Bryan Pringle v. William Adams Jr et al

Filing 81

MEMORANDUM in Opposition to MOTION for Preliminary Injunction re: copyright infringement 73 filed by Defendants David Guetta, Rister Editions, Shapiro Bernstein and Co. (Attachments: # 1 Declaration of Paul Geluso)(Miller, Donald)

1 DONALD A. MILLER (SBN 228753)
[e-mail]
2 BARRY I. SLOTNICK (Pro Hac Vice)
[e-mail]
3 TAL E. DICKSTEIN (Pro Hac Vice)
[e-mail]
4 LOEB & LOEB LLP
10100 Santa Monica Boulevard, Suite 2200
5 Los Angeles, California 90067-4120
Telephone: [phone]
6 Facsimile: 310-282-2200
7 Attorneys for Defendants SHAPIRO,
BERNSTEIN & CO., INC. (incorrectly
8 sued as Shapiro, Bernstein & Co.);
RISTER EDITIONS and DAVID
9 GUETTA
10
11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

SOUTHERN DIVISION

14 BRYAN PRINGLE, an individual,
15
16

Plaintiff,
v.

17 WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
18 JAIME GOMEZ, all individually and
collectively as the music group The
19 Black Eyed Peas, et al.,
20

Defendants.

21
22
23

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. SACV 10-1656 JST(RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
DECLARATION OF PAUL
GELUSO IN SUPPORT OF
DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
Date: January 31, 2011
Time: 10:00 A.M.
Dept.: 10A
Complaint Filed: October 28, 2010
Trial Date: Not Assigned

24
25
26
27
28
NY880540.3
213532-10005

DECLARATION OF PAUL GELUSO

1

I, PAUL GELUSO, declare as follows:

2

1.

I am an expert in music technology and have worked professionally as

3 an audio engineer, producer, electrical engineer, and musician for more than 20
4 years. I earned a Bachelor of Science in Electrical Engineering from the New Jersey
5 Institute of Technology in 1988 and a Masters of Music in Music Technology from
6 New York University in 1999. I have been credited as Recording Engineer,
7 Mastering Engineer, Producer and/or Musician on more than 100 albums across
8 numerous musical genres, including electronic, rock, hip-hop, dance, jazz and
9 classical. I have also mixed numerous soundtracks for broadcast TV and award10 winning independent films, and have served as Sound Editor and Mixer for several
11 media companies, including Outpost Digital, Radical Media, HBO, Miramax, and
12 MTV II.
13

2.

I am currently a professor and Chief Recording Engineer in the

14 Department of Music and Performing Arts Professions at the Steinhardt School of
15 Education at New York University. I have also taught in the fields of music and
16 sound recording at the Peabody Institute at Johns Hopkins University, Bard College
17 and the State University of New York at Oneonta. I have lectured extensively on
18 topics related to music technology, including analog electronics, digital electronics,
19 digital signal processing, sound art, electronic music, critical listening, music
20 production, sound recording, sound processing and sound mixing.
21

3.

I have previously been retained to perform expert forensic music

22 analysis in two copyright infringement lawsuits involving claims of digital
23 sampling.
24

4.

I submit this declaration in support of Defendants’ Opposition to

25 Plaintiff’s Motion for a Preliminary Injunction. I have personal knowledge of the
26 facts stated herein, and if called as a witness, could and would testify competently
27 regarding the following facts:
28
NY880540.3
213532-10005

DECLARATION OF PAUL GELUSO

1

5.

1

I was retained by Loeb & Loeb LLP to analyze The Black Eyed Peas’

2 song “I Gotta Feeling” and the derivative version of “Take a Dive” allegedly created
3 and distributed by Plaintiff Bryan Pringle, and to offer my professional expert
4 opinion as to whether “I Gotta Feeling” contains any recorded sounds that were
5 digitally copied, or “sampled,” from the derivative version of “Take a Dive”, and to
6 evaluate the November 17, 2010 Declaration of Mark Rubel (the “Rubel
7 Declaration”) and the November 17, 2010 Expert Report of Mark Rubel (the “Rubel
8 Report”).
6.

9

In conducting my analysis, I reviewed the January 3, 2011 Declaration

10 of Bryan Pringle (“Pringle Declaration”) as well as the Rubel Declaration and
11 Report, and I forensically examined the three sound recordings that were attached as
12 Exhibit B to the Rubel Declaration: (1) the derivative version of “Take a Dive”; (2)
13 an isolated version of the so-called “guitar twang” sequence;1 and (3) “I Gotta
14 Feeling.” I also analyzed the original version of “Take a Dive”, which was attached
15 to the Pringle Declaration.
7.

16

Based on my analysis described below, it is my professional expert

17 opinion that the guitar twang sequence in “I Gotta Feeling” could not have been
18 sampled from the derivative version of “Take a Dive” allegedly distributed by
19
20

1

As discussed below, Rubel states that the isolated guitar twang sequence was
21 “identified to me” by the Gould Law Group as “Bryan Pringle – The ‘guitar twang’
sequence” (Rubel Report ¶ 4), yet Rubel does not indicate that he performed any
22 analysis to independently verify whether the isolated guitar twang sequence did, in
23 fact, originate from the derivative version of Pringle’s “Take a Dive,” or whether it
was obtained from some other source.
24
25 Furthermore, I note that the Rubel Report repeatedly refers to a “Piano Twang
Sequence,” while the Rubel Declaration refers to a “guitar twang sequence.”
26 Although Rubel does not explain this discrepancy, I assume, for purposes of this
27 Declaration, that these references are to the same sequence. However, because the
audio examples referenced in Rubel’s Report, including the so-called “Piano Twang
28 Sequence”, have not been made available, there is no way to verify this assumption.
NY880540.3
213532-10005

2

DECLARATION OF PAUL GELUSO

1 Plaintiff. This is because the guitar twang sequence in the derivative version of
2 “Take a Dive” is layered with other musical elements, while a number of instances
3 of the guitar twang sequence in “I Gotta Feeling” (particularly at 0:31-0:33) have no
4 other sound elements (often referred to as “artifacts” or “ghosts”), which one would
5 expect to find if the guitar twang sequence in “I Gotta Feeling” had been sampled
6 from derivative version of “Take a Dive.” In other words, it would not have been
7 technologically possible to obtain the “clean” guitar twang sequence that appears in
8 “I Gotta Feeling” from the sequence that appears in the derivative version of “Take
9 a Dive” allegedly distributed by Plaintiff.
10

8.

In performing my analysis, I attempted to isolate the guitar twang

11 sequence in the derivative version of “Take a Dive” using ProTools sound editing
12 software, which is widely used in the digital sound editing field and which I
13 regularly use in my professional work, by employing the following techniques in
14 various combinations:
15

a. left / right channel isolation

16

b. equalization techniques;

17

c. phase inversion and cancellation;

18

d. noise gating techniques; and

19

e. spectral repair software, known as iZotope RX.

20

9.

Based on my industry knowledge and technological expertise and

21 experience, these techniques represent an exhaustive list of options that can be
22 employed to isolate a particular sound from a sound recording. Despite applying all
23 of these techniques to the derivative version of “Take a Dive” to the best of my
24 ability, none of them yielded an even remotely artifact-free isolated guitar twang
25 sequence, as was present in “I Gotta Feeling.”
26

10.

As a result of this analysis, it is my professional expert opinion that the

27 guitar twang sequence in the song “I Gotta Feeling” could not have been sampled
28
NY880540.3
213532-10005

3

DECLARATION OF PAUL GELUSO

1 from the derivative version of “Take a Dive” that Plaintiff claims to have
2 distributed.
3

11.

Notably, the Rubel Declaration and Report is not inconsistent with this

4 conclusion, because it does not show that the guitar twang sequence in “I Gotta
5 Feeling” was sampled from the derivative version of “Take a Dive.” It appears that
6 Rubel did not attempt to independently confirm whether the isolated guitar twang
7 sequence originated from the derivative version of “Take a Dive” that Plaintiff
8 allegedly distributed, or from some other source. Instead, he simply accepted the
9 Gould Law Group’s representation on face value. (Rubel Decl. ¶ 4) (stating,
10 without any support, that “[t]he second Mp3 is simply the ‘guitar twang sequence’
11 soloed out from ‘Take a Dive,’ with no other instrumentation or vocals.”) As a
12 result, although Rubel concludes that the isolated guitar twang sequence provided to
13 him by the Gould Law Group is the same as the guitar twang sequence in “I Gotta
14 Feeling,” Rubel offers no basis to conclude that “I Gotta Feeling” sampled from the
15 derivative version of “Take a Dive” allegedly distributed by Plaintiff.
16

12.

Indeed, the Rubel Declaration and Report support the conclusion that “I

17 Gotta Feeling” could not have sampled from the derivative version of “Take a Dive”
18 allegedly distributed by Plaintiff. On several occasions, Rubel acknowledges that in
19 the derivative version of “Take a Dive,” the guitar twang sequence is layered with
20 other sound elements that are not present in “I Gotta Feeling.” (Rubel Decl. ¶ 4)
21 (noting that there are “other sonic elements” layered in the guitar twang sequence of
22 the derivative version of “Take a Dive”); (Rubel Report at 17) (noting that, even
23 after Rubel attempted to isolate the guitar twang sequences in the derivative version
24 of “Take a Dive” and in “I Gotta Feeling, “one can hear that there are other sounds
25 in the two[.]”); (Rubel Report at 18) (“The other elements that make up ‘Take a
26 Dive’ introduction, various sythesizers, are audible on the left.”) The fact that Rubel
27 was unable to isolate from the derivative version of “Take a Dive” a clean sample of
28 the guitar twang sequence as it appears in “I Gotta Feeling,” supports the conclusion
NY880540.3
213532-10005

4

DECLARATION OF PAUL GELUSO

1 that the producer of “I Gotta Feeling” likewise could not have sampled the guitar
2 twang sequence from the derivative version of “Take a Dive” allegedly distributed
3 by Plaintiff. Otherwise, artifacts of other musical elements from the derivative
4 version of “Take a Dive” would necessarily exist in “I Gotta Feeling,” which they
5 do not. (See ¶ 9 above.)
13.

6

The Rubel Report and Declaration are lacking in other respects as well.

7 In performing his waveform analysis, Rubel selected very short segments of the
8 guitar twang sequence (approximately 0.05 seconds) out of the entire 15 second
9 sequence. (See, e.g., Rubel Decl. ¶ 10, Rubel Report at 11, 16-29.) However,
10 because Rubel did not identify which segments he selected, there is no reasonable
11 way to recreate and verify his waveform analysis. Moreover, the Rubel Report and
12 Declaration were clearly intended to be reviewed in conjunction with the audio
13 examples listed on page 20 of the Report. (See e.g., Rubel Report at 15) (citing
14 audio examples 6 and 7 and asking “[s]ounds like the same thing, doesn’t it?”) Yet,
15 because none of the audio examples have been made available, it is impossible to
16 test Rubel’s listening analysis.
14.

17

Lastly, I note that there appear to be omissions in Plaintiff’s

18 explanation as to how he created the derivative version of “Take a Dive.” Although
19 Pringle only states that in creating the derivative version of “Take a Dive” he
20 removed the lyrics and added the guitar twang sequence, an examination of the
21 original and derivative versions of “Take a Dive” reveal other changes in the
22 derivative version of “Take a Dive”, including reversal of the left and right
23 channels, and a different drum pattern from 1:31 to the end of the song. Further
24 analysis may reveal additional differences between the original and derivative
25 versions of “Take a Dive.”
26 /
27 /
28 /
NY880540.3
213532-10005

5

DECLARATION OF PAUL GELUSO

I declare under penalty of perjury under the laws of the United States of

1

2 America that the foregoing is true and correct. Executed this 10th day of January,
3 2011.
4
5
6
PAUL GELUSO

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NY880540.3
213532-10005

6

DECLARATION OF PAUL GELUSO