Vargas et al v. Pfizer Inc. et al

Filing 87

DECLARATION of Christopher Keegan in Support re: 85 SECOND MOTION for Summary Judgment.. Document filed by Brian Transeau. (Attachments: # 1 Exhibit Ex B# 2 Exhibit Ex C# 3 Exhibit Ex D# 4 Exhibit Ex E# 5 Exhibit Ex F# 6 Exhibit Ex G# 7 Exhibit Ex H# 8 Exhibit Ex I# 9 Exhibit Ex J part 1# 10 Exhibit Ex J part 2# 11 Exhibit Ex K# 12 Exhibit Ex L# 13 Exhibit Ex M# 14 Exhibit Ex N part 1# 15 Exhibit Ex N part 2# 16 Exhibit Ex O# 17 Exhibit Ex P# 18 Exhibit Ex Q# 19 Exhibit Ex R# 20 Exhibit Ex S# 21 Exhibit Ex T# 22 Exhibit Ex U# 23 Exhibit Ex V)(Ahrens, Julie)

Vargas et al v. Pfizer Inc. et al

Doc. 87 Att. 11

EXHIBIT K

Dockets.Justia.com

" ("

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
RALPH VARGAS and . BLAND~RICKY ROBERTS
CASE NO.: 04 CV 9772 (WHP)

Plaintiffs
vs.

ECF CASE

PFIZER INC., PUBLICIS, INC., FLUID MUSIC EAST WEST COMMUNICA TrONS, INe. and BRIAN TRANSEAU p/kla "BT"
Defendants

DECLARATION OF MATTHEW RITTER
, Matthew Ritter, declare:

I am a professional drummer and drum instructor. I have been retained by the
plaintiffs Ralph Vargas and Bland-Ricky Roberts to render an expert opinion, based on my
experience and knowledge in the musical field of drumming, regarding: a) whether or not the
plaintiffs ' musical work
Bust Dat Groove Wlout Ride
Bust Dat Groove

) is creative and

original; b) a comparative analysis between

Bust Dat Groove " on the one hand, and the
and the drum section in the

musical work

Aparthenonia

Celebrex Commercial"

Celebrex

), on the other hand; and c) the opinions and conclusions by the musicologist

Anthony Ricigliano, as they pertain to the issues identified in (a) and (b).

CREDENTIALS
I have studied the musical aspects, and art, of drumming for the past 17 years. I
rece~ved a BA degree ITom the University ofHartford/Hartt
School of Music in music and

music

business. During my time at Hartt, I studied all aspects 9f music with a continued emphasis on

drumming. I have also studied with many renowned drum instructors, including Kim Plainfield

" ". "::

/

Dom Famularo, and drum legends Joe Morello and Jim Chapin. For the past 10 years I have

perfonned professionally in nearly every drum style, including rock, country, funk, jazz , AfroCuban , Brazilian and musical theatre.

I have been teaching drumming for the past 10 years in New York City and have written articles on the musical and technical aspects of drumming for the world' s leading drum
magazine , Modem Drummer. I am currently producing an instructional drumming DVD which

is scheduled to be released in Fall 2005. I have attached to this declaration my most recent
Curriculum Vitae (Exhibit A).

MATERIALS REVIEWED
In undertaking this analysis , I reViewed the following material:
a compact disc containing:
(i)
Celebrex,

with complete background music, including drum section

and voiceover,

(ii)

an isolated version of the drum loop featured in

Celebrex (which I was

infonned was provided by Fluid Music);
(iii)
Groove
(iv)
Nu Skool a drumming track called

Bust Dat Groove Wlout Ride

Bust Dat

from

The Funky Drummer, Volume II

album by J. R. Records;
from the album

a drumming track titled

Aparthenonia

Breakz From The

by EastwestIBrian Transeau;

a report by musicologist Anthony Ricigliano regarding the drum music in

Bust

Dat Groove

Aparthenonia

and

Celebrex:

the Declaration of Anthony Ricigliano regarding the drum music in

Bust Dat

Groove

Aparthenonia

and

Celebrex;

".

various exhibits attached with Mr. Ricigliano s Declaration, including excerpts
ITom drum method books and a CD with music samples of songs and drum beats;

the Declaration ofRhys Moody;
the Declaration of Brian Transeau;
the Declaration of Brad Stratton;
a "Rule 56. 1 Statement of Undisputed Facts" by Samuel M. Leaf; and
the "First

Amendment Complaint" "Demand For Jury Trial" by Paul A. Chin

Esq.
BUST

DAT GROOVE"
Having repeatedly analyzed

Bust Dat Groove .. it is my opinion that this drum

track features a combination of musical elem~nts that have beep. brought together in a way that is
unique and unrepeatable (except perhaps by the same drummer).

Bust Dat Groove was

perfonned by a drummer who has a personal and very particular way of striking the drums which

creates distinct sounds. This drummer has also chosen to tune and play his drums in avery
creative and unusual way in certain sections of the composition. The most striking example of
this is his decision to tension the snare drum wires exceedingly tightly and to then play the snare

very delicately. This combination causes the snare to sound like a cross between a snare drum
and a tom-tom drum during certain sections of

Bust Dat Groove.

I consider this combination

and the sound created an unusual " ghost note.
Ghost notes" occur when a drummer plays extremely soft notes to fill in the gaps

between other, more prominent notes. Ghost notes are usually played on a snare drum, as it was
in the case of

Bust Dat Groove.

Although "ghost I~.otes " when played, sound faint they do .

not sound like other instruments. A snare drum sounds like a snare drum, even if played very

softly (Le played as a "ghost note ). What is unique about the "ghost notes "

in

Bust Dat

Groove is the drummer s decision to tension the snare wires tightly and then delicately strike

the snare in a way that alters the sound of the snare and creates a sound that is a cross between a
tom-tom drum and a snare drum. This is very rare and demonstrates the drummer s talent and

creativity.

The drummer has also played these " ghost notes" by striking the snare only once
and leaving the drum stick very close to the skin of the snare creating random hits or buzzes.
These "multiple bounce strokes " as they are referred to, adds to the rhythm and feel of
Dat Groove.

Bust

It is my opinion that

Bust Dat Groove is creative and original.
Al1arlhenonm. and

Comparison of

Celebrex,

Bust Dat Groove
Celebrex,

Having reviewed the above material, it is clear to me that

Aparthenonia

" and

Bust Dat Groove are identical in ways that would be impossible unless

these 3 drum tracks were, in fact, one and the same. These "ways " include rhythmic elements
drum sounds,

and the creative idiosyncracies of the drummer who created this music.
It is my opinion that

10.

Aparthenonia (which consists only of drum beats) and the

isolated drum loop from

Celebrex are identical, with no discernible differences whatsoever.

This fact is confirmed by the Declaration of Brad Stratton in which he says that the drum loop in
Celebrex
came from

Aparthenonia.

In this declaration I will consider

Aparthenonia and

Celebrex to be 2 different names for the same piece of music (from this point forward , to be
referred to as Aparthenonia

). My analysis will focus on a comparison between
Bust Dat Groove.

Aparthenonia

.. and

""

Similarities
11.
Upon listening to

Aparthenonia

and

Bust Dat Groove,

" it was immediately

clear that I was listening to 2 versions of the same recording. What is most obvious is that the
drum sounds " specifically the rhythm and pitch, in

Aparthenonia

and

Bust Dat Groove

are almost identical. Drums do not have a standard system of tuning (eg. "C sharp

B flat"

etc. ). In practical tenns, this means that drum tuning is based entirely on the subjective and

creative expression of the drummer. It is unlikely to hear 2 drum sets that sound exactly alike
unless , perhaps, they were tuned and played by the same drummer.
12.
The way the musical elements in Aparthenonia and

Bust Dat Groove

" are

played , sound identical - same exact snare sound, same exact " ghost note" sound, same exact

high hat sound, same exact bass drum sound. Because these sounds are identical I would have
conclude that the same drummer is playing

Aparthenonia

and

Bust Dat Groove on the same

dnun set.
13.
After listening to the drum sounds of

Aparthenonia

and

Bust Dat Groove .. I

analyzed the various musical elements in both compositions. With this declaration, I have
included transcriptions (attached as Exhibit B) that I did for both tracks.

I notated each track in 2

different ways- a) in the conventional manner of notating drums, where the high hat and snare

are written together and the bass drum is written below; and b) as isolated lines of music (a
separate line for snare , a separate line for high hat, etc.) so as to simplify the process of viewing

the various musical figures involved. I have also transcribed the " ghost notes " which are notated
by the "( )" symbol.
14.

I also used a lettering system to compare the various musical elements present in " For example, if a musical element appeared in both

Bust Dat Groove " and "Aparthenonia.

"_0

.\

tracks, I circled that element on both transcriptions and gave them the same letter identification.

What this transcription illustrates is that there is no single oor combination of musical elements

0 including "
Groove.
shows that

ghost notes

" present in

Aparthenonia

that does not also exist in

Bust Dat

I find this to be a significant similarity between to the two drum works which I believe

Aparthenonia
15.

was created from

Bust Dat Groove.

The only recognizable "difference" between

Bust Dat Groove and

Aparthenonia is the exact order in which these musical el~ments appear in each composition.
Changing the order of musical elements can be accomplished very easily with today s editing
technology. I believe

Aparthenonia

is a digitally-edited version of

Bust Dat Groove.

16.

Aparthenonia

and

Bust Dat Groove also feature highly nuanced subtleties

that stem from the unique " touch" of this particular drummer: Each drummer has his own

personal way of holding the sticks and striking the drums. This results in a sort of "fingerprint"
that gets left on every drum recording. In the case of

Bust Dat Groove

and

Aparthenonia.

this fmgerprint is most evident in the drummer s use of "ghost notes.
17.
Aparthenonia

In his Declaration, Mr. Ricigliano con finned this significant similarity between
and

Bust Dat Groove because he mistakenly identifies the " ghost notes "

as

tom- toms. Based on these significant similarities, it would be extremely difficult to show that

Aparthenonia

and

Bust Dat Groove are not the same piece of music.

ANTHONY RICIGLIANO' S DECLARATION
18.

Mr. Ricigliano s Declaration contains many inaccuracies with respect to his
Aparthenonia " and Bust Dat Groove.

analysis and transcription of

" Having read Mr.

Ricigliano s Declaration and reviewed his transcription , I cannot agree with Mr. Ricigliano
opinions and conclusions regarding

Aparthenonia

and

Bust Dat Groove.

,"

The " fhost
19.
. hat,

notes

Mr. Ricigliano states that

Aparthenonia

and

Bust Dat Groove feature a high

snare drum, tom-:tom drum, and bass d.-um. This is not the case. What Mr. Ricigliano

perceives as tom-toms are, in fact ghost notes" (i.e. tightly tensioned snare wires combined

with drummer s delicate "multiple bounce strokes
B),

). As indicated in

my transcription (Exhibit
and

Aparthenonia

and

Bust Dat Groove contain a high hat, snare drum/"ghost notes "

bass drum. Although this distinction is subtle it is very significant because it shows the creativity
of the drummer and significant similarity between

Aparthenonia

and

Bust Dat Groove.

The "4

stroke

ruff'

20.

Mr. Ricigliano s transcription of the "tom-tom" sounds (which does not existin

any of the 3 compositions) is inaccurate. Mr. Ricigliano s review of certain percussion method
books has led him to conclude that the tom-tom beat is a "4 stroke rufr." It would be unlikely that
the drummer playing the "tom-toms" (which are really " ghost
or

notes

) in either

Aparthenonia

Bust Dat Groove used a "4
21.

stroke ruff."

The "4 stroke ruff' is originally a military drumming pattern that requires a

drummer to use both hands (R,L,R,L). To use a "4 stroke ruff' drumming pattern in the context
of a drum track like

Bust Dat Groove would be tremendously awkward and extremely difficult

because it would require the drummer to take one hand momentarily off the high hat, which is
being played continuously in

Bust Dat Groove

and

Aparthenonia.

Also, using both hands,

as in the case of a "4 stroke ruff," would likely cause a much harsher sound than actually exist in

Bust Dat Groove
22.

and

Aparthenonia.

The " ghost notes" (described by Ricigl~ano as tom-toms) are not 4 true notes.
stroke ruff' is actually a "

What Mr. Ricigliano considers to be a " 4

multiple bounce stroke.

""

Here the drummer has used one hand to make the tip of the drumstick bounce against the top of
the drum. The stick ricochets against the drum and produces a number of somewhat random hits

. and buzzes (i.e. "multiple bounce strokes
sound of a military "4 stroke ruff.
23.

). This

nuanced sound is nothing like the clear, crisp

Mr. Ricigliano has not transcribed the additional "ghost notes" that are played (on

all 3 compositions) immediately after the loud snare drum accents on beats 2 and 4. Mr.
Ricigliano s report does not include a transcription of these notes at all. My assumption is that

he missed or did not perceive these nuanced sounds.
Transcription of the drum

notes

24.

Mr. Ricigliano s transcriptions of the individual drum musical elements are

inconsistent with standard practices of drum notation. Mr. Ricigliano wrote all of his drum notes
with X' s rather than round note heads. Drums are generally notated with round note heads. All of the drum textbooks that were attached to Mr. Ricigliano s Declaration clearly indicate that
drums are notated with round note heads not Xs.

The only time that a drum transcription would

notate something with an X, instead of a round note head , would be in the case of a cymbal or a
sound effect like a wood block or a handclap.
25.

Mr. Ricigliano s improper drum transcription is important because by notating the

entire drum transcription with Xs , Mr. Ricigliano implies that drums, and therefore 3
compositions , do not have pitch. This is inaccurate.
26.

Although drums do not adhere to the traditional pitch system of other instruments,

drums do produce pitches that can be specific. The fact that it is possible to tune a drum means
that drums produce pitch. Drums have long been recognized as beir!.g "pitched " albeit in a way
that is different from a guitar or piano (eg. specific " C sharp
B flat "
etc.).

The reason for this

is because drums often times produce pitches that fall in between the traditional specific pitches.

That is why modem drum notation makes use of round note heads for drums and uses Xs for

sound effects. Again , each of the drum textbooks attached to Mr. Ricigliano s Declaration
clearly illustrates this point.
The drum tracks on the CD provided bv Mr. Ricbdiano
27.

Mr. Ricigliano also included a CD with his Declaration that contained various

songs and individual drum tracks. However, none of the tracks in the CD sound anything like
Bust Dat Groove.
Groove. While the tracks on the CD are part of the same musical genre as

Bust Dat

" and contain certain genre-specific traits , the feel and artistic combination of musical

elements in

Bust Dat Groove make it immediately recognizable from the tracks on Mr.

Ricigliano s CD.
28.
Dat Groove

Mr. Ricigliano also refers to "differences" between

Aparthenonia

and

Bust

that hardly qualify as differences at all. Mr. Ricigliano suggests that the open high

hat sound that occurs in both tracks but in different places , demonstrates a "slight" but
significant, difference in the placement." First ,
in the sound of the open high hat itself is

identical

Bust Dat Groove

and

Aparthenonia.

Second, modem music editing equipment can be
th of a second long

used to alter a moment of music as brief as 1/30

(otherwise known as "one

frame ). With this in mind, a slight shift in the placement of an open high hat sound could be

done easily on a music editing machine. The same thing applies to the bass drum parts that Mr.
Ricigliano finds to be different because of the placement of these bass drums in

Bust Dat

Groove
drum parts of

and

Aparthenonia.

In a~tuality, there is very little difference at all between the bass
and Aparthenonia.

Bust Dat Groove

29.

Mr. Ricigliano points to a section of

Bust Dat Groove where the bass drum

plays "short-tong-short. " He then points to the section of plays "short-short-long-short.

Aparthenonia where the bass drum

Short-short-long-short" is exactly the same as "short-long-

short" except with an extra "short" digitally edited onto the beginning. This can hardly be
considered a "significant difference" between
30.
Aparthenonia.

Bust Dat Groove

and

Aparthenonia.

Mr. Ricigliano also refers to a 4-note bass drum pattern that is part of
" He then states that the entire Aparthenonia 4-note figure 2 , placed on beat 3, is

a basic rhythmic unit as shown on page 22 of Exhibit C 7 number 14. In fact, the 4-note bass
drum pattern that occurs in

Aparthenonia is entirely dissimilar to the 4-note bass drum pattern

on Mr. Ricigliano s page 22 of exhibit C 7 number 14. None of the drum book excerpts referred

to by Mr. Ricigliano contain transcriptions that notate the combination of musical elements and
rhythm contained in

Bust Dat Groove

and

Aparthenonia.

CONCLUSION
31.

Bust Dat Groove featUres a sound, feel, and creative musical nuances that make
and use "multiple

it readily identifiable to the listener. The creation of unusual " ghost notes"
bounce strokes" in

Bust Dat Groove demonstrate the drummer s artistic input into this Bust Dat Groove is creative and

composition. Based on these features I conclude that

original.
32.
The sound and feel of

Bust Dat Groove

and

Aparthenonia are almost exactly

the same. All of the musical elements , notes, rhythms and sound variations (such as the " ghost
notes
) that appear in

Bust Dat Groove
). Based on these

" also appear in

Aparthenonia

(and therefore also

appear in

Celebrex

facts I conclude that

Aparthenonia is significantly

similar, if not identical , to

Bust Dat Groove.

o!

...' .

33.
not original and that

Finally, I disagree with Mr. Ricigliano

s conclusion that

Bust Dat Groove "

is

Aparthenonia

(and therefore

Celebrex

is significantly different than

Bust Dat Groove.

I declare under penalty of perjury pursuant to the laws of the United States that the
forgoing is true and correct. Executed this 19
th day

ofJuly 2005 at Woodside, NY 11377.

Matthew Ritter

.i

Exhibit A

MATTHEW RITTER

Matthew Ritter has been playing and studyjng the drwns for over 17 years worked as a professional drummer and drum instructor for over 10 years. He has extensive experience and training in the musical and technical aspects of drumming, including modem drum transcription. Mr. Ritter has written articles on the art of drum

, and has

notation and the physicality of drumming for the world' s leading drum magazine. He wrote and produced an instructional drumming video and participated in its editing. Mr. Ritter has been taught by some of the most well-known drum performers and instructors in the world and perfonned throughout the U. S. and overseas as a drummer.

EDUCATION
1995 University of Hartford, Hartt School of Music: BA degree ear training, music theory and music history emphasis on drum techniques , transcription and notation of drum music reading, writing and analyzing sheet music for drums studied and compared various drum styles including: Afro- Cuban, jazz
funk, rock, Brazilian, and musical theater
Private DrummingLessons 1989-

present

Brad Flickinger: Reading of drum music for Broadway shows Michael Hinton: Reading of drum music for Broadway shows , cla.')sical snare drum technique , funk drumming Kim Plainfield: Funk drumming techniques , Afro-Cuban styles Dom Famularo: Hand technique for drumming Joe Morello: Hand technique for drumming Jim Chapin : Hand positions , movements , and the physicality of drumming
The Drummers Collective

1991-1999 drumming instruction with various world renowned drum instructors including: Fred Klatz , Michael Lauren, Memo Acevedo , Kim Plainfield Brad Flickinger up-close observation and analysis of various world renowned professional drummers including: Steve Gadd , Max Roach , Omar Hakim, Neil Peart, Dave Weckl , Billy Cobham, and many others emphasis on drumming techniques and reading of drum music

PROFESSIONAL EXPERIENCE

Musical Theater Drumming (including shows featuring the following drum styles: jazz, classical, Broadway, marching band, pop/rock, country, funk, Afro-Cuban)
She Loves Me
1995

Quisisana Resort

created and notated drum parts, performed with theater band Broadway in the 90' 1995 Quisisana Resort created and notated drum parts, perfonned with theater band

Perfectly Frank" 1996 St. Joseph's Players Straw Hat Revue 1999 New London Barn Playhouse created and notated drum parts, perfonned with theater band West Side Story 1999 New London Barn Playhouse Little Shop of Horrors 1999 New London Barn Playhouse Annie Warbucks 1999 New London Barn Playhouse

State Fair

1999

New London Barn Playhouse

My Fair Lady 1999 New London Barn Playhouse Hello, Dolly!" National Tour 1999-2000 transcribed entire drum part from 1994 "Hello, Dolly!" cast album performed as drummer for national tour, covering approximately 35 states
Jaques Brei is Alive and Well and Living in Paris"

Luna Stage 2000

Falsettoland" Gallery Players

2000

Children of Eden " John Harms Center 2001 Dracula " Stonington Opera House 2003
Gone Missing " Off-Off-Broadway 2003

FunkIPop/Rock Drumming
1991 co- bandleader created drum parts, performed in various CT clubs The Pat Holt Singers " Caribbean Tour 2000 prepared music transcription, including drum notation performed on international tour to Cuba, Honduras and Puerto Rico
Voodoo Cafe"

Jazz Drumming
Robert Silverman Group 2001 -present
drummer for professional jazz band

performed with great jazz musicians including Patience Higgins, Rivers , and bass legend Ron McClure

Craig

Jazz of Now 2002 professional jazz band Arranger, bandleader lead drummer

Drum Video Production
DCI Music Video

1994-1999

production assistant with world'

leading producer of

instructional

drumming videos involved in filming, editing and development of instructional drum videos

Matt Ritter Music 2005

Wrote and produced instructional drumming DVD

Bass Drum

Techniques For Today s Drummer: Unburying The Beater overview, analysis, and instruction on various bass drum techniques and the various sounds that they produce involved in 170 hours of digital editing of video and music tracks

TEACHING EXPERIENCE
Faculty Member -

Lycee Francais

teaches introductory drumming classes as part of the school' s music program emphasis on drumming technique, reading drum music, hand position and

movement
movement"

Matt Ritter Music private drumming lessons for all levels preparation of lesson plans combining "distributed practice" and "massed practice " approaches to learning drumming and the idea of "repeated
teach students how to read, write and transcribe drum music in order to develop students understanding of how rhythmic patterns are structured and the relationship between drum patterns and rhythms drumming instruction also includes; drum sound manipulation; effectively coordinating arms, legs and hands in playing drums; developing students drumming vocabulary

PUBLICATION
Modern Drummer (world's leading drum magazine)
The Realities of Reading: Debunking The Myths That Stand in The Way of Musical Literacy (June 2004)

addresses and clarifies common concerns and misconceptions regarding the reading of drum music

Unburying The Beater: Bass Drum Technique For Speed, Fluidity, and
Dynamic Control"

(December 2004)

instruction on bass drum technique for clarity of sound and efficiency of movement

SAMPLING OF DRUM BOOKS STUDIED AND USED
The New Breed by Gary Chester Future Sounds by David Garibaldi

Advanced Concepts by Kim Plainfield Stick Control by George Lawrence Stone The Art of Bop Drumming by John Riley Drum Tuning by Larry Nolly

EXPERT ENGAGEMENT
Scope of Engagement

to provide detailed analysis of musical works created and produced solely by the use of drums Bust Dat to detennine whether or not the musical composition entitled Groove w/out Ride contains any creative or unique drumming or musical elements , techniques , rhythms or sounds to determine whether or not two other musical compositions, with respect Bust Dat to the music created by drums , are similar to the musical work
to provide an analysis of musicologist' s report concerning the same three musical works and to detennine ifmusicologisfs analysis and conclusions are accurate
Groove w/out Ride

Fee
$200. 00 perlhour for analysis and report $1600. 00 per day for deposition and trial testimony

. '.

\

EXHIBIT B

..

Explanation of Transcription Pages
Attached are 2 transcription pages. One page features 2 transcription versions of "' Bust Oat Groove." One page features 2 transcription versions of"Aparthenonia."

The first transcription version on each page features the conventional system of notating drumset music. The hi hat part and snare part are presented as a single line of music. The bass drum part is written beneath this as its own line ofmus~c. All of this is contained within a single 5-line staff. The second transcription version on each page features each of the 3 relevant drumset components (hi hat, snare, and bass drum) written out separately as its own line of music. The content in each transcription version of a given track is exactly the same; I have simply offered 2 options in terms of the visual presentation of this content.
On the page pertaining to "Aparthenonia, " I have circled and lettered every one ofthe various rhythmic figures contained within the work. I have chosen to do this within the second transcription version, so that the reader can clearly see the different drumset components involved. On the page pertaining to "Bust Dat Groove " I have circled one example of each of the figures in .. Aparthenonia, " and I have lettered each example to correspond to the respective "Aparthenonia" figure. In the very few instances where a figon; in "Aparthenonia" is a slightly-altered version of its corresponding figure in "Bust Dat Groove " I have indicated this on the "Aparthenonia" transcription by putting * or ... after the letter of the figure in question.
In doing this analysis. I have discovered and illustrated the fact that there are absolutely no rhythmic elements present in "Aparthenonia" that do not ALSO exist somewhere in
BustDat Groove.

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