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)

Download PDF
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?