Bourne Co. v. Twentieth Century Fox Film Corporation et al

Filing 34

DECLARATION of Paul M. Fakler in Support re: 28 MOTION for Summary Judgment.. Document filed by Bourne Co.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibits E-G, # 6 Exhibit Exhibit H, # 7 Exhibit Exhibit I, # 8 Exhibit Exhibits J-K, # 9 Exhibit Exhibits L-M, # 10 Exhibit Exhibits N-O)(Fakler, Paul)

EXHIBIT A

Page 1

WALTER MURPHY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

BOUR CO., )

Plaintiff, )

)

VS. ) No. 07 CIV. 8580 (DAB)
)

)

TWNTIETH CENTURY FOX FILM )
CORPORATION, FOX BROADCASTING ) COMPANY i TWNTIETH CENTURY FOX )

TELEVISION i INC., TWNTIETH )
CENTURY FOX HOME ENTERTAINMNT, ) INC., FUZZY DOOR PRODUCTIONS, )

INC. i THE CATOON NETWORK, INC.,) SETH MAC FAR, WALTER MUPHY,)
)

Def endan ts . )
)

DEPOSITION OF WALTER MUPHY

TAKN ON
TUESDAY, MACH 11, 2008

Reported by:
Daryl Baucum, RPR, CRR, CBC, CSR No. 10356

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Page 7

WALTER MURPHY

1 clear and your best testimony today.
2 3

A.
Q.

Right.

I understand.

Mr. Murphy, how long have you been a

4 professional musician?
5 6
7
8

A.
Q.

Since I was a teenager in high school.
How long ago was that?

A.
Q.

Oh, see, probably late 60' s.
And am I correct that you're both a composer

9 and a recording artist?

10 A. Yes, I have been in the past a recording
11 artist. These days I am primarily a composer of

12 television and film scores.
(
13

Q.

How long has it been since you released your

14 last recording as a recording artist?
15

A.

Oh, early 80's, although I was involved with a

16 "Family Guy" album that was out a couple of sumers ago.
17 18

Q.

You played on that album?

A.

I arranged music and conducted the orchestra

19 and wrote songs with Seth MacFarlane but I wasn't the

20 primary recording artist.
21 22

Q.

What would you say your three biggest hits. "A Fifth of Beethoven," that is my -- that's

A.

23 the medley of my hi t, so to speak.
24
Q.

That one is bigger than any others?
Yeah, that was the largest one.
I had a record

25
~ ~ ~"

A.

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Page 8

WALTER MURPHY

1 of "Rhapsody and Blue" and a few others.
2
3

Q.

How did you come to work for "Family Guy"?
I was con tacted by Fox, a lady at Fox in the

A.

4 music department for another matter, and I happened to
5 men tion or ask what was new and pending in the TV

6 department and she put me in touch with Seth MacFarlane

7 who was in preliminary stages of developing "Family
8 Guy. " And I met Seth and we hi tit off very well, and

9 so I have been working with him ever since.
10

Q.

And what's your business relationship with Fox

11 wi th respect to "Family Guy"?
12

A.

I guess you would say I'm an independent
I am not an employee of Fox but when

13

contractor.

14 they -- they hire me to compose music for television

15 shows at their discretion.
16
Q.
And do they con tract wi th you directly or

17 through a corporation?
18 19

A.
Q.

I have a corporation.

What's the name of that corporation?
Crabapple Enterprises.

20
21

A.
Q.

Are you aware that the plaintiffs in this

22 li tigation requested documents from you?
23
24

A.
Q.

Yes, I do.

And what did you do to find documents for those

25 reques ts?
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WALTER MURPHY

1

A.

I went through my files and my library of

2 scores and selected what was requested and sent them.
3

Q.

And the two pieces of written music that you

4 produced, are those the only documents that you have in

5 your possession now related to this episode of "Family

6 Guy"?
7
8

A.
Q.

Yes.
Do you have any personal knowledge of the

9 wri ting of the nonmusical elements of the Weinstein

10 episode?
11

A.

No, I am never involved in script wri ting . My

12 portion of the process of the "Family Guy" production

13 happens after the scripts are written and the editing is

14 done. All the post production begins and then I get
15 involved writing music.
16

Q.

And do you have any personal knowledge of the

17 lyric for "I Need A Jew"?
18

A.
Q.

No.
When were you first asked to be involved in

19

20 wri ting "I Need A Jew"?
21

A.

I don't rememer the exact date.

It was in the

22 year 2000 when we began post production on that episode.
23
24

Let's see.
Q.

I think it was the spring of the year 2000.

But it would be during the post production

25 phase?
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WALTER MURPHY

1

A. Let me correct that.
Q. Sure.
A. I scored with the orchestra in the spring of
the year 2000. The song was actually written probably
six or eight months prior to that so that the animators

2 3
4

5
6
7 8

could animate to a guide musical track, which is usually
the way it's produced.

Q. And what did you do to produce that version of
the song that was used six months before its early version that you just discussed before you produced the
score for the orchestra?
i

9

10
11 12
(

h
I

i
I

A. I was sent a copy of the script and I read
through it, and when I came to the page that had the song lyrics, the parody lyrics, I used that and sat down
and wrote a tune to fit those lyrics.

13
14

15

16
17
18

Q. And did you actually transcribe that tune at
that point?

Did you produce anything in writing for that

19

purpose?
A. Yes, I -- I am sure I wrote down -- I made a
pencil sketch of the melody that I composed.

20
21

22 23
24

Q. And what was done with that piece of writing?
How was it used in the production of "Family

Guy"?
A. I recorded a piano version of the melody that I

25

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Page 1 i
WALTER MURPHY

1

had written and Seth MacFarlane sang a vocal

a what's

2
3
4

called a rough vocal so that -- so I suppose he could
listen to it afterward and then play it for the other

producers of the show and that that's -- that's what I
did at first.

5 6 7
8

Q. And did you play piano on that recording?

A. Yes, I did.
Q. Does Seth MacFarlane read music?

9

A. Yes.
Q. How exactly were you approached with this
particular assignment to write "I Need A Jew"?

10 11 12
,

Who approached you from "Family Guy" and gave
you this assignment?

13
14

A. I believe it was Seth or someone in Seth's
office either called or just sent me the script, which
it happens either way when production schedules get

15

16
17 18

busy, sometimes, you know, there is an envelope in my
mail box and it's a script and it's obviously for me to

19

read.

20
21 22

Q. And were you given any particular instructions
wi th respect to the song on how to write the melody?

A.

Not at first.

I read the script.

I realized

23
24

that this was a parody of a Disney-esque -- sweet

Disney-esque song and I just sat down and wrote that
tune and played it, made a copy of it and played it for

25

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Pa 12
WALTER MURPHY

1

Seth, and he liked it and then he came over and sang a
vocal demo.

2 3
4

Q. Do you know if -- did anybody from "Family Guy"
ever discuss with you using the exact music from "When
You Wish Upon A Star"?

5 6
7
8

A. No.
Q. When you were given your instructions to write
the song, were you instructed to write something that

9

would evoke the particular melody of "When You Wish Upon

10 11 12
(

A Star"?
A.
Actually, after I -- afterwards.
I wrote this

particular version of the melody and Seth sang it, and
sometime after that -- I can't remember the sequence of

13
14

events exactly -- either Seth or his partner, David
Zuckerman, mentioned to me that they would like the

15

16
17

melody to be even closer to the Disney song, and I said
tha t I had to be careful because I have an agreement

18

wi th Fox that I provide unique music, and so I didn't

19

want to use any portion of the Disney song. And later on, Seth sang another version of it,

20
21 22

and changed a few notes here and there to make -- to

make the average person realize that this was going to
be a parody.

23
24

Q. And he did he do that by making the song closer
to "When You Wish Upon A Star," the melody of "When You
~,

25

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Page 13

WALTER MURPHY

1 Wish Upon A Star"?
2

A.

Yeah, he changed a few notes at the beginning

3 of each verse that made it a little closer so that
4 the -- he felt that the average audience memer would

5 realize that this is a parody.
6

Q.

So Seth wrote that part of the final melody as

7 opposed to you?
8

A.
Q.

Yes.
In the process of writing the first version

9

10 that you produced, did you reference any -- did you look

11 at or reference any sheet music for "When You Wish Upon

12 A Star"?
13
14

A.
Q.

No.
Did you listen to any recordings of "When You

15 Wish Upon A Star"?
16
17

A.
Q.

No.
Did you have in your mind any recollection of

18 the melody line for "When You Wish Upon A Star"?
19

A.
Q.

Yes.
And was it your intent to even in your first

20

21 version evoke "When You Wish Upon A Star"?
22

A.

My first intention was to try and write

23 something sweet and Disney-esque, without -- without
24 actually utilizing any material from "Wish Upon a Star"

25 to try and convey the joke in the script.

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Page 14

WALTER MURPHY

1 2 3
4

Q. And what joke was that?
A. That it was a parody of a scene from a Disney
movie, and the sweet melody coupled with the ridiculous
lyrics and the absurd imagery on the screen would be

5 6
7 8 9

funny.

Q. And in your view, your first version of that
accomplished that goal.

A. Yes, I think my first version evoked the
feeling of a Disney song.

10
11 12

Q. As you were writing the melody for "I Need A
Jew," were you particularly using the same melodic
rhythm for "When You Wish Upon A star"?

(

13
14

A. Melodic rhythm.
Q. Putting aside the pitch, just, you know, the
rhythm of the melody.

15

16
17 18

A. I wasn't aware of that or intending on doing

that. Q. Can I have the folder for Exhibi t 2, please.
I would like to show you a document we have

19

20
21 22

marked as Exhibi t 2. This was a document that was

produced in discovery as MUPHY 2 through MUPHY 15.
(Plaintiff's Exhibit 2 was

23
24

marked for identification.)

BY MR. FAKER:
Q. I will ask you to take a look at that and tell
",~

25

,,,oC ,'~'

~ ,~

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Pa 15
WALTEH MURPHY

1

me what it is.

2
3
4

A. This is a copy of my original orchestration
right here. You have the conductor's score of my
original orchestration for the song as it appeared on
the soundtrack of the show.
Q.

5

6
7
8

Okay.

So was this the final version of the

score that you used for the recording session?

A. Yes.
Q. Is this an accurate notation of the song as you

9

10
11

wrote it I should say the final version of the song
as you wrote it?

12
(

A. As far as the orchestra parts, yes. The
melody, I would have to actually listen to a recording
to see if any of the rhythm or the notes were changed by

13
14

15

Seth vocal.
I mean I can't honestly say that without listening to it, but I can tell you that the

16
17

18

orchestration part is exactly the way it appears on the

19

soundtrack.
Q. Did you play the piano on the recording?

20
21 22 23
24

A. No.
Q. Now, when you mentioned the possibility of the
vocal melody changing, that would be based on Seth's
performance of it?

25

A. Yes.

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Page 16

WALTER MURPHY

1

Q. And what sort of changes would he typically

2 3
4
:)

make?
A. Well, any singer performing a song generally
tries to make it his or her own by changing inflections

or length of notes or even actually changing notes. I

6
7 8 9

don't - - I haven't heard a recording of the song in
qui te a while. So I can't honestly tell you this is
nota ted perfectly as to the way he actually sung it.

Q. Would that also include, for example, if he
didn't come in right on the first beat --

10
1i

A. Sure.
Q. -- of a phrase?

12

(

13
14

A. Sure.
Q. Or if he slowed down a little bit or sped up a

15

li ttle bit -A. Right.

16
17 18

Q. in the portion of a song?
Do you view those sort of changes as changing

19

the substantially changing the song that you wrote?

20
21
22

A. Well, I guess it's a -- it's hard to say it's a
judgment call. Depends on how much someone changes the

melody. It's hard to quantify unless you are talking
about a specific recording of a specific song and then I

23
24

could tell you how differently, you know, it's performed

25

than the original. I don't think any song is performed

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Page 17

WALTER MUHPHY

1

precisely the way it's notated by any particular singer.

2 3
4

Q. And you don 't -- do you rememer what this
song -- whether there were significant changes?

A. The difference that I can tell you from memory
is that the beginning of every phrase --

5 6
7
8

Q. Right.
A. -- is different from my original.
Q. We're not -- we're on this document.

9

A. Right.

10 11 12 13
('

Q. Just from that to the recording --

A. To the recording.
Q. is what I am talking about.
A.
I think it's

I would honestly have to listen

14

to his final recording to tell you exactly what would be

15 16
17

different. I don i t rememer.
Q. If a performer changes -- makes significant
changes to the melody of a song like that in the process

is
19

of their performance, are they generally considered to
have authored a new version with you of the song?

20
21

A. No.

MR. ZAVIN: Objection only to the extent you
said "like that." There is no evidence that that exists

22 23
24

here.
MR. FAKER: That's fair enough. That i s fair
enough.

25

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Page 18

WALTER MURPHY

1 BY MR. FAKER:
2

Q.

If a performer does change a melody

3 significantly in the course of performing it for a
4 recording, have you typically recogni zed that person as

5 being a joint creator with you of the song of the music?
6 7
8

MR. ZAVIN: Objection.

MR. FAKER: You can answer my question.
THE WITNESS: I have never had that occasion in

9 anything I have written.

10 BY MR. FAKER:
11

Q.

So you have never had a performer change it so

12 much that you considered ita whole new version of the
13 song.
14

A.
Q.

Let me think. Not that I can think of.
So if somebody were to have done that, is that

15

16 something that would stand out in your mind, giving them

17 joint authorship credit?
18

A.

I would imagine.

19

MR. ZAVIN: Objection.
You can answer.

20 BY MR. FAKER:
21
22
Q.

A.
Q.

Well, it i S never happened, so.
Tha t 's a fair clarification.

23

24 Now, I would like to have you take a look at
25 what we have marked as Plaintiff's Exhibit 3, and that
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Pa i 9
WALTER MURPHY

1 was produced in discovery as MUPHY 1.

2 (Plaintiff's Exhibit 3 was 3 marked for identification.)
4 BY MR. FAKER:
5

6 is.
7

Q.

And I would like to ask you what this document

A.

This is a copy of my original, what's called a

8 lead sheet of the melody of the song from -9

Q.

And this document and also Exhibit 2 that we

10 just looked at, you retrieved these from your personal

11 files?
12

A.
Q.

Yes.
And you kept these in the ordinary course of

13

14 performing your
15

A.
Q.

Yes.
-- composer services for ""Family Guy" "?

16
17 18

A.
Q.

Yes.
Okay. Is this the original version of the song

19 that you wrote that you talked about earlier?
20 21

A.

Yes.
MR. ZAVIN: Objection; only I think he said the

22 original version was a pencil version. He's tes tified

23 to that.
24

MR. FAKER: Fair enough.

25 BY MR. FAKER:

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Page 20

WALTER MURPHY

1

Q. When you discussed finally, you know,
presenting a version of the song to Seth to sing that he eventually rejected and -- was this that version that
you presented to Seth?

2
3
4

5 6 7 8 9

A. Yes.

Q. And did you ever record a version of this?
Did you ever record, rather -- I am sorry, let
me start that over.

Did you ever record this version of "I Need A

10 11 12

Jew"?
A. Yes, with Seth MacFarlane -- this was the
first -- yes, this is the first version that we recorded
of just piano and voice.

(

13
14

Q. And what are the differences between this
version and the final version that was recorded?

15

16
17
18

A. Well, again, I think I would have to listen to
a recording of the final version to tell you all the

nuances of difference between this and what was recorded
on the soundtrack.

19

20
21

Q. Can you tell me the differences between that
and the score in Exhibi t 2?
A. Well, yeah.

22

23
24

MR. ZAVIN: Objection; when you say "between
tha t," are you saying between the recording or between
Exhibi t 3 and Exhibi t 2?

25

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ge
WALT R MU H

1

MR. FAKER: No, no, between Exhibi t 3 and any
Exhibi t 2. Thank you.

THE WITNESS: Okay. Give me a minute and I

4 will look.
5 BY MR. FAKER:
6
7 8

Q.

Sure.
You have these stapled out of order.

A.
Q.

I apologize for that. We had them stapled in

9 the order they were Bates produced to us.
10

A.

Well, the essential difference is the melody in

1 the first measure is changed in the score version,

12 and -- well, the bar numers don't match up because
3 there is no introduction here, but this measure and
14 the first and third measures of the melody are changed

15 each time the verse happens. That's the essential
16 difference. Now, there could be more minor inflections
1 7 or differences in his vocal recording which, you know, I

18 can't tell you that.
19
o

Q.

Sure.
Yeah.

A.
Q.

21

Could you look in the folder for Exhibi t 4,

22 please.
23 I would like to show you a document that we
24 have marked as Plaintiff's Exhibit 4. The document was
25 produced in discovery at FOX 256 through 259.

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lvlU PH Y

(Plaintiff's Exhibit 4 was marked for

identification by the court reporter
and is attached hereto.)

4 BY MR. FAKER:
Q. And can you tell me what this document is?

A. This is a copy of the musical cue sheet for
that particular episode.
8

Q.

And what is this document used for?
It's used for royalty credit with the

9

A.

o performance rights society, either ASCAP or BMI, so that

11 composers and authors receive proper credit.
12

Q.

And is that for when the episode is shown --

13 broadcas t on TV
4

A.
Q.

Yes.
-- or when it i s publicly performed?
Tha t 's correct.

15 16
7

A.
Q.

Were you involved in the creation of this cue

18 sheet?
19

A.

I didn't create the cue sheet but I looked at

o it when it was completed.
1

Q.

So did you approve it the form that it was sent

2 out in?
3
4

A.
Q.

I did.

If you look down at the entries for "I Need A

25 Jew", entry six through nine, can you tell me why the
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H

song is broken out in several different pieces.

A. Because I recorded the song in four pieces for
recording convenience. They're four segueing pieces of
4

music.

I often do that just for expediency on the

scoring stage. And the two middle sections are actually

6 a musical -- I think maybe just the second section is a
musical interlude. I have to look and see.
8

Q.

You are talking now line numer seven?

9

A.

Line numer seven, yeah, doesn i t have a vocal.

o There was a sequence in the middle of the song on screen

11 where Peter goes out the window and tumles and winds up
2 on the ground, and so I did a musical interlude with no
i 3 vocal during that section.
4
1

Q.

And you gave that section a different title --

A.
Q.

Yes.
-- on that sheet?
Yes, I called it" Interlude. "

16
17
18

A.
Q.

And why did you do that?
Just because it wasn i t specific -- it was kind

19

A.

20 of based on the - - a little bit on the song, but not really. I mean a lot of the other material was new
1

2 material, musical material.
3

Q.

So the way that it's notated on this music cue

24 sheet for the purpose of the performing royal ties,

25 "Interlude" is treated as a different song than "I Need
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4

WL\I, tvlLJ H
A Jew"?

A. Yes.

Q. And does breaking out the other parts of "I
4 Need A Jew" as separate pieces in six, eight and nine,
does that have any impact on the royal ties you were

6 paid?
'7
!

A.
Q.

No.
And do you know if there 's -- if that is

8

9 consistent with BMI rules as far as creating cue sheets?
10
11 12

A.
Q.

Sure.
Your testimony

is

it

is consistent?
folder, please. that the interlude
5

A.
Q.

It's consistent, yes.
Could I have the Exhibit

13
14

A.

Also, I

might point out

was

15 notated as BI, which is background instrumental, and the 16 other sections of the song are notated as VV, which is
7 visual vocal, which is a different rate of payment from

18 BMI. So all the more reason to specify which portions
19 of the song have a visual vocal and which don't.
20
21
Q.

And what's the difference in the rates?
I don i t recall.

A.

It's less money if there i s not

22 a vi sual vocal.
23
24
Q.

I would like to show you this document which we
It was

have premarked as Plaintiff's Exhibit 5.

25 produced in discovery at FOX 297.

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Pa 29
WALTEH MUHPHY

1 but I am asking you to answer that question.

2 Can you articulate how without the lyrics
3 this -- would the average listener, the nonspecialized
4 listener, would take the musically this as making fun of

5 "When You Wish Upon A Star"?
6

A.

It i S hard to answer.

I mean I think people

7 that saw the show, got the joke, but comedy has to do

8 wi th context.
9

Q.

10 11

A.
Q.

Right. Usually.
But I am asking you now just musically, can you

12 explain to me any musical device that you used in this
(
13

that a casual listener would recognize as making fun of

14 "When You Wish Upon A Star"?
15

A.

I think the melody would make someone make the

16 connection.
17 18

Q.

But would they -- what connection?

A.

The connection that this is a joke, a spoof, if

19 you want, of the song, the Disney song "Wish Upon A

20 Star" .
21 22

Q.

What part of the melody would do that?

A.

I don't know if there is a specific part. I
I mean how could you

23

mean it would be in its entirety.

24 excerpt these notes or these notes or these notes and
25 say those are the specific things that make somebody

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30
WALTER MURPHY
1 recognize, that you are making fun of something?
2
3 4

Q.

I guess what I am asking
It's hard to quantify.

A.
Q.

What is the funny part? I understand your

5 testimony that overall the song evokes "When You Wish

6 Upon A Star." I understand that, but I am not asking
7 about how the song evokes it.

8 I am asking specifically how would -- what part
9 of the song "I Need A Jew" would the listener recognize

10 as not just evoking but specifically ridiculing or
1 1 making fun of "When You Wish Upon A Star."
12

A.
Q.

I would have to say the en tire song.
But not one particular phrase or part?
I think I would have to answer the whole song.

13
14

A.

15 I don i t know if you can excerpt certain portions of it

16 and say okay, that 'si t right there, that i s the thing.
17

Q.

But can you as you sit here excerpt a certain

18 part and point to it? It's just the whole song?
i9

A.
Q.

I would say the whole song, yeah.

20

And how is the whole song making -- not just

21 saying evoking but particularly ridiculing the original?

22 Musically, how is it doing that?
23
MR. ZAVIN: Obj ection; I don't think he said

24 "ridiculing. " I think that is your word.
25

MR. FAKER: That is my question and he can
i

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Page 31

WALTER MURPHY

1 answer it.
2

MR. ZAVIN: Then objection.

3 BY MR. FAKER:
4

Q.

Okay. Do you believe that the entire song in

5 addi tion to making fun also ridicules "When You Wish

6 Upon A Star"?
7

A.

I don't know that.

I don i t know if that's the

8 righ t word. I mean, you know, that's also in the ear of

9 the listener and in the context of the show if people

10 think that this is satire or parody or ridicule.
11

Q.

But, again, I am asking now -- not in the

12 con text of the show, just musically, just musically, do
13 you believe that "I Need A Jew" musically, using just

14 does it musically, alone, does it ridicule "When You

15 Wish Upon A Star"?
16

A.

I would stay parodies "When You Wish Upon A

17 Star."
18

Q.

But does it ridicule "When You Wish Upon A

19 Star"?
20

A.
Q.

Well, explain what you mean by "ridicule."
Have you ever used the term "ridicule"?

21 22 23

A.
Q.

Yes.
What do you mean it to -- when you stay it,

24 what does it mean?
25

A.

Well, I mean I don't know the dictionary
~'~~ ~

MERRILL LEGAL SOLUTIONS

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Page 32

WALTER MURPHY

1 defini tion of it.
2

Q.

I am asking what your -- when you have used it

3 in the past.
4

A.

"Ridicule," I think it's not just makes fun.

I

5 mean - - I think it i S more nega ti ve, has a more neg

a ti ve

6 connota tion .
7
8

Q.

Okay.
So my -- I think that this song parodies and

A.

9 spoofs, if you will, "Wish Upon a Star." I don't think
i 0 it ridicules "Wish Upon a Star," in my estimation.
11

12 it.

Q.

And by making fun of, you talk about evoking

13 A. Well, it's making the viewer realize that this
14 song yes, evokes the memory of "Wish Upon a Star"

15 when they see it in the show and for all the reasons
i 6 tha t we talked abou t .

17

Q.

Can I have the folder for Exhibit 1, please.

18 You can put that back.

19 (Plaintiff's Exhibit 1 was 20 marked for identification.)
21 BY MR. FAKER:
22
Q.

Are you aware that -- do you know who

23 Dr. Ferrara is, a musicologist?
24

A.
Q.

No.
Are you aware that an expert report has been

25

MERRILL LEGAL SOLUTIONS

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EXHIBIT PL 2

EXHIBIT PL 3

EXHIBIT PL 4