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. 23

EXHIBIT V

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) (JCF)

Plaintiffs

vs.
PFIZER INC. , PUBLICIS, INC. , FLUID MUSIC, : EAST WEST COMMUNICATIONS , INC. and
BRIAN TRANSEAU p/kla

BTh

Defendants
DECLARATION OF IVAN A. RODRIGUEZ
, Ivan A. Rodriguez , declare:

I am a music producer/sound recording-mixing engineer. I have been
retained by plaintiffs Ralph Vargas and Bland- Ricky Roberts to provide an expert
opinion as to whether or not the recording

Aparthenonia and the drum section
are similar to the recording

in the

Celebrex Commercial"

Bust Dat Groove w/out

Ride " and
Commercial"were

whether or not

Aparthenonia

and the drum section in the

Celebrex
Bust Oat

created by digitally sampling the composition

Groove w/out Ride.

Credentials
I have been a music producer and sound recording-mixing engineer for
the past twenty years.

As a music producer and sound recording-mixing

engineer I have received 20 Gold Albums , 5 Platinum Albums, 2 Double Platinum

Albums and 10 Ampex Golden Reel Awards. ' For over eight years I was the
Chief Engineer/Producer for Power Play Studios in Long Island, New York.

cpy

Throughout my career I have primarily been involved in the hip- hop music

genre. The hip-hop music genre is known for its use of digital samples of 1970'

JazziRocklFunklR&B classics. As Chief Engineer/Producer at Power Play

Studios , I digitally sampled hundreds of records and developed a unique
understanding of the different techniques used in sampling records. I also have
extensive knowledge of the equipment used in digital sampling. A copy of my full
resume is attached as Exhibit A.

Materials Reviewed
After I was retained by Mr. Vargas and Mr. Ricky, I was asked to review
the following materials:

(a)
(b)
(c)

a copy of the First Amended Complaint by Paul Chin
a Rule 56. 1 Statement filed by Samuel Leaf

the Declaration of Rhys Moody, with attached waveform analysis
the Declaration of Brian Transeau

(d)

(e)
(f)

the Declaration of Anthony Ricigliano
a compact disc containing the composition " Bust Oat Groove W/Out

Ride

Bust Oat Groove

(9)

a compact disc containing the composition

Aparthenonia
("CeJebrex
from the Nu Schoolh

(h)
(i)

a compact disc containing the " Celebrex commercial"

a copy of the cd cover for the album h Breakz

After reviewing the materials presented to me and listening to each of the
three sources, it is my opinion that

Aparthenonia and the drum section of
"Bust Oat

Celebrex"

include elements and performance identical to

Groove. J1 I

have also concluded that

Aparthenonia

and

the drum section of

Ce/ebrex

,. /

,,

were created by digitally sampling and manipulating elements of

Bust Oat

Groove. I will explain the reasons for my conclusions.
DiQital Sampling
Digital sampling has been in use for more than 20 years. The hip-hop
music genre has become famous or infamous for its ext~nsive use of sampling

records. As a music producer and sound engineer during the mid- 1980' s to the

present , I have sampled hundreds of records in the process of producing,
programming, tracking and mixing, for hip-hop stars from BDP , LL Cool J, EPMD
and Run- DMC to Queen Latifah, DMX, Method Man and the Fugees.

The process of sampling a record is relatively simple. First you obtain a
copy of the song or music you want to sample from (for example. vinyl record,

compact disc. etc. ). The record is then fed into a digital sampling machine.

Once the music is loaded into the digital sampling machine the music producer or

engineer can then manipulate the song in any way he/she wants. For example.
he could move whole sections of the song around (take a snare from the first part of the song and place it in the middle or the end in the new song), he could move

sounds , instruments, voices, phrases, etc. It is even possible to cut and paste
individual notes from the sampled song and rearrange them. Anything that is in

the sampled song can be divided and re-arranged. The speed (tempo) of the
sampled song can be adjusted as well. Sampling is extremely simple and quick
and it allows an experienced music producer or sound engineer to create a new
song, complete with rhythm, harmony and melody, in a very short period of time.
Because sampling can be expensive many music producers and

l i1-

engineers rearrange the sampled song in ways that would make it difficult to

identify those portions of the sampled song in the new song. The general rule is
the less you take (from the sampled song) the less likely it is that the sampled

song will be recognized within the new song. It seems very clear to me that in
this case the producer of

Aparthenonia

sampled musical elements of

Bust Oat

Groove
Groove

and simply rearranged and manipulated different portions of

Bust Oat

in making

Aparthenonia
and Celebrex"

and

Celebrex (it should be noted that

Aparthenonia

have the identical drum beat, rhythm and pitch).

Rhys Moody s Waveform Analysis
The waveform analysis that was attached to the Declaration of Rhys

Moody was prepared incorrectly and is not accurate. Based on Mr. Moody
waveform analysis, it is obvious why the drum beats from

Aparthenonia" and

Bust Oat Groove
10.

do

not match more closely.

First , the two songs were recorded into a computer recording program

known as Pro Tools, at two different sound levels. By recording

Ce/ebrex and
Bust Oat

Aparthenonia
Groove

at one sound level (a higher level) and recording

at another sound level (a lower level) the music in

Celebrex and

Aparthenonia create a more defined waveform and look clearer than the music
in Bust Oat Groove. II

Mr. Moody should have recorded both songs into Pro

Tools at the same sound level in order to receive a more accurate waveform

comparison. Second, Mr. Moody recorded an unedited version of

Bust Oat

Groove l1 that had not yet been digitally manipulated (i.e. sampled) prior to
recording into Pro Tools.

,,

Third, Mr. Moody s

~differences

Jl are

not accurate differences because of the

manner in which he recorded and/or imported all three songs into Pro Tools. In
order to illustrate my point I have conducted the same exact waveform analysis

using the same exact Pro Tools recording program, which is attached as
Exhibit B.
11.
After repeatedly listening to

Aparthenonia
"Bust Oat Groove

and

Bust Oat Groove I was

able to identify how the music in

was

re-arranged and

manipulated (i.e. sampled) in order to create

Aparthenonia. I then duplicated
Bust Oat Groove (using only samples
that was almost identical to

the process and created a new version of

from

Bust Oat Groove " and no OSP)
Prior to recording

Aparthenonia.
Bust Oat
to

12.

Bust Oat Groove

into

Pro Tools, I sampled

Groove
sample

from

the vinyl album titled " Funky Drummer, Volume II." In order

Bust Oat Groove I used an AkailRoger Linn MPC-300 Sampling Drum

Machine/MIDI Sequencer. It is important to note that this sampling machine

loads empty. In other words, you cannot store songs into the device as it has no
internal hard drive, in order to sample a song you have to record the musical

material into the Akai/Roger Linn MPC-300 Sampling Drum Machine/MIDI
Sequencer then assign/edit the sounds and program the composition. To playback the samples you must tap the touch sensitive pads. I also used: a
Denon DJ-151
Digital Turntable to transfer the aud io from

"Aparthenonia into the

sampler; AKG K240 Audio Headphones/Mackie HR824 Studio Monitors were
used to carefully monitor (listen) to the sampled material; and an Alesis
Masterlink ML-9600 CD Recorder was used te record the final results onto a

Redbook standard CD. At no point during this process did I use any digital signal
processing equipment ("DSP" ), equalizers or dynamics processors to change the
natural feel or characteristics of Bust Oat Groove. n

When transferring

Aparthenonia into the sampler (for comparison) I did not make any changes
edits or manipulations to

Aparthenonia

of

any kind.

13.

Here is a list of the rearrangement - manipulation that occurred to

Bust

Oat Groove":

(a)

Snare roll

In

Bust Oat

Groove the snare roll occurs at

the end of the 2nd beat going into the 3rd beat, it was moved to the 4th beat going
into the

1st

down beat in

Aparthenonia and "Celebrex.
In Bust Oat

(b)

Closed High hat

Groove

the closed high hat
1/8111

occurs after every snare hit, it was sampled and played back in

notes in

Aparthenonia
(c)

and

Celebrex.
In

Kick - "splash"

Bust Oat Groove the kick - " splash"
3rd beat, it was moved to the 1sY3

sound occurs at the 2nd
down beat in

beat going into the
and

Aparthenonia

Ce/ebrex.
In Bust Dat

(d)

Alternate - kick -

Groove the alternate kick occurs

at the 3rd beat going into the 4th beat , it was moved to the used as a filler in

Aparthenonia

and

Celebrex.
Bust Oat Groove beat 2 and 4 were sampled and

(e)

Snare drum in

played on beats 2 arid 4 of

Aparthenonia

and

Ce/ebrex.

Although Mr. Ricigliano s declaration indicates the use of tom-toms in the three

songs, I did not hear any tom-toms in any of the three songs.

14.

After rearranging and manipulating the sampled

Bust Oat Groove record

I recorded it into Pro Tools (onto tracks %) and also recorded

Aparthenonia into
(I did not record

Pro Tools (onto tracks Y2)
Tools because the drum section in

at identical levels

Ce/ebrex into Pro
Aparthenonia and
is

Celebrex'"

came from

were identical). In the new waveform analysis

Aparthenonia

identified as "BT"

and

Bust Oat Groove is identified as "BTG." Both songs are played in stereo

(this is why there are two lines one for Left and one for Right).

15.
and

The new waveform analysis (Exhibit B) clearly shows that

Aparthenonia

Bust Oat Groove are almost identical. In my opinion the slight differences in

the waveform analysis are due to digital signal. processing (or enhancements,
reverb, equalizing, dynamics, mix-down, mastering, etc. ) performed on "BT.
Rhythm, Melody and Over-All

Feel Comparison
"Aparthenonia
and

16.

In order to demonstrate that

Ce/ebrex

were

made by

using a sample of the entire

Bust Oat Groove

music, I conducted a comparison
Aparthenonia to IIBust Oat

of the rhythm, beats, melody and over all feel of
Groove.

17.

Attached as Exhibit C. is a stereo audio compact disc that I prepared.

this compact disc are 8 tracks comparing individual sounds and comparing the

entire songs: I did not manipulate any portion of
In order to compare elements (sounds) from both

Aparthenonia for this exercise.
Aparthenonia
and

Bust Oat

Groove I digitally extracted individual elements (sounds) from each song then
played them back individually then together. (jare is a list of what is on each

track:

(a)

Track 1

First sound heard is the

Aparthenonia snare

Bust roll; Second sound heard is the

Dat

Groove snare roll;
"Aparthenonia closed

(b)

Track 2

First sound heard is the

hat; Second sound heard is the

Bust

Dat

Groove closed hat;

(c)

Track 3
Bust

First sound heard is the

Aparthenonia kick;

Second sound heard is the

Dat

Groove kick:

(d)

Track 4

First sound heard is the "Aparthenon;a filler
Bust Oat

kick; Second sound heard is the

Groove kick; (the filler kick was a

sample of the kick from

Bust

Dat Groove " and was used in empty spaces in

Aparthenoniaj
(e)

Track 5

First you hear the

Aparthenonia drum loop;
Bust Oat

Groove drum

Second you hear the digitally manipulated sample of

loop; Third you hear both playing together at the same time. The resemblance is
so that the audio " flanges.

Flanging " occurs when 2 identical audio sources play

together through the same audio stereo channels at the same time.
(f)
Track 6

For an even clearer representation I have

separated the sources in the stereo field as follows:
First you hear the

Aparthenonia drum. loop on the left speaker for 4 bars; then
of "Bust
Dat

you hear the digitally manipulated sample

Groove drum loop on the

Aparthenonia drum
right speaker; then you hear both play at same time with the Bust loop on the left speaker and the digitally manipulated sample of

Dat

Groove drum loop on right speaker; Again "!Ianging " occurs. The sources sound
identical.

'....

(g)

Track 7

First you hear the

Aparthenonia drum loop on
Dat

left speaker; then you hear the original (unedited version) "Bust
drum loop on right speaker, Second, both play at same time with

Groove

Aparthenonia
Bust Dat

drum loop on left speaker and original (unedited version)

Groove " drum

loop on right speaker; The purpose

of

this is to show that even with "Bust

Oat

Groove in it's original form (unedited) the "feel" and "sound"
are substantially similar to that of

of "Aparthenonia

Bust Oat Groove.

(h)

Track 8

original (unedited version) "Bust

Oat Groove

drum loop on right speaker and

CeJebrex

on left speaker (the

Celebrex
Oat Groove

Commercial

was intentionally lowered in order to hear the "Bust

coming from the right speaker).

This exercise shows how "Aparthenonia " and "Celebrex" were created
from sampling and manipulating the original Bust Oat

Groove" record. Because

the music producer sampled from the original

Bust Oat

Groove" record,

Aparthenonia and "Celebrex" have the same rhythm, sound, melody and over
all feel of Bust Oat

Groove. "

Conclusion
18.
Attached as Exhibits C is a compact disc containing a pdf.format copy

the new waveform analysis. Attached as Exhibit 0 is a compact disc
. unedited copy
of

of

the actual (Mac or pc) Pro Tools session created for my

analysis and contains the audio depicted in my waveforms (Exhibit C).
19.
Based my knowledge of

music and sound engineering, and my experience

in listening to and creating digitally sampled songs, I have concluded that

i.. ffl

Aparthenonia

and

Ce/ebrex are almost identical, have the same rhythm.
Bust Oat Groove
were created by sampling

melody and over-all feel of the edited version of

Aparthenonia

and

Celebrex

Bust Oat Groove.

If it

is necessary, I can provide a live demonstration, in court, of how

Bust Oat

Grove

was

sampled and manipulated to create

Aparlhenonia

and

Celebrex. n

20.
Executed this 20th day of July 2005

Exhibit A

167 WEST 81ST. STREET APT SC . NEW YORK , N. Y.
PHONE [phone] . FAX

10024

212 799 9268 .

EMAIL: RECORDMODE(iYHOTMAILCOM

IVAN
EXPERIENCE
12/86-Present

RODRIGUEZ
(Ivan "Doc " Rodngue'?)

Chief Recording/1VIixing Engineer

at Power Play Studios

for

8 years (Chief

Engineer on over 20 Gold and Platinum albums recorded and mixed in

World Class Studios around the World), Independent Contractor; Digital/Analogue recording, editing, mixing and re-mixing entire
albums for

Major Record Labels/Artists Worldwide

Programming, Recording, 1tfic Techniques , Console (i. e. Solid

State Logic, Neve, Amek, Trident, Pro Tools, Akai/Roger Linn MPC- 300 Mackie, Tascam, EQ' , Automation, Operation and Recall , Otan Radar, Mackie Systems, EMU Systems Pro Tools. Multitrack Tape Machines, Outboard gear, Midi devices and sound modulesProduce and analyze sound quality checks , digital signal processing, waveform analysis , and other sound quality dynamics

1977-Present
Independent Eng/
Prod/Mixer/ Mastering Eng,

President of Mustrock Prod1/ctionz WorJdide (BMI) Chief M1/Sic Programmer and Sole Proprietor of record prod1lction, mixing and
editingfaciliry. Provide professional alldio prod1/ction

services-

EDUCATION
1/86-

12/86 Center for Media Arts
Recording and Mixing

New York, N.

Engineer-Audio Specialists Program Graduate

1985-

1986 NYC Technical College (CUNY)
Program

NewYork,N.

Compute1- Engineering Mlfior

DIGITAL/ AUDIO EQUIPMENT

I am proficient in the use and application of the following engmeenng equipment and sound quality devices:

Multi-Track tape mac~ines; MCI/Otari/Sony/Studer;
Digital Workstations; Digidesign , MOTU "-pple;

DAT machines; Panasonic/T ascam/Sony /Studer;

'--- ------. '-"'_.

Console operation/signal flow Trident/SSL/NEVE;

Outboard gear; Reverb/Compression/Dynamics/DSP;
Drum machines; Roger Linn/EMU / Akai/Roland/Y amaha;
Keyboards /T one modules; Y amaha/ Casio /Korg/N ord;
Sampling technology; EMU /Publison/ Akai/ Eventide/Ensonic

RETENTION AS EXPERT
I have been retained as a sound engineering and sampling expert in this case cy

argas, et. al. v.

Pfizer, Inc, et. aI., 04 CV 9772(WHP). My hourly rate is $150. 00
and $500.00

per hour for report and analysis

per day for deposition and trial.
,-\"\Vw, aliml1sic.com

A partial list of credits can be found ((Y

- search Ivan Doc Rodriguez Under Credits.

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