 beats per
minute;
23
b.
24
Both songs have G Mixolydian as a key center;
25
26
1
As I understand, the guitar part is referred to as the “twangy guitar configuration”
27 in other reports concerning this case. I refer to it as the guitar hook because I
conclude that this guitar figure is, in fact, a hook as it applies to the content of each
28 track and the hook is a crucial element of Western Pop Music.
4
c.
1
Both songs are based on a formal structure of eight measures (the same
2
length as the hook of the song) that repeats throughout the entire song.
3
In “Take a Dive,” the bass notes change around 2:30, change back to
4
the original part at 2:59, then change back to the same part as 2:30
5
around 3:44, but the other surrounding parts remain unchanged;
d.
6
Although the composer of “I Gotta Feeling” alters the root from “Take
7
A Dive” in measures 3-6, those measures still maintain a shared
8
modality of G Mixolydian, which is further enforced later in the song
9
when one of the Black Eyed Peas’ Female Vocalists sings a melodic
line (a secondary theme, in this case) which contains the note F natural;
10
e.
11
Track #1 (“Take A Dive”) contains a similar drum beat pattern to both
12
Tracks #3 and #4 (“I Gotta Feeling”) at key moments of each
13
respective song.
14 B.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
QUALIFICATIONS
13.
I have made my living as a performer/composer/arranger and educator
in music since 1993. Before then, I was a music student and made my living
primarily in music. I have a Bachelor’s Degree in Music Education from the
Peabody Institute of the Johns Hopkins University, I have a Master’s Degree in
Jazz/Commercial Music from the Manhattan School of Music and I have a Doctor
of Musical Arts Degree in Studio Music and Jazz from the University of Miami
Frost School of Music. I have taught on the music faculties of Towson University,
City College of New York, The University of Miami, and now currently at the
Peabody Institute of the Johns Hopkins University. I have made musical
arrangements for many artists such as Vocalist Betty Carter, Arturo O’Farril’s Latin
Jazz Orchestra, The Glenn Miller Orchestra, Philip Bailey of Earth, Wind and Fire,
have made dozens of transcriptions of Jazz tunes, Latin tunes, and Pop tunes for
commercial bands in the New York Area, and have a career that spans over twenty
5
1 years as a performer in Jazz, Latin, Rock, and R &B idioms which includes live and
2 studio performance.
As a performer, in addition to my Jazz work, I have toured and recorded with
3
4 the UK based R&B group Incognito, Rock and Roll legend Steve Winwood, Gloria
5 Estefan and Miami Sound Machine, Hip-Hop artist US3, Pop music legend Paul
6 Anka, Latin Pop sensation Jon Secada; and Alligator Records recording artist J.J.
7 Grey and Mofro, for whom I also did arranging and music preparation. Furthermore,
8 since 2003, I have worked as a composer for Selectracks, Inc.; a music licensing
9 company which assigns to me a wide variety of composing, arranging, and
10 transcription assignments in many different musical idioms, including 40’s style big
11 band, Latin ensembles of various combinations, Pop groups recalling sounds of the
12 1960’s and 1970’s, 1950’s era small group Jazz, and Contemporary Pop. My
13 attached CV gives complete details of my music career up to this point.
14
14.
15
16
17
perception of musical detail is extremely high, and this qualifies me to make
professional musical comparisons in this arena.
15.
18
19
My musical education, my professional musical experience, and my
I have not testified as an expert at trial or by deposition in any matter
during the previous four years.
20 C.
METHODOLOGY
21
16.
The system I use for analyzing music is as follows: I listen repeatedly
22 to that piece of music2, determine certain criteria, and I decide what would be the
23 best method for demonstrating my analysis with that particular piece. The elements
24 that I consider noteworthy are tempo, key or modality, form, harmony, melody,
25 orchestration, timbre, arrangement, genre, and the related characteristics within a
26 genre. If I am in a situation where I need to analyze and/or compare several pieces
27
2
Can be considered a track, a song, or a large scale piece of music, such as a symphonic work or
28 any kind of multi-movement work.
6
1 of music, I first isolate each individual piece of music before drawing comparisons.
Where applicable, I have analyzed each track and made clear by way of text.
2
3 For the purpose of comparing form, I have listed the formal structure of each track
4 with regards to orchestration changes, use of motifs, and manipulation of form, by
5 way of time code. To analyze other aspects of these four tracks, I have transcribed
6 certain passages that I feel are pertinent to this comparison, and have put into
7 Western musical notation those relevant portions for the purpose of comparing
8 rhythm, harmony, melody, and if applicable, form and orchestration. Aspects of
9 tone, timbre, articulation, texture, and arrangement are also considered.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
17.
My analysis and comparison is grouped into the following categories:
(1) general musical characteristics; (2) comparison of protectable elements; and (3)
comparison of nonprotectable elements.
18.
While building my analysis, I also consider the following elements of
music and how they will figure into this demonstration:
a.
rhythm- occurrence of sounds that can be related to a definite
pulse
b.
harmony- notes, or sounds of definite pitch, resounding together
c.
melody- notes, sounds of definite pitch, occurring in succession
d.
thematic or motivic material
e.
tone and timbre- quality of sound or sounds
f.
dynamics- loudness and softness
g.
articulation- the quality and length of both the attack and the
decay of a note or set of notes
h.
lyrical content.
General Musical Characteristics
26
27
28
19.
All four tracks require a comparison of general musical characteristics.
These elements by themselves are incidental. However, when combined, they
7
1 contribute greatly to a sonic gravity that enhances similarities perceived by the
2 listener.
a.
3
4
20.
All four tracks are performed at a medium tempo and they are similar,
5 but not exact.
6
7
b.
8
9
21.
Tempo
Tracks #1 and #2 = 130 Beats per minute
Tracks #3 and #4 = 128 Beats per minute
Genre
Tracks #1 and #2 and Tracks #3 and #4 contain many similarities.
10 However, the exact genre for Tracks #1 and #2 is slightly ambiguous. Whereas the
11 tempo, key, modality, and orchestration suggest a Dance/Pop style, the sweeping
12 textural sounds that occur in the beginning before tempo is established (at :09
13 seconds) and at 8 and 16 bar intervals once tempo is established suggest that Track
14 #1 could fall in the category of ambient sounds, or even a soundtrack for film or
15 television. Track #2 is within the Dance/club music idiom, but the lyrical content of
16 this Track could place it in a sub-category of the Dance/club music genre. Track #3,
17 “I Gotta Feeling,” is most definitely a Dance/Pop song. The lyrics, which depict
18 people having fun, in conjunction with the driving, pulsating rhythms, excessive use
19 of repetition, and the use of the Mixolydian mode which is common in Rock, R&B,
20 and Pop idioms, and the digital electronic sounds point towards that style and genre
21 more than any other genre. Track #4 contains all of the sonic elements in Track #3
22 minus the lyrics, but the musical content is still within the Dance/Pop realm.
23
22. Lyrical content will be used as a point of argument in this testimony,
24 but only as it applies to Tracks #2 and #3, since Tracks #1 and #4 contain no lyrics.
c.
Length
25
26
27
23.
Tracks #1-#3 contain a similar length. However, they are not exact.
Track #4 is significantly longer than the other 3 tracks:
28
8
1
24.
The length of Track #1 is 4:40; the length of Track #2 is 4:3 8; the
2 length of Track #3 is 4:52; and the length of Track #4 is 5:52.
d.
Orchestration
3
4
25.
Track #1 makes use of electric guitar, synthesizer keyboards of various
5 kinds, synthesizer bass, and electronic drums possibly pre-programmed. Track #2
6 uses the same instrumentation, with the subtraction of electric guitar, and the
7 addition of a singular Male Vocalist. Track #3 makes use of electric guitar,
8 synthesizer keyboards of various kinds, synthesizer bass, electronic drums possibly
9 pre-programmed, and solo vocalists and vocal groups with electronic enhancement
10 (autotune, to be specific). Track #4 uses the same instrumentation with the
11 subtraction of vocals.
e.
Form
12
13
26.
The form in each song is slightly different. I constructed a guide
14
indicating the form of each song as I perceive them. Since the harmonic structure of
15
each track never changes, I use points of orchestration and lyrical content to indicate
16
the form.
17
Track #1- Take A Dive
18
19
20
21
22
23
24
25
26
27
28
00:00-00:08- Ambient sounds surrounding tonal center of A Minor
00:10 - Keyboard riff suggests key of G Major or Mixolydian
00:17 - Guitar Hook in conjunction with synthesizer bass part confirms
key of G Mixolydian by the 3rd measure
00:47 - First sonic sweep
01:02 - Second sonic sweep- add more layers or sound
01:32 - Add full drum beat
01:48 - More subdued sonic envelope
02:02 - Third Sonic Sweep
02:15 - Fourth Sonic Sweep
02:30 - Notes of the bass part change, but other surrounding parts
remain unchanged
02:32 - Fifth Sonic Sweep
02:47 - Re-emergence of Guitar Hook as being prominent in the mix
02:59 - Original bass notes
03:16 - Sixth Sonic Sweep
03:44 - Bass notes from 2:30 return, with minor alteration
04:14 - Beginning of long fade until the end of the song
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Track #2- Take A Dive
00:00-00:08- Ambient sounds surrounding tonal center of A Minor
00:10 - Keyboard riff suggests key of G Major or Mixolydian
00:17 - Synthesizer bass part confirms key of G Mixolydian by the 3rd
measure
00:2 8- Vocals introduced/First verse
00:44 - First sonic sweep
00:59 - Refrain/ second sonic sweep
01:12 - Second sonic sweep01:32 - Add full drum beat (different than Track #1)/ Second
verse/third sonic sweep
01:57 - 2nd Refrain/fourth sonic sweep
02:13 - Fifth sonic sweep
02:28 - New bass notes, surrounding parts remain unchanged
02:32 - Various iterations of “Maybe It’s All My Fault...” occur from
here until the end of the track
02:55 - Electronic bass drum riff
02:57 - Sixth sonic sweep; original bass part
03:13 - Seventh Sonic Sweep
03:28 - Eighth Sonic Sweep
03:41 - Bass part from 2:30 returns, with minor alteration
03:56 - Beginning of long fade until the end of the song
Track #3- I Gotta Feeling
16
17
18
19
20
21
22
23
24
25
26
27
28
00:00 -Guitar Hook (identical to Track #1) in conjunction with
synthesizer bass
00:16 -Synthesizer countermelody
00:29 -Introduction of Male vocalist and Vocal Hook and single line
guitar part (not hook); bass drops out
01:00 -Drum kit sans bass drum introduced, electric bass part
introduced, also counter vocal line
01:30 -Spoken Vocal Chant 1, several voices; bass drum quarter notes
introduced; second counter-line
01:46 -Introduction of Female vocalist 1
02:01 -Spoken Vocal Chant 2
02:16 -Male vocalist repeated figure
02:30 -Reintroduction of Vocal Hook with Guitar Hook and original
bass part; drums drop out
03:01 -Reintroduction of Spoken Vocal Chant 1& 2 (with vocal
interjections between each iteration); third counter-line
introduced (arpeggios)
03:31 -Reintroduction of Male vocalist repeated figure from 2:16 (with
spoken vocal interjections)
03:46 -Spoken Vocal Chant 3
10
04:0 1-Sung Vocal Chant (lists the days of the week starting with
“Monday...”)
04:17 -Third iteration of Vocal Hook with backing track from 01:00
04:47 -Sustained bass note “G” with final iteration of counter vocal line
1
2
3
Track #4- I Gotta Feeling
4
00:00-00:29- Drum beat; bass drum quarter notes
00:30 - Single line guitar part (not Hook)
01:00 - Guitar Hook introduced, drums drop out
01:15 - Drums come back in sans bass drum; bass part introduced
02:15 - Synth counter line, Guitar Hook drops out; return of bass drum
in drum part
02:45 - Synth bass plays roots of chords on off-beats
03:15 - Reintroduction of Guitar Hook with sustained synth bass part;
drums drop out
03:30 - Second synth “string” counter line
03:46 - Third counter line introduced (arpeggios)
04:00 - Synth string counter line from 03:30 double
04:17 - Bass part from 1:15 re-introduced
04:45 - Full drum part reintroduced
05:18 - Arpeggiated synth part drops out
05:45 - All remaining parts drop out except for synth bass and counter
melody
5
6
7
8
9
10
11
12
13
14
15
16
D.
COMPARISON OF PROTECTABLE ELEMENTS
Hook
17
18
19
27.
As noted earlier, the most striking similarity between these tracks is the
Guitar Hook in Tracks #1, #3 and #4. There is no Guitar Hook in Track #2.
Example (a) - Guitar Hook from Track #1 “Take A Dive”
20
21
22
23
24
25
26
Example (b) - Guitar Hook from Track #3 “I Gotta Feeling”
27
28
11
1
2
3
4
5
6
Example (c) - Guitar Hook from Track #4
7
8
9
10
11
28.
The following is a list of specific qualities that establish the Hook in
12 Track #1 as being identical to Tracks #3 and #4:
13
a.
All three hooks have the exact same sequence of rhythms
14
b.
15
All three hooks contain the exact same notes in the same
sequence
16
c.
17
All three hooks are the exact same length before they are
repeated
18
d.
All three hooks are articulated the same way
19
e.
All three hooks contain a nearly identical timbre, or tone quality
20
f.
All three hooks are in the exact same key
21
g.
All three hooks are in nearly identical tempo; only 2 beats per
22
minute of a difference
23
h.
24
All three hooks are placed within the overall mix of each track in
a point of prominence
25 E.
26
COMPARISON OF NON-PROTECTABLE ELEMENTS
27
29.
Shared Modality
The Guitar Hooks in Track #1, Track #3 and Track #4 are identical, as
28
12
1 stated earlier. However, the notes that occur in the bass voice of any song dictate
2 the underlying harmony. The following examples demonstrate how the underlying
3 harmony is different in each song:
Example (a) - “Track #1 “Take A Dive”
4
5
6
7
8
9
10
11
12
13
30.
I indicated the chord symbols, as to indicate what the underlying or
implied harmony is at each harmonic change.
Example (b) - “I Gotta Feeling” Tracks #3 and #4
14
15
16
17
18
19
20
21
31.
In both cases, bars 1-2 are in G Major (we will discover later that we
22
are more specifically in the key of G Mixolydian, but without any occurrence of the
23
note F natural, no indication of G Mixolydian is present at that specific moment and
24
so G Major is assumed) and bars 7-8 are in C major. In “Take A Dive,” bars 3-4 are
25
in F Lydian; in “I Gotta Feeling,” bars 3-4 are in C Major. In “Take A Dive,” bars 5-
26
6 are in A minor; in “I Gotta Feeling,” bars 5-6 are in E minor.
27
32.
The harmonic differences between both songs occur in bars 3-7, and
28
13
1 can be broken down as follows:
2
33.
Example (c) - Bars 3-7 of Tracks #1 and #2 (“Take A Dive”) and Bars
3 3-7 of Tracks #3 and #4 (“I Gotta Feeling”)
4
5
6
7
8
9
10
34.
Every chord has at least one scale that corresponds with itself. In the
11 case of F Lydian (bars 3-4 in “Take A Dive”), it is the Lydian mode in the Key of F.
12 The notes of that scale are F,G,A,B,C,D and E. In the case of C Major (bars 3-4 in “I
13 Gotta Feeling”), it is the scale of C Major, or the mode of C Ionian (the exact same
14 thing). The notes of that scale are C,D,E,F,G,A and B. The notes of F Lydian and C
15 Ionian are identical.
16
Example (d) - Common tones between C Ionian and F Lydian
17
18
19
20
21
35.
In the case of A minor 9th (bars 5-6 of “Take A Dive”) and E minor
(bars 5-6 of “I Gotta Feeling”), they each have a couple of choices for the scale that
22
is most closely related to its parent chord. In the case of A minor 9th, the notes
23
A,B,C,D,E and G are definite, 1st, 2nd , 3rd , 4th , 5th and 7th scale degrees,
24
respectively. With regards to the 6th scale degree, either F or F# could be perceived
25
as an ideal 6th scale degree, thus making the most closely related scale either A
26
27
Aeolian (with the F natural) or A Dorian (with the F#). In the case of such a
discrepancy, I look to the Key of the song to decide; and in this case with the song
28
14
1 being in G Mixolydian, the scale with the F natural is the best choice- A Aeolian.
2
36.
The closest related scale to E minor is a little more challenging to
3 determine. The best choices for this chord are either E Aeolian (E,F#,G,A,B,C,D) or
4 E Dorian (E,F#,G,A,B,C#,D). Neither F# nor C# are in the home key of G
5 Mixolydian. The only other choice would be E Phrygian (E, F, G, A, B, C, D). So,
6 in the case of the E minor chord, the closest related scale choice is E Phrygian; this
7 is an unusual choice, but the home key dictates this unusual choice.
8
37.
One could argue that the closest related scale choice could be either E
9 Aeolian or E Dorian. Even when that is taken into account, they still share the notes
10 E,G,A,B and D which are a part of A minor 9th , the chord that “Take A Dive” uses
11 in bars 5-6. The following example illustrates the shared modality that exists in bars
12 5-6 of Tracks #1 and #2 and Tracks #3 and #4. The notes in White indicate shared
13 common tones while the notes in Black indicate tones that are not in common
14 between the two modes:
15
38.
Example (e) - Common tones between E Aeolian and A Aeolian with
16 Dorian modes considered with parenthetical indication
17
18
19
20
21
22
23
24
25
26
27
39.
Throughout the entire eight-measure sequence, which makes up the
harmonic structure of both songs in their entirety, these two songs share very
strongly the modality of G Mixolydian, even when they have different underlying
chords. Although this is a non-protectable musical element, this supports the
perception of similarity in both songs, especially considering the facts that they both
occupy the root note of G as a tonal center, and are nearly identical in tempo (also
non-protectable elements). Additionally, I further conclude that these similarities
28
15
1 highlight the very striking similarity in the guitar hook as indicated earlier, which is
2 a protectable element, and that it is highly unlikely that this is coincidental.
3
Tone/Timbre
4
40.
5
6
7
8
9
10
11
12
13
14
accuracy that the sounds of certain instruments can be duplicated through the
“sampling” process in modern day musical technology, it is nearly impossible to
determine if the hook in either Track #1, Track #3 or Track #4 was performed on
electric guitar or an electronic sample. The range of sonic possibilities on the
electric guitar, even with minimal effects, is remarkable. When one considers the
guitar sounds made by a traditional Jazz guitarist, such as Wes Montgomery or
Charlie Christian, and compare that to the sounds of a Hard Rock guitarist, such as
Jimi Hendrix or Eddie Van Halen, that alone indicates the wide range of timbral
possibilities on that instrument.
41.
15
16
17
18
19
The main element in scrutiny is the Guitar Hook. With the degree of
Whether it was sampled or not, I find it very peculiar that the Guitar
Hook in “I Gotta Feeling” bears a striking similarity to the Guitar Hook in “Take A
Dive” in, besides all the other aforementioned criteria, in timbre, also. This is
especially peculiar when considering the enormous range of timbral possibilities on
the electric guitar.
20 F.
REVIEW OF DR. FERRARA’S DECLARATION
21
42.
Dr. Ferrara made a musicological comparison in his submission #172
22
entitled Declaration of Lawrence Ferrara, Ph.D. In my review, I came across some
23
points with which I disagree.
24
25
26
27
28
16
43.
1
In paragraph #5 of that declaration, Dr. Ferrara states .”..I found that
2 the derivative version of “Take A Dive”3 is identical to the original version4 that I
3 have analyzed, except that the derivative version omits the vocals and includes a
4 “twangy guitar figuration.” One non-protectable element that Dr. Ferrara neglects to
5 point out is that the drum pattern is different from Track #1 to Track #2. The drum
6 pattern in Track #1 contains a bass drum playing four quarter-notes per measure,
7 and the drum pattern on Track #2 contains a bass drum playing on beats 1 and 3.
8 This is an important point because the bass drum pattern of Track #1 creates a
9 rhythmic feel that is much more similar to Tracks #3 and #4 than Track #2 is, which
10 highlights the similarities of Track #1 to Tracks #3 and #4.
44.
11
In paragraph #9 of the same document, Dr. Ferrara offers a structural
12 analysis that indicated lyrical form rather than orchestration and/or motivic usage,
13 which is valid. However, his analysis omits the usage of the Guitar Hook, which is
14 crucial to the sonic identity of Track #1 and Tracks #3 and #4.
45.
15
In paragraph #12 of the same document, Dr. Ferrara states that the
16 harmony contains “more differences than similarities” and further states that “what
17 is different is commonplace.” I refer back to my own assertion from this document,
18 article #23. First of all, two chords are exactly the same; bars 1-2 (G major) and 7-8
19 (C major) of all four tracks. Secondly, I maintain that bars 3-6 of all tracks have a
20 shared modality which contributes to the similarities between Tracks #1 and #2
21 (“Take A Dive”) and Tracks #3 and #4 (“I Gotta Feeling”).
46.
22
In paragraph #16 of the same document, in the fourth bullet point, Dr.
23 Ferrara states that the F chords in bars 3 and 4 of “Take A Dive” are significantly
24 different from the C5 chords in bars 3 and 4 of “I Gotta Feeling,” then in the fifth
25
26
3
Here, what I refer to as “Track #1,” Dr. Ferrara refers to as the derivative
version of “Take A Dive.”
27 4
Here, what I refer to as “Track #2,” Dr. Ferrara refers to as the original
28 version of “Take A Dive.”
17
1 bullet point, he repeats the same statement except he refers to the C5 chord as C.
2 Firstly, calling the same chord two different things is confusing; secondly, that C5
3 chord cannot be considered a C5 chord entirely, because the melody sung around it
4 includes the pitches B natural (the major 7th scale degree of a C chord) and E natural
5 (the 3rd scale degree of a C chord) when in conjunction with the C5 harmonic
6 emphasis from the rhythm section, the tonality is fully established as C Major;
7 thirdly, aside from the difference in root (F in Tracks #1 and #2, C in Tracks #3 and
8 #4), those two chords share all of the scale tones in common, which contributes
9 greatly to similarity, thus making those two chords not quite “significantly
10 different.”
11
47.
Dr. Ferrara writes a very lengthy report on the many aspects of the two
12 songs in question that are different. He then proceeds to cite many examples in
13 American Pop Music History that validate his claim that the similarities between the
14 two songs, Tracks #1 and #2 being “Take A Dive” (2 versions) and Tracks #3 and
15 #4 being “I Gotta Feeling” (2 versions). I don’t dispute the fact that there are a
16 number of differences between the songs. When one is given the assignment to
17 write a song that is suggestive of another song, part of that assignment is to create an
18 arrangement that masks the copied elements, so that the copy does not sound
19 obvious. Furthermore, there are some aspects of these two works that can’t be
20 protected by copyright law. However, that does not take away from the fact that
21 these two works, Track #1 (final version of “Take A Dive”) and both Tracks #3 and
22 #4 (both versions of “I Gotta Feeling”) have an identical musical hook, and it is my
23 opinion that this is a violation of intellectual property.
24
48.
A vast explanation of the multitude of elements contained in Dr.
25 Ferrara’s report is unnecessary. Yes, there are many differences that don’t support a
26 similarity; however, there are some key similarities that do (key, tempo, timbre,
27 orchestration) and the Hook, referred to as either the “Guitar Twang” or the
28 “Twangy guitar figuration,” is identical, and because it is not only identical, but also
18
1 prominent in each of the versions in which it appears, it is important that it be
2 viewed as a violation of intellectual property.
3 G.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
CONCLUSION
49.
Based on my review of all four tracks in question, I have determined
that Track #1 is an obvious derivative version of Track #2. Based on that same
review of all four tracks, I conclude that there is a striking similarity between Tracks
#1 and Tracks #3 and #4. In light of the striking similarities between Tracks #1 and
Tracks #3 and #4, it is unlikely that Tracks #3 and #4 could have been composed
and created independently without copying key elements of Track #1.
50.
It is my professional opinion that the Guitar Hook used in Track #3 and
#4 (“I Gotta Feeling”) was copied from the Guitar Hook used in Track #1 (“Take A
Dive”). This is a protectable element, and the similarity is so strong that any
coincidence is extremely unlikely.
51.
The key of the two songs, the shared modality of the two songs, the
nearly similar tempo, and the similar repeated eight-measure form that repeats
throughout the song are all non protectable elements. Although they are nonprotectable elements, they support the similarities between the two songs, and
further enhance my conclusion that the Guitar Hook, which is a key element of the
songs “Take A Dive” and “I Gotta Feeling,” was copied by the Black Eyed Peas
from Bryan Pringle.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 19th day of December 2011.
24
25
26
27
28
19
EXHIBITS 1, 2, 3 AND 4
(AUDIO EXHIBITS)
FILED MANUALLY
EXHIBIT 5
Alexander Norris, DMA
Music Faculty
Peabody Institute of the Johns Hopkins University
Freelance Trumpeter, Composer, Arranger, Educator, and Producer
REPORT PREPARED RE: “Take A Dive” and “I Gotta Feeling”
A.
INTRODUCTION
1.
I was requested to prepare a musicological analysis of four different tracks
encompassing “Take A Dive” (two versions) by Bryan Pringle and “I Gotta Feeling” (two
versions) by the Black Eyed Peas. The reason for this analysis was to ascertain the similarities, if
any, between two versions of “I Gotta Feeling” and two versions of “Take A Dive.” With this
analysis, I was asked to examine the following criteria: (a) whether there are any striking or
significant similarities between these four tracks; (b) whether these similarities coincide with
elements of the songs that are protectable or non-protectable; (c) whether the similarities in the
protectable elements are strong enough in importance or volume to demonstrate that copying of
“Take A Dive” had occurred as to “I Gotta Feeling” or whether the similarities could have been
coincidental, and (d) if there are similarities in the non-protectable elements that support
evidence of copying.
2.
In my analysis, I compared recordings from the internet, from tracks I listened to
and reviewed, and my own transcriptions of sections of all four works that are relevant.
3.
My analysis is in line with what I understand to be an allowed format for claiming
substantial similarity employed by the court, and should be read and understood as meeting those
declarations.
4.
Based on my review and analysis, it is my professional opinion that Track #1
(“Take A Dive”), and Tracks #3 and #4 (“I Gotta Feeling”), are substantially similar, if not
identical. The similarities in both songs are significant enough in volume, content, and
peculiarity that the Black Eyed Peas could not have written “I Gotta Feeling” without first
having listened to and then copied a certain portion of “Take A Dive.” Accordingly, I also
believe that these similarities could not have been coincidental.
EXHIBIT 5
PAGE 000020
EXHIBIT 5
Report of Dr. Alexander Norris
November 28, 2011
5.
Originally, I viewed internet links via YouTube to two songs. One link was to
Bryan Pringle’s “Take A Dive” recorded in 1999 and the other was to the Black Eyed Peas “I
Gotta Feeling.” Afterwards, I listened to and reviewed a CD recording that contained a remix of
the song “I Gotta Feeling” without the lyrics. Additionally, I heard a CD entitled “Deadbeat
Club” from 1998, which contains 18 of Bryan Pringle’s songs, including a version of “Take A
Dive” with lyrics, but without a critical guitar hook that I had heard before in a previous version.
After reviewing both the version of “Take A Dive” that I heard on YouTube and the version of
“Take A Dive” I heard from the CD entitled “Deadbeat Club,” I have determined that the version
of “Take A Dive” that I first heard on YouTube which was recorded in 1999 is an obvious
derivative version of this version that I heard on “Deadbeat Club,” which was recorded in 1998.
The exact same ambient sounds at the beginning of both versions, the identical keyboard motifs
at :09 seconds, the identical bass parts, the identical chord progression, the identical sonic
sweeps at similar points in time of both tracks, the identical changes in the bass parts at similar
points in each track, the identical key, the identical tempo, and the identical timbre’s with regard
to all of the aforementioned similarities indicate to me that these two tracks are the same song.
The difference is that the derivative version contained no lyrics, contained a central guitar hook,
and contained a drum beat with a bass drum pattern of four quarter-notes per measure (one on
each beat in 4/4 time), which contributed to a contemporary Dance/Pop feel. The bass drum
pattern, which may seem incidental, is a peculiarity in this case because the four quarter notes
per measure of the derivative version of “Take A Dive” bring the underlying rhythmic feel of
“Take A Dive” closer to the underlying rhythmic feel of “I Gotta Feeling.”
6.
In this report, I will be presenting analyses on four (4) different submissions, and
specify each of the four tracks that are in question. Track #1 will be the derivative version of
“Take A Dive” that I listened to on YouTube; Track #2 will be the original version of “Take A
Dive” that I listened on the CD entitled “Deadbeat Club”; Track #3 will be the final version of “I
Gotta Feeling” in its completed stage (the stage that is well known to the public); and finally,
Track #4 will be the version of “I Gotta Feeling” via CD that consists of an unfinished mix of the
song with no lyrics.
EXHIBIT 5
PAGE 000021
Page 2 of 17
Report of Dr. Alexander Norris
November 28, 2011
7.
Dr. Lawrence Ferrara of New York University has written a musicological
comparison of the same songs. I was asked to review this report, and I have responded to part of
Dr. Ferrara’s report.
8.
After careful review, I have made the conclusion that Tracks #1 and Tracks #3
and #4 share significant similarities in both protectable elements and the manner in which nonprotectable elements surround the protectable. As will be seen in my analysis below, while some
of these elements, by themselves, may be considered incidental, when taken into view alongside
the protectable elements, they demonstrate copying of parts of Track #1 in Tracks #3 and #4 that
cannot be the result of coincidence. Throughout this report, care will be taken to distinguish
protectable elements from non-protectable elements. Although there are some dissimilarities
between these two songs, these dissimilarities do not detract from my conclusion that these two
songs contain substantial similarities, and these similarities are a result of copying rather than
coincidence.
9.
My conclusions and opinions are based on my opinion that Track #1 and Track #3
and #4 are substantially, if not strikingly, similar with regard to the following protectable
element, which is a major consideration. Both songs contain an identical instrumental hook. In
Western Pop Music, the Hook is considered one of the most critical elements of a song, as it
commands the listener’s attention, and gives the listener a concrete element that is memorable,
thus giving the song its musical “fingerprint”; meaning, the element that distinguished this song
from other songs. In this case, the instrumental hook is the eight-measure long guitar part1 in
Track #1 (“Take A Dive”) that, I believe, the Black Eyed Peas copied and used as a hook in
Tracks #3 and #4 (“I Gotta Feeling”).
10.
Alongside the similarities with the protectable elements of all four tracks, there
are similarities of non-protectable elements shared by all tracks. While these similarities by
themselves are not protectable, when taken into the context of each song with regard to the
1
As I understand, the guitar part is referred to as the “twangy guitar configuration” in other
reports concerning this case. I refer to it as the guitar hook because I conclude that this guitar
figure is, in fact, a hook as it applies to the content of each track and the hook is a crucial
element of Western Pop Music.
EXHIBIT 5
PAGE 000022
Page 3 of 17
Report of Dr. Alexander Norris
November 28, 2011
protectable elements and in the context of other similarities (i.e. tempo, key, modality, length,
etc.), it appears to be very unlikely, if not impossible, that the similarities of “Take A Dive”
(Tracks #1 and #2) and “I Gotta Feeling” (Tracks #3 and #4) are incidental or coincidental.
11.
The following similarities in non-protectable elements support my conclusion that
Tracks #3 and #4 (“I Gotta Feeling”) were copied from Track #1 (“Take A Dive”):
a)
Both songs contain a nearly identical tempo between 128-130 beats per
minute;
b)
Both songs have G Mixolydian as a key center;
c)
Both songs are based on a formal structure of eight measures (the same
length as the hook of the song) that repeats throughout the entire song. In
“Take a Dive,” the bass notes change around 2:30, change back to the
original part at 2:59, then change back to the same part as 2:30 around
3:44, but the other surrounding parts remain unchanged;
d)
Although the composer of “I Gotta Feeling” alters the root from “Take A
Dive” in measures 3-6, those measures still maintain a shared modality of
G Mixolydian, which is further enforced later in the song when one of the
Black Eyed Peas’ Female Vocalists sings a melodic line (a secondary
theme, in this case) which contains the note F natural;
e)
Track #1 (“Take A Dive”) contains a similar drum beat pattern to both
Tracks #3 and #4 (“I Gotta Feeling”) at key moments of each respective
song.
B.
QUALIFICATIONS
12.
I have made my living as a performer/composer/arranger and educator in music
since 1993. Before then, I was a music student and made my living primarily in music. I have a
Bachelor’s Degree in Music Education from the Peabody Institute of the Johns Hopkins
University, I have a Master’s Degree in Jazz/Commercial Music from the Manhattan School of
Music and I have a Doctor of Musical Arts Degree in Studio Music and Jazz from the University
of Miami Frost School of Music. I have taught on the music faculties of Towson University,
City College of New York, The University of Miami, and now currently at the Peabody Institute
EXHIBIT 5
PAGE 000023
Page 4 of 17
Report of Dr. Alexander Norris
November 28, 2011
of the Johns Hopkins University. I have made musical arrangements for many artists such as
Vocalist Betty Carter, Arturo O’Farril’s Latin Jazz Orchestra, The Glenn Miller Orchestra, Philip
Bailey of Earth, Wind and Fire, have made dozens of transcriptions of Jazz tunes, Latin tunes,
and Pop tunes for commercial bands in the New York Area, and have a career that spans over
twenty years as a performer in Jazz, Latin, Rock, and R &B idioms which includes live and
studio performance.
As a performer, in addition to my Jazz work, I have toured and recorded with the UK
based R&B group Incognito, Rock and Roll legend Steve Winwood, Gloria Estefan and Miami
Sound Machine, Hip-Hop artist US3, Pop music legend Paul Anka, Latin Pop sensation Jon
Secada; and Alligator Records recording artist J.J. Grey and Mofro, for whom I also did
arranging and music preparation. Furthermore, since 2003, I have worked as a composer for
Selectracks, Inc.; a music licensing company which assigns to me a wide variety of composing,
arranging, and transcription assignments in many different musical idioms, including 40’s style
big band, Latin ensembles of various combinations, Pop groups recalling sounds of the 1960’s
and 1970’s, 1950’s era small group Jazz, and Contemporary Pop. My attached CV gives
complete details of my music career up to this point.
My musical education, my professional musical experience, and my perception of
musical detail is extremely high, and this qualifies me to make professional musical comparisons
in this arena.
I have not testified as an expert at trial or by deposition in any matter during the previous
four years.
C.
METHODOLOGY
13.
The system I use for analyzing music is as follows: I listen repeatedly to that
piece of music2, determine certain criteria, and I decide what would be the best method for
demonstrating my analysis with that particular piece. The elements that I consider noteworthy
are tempo, key or modality, form, harmony, melody, orchestration, timbre, arrangement, genre,
2
Can be considered a track, a song, or a large scale piece of music, such as a symphonic work
or any kind of multi-movement work.
EXHIBIT 5
PAGE 000024
Page 5 of 17
Report of Dr. Alexander Norris
November 28, 2011
and the related characteristics within a genre. If I am in a situation where I need to analyze
and/or compare several pieces of music, I first isolate each individual piece of music before
drawing comparisons.
Where applicable, I have analyzed each track and made clear by way of text. For the
purpose of comparing form, I have listed the formal structure of each track with regards to
orchestration changes, use of motifs, and manipulation of form, by way of time code. To analyze
other aspects of these four tracks, I have transcribed certain passages that I feel are pertinent to
this comparison, and have put into Western musical notation those relevant portions for the
purpose of comparing rhythm, harmony, melody, and if applicable, form and orchestration.
Aspects of tone, timbre, articulation, texture, and arrangement are also considered.
My analysis and comparison is grouped into the following categories: (1) general
musical characteristics; (2) comparison of protectable elements; and (3) comparison of nonprotectable elements.
14.
While building my analysis, I also consider the following elements of music and
how they will figure into this demonstration:
a)
rhythm- occurrence of sounds that can be related to a definite pulse
b)
harmony- notes, or sounds of definite pitch, resounding together
c)
melody- notes, sounds of definite pitch, occurring in succession
d)
thematic or motivic material
e)
tone and timbre- quality of sound or sounds
f)
dynamics- loudness and softness
g)
articulation- the quality and length of both the attack and the decay of a
note or set of notes
h)
lyrical content.
General Musical Characteristics
15.
All four tracks require a comparison of general musical characteristics. These
elements by themselves are incidental. However, when combined, they contribute greatly to a
sonic gravity that enhances similarities perceived by the listener.
EXHIBIT 5
PAGE 000025
Page 6 of 17
Report of Dr. Alexander Norris
November 28, 2011
a.
16.
Tempo
All four tracks are performed at a medium tempo and they are similar, but not
exact.
Tracks #1 and #2 = 130 Beats per minute
Tracks #3 and #4 = 128 Beats per minute
b.
17.
Genre
Tracks #1 and #2 and Tracks #3 and #4 contain many similarities. However, the
exact genre for Tracks #1 and #2 is slightly ambiguous. Whereas the tempo, key, modality, and
orchestration suggest a Dance/Pop style, the sweeping textural sounds that occur in the beginning
before tempo is established (at :09 seconds) and at 8 and 16 bar intervals once tempo is
established suggest that Track #1 could fall in the category of ambient sounds, or even a
soundtrack for film or television. Track #2 is within the Dance/club music idiom, but the lyrical
content of this Track could place it in a sub-category of the Dance/club music genre. Track #3, “I
Gotta Feeling,” is most definitely a Dance/Pop song. The lyrics, which depict people having fun,
in conjunction with the driving, pulsating rhythms, excessive use of repetition, and the use of the
Mixolydian mode which is common in Rock, R&B, and Pop idioms, and the digital electronic
sounds point towards that style and genre more than any other genre. Track #4 contains all of the
sonic elements in Track #3 minus the lyrics, but the musical content is still within the Dance/Pop
realm.
18.
Lyrical content will be used as a point of argument in this testimony, but only as it
applies to Tracks #2 and #3, since Tracks #1 and #4 contain no lyrics.
c.
19.
Length
Tracks #1-#3 contain a similar length. However, they are not exact. Track #4 is
significantly longer than the other 3 tracks:
The length of Track #1 is 4:40; the length of Track #2 is 4:3 8; the length of Track #3 is
4:52; and the length of Track #4 is 5:52.
EXHIBIT 5
PAGE 000026
Page 7 of 17
Report of Dr. Alexander Norris
November 28, 2011
d.
20.
Orchestration
Track #1 makes use of electric guitar, synthesizer keyboards of various kinds,
synthesizer bass, and electronic drums possibly pre-programmed. Track #2 uses the same
instrumentation, with the subtraction of electric guitar, and the addition of a singular Male
Vocalist. Track #3 makes use of electric guitar, synthesizer keyboards of various kinds,
synthesizer bass, electronic drums possibly pre-programmed, and solo vocalists and vocal groups
with electronic enhancement (autotune, to be specific). Track #4 uses the same instrumentation
with the subtraction of vocals.
e.
21.
Form
The form in each song is slightly different. I constructed a guide indicating the
form of each song as I perceive them. Since the harmonic structure of each track never changes, I
use points of orchestration and lyrical content to indicate the form.
Track #1- Take A Dive
00:00-00:08- Ambient sounds surrounding tonal center of A Minor
00:10 - Keyboard riff suggests key of G Major or Mixolydian
00:17 - Guitar Hook in conjunction with synthesizer bass part confirms key of G
Mixolydian by the 3rd measure
00:47 - First sonic sweep
01:02 - Second sonic sweep- add more layers or sound
01:32 - Add full drum beat
01:48 - More subdued sonic envelope
02:02 - Third Sonic Sweep
02:15 - Fourth Sonic Sweep
02:30 - Notes of the bass part change, but other surrounding parts remain
unchanged
02:32 - Fifth Sonic Sweep
02:47 - Re-emergence of Guitar Hook as being prominent in the mix
02:59 - Original bass notes
03:16 - Sixth Sonic Sweep
03:44 - Bass notes from 2:30 return, with minor alteration
04:14 - Beginning of long fade until the end of the song
EXHIBIT 5
PAGE 000027
Page 8 of 17
Report of Dr. Alexander Norris
November 28, 2011
Track #2- Take A Dive
00:00-00:08- Ambient sounds surrounding tonal center of A Minor
00:10 - Keyboard riff suggests key of G Major or Mixolydian
00:17 - Synthesizer bass part confirms key of G Mixolydian by the 3rd measure
00:2 8 - Vocals introduced/First verse
00:44 - First sonic sweep
00:59 - Refrain/ second sonic sweep
01:12 - Second sonic sweep01:32 - Add full drum beat (different than Track #1)/ Second verse/third sonic
sweep
01:57 - 2nd Refrain/fourth sonic sweep
02:13 - Fifth sonic sweep
02:28 - New bass notes, surrounding parts remain unchanged
02:32 - Various iterations of “Maybe It’s All My Fault...” occur from here until
the end of the track
02:55 - Electronic bass drum riff
02:57 - Sixth sonic sweep; original bass part
03:13 - Seventh Sonic Sweep
03:28 - Eighth Sonic Sweep
03:41 - Bass part from 2:30 returns, with minor alteration
03:56 - Beginning of long fade until the end of the song
Track #3- I Gotta Feeling
00:00 -Guitar Hook (identical to Track #1) in conjunction with synthesizer bass
00:16 -Synthesizer countermelody
00:29 -Introduction of Male vocalist and Vocal Hook and single line guitar part
(not hook); bass drops out
01:00 -Drum kit sans bass drum introduced, electric bass part introduced, also
counter vocal line
01:30 -Spoken Vocal Chant 1, several voices; bass drum quarter notes
introduced; second counter-line
01:46 -Introduction of Female vocalist 1
02:01 -Spoken Vocal Chant 2
02:16 -Male vocalist repeated figure
02:30 -Reintroduction of Vocal Hook with Guitar Hook and original bass part;
drums drop out
03:01 -Reintroduction of Spoken Vocal Chant 1& 2 (with vocal interjections
between each iteration); third counter-line introduced (arpeggios)
03:31 -Reintroduction of Male vocalist repeated figure from 2:16 (with spoken
vocal interjections)
03:46 -Spoken Vocal Chant 3
04:0 1 -Sung Vocal Chant (lists the days of the week starting with “Monday...”)
04:17 -Third iteration of Vocal Hook with backing track from 01:00
04:47 -Sustained bass note “G” with final iteration of counter vocal line
EXHIBIT 5
PAGE 000028
Page 9 of 17
Report of Dr. Alexander Norris
November 28, 2011
Track #4- I Gotta Feeling
00:00-00:29- Drum beat; bass drum quarter notes
00:30 - Single line guitar part (not Hook)
01:00 - Guitar Hook introduced, drums drop out
01:15 - Drums come back in sans bass drum; bass part introduced
02:15 - Synth counter line, Guitar Hook drops out; return of bass drum in drum
part
02:45 - Synth bass plays roots of chords on off-beats
03:15 - Reintroduction of Guitar Hook with sustained synth bass part; drums
drop out
03:30 - Second synth “string” counter line
03:46 - Third counter line introduced (arpeggios)
04:00 - Synth string counter line from 03:30 double
04:17 - Bass part from 1:15 re-introduced
04:45 - Full drum part reintroduced
05:18 - Arpeggiated synth part drops out
05:45 - All remaining parts drop out except for synth bass and counter melody
D.
COMPARISON OF PROTECTABLE ELEMENTS
Hook
22.
As noted earlier, the most striking similarity between these tracks is the Guitar
Hook in Tracks #1, #3 and #4. There is no Guitar Hook in Track #2.
Example (a) - Guitar Hook from Track #1 “Take A Dive”
Example (b) - Guitar Hook from Track #3 “I Gotta Feeling”
EXHIBIT 5
PAGE 000029
Page 10 of 17
Report of Dr. Alexander Norris
November 28, 2011
Example (c) - Guitar Hook from Track #4
The following is a list of specific qualities that establish the Hook in Track #1 as being identical
to Tracks #3 and #4:
1)
All three hooks have the exact same sequence of rhythms
2)
All three hooks contain the exact same notes in the same sequence
3)
All three hooks are the exact same length before they are repeated
4)
All three hooks are articulated the same way
5)
All three hooks contain a nearly identical timbre, or tone quality
6)
All three hooks are in the exact same key
7)
All three hooks are in nearly identical tempo; only 2 beats per minute of a
difference
8)
All three hooks are placed within the overall mix of each track in a point of
prominence
E.
COMPARISON OF NON-PROTECTABLE ELEMENTS
Shared Modality
23.
The Guitar Hooks in Track #1, Track #3 and Track #4 are identical, as stated
earlier. However, the notes that occur in the bass voice of any song dictate the underlying
harmony. The following examples demonstrate how the underlying harmony is different in each
song:
EXHIBIT 5
PAGE 000030
Page 11 of 17
Report of Dr. Alexander Norris
November 28, 2011
Example (a) - “Track #1 “Take A Dive”
I indicated the chord symbols, as to indicate what the underlying or implied harmony is at
each harmonic change.
Example (b) - “I Gotta Feeling” Tracks #3 and #4
In both cases, bars 1-2 are in G Major (we will discover later that we are more
specifically in the key of G Mixolydian, but without any occurrence of the note F natural, no
indication of G Mixolydian is present at that specific moment and so G Major is assumed) and
bars 7-8 are in C major. In “Take A Dive,” bars 3-4 are in F Lydian; in “I Gotta Feeling,” bars 34 are in C Major. In “Take A Dive,” bars 5-6 are in A minor; in “I Gotta Feeling,” bars 5-6 are in
E minor.
The harmonic differences between both songs occur in bars 3-7, and can be broken down
as follows:
EXHIBIT 5
PAGE 000031
Page 12 of 17
Report of Dr. Alexander Norris
November 28, 2011
Example (c) - Bars 3-7 of Tracks #1 and #2 (“Take A Dive”) and Bars 3-7 of
Tracks #3 and #4 (“I Gotta Feeling”)
Every chord has at least one scale that corresponds with itself. In the case of F Lydian
(bars 3-4 in “Take A Dive”), it is the Lydian mode in the Key of F. The notes of that scale are
F,G,A,B,C,D and E. In the case of C Major (bars 3-4 in “I Gotta Feeling”), it is the scale of C
Major, or the mode of C Ionian (the exact same thing). The notes of that scale are C,D,E,F,G,A
and B. The notes of F Lydian and C Ionian are identical.
Example (d) - Common tones between C Ionian and F Lydian
In the case of A minor 9th (bars 5-6 of “Take A Dive”) and E minor (bars 5-6 of “I Gotta
Feeling”), they each have a couple of choices for the scale that is most closely related to its
parent chord. In the case of A minor 9th, the notes A,B,C,D,E and G are definite, 1st, 2nd , 3rd , 4th
, 5th and 7th scale degrees, respectively. With regards to the 6th scale degree, either F or F# could
be perceived as an ideal 6th scale degree, thus making the most closely related scale either A
Aeolian (with the F natural) or A Dorian (with the F#). In the case of such a discrepancy, I look
to the Key of the song to decide; and in this case with the song being in G Mixolydian, the scale
with the F natural is the best choice- A Aeolian.
The closest related scale to E minor is a little more challenging to determine. The best
choices for this chord are either E Aeolian (E,F#,G,A,B,C,D) or E Dorian (E,F#,G,A,B,C#,D).
Neither F# nor C# are in the home key of G Mixolydian. The only other choice would be E
EXHIBIT 5
PAGE 000032
Page 13 of 17
Report of Dr. Alexander Norris
November 28, 2011
Phrygian (E, F, G, A, B, C, D). So, in the case of the E minor chord, the closest related scale
choice is E Phrygian; this is an unusual choice, but the home key dictates this unusual choice.
One could argue that the closest related scale choice could be either E Aeolian or E
Dorian. Even when that is taken into account, they still share the notes E,G,A,B and D which are
a part of A minor 9th , the chord that “Take A Dive” uses in bars 5-6. The following example
illustrates the shared modality that exists in bars 5-6 of Tracks #1 and #2 and Tracks #3 and #4.
The notes in White indicate shared common tones while the notes in Black indicate tones that are
not in common between the two modes:
Example (e) - Common tones between E Aeolian and A Aeolian with Dorian
modes considered with parenthetical indication
Throughout the entire eight-measure sequence, which makes up the harmonic structure of
both songs in their entirety, these two songs share very strongly the modality of G Mixolydian,
even when they have different underlying chords. Although this is a non-protectable musical
element, this supports the perception of similarity in both songs, especially considering the facts
that they both occupy the root note of G as a tonal center, and are nearly identical in tempo (also
non-protectable elements). Additionally, I further conclude that these similarities highlight the
very striking similarity in the guitar hook as indicated earlier, which is a protectable element, and
that it is highly unlikely that this is coincidental.
Tone/Timbre
24.
The main element in scrutiny is the Guitar Hook. With the degree of accuracy that
the sounds of certain instruments can be duplicated through the “sampling” process in modern
day musical technology, it is nearly impossible to determine if the hook in either Track #1, Track
#3 or Track #4 was performed on electric guitar or an electronic sample. The range of sonic
possibilities on the electric guitar, even with minimal effects, is remarkable. When one considers
EXHIBIT 5
PAGE 000033
Page 14 of 17
Report of Dr. Alexander Norris
November 28, 2011
the guitar sounds made by a traditional Jazz guitarist, such as Wes Montgomery or Charlie
Christian, and compare that to the sounds of a Hard Rock guitarist, such as Jimi Hendrix or
Eddie Van Halen, that alone indicates the wide range of timbral possibilities on that instrument.
Whether it was sampled or not, I find it very peculiar that the Guitar Hook in “I Gotta
Feeling” bears a striking similarity to the Guitar Hook in “Take A Dive” in, besides all the other
aforementioned criteria, in timbre, also. This is especially peculiar when considering the
enormous range of timbral possibilities on the electric guitar.
F.
REVIEW OF DR. FERRARA’S DECLARATION
25.
Dr. Ferrara made a musicological comparison in his submission #172 entitled
Declaration of Lawrence Ferrara, Ph.D. In my review, I came across some points with which I
disagree.
26.
In paragraph #5 of that declaration, Dr. Ferrara states .”..I found that the
derivative version of “Take A Dive”3 is identical to the original version4 that I have analyzed,
except that the derivative version omits the vocals and includes a “twangy guitar figuration.”
One non-protectable element that Dr. Ferrara neglects to point out is that the drum pattern is
different from Track #1 to Track #2. The drum pattern in Track #1 contains a bass drum playing
four quarter-notes per measure, and the drum pattern on Track #2 contains a bass drum playing
on beats 1 and 3. This is an important point because the bass drum pattern of Track #1 creates a
rhythmic feel that is much more similar to Tracks #3 and #4 than Track #2 is, which highlights
the similarities of Track #1 to Tracks #3 and #4.
27.
In paragraph #9 of the same document, Dr. Ferrara offers a structural analysis that
indicated lyrical form rather than orchestration and/or motivic usage, which is valid. However,
his analysis omits the usage of the Guitar Hook, which is crucial to the sonic identity of Track #1
and Tracks #3 and #4.
3
Here, what I refer to as “Track #1,” Dr. Ferrara refers to as the derivative version of “Take A
Dive.”
4
Here, what I refer to as “Track #2,” Dr. Ferrara refers to as the original version of “Take A
Dive.”
EXHIBIT 5
PAGE 000034
Page 15 of 17
Report of Dr. Alexander Norris
November 28, 2011
28.
In paragraph #12 of the same document, Dr. Ferrara states that the harmony
contains “more differences than similarities” and further states that “what is different is
commonplace.” I refer back to my own assertion from this document, article #23. First of all, two
chords are exactly the same; bars 1-2 (G major) and 7-8 (C major) of all four tracks. Secondly, I
maintain that bars 3-6 of all tracks have a shared modality which contributes to the similarities
between Tracks #1 and #2 (“Take A Dive”) and Tracks #3 and #4 (“I Gotta Feeling”).
29.
In paragraph #16 of the same document, in the fourth bullet point, Dr. Ferrara
states that the F chords in bars 3 and 4 of “Take A Dive” are significantly different from the C5
chords in bars 3 and 4 of “I Gotta Feeling,” then in the fifth bullet point, he repeats the same
statement except he refers to the C5 chord as C. Firstly, calling the same chord two different
things is confusing; secondly, that C5 chord cannot be considered a C5 chord entirely, because
the melody sung around it includes the pitches B natural (the major 7th scale degree of a C chord)
and E natural (the 3rd scale degree of a C chord) when in conjunction with the C5 harmonic
emphasis from the rhythm section, the tonality is fully established as C Major; thirdly, aside
from the difference in root (F in Tracks #1 and #2, C in Tracks #3 and #4), those two chords
share all of the scale tones in common, which contributes greatly to similarity, thus making those
two chords not quite “significantly different.”
30.
Dr. Ferrara writes a very lengthy report on the many aspects of the two songs in
question that are different. He then proceeds to cite many examples in American Pop Music
History that validate his claim that the similarities between the two songs, Tracks #1 and #2
being “Take A Dive” (2 versions) and Tracks #3 and #4 being “I Gotta Feeling” (2 versions). I
don’t dispute the fact that there are a number of differences between the songs. When one is
given the assignment to write a song that is suggestive of another song, part of that assignment is
to create an arrangement that masks the copied elements, so that the copy does not sound
obvious. Furthermore, there are some aspects of these two works that can’t be protected by
copyright law. However, that does not take away from the fact that these two works, Track #1
(final version of “Take A Dive”) and both Tracks #3 and #4 (both versions of “I Gotta Feeling”)
have an identical musical hook, and it is my opinion that this is a violation of intellectual
property.
EXHIBIT 5
PAGE 000035
Page 16 of 17
Report of Dr. Alexander Norris
November 28, 2011
A vast explanation of the multitude of elements contained in Dr. Ferrara’s report is
unnecessary. Yes, there are many differences that don’t support a similarity; however, there are
some key similarities that do (key, tempo, timbre, orchestration) and the Hook, referred to as
either the “Guitar Twang” or the “Twangy guitar figuration,” is identical, and because it is not
only identical, but also prominent in each of the versions in which it appears, it is important that
it be viewed as a violation of intellectual property.
G.
CONCLUSION
31.
Based on my review of all four tracks in question, I have determined that Track
#1 is an obvious derivative version of Track #2. Based on that same review of all four tracks, I
conclude that there is a striking similarity between Tracks #1 and Tracks #3 and #4. In light of
the striking similarities between Tracks #1 and Tracks #3 and #4, it is unlikely that Tracks #3
and #4 could have been composed and created independently without copying key elements of
Track #1.
32.
It is my professional opinion that the Guitar Hook used in Track #3 and #4 (“I
Gotta Feeling”) was copied from the Guitar Hook used in Track #1 (“Take A Dive”). This is a
protectable element, and the similarity is so strong that any coincidence is extremely unlikely.
33.
The key of the two songs, the shared modality of the two songs, the nearly similar
tempo, and the similar repeated eight-measure form that repeats throughout the song are all nonprotectable elements. Although they are non-protectable elements, they support the similarities
between the two songs, and further enhance my conclusion that the Guitar Hook, which is a key
element of the songs “Take A Dive” and “I Gotta Feeling,” was copied by the Black Eyed Peas
from Bryan Pringle.
November 28, 2011
EXHIBIT 5
PAGE 000036
Page 17 of 17
EXHIBIT 5
PAGE 000037
EXHIBIT 5
PAGE 000038
EXHIBIT 5
PAGE 000039
EXHIBIT 5
PAGE 000040
EXHIBIT 5
PAGE 000041
EXHIBIT 5
PAGE 000042
EXHIBIT 5
PAGE 000043
EXHIBIT 5
PAGE 000044
EXHIBIT 5
PAGE 000045
EXHIBIT 5
PAGE 000046
1
2
3
4
5
CERTIFICATE OF SERVICE
On December 19, 2011, I electronically filed the foregoing DECLARATION
OF ALEX NORRIS IN OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT using the CM/ECF system which will send notification of
such filing to the following registered CM/ECF Users:
Barry I. Slotnick
bslotnick@loeb.com
6 Donald A. Miller
dmiller@loeb.com, vmanssourian@loeb.com
gould@igouldlaw.com
7 Ira P. Gould
Tal Efriam Dickstein
tdickstein@loeb.com
8
Linda M. Burrow
wilson@caldwell-leslie.com, burrow@caldwell-leslie.com,
popescu@caldwell-leslie.com, robinson@caldwell-leslie.com
9
Ryan Christopher Williams williamsr@millercanfield.com
10
Kara E. F. Cenar
kara.cenar@bryancave.com
rgreely@igouldlaw.com
11 Ryan L. Greely
Robert C. Levels
levels@millercanfield.com
12
Kathleen E. Koppenhoefer koppenhoefer@millercanfield.com
13 Rachel Aleeza Rappaport rrappaport@loeb.com
Jonathan S. Pink jonathan.pink@bryancave.com, elaine.hellwig@bryancave.com
14
Dean A. Dickie
dickie@millercanfield.com, frye@millercanfield.com,
15
deuel@millercanfield.com, smithkaa@millercanfield.com,
seaton@millercanfield.com, williamsr@millercanfield.com
16
Edwin F. McPherson
emcpherson@mcphersonrane.com,
17
astephan@mcphersonrane.com
Joseph G. Vernon
vernon@millercanfield.com
18
Justin Michael Righettini justin.righettini@bryancave.com
19 Tracy B. Rane
trane@mcphersonrane.com
20
21
22
23
24
I am unaware of any attorneys of record in this action who are not registered
for the CM/ECF system or who did not consent to electronic service.
I certify under penalty of perjury under the laws of the United States of
America that the foregoing statements are true and correct.
Dated: December 19, 2011
/s/Colin C. Holley
25
26
27
28
George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625
Telephone: 949.718.4550
Facsimile: 949.718.4580
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?