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No. 15-56880

Nos. 16-55089, 16-55626 (consolidated)
====================================================
IN THE

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________
PHARRELL WILLIAMS, ET. AL.,
Plaintiffs-Appellants-Cross-Appellees,
v.
FRANKIE CHRISTIAN GAYE, ET AL.,
Defendants/Appellants-Cross-Appellants,
_______________________________________________
On Appeal from the United States District Court
For the Central District of California
Case No. CV13-06004-JAK (AGRx)
Hon. John A. Kronstadt, District Court Judge
======================================================
BRIEF OF AMICUS CURIAE MUSICOLOGISTS IN SUPPORT
OF PLAINTIFFS-APPELLANTS-CROSS-APPELLEES
Kenneth D. Freundlich
FREUNDLICH LAW
16133 Ventura Blvd. Ste. 1270
Encino, CA 91436
(310) 275-5350
Counsel for Amici Curiae
August 30, 2016

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IDENTITY OF AMICI
This brief of amici curiae is submitted on behalf of the following
persons or entities:
John Covach, PhD
Professor of Music Theory
Chair, The College Department of
Music Director, Institute for
Popular Music Mercer Brugler
Distinguished Teaching Professor

Nicole Biamonte, PhD
Associate Professor of Music
Theory
Schulich School of Music
McGill University
Montreal, Canada

The College Department of Music,
University of Rochester

Editor-On-Chief, Music Theory
Online
Charles Cronin, PhD
B.M., J.D., M.A., Ph.D.
(musicology)

Robert Fink, PhD
Professor IV
Department of Musicology
Chair, Music Industry Program
Vice-Chair of the Faculty

M.I.M.S. (Masters, Information
Management & Systems)

UCLA Herb Alpert School of
Music
Lecturer in Law, University of
Professor in Humanities
Southern California Law School
UCLA
Brad Osborn, Ph.D.
Michael Harrington, D.M.A.
Assistant Professor of Music
Professor and Course Author
Berklee College of Music / Berklee Theory
Online
University of Kansas School of
Boston, Massachusetts
Music
Music Business Program Faculty Murphy Hall 332
Chair
SAE Institute of Technology
Nashville

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Eleanor Selfridge-Field, PhD
Consulting Professor, Music
541 Lasuen Mall
Last position - Assistant Professor Braun Music Center #129
of Music Theory
Stanford University
Stanford, CA 94305-3076, USA
University of Notre Dame
André O. Redwood, PhD
Independent Scholar

Mark Spicer, Ph.D.
Professor of Music

Robert Walser, PhD.
Professor of Music

Hunter College and the Graduate
Center
City University of New York

Case Western Reserve University
Cleveland Heights, OH

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the
undersigned states that none of the amici is a corporation that issues
stock or has a parent corporation that issues stock.

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STATEMENT OF COMPLIANCE WITH RULE 29(c)(5)
This brief is submitted pursuant to Rule 29(a) of the Federal Rules
of Appellate Procedure. All parties have consented to its filing. No
party’s counsel authored the brief in whole or in part; no party or
party’s counsel contributed money intended to fund preparing or
submitting the brief and no person or entity – other than the amicus
curiae, its members, or its counsel – contributed funds for preparing or
submitting the brief.
Dated: August 30, 2016

FREUNDLICH LAW
s/Kenneth D. Freundlich
Kenneth D. Freundlich
Attorneys for Amici Curiae

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TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ............................................................... 1
ARGUMENT ............................................................................................... 1
I.

The GIVE Deposit Copy Conveys Any Protectable Musical
Expression in this Work .................................................................... 3
Important Music Fundamentals....................................................... 3

II.

Defendants’ Expert Reports Do Not Establish Any Substantial
Similarity Between the Melodies of the Two Songs ....................... 5
A.

An Accurate Comparison of the “Signature Phrases” of

BLURRED and GIVE Demonstrates That They Are Dissimilar .... 6
B.

The Melodic “Hooks” of GIVE and BLURRED Are

Dissimilar ....................................................................................... 12
C.

The Bass Lines of GIVE and BLURRED are Not Similar ... 14

D.

Professor Monson’s Testimony Regarding Implied Melodic

Similarities Is Indefensible ............................................................. 17
E.

Professor Monson Does Not Demonstrate Substantial

Harmonic Similarities ..................................................................... 19
CONCLUSION ....................................................................................... 22
CERTIFICATE OF COMPLIANCE WITH FRAP 32 (a)(7)(C) AND
CIRCUIT RULE 32-1 ..................................................................... 23
CERTIFICATE OF SERVICE.................................................................. 24

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TABLE OF AUTHORITIES
Page(s)
Cases
Swirsky v. Carey,
376 F. 3d 841 (9th Cir. 2004) ............................................................. 5, 6
Statutes
Copyright Act of 1909, 35 Stat. 1075, §§ 9-12 ....................................... 3, 4

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INTEREST OF AMICI CURIAE
Amici are musicologists and music theorists who research, teach
and write about music and music composition. Amici believe that the
Ninth Circuit should overturn the verdict in this case because it was
based on testimony establishing musical similarities between the
disputed songs that do not, in fact, exist. Amici are further concerned
that were the verdict to stand, it would curtail creativity in the field of
popular music, inhibiting songwriters by the threat of far-fetched claims
of infringement bolstered by speculative and misleading musical
testimony like that presented by defendants in this case.
ARGUMENT
The District Court, relying on musical analysis by the Gaye
family’s expert musicologists,1 and despite the fact that GIVE2 and
BLURRED3 are objectively dissimilar, allowed this case to go to a jury,
which found GIVE and BLURRED to be substantially similar. Amici
believe that the District Court failed in its “gatekeeping function”
because it was improperly influenced by the misleading visual evidence
that Ms. Finell prepared and by Professor Monson’s largely irrelevant
comparisons of the two works. A straightforward comparison by the
Court of any protected expression in the two musical compositions
should have demonstrated that they are thoroughly dissimilar.

The Gaye parties offered the testimony of two separate musicologists
Ms. Judith Finell (“Finell”) and Professor Ingrid Monson (“Monson”).
2 GIVE is “Got to Give It Up” composed by Marvin Gaye.
3 BLURRED is “Blurred Lines” composed by Pharrell Williams, Robin
Thicke, and Clifford Harris, Jr.
1

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Musical works can involve many elements such as melody,
rhythm, harmony, tempo, key, and key signature. In music copyright
infringement disputes, however, as here, the allegations of similarity
invariably focus on the melodies of two songs. In the case at hand, the
Court largely based its denial of summary judgment on Ms. Finell’s
claim that a bass line and two separate snippets of melody were similar,
and Professor Monson’s claim that an additional snippet of melody was
similar. ER 132-33. The determination of substantial similarity of
melody must involve direct comparison of the melodic information
recorded in the registered visual sheet music or score. If it is a short
melody of only three or four notes, then the melodies (pitch plus
rhythm) must be nearly identical to be deemed similar. To allow one
person to monopolize short, simple, and non-identical melodic snippets
would cause uncertainty and impinge on creative freedom.
As demonstrated below, Ms. Finell and Professor Monson’s
melodic comparisons presented non-corresponding portions of the
melodies of the two works and distorted the duration and placement of
notes in their presentation. But when the melodies in question are
aligned as they are actually notated, their melodies and harmonies are
demonstrably unrelated.
As further demonstrated below, Professor Monson claimed a
single instance of harmonic similarity, even though the chords and
tones making up the harmonic progression in question were different in
the selected portions of the two songs that she compared. As Amici
establish below, there can be no genuine disagreement among experts
as to the fact that there is no harmonic similarity between BLURRED

2

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and GIVE because the chord progressions in both works were entirely
different.
I.

The GIVE Deposit Copy Conveys Any Protectable Musical
Expression in this Work
GIVE was written in 1976 and registered under the 1909

Copyright Act (the “1909 Act”), 35 Stat. 1075. Under the 1909 Act, as
the Court below held, ER 120-21, the copyright protection for GIVE is
limited to any protectable original expression contained in the sheet
music that Gaye deposited in the United States Copyright Office (the
“GIVE Deposit Copy”), ER 2410-16. 35 Stat. 1075, §§9-12; ER 117-119.
The GIVE Deposit Copy expressed GIVE in very precise musical
notation and the legally protected work was limited to the musical
expression in the GAYE Deposit Copy. It follows that only that fixed
expression can be used to evaluate similarity between GIVE and
BLURRED.
Important Music Fundamentals
The fundamental elements of musical works are melody, harmony
and rhythm, which can be precisely recorded in symbolic notation. The
GIVE Deposit Copy uses this standard notation which includes: (i) a
staff (five horizontal parallel lines), (ii) vertical lines (or “bar lines” that
divide the horizontal staff lines into “measures”), (iii) a key signature
(three sharps (“#” signs) at the beginning of each piece), (iv) a time
signature (4/4 here), (v) musical notes (circles with or without durationindicating stems), (vi) rests (to indicate silence between notes), and (vii)
the letters and numbers on top of the staff to indicate the chord symbols
(in which several notes are played simultaneously to create harmony).

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In both BLURRED and GIVE, there are four quarter note beats to
each measure (indicated by a 4/4 at the outset of each piece of sheet
music). By definition, this means that a whole note (open circle with no
stem) lasts for four beats in the measure, a half note (open circle with a
stem) lasts for two beats in the measure, a quarter note (blackened
circle with a stem) lasts for one beat in the measure, an eighth note
(blackened circle, stem with a flag for one eighth note, and two stems
connected by a horizontal beam for more than one eighth note in
succession), lasts for one half a beat, and a sixteenth note (an eighth
note with two flags or parallel beams connecting wo such notes) lasts for
a quarter of a beat.
In comparing two works to establish melodic similarities or
differences for the purposes of copyright analysis under the 1909 Act,
musicologists should never embellish this notation by suggesting things
a “musician should know” in the written music. Neither should a
musicologist in such cases make something dissimilar appear to be
similar by juxtaposing elements of the musical compositions occur in
unrelated places in the respective sheet music.
By relying on embellished transcriptions and aligning notes out of
the sequence in which they actually appear in each song, Ms. Finell and
Professor Monson’s analyses departed from the basic principles and
rules for comparing two works in a copyright infringement context. It is
thereby required that the comparison be limited to an alignment of the
works as fixed – without unsubstantiated implications and variances.
This is no different than analyzing similarities in other forms of
expression. Nobody would find two literary works similar simply
because an expert moved around words, paragraphs and punctuation or
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eliminated portions of one or the other. Neither should Courts be
influenced by musicologists’ reports if they likewise manipulate musical
notation to create false notions of similarity.
II.

Defendants’ Expert Reports Do Not Establish Any
Substantial Similarity Between the Melodies of the Two
Songs
Melody is typically the most distinctive, and memorable musical

aspect of a popular song, because that is what listeners can most readily
comprehend, recall and replicate. Melodic lines comprise pitches
sounded for particular durations. No one can claim to own a three or
four-note sequence, or a mere rhythmic pattern, without reference to
the particular pitches, their durations, and their metric placements4 in
the measures. It is only the combination of pitches and rhythms that
constitutes melody, and just a few pitches in a particular rhythmic
pattern is unlikely to constitute protectable original expression. By
isolating sequences of a few pitches out of the musical context in which
they occurred -- i.e., without regard to their duration and their
placement in the musical phrase --Ms. Finell presented inaccurate and
overly speculative musical analyses. See Swirsky v. Carey, 376 F. 3d 841
(9th Cir. 2004).
If the melodies of two songs are dissimilar, no other musical
parameter (harmony, instrumentation, dynamics, etc.) can render them
Metric placement refers to the location of the notes within the meter of
the song which provides the pattern of pulse and accent that is the beat.
It is shorthand for the continuum of stressed notes within a measure.
For example, in 4/4 time, a quarter note on the first beat of the measure
is a strong downbeat while an eighth note on the second half of the first
beat would be considered off the beat.
4

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similar. Accordingly, songs with identical chord progressions but
different melodies are fundamentally different works. Likewise, the
same pitches set to a different rhythm result in a different melody. See
id. at 847-48.
A.

An Accurate Comparison of the “Signature Phrases”
of BLURRED and GIVE Demonstrates That They Are
Dissimilar

Based upon her fanciful alignment of the pitches and the rhythms
of the two songs, Ms. Finell testified that the so-called “signature
phrases” of BLURRED and GIVE are similar. As presented in the
summary judgment ruling below, Ms. Finell presented the “signature
phrases” to the District Court as follows:

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ER 2049, ER2129, ER2132, ER123, (referred to herein as “Chart I”).
There are several clear errors in Chart I. To illustrate this, Amici
attach the following chart (Chart II) which compares the second
measure of GIVE as presented by Ms. Finell to the actual second
measure of GIVE in the GIVE Deposit Copy:

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This chart was prepared by Amici for this Appeal and is a
comparison of the notes and rests5 that Ms. Finell presented as measure
two of the “significant melody” in GIVE, ER 2049, ER2129, ER2132,
ER123, and the actual notes and markings in the second measure of
this phrase in the GIVE Deposit Copy. ER 2411 (Chart II).
As is readily apparent from visual inspection, the final note in
GIVE – the F sharp (the note on the first space of the staff), is
incorrectly written in Ms. Finell’s chart as an eighth note followed by a
quarter note rest.6 But the actual notation in the GIVE Deposit Copy
indicates rather an eighth note tied7 to a quarter note. A true
comparison between the GIVE Deposit Copy and BLURRED is
illustrated in the chart that follows (Chart III) which shows clearly that

A rest is a marking on the sheet music that signifies silence. The rests
in question in this case are either a half note rest (a small black
rectangle on the third line) signifying two beats of silence, or, as in this
example, a quarter note rest (a squiggly line) signifying one beat of
silence.
6 Finell’s presentation of the measure also uses durational markings
that, while accurate depictions of the length of the notes, omit critical
markings in the GIVE Deposit Copy that differentiates the second
measure in the GIVE Deposit Copy from Finell’s presentation of
measure two.
7
A “tie” in musical notation is a curved line connecting the heads of two
notes of the same pitch and name, meaning they are a single note with
a duration equal to the sum of the individual notes' values.
5

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the two last notes on the fourth beat of the measure have different
durations:
This chart was prepared by Amici for this Appeal and is a
comparison of what Ms. Finell presented as measure two of the
“significant melody” in GIVE, ER 2049, ER2129, ER2132, ER123 and

the actual BLURRED sheet music ER 2301. (Chart III).8
The divergence between the melodic lines, which the District
Court should have seen on visual inspection, makes the two phrases
significantly different because it changes the duration of the final note
in the phrase.
Chart I also reveals, in several ways, how Ms. Finell selectively
isolated bits and pieces of three sets of note sequences and, without
regard to their placement in the measures, based her assertion of
similarity on this cherry-picking of musical information. These isolated
similarities of de minimis pitch sequences alone have no probative
import on the issue of musical similarity. This is especially true given
that the de minimis sequence in question is an utterly commonplace
melodic kernel found in innumerable works across music genres for
This chart portrayed the notes in BLURRED as being an octave lower
than the chart prepared by Ms. Wilbur for this case. ER 2298-2306. But
the parties did not make an issue of this and for the purposes of this
analysis, that is of no moment.
8

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centuries. A more detailed examination of Ms. Finell’s approach reveals
the following:
First, in Chart I, in Ms. Finell’s bracketed “a” sequences, she
simply omits a note she identifies as “#2”9 in the BLURRED sequence,
as it inconveniently indicates a divergence from the GIVE melody, and
undermines her claim that the remaining sequence of pitches (three
“3”s in BLURRED versus three “5”s in GIVE) are similar. This
divergence is significant and conveys to the listener a very different
melodic character. Moreover, the “3”s and the “5”s represent different
notes in the scale.
Second, in the bracketed “b” sections of Chart I, Finell extracts
two commonplace note sequences (the 5-6-1 and 1-5 sequences) from the
rhythmic and metric contexts in which they actually occur. In so doing,
she misleadingly implies that the mere existence of a few common
pitches, in isolation from their rhythmic characteristics and metric
position, indicates melodic similarity. In fact, the different placement of
the 5-6-1 sequences (the “b” bracketed notes) in the melodies in question
renders the musical effects of these pitch sequences quite dissimilar.
In GIVE, the “5” occurs on a strong quarter-note beat (three)10; the
“6” occurs on a weak eighth-note beat (the second half or “and” of the
The numbers correspond to a note’s place in the scale with “1” being
the tonic note (A here), “3” meaning the third note from the tonic in
sequence, and “5” meaning the fifth note in sequence. The default
description of a scale is based on its ascending form, i.e. from the lowest
note to the highest.
10 A 4/4 piece has a quarter note metric pulse which means that when
reading or listening to each measure one can count four quarter notes
(or 1, 2, 3, 4), giving equal time to each of the four notes and separating
9

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third beat); and the “1” occurs on a weak quarter-note beat (four). In
BLURRED, by contrast, the “5” is on a weak eighth-note beat (the
second half or “and” of the third beat); the “6” is on a weak quarter-note
beat (four), and the “1” is on a weak eighth-note beat (the “and” of four).
These contrasting metric placements, which can be seen from a visual
inspection of Chart I (the 5-6-1 sequence [bracket “b”] in BLURRED is
“shifted to the right” by one eighth note when compared with GIVE) are
significant because notes that occur on the strong beats of a measure
(beats one and three in these works) are perceived as emphasized, and
thus considerably more hierarchically salient, than those that sound on
the less emphasized weaker beats (notes falling on beats two and four
at the quarter-note level, and notes falling on the second half—the
“and”—of any quarter-note beat).
Third, the two “melismas”11 at the end of the “signature phrases”
in GIVE (the second half of the word “parties”) and BLURRED (the
word “girl”) are also dissimilar in terms of their metric placement,
melodic profile, and pitch content.
Fourth, the most distinctive melodic element of the “signature
phrase” in GIVE is its ascent to the second step of the scale (the “B”
under Ms. Finell’s “2”). This ascent does not occur in the “signature
phrase” of BLURRED. The note following the 5-6-1 phrase in
each number in the count by an equal amount of time. The default
behavior of this meter is that quarter note beats 1 and 3 are strong and
quarter note beats 2 and 4 are weak. Similarly, if there are eighth notes
in the measure, one can count “1 and, 2 and, 3 and, 4 and” to represent
the beats of the measure in eight equal parts. In such case, any eighth
note falling on the “and” of the beat is weak with respect to that beat.
11
Melismas are notes sung to the same syllable of text.
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BLURRED (the “A” or step “1” in Ms. Finell’s chart) is not only different
from GIVE whose following note is “B” (step “2”), but occurs in a
different measure, is shorter in duration than the corresponding
portions of BLURRED and therefore bears no musical relationship to
the “B” in GIVE.
Finally, rather than consider the combination of musical elements
that comprise melodic lines, Ms. Finell posits that the phrases are
similar simply because: "both songs repeat their starting tones”. ER
2048, ER 122. In fact, as demonstrated above, the starting tones of the
two signature phrases are different, they repeat a different number of
times and these phrases are set to different harmonic progressions
(chords) and lyrics.
To summarize, an objective comparison of the signature phrases
reveals that they are completely different, having different starting,
middle, and end notes, and different pitch, harmonic, and rhythmic
sequences.
B. The Melodic “Hooks” of GIVE and BLURRED Are
Dissimilar
In her testimony, Ms. Finell presented the Court below with a
distorted version of what she identified as the “hooks” of the two

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works.12 Sandy Wilbur (“Wilbur”), appellants and counter-defendants’
expert, on the other hand, offered an accurate presentation of these two
fragments (Chart V) that the District Court should have relied on to
make its analytic comparisons of the two songs:

ER 2142, ER 125. (referred to herein as “Chart V”.)
Ms. Wilbur’s chart (as well as Ms. Finell’s chart) presents the
most significant difference between these two phrases, the pitch B on
the first beat of measure two of GIVE (the quarter note on the middle
line of the staff) versus the pitch A on the first beat of BLURRED (the
quarter note on the second space of the staff). These different pitches
and durations result in phrases that sound completely different.

12

ER 2050-51; ER 125, ER 2141. (referred to herein as “Chart IV”.)
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Comparing Ms. Finell’s Chart IV with Ms. Wilbur’s Chart V, one
finds that Ms. Finell improperly aligned the “hooks” of the two songs.
This misalignment reveals an effort to obscure the fact that the first
notes of the hooks actually occur on different beats in the measure,
creating significantly different melodies and overall musical effect.
In the first measure, Ms. Finell lined up the first two notes to
make them seem of equal duration. She accomplished this by simply
omitting the important rests13 preceding the notes in the first measure
of each song, and then wrote the two quarter notes in GIVE to make
them appear to rhythmically align with the two eighth notes in
BLURRED, which they do not. The accurate representation of these
notes is in Ms. Wilbur’s Chart V, which shows that the first two notes of
BLURRED, which are eighth notes, occur on beat four of the first
measure of this example (the notes are preceded by a half note rest and
a quarter note rest which take up the first three beats of the measure).
The first two notes of GIVE, on the other hand, occur on beats three and
four respectively (the notes are preceded simply by a half note rest
taking up the first two beats of the measure). By aligning two quarter
notes with two eighth notes, Finell created an illusion that these
melodies are identical when in fact two eighth notes are half the
duration of two quarter notes and this difference significantly affects
the characters of the two “hooks”.
To make her comparison even more opaque, Ms. Finell omitted
three notes in the second measure at the end of her transcription of the
two measure “hook” phrase in BLURRED in an attempt to make the

13

See fn 5.
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two hooks resemble each other. In fact, the GIVE deposit indicates
otherwise, as Ms. Wilbur’s chart (Chart V) accurately demonstrates, the
rhythms of these “hooks” are significantly different.
In its second measure, GIVE’s hook contains a dotted quarter note
(the dot after the note extends the duration of the quarter note by an
additional half of its duration), followed by an eighth note tied to a
quarter note14, and ending with a quarter note rest. The second
measure of the hook of BLURRED, on the other hand, contains a
quarter note followed by a quarter note, followed by two sixteenth notes
and an eighth note tied to a final quarter note.
Not only are the pitches in the second measures of the hooks of the
songs almost completely different, but they are also heard at different
temporal points within the measures. Again, these divergences result in
entirely different melodies with entirely dissimilar characters. This is
readily apparent when the notes of the disputed songs are lined up as
they were written, as in the Wilbur transcription above which was
properly based on the GIVE Deposit Copy.
C.

The Bass Lines of GIVE and BLURRED are Not
Similar

To begin with, introductory bass lines in popular music commonly
center on the tonic pitch (which here is an “A”) to establish in the
listener’s ear the harmonic “home” of the music that follows. This pitch
becomes the harmonic base of the song. Accordingly, any song in the
key of A will typically open with that pitch in the bass line, and repeat
that pitch many times in the bass line, sometimes just before the first

14

See fn. 7.
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beat of a measure, and sometime on the first beat itself. Such a
commonality has no significance whatever on the question of
substantial similarity.
To support her assertion of similarity regarding the bass lines of
the two songs, Ms. Finell did not refer to the GIVE bass line established
in the GIVE Deposit Copy. Instead, she presented her own version of
the GIVE bass line, which demonstrated different pitch durations than
those on the GIVE Deposit Copy. Manipulating these durations in the
GIVE bass line distorted the correct rhythm of the work in an attempt
to create a false impression of similarity in these bass lines, which does
not exist.
Amici present below an illustration of the clear differences
between the actual GIVE Deposit Copy and Ms. Finell’s presentation:

This chart was prepared by Amici for this Appeal and is a comparison of
what Ms. Finell presented as the GIVE bass line, ER 2057, ER 128, and
the bass line as notated in the first eight measures of the GIVE Deposit
Copy, ER 2411 (Chart VI).
As is clear from Chart VI, Ms. Finell manipulated the GIVE bass
line by assigning the notes different durations than those established by
Marvin Gaye. This can be apparent by comparing each of the five
measures of each bass line, each of which have notes of different
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duration, metric placement and beat. For example, Ms. Finell’s version
of the GIVE “hook” has ties connecting the last notes of measures 1, 2
and 3, with the first note of the corresponding next measures. The
GIVE Deposit Copy has no such ties. Furthermore, the second notes of
the first two measure in Ms. Finell’s version of the GIVE “hook”
presents eighth notes when the GIVE Deposit Copy clearly indicates
quarter notes.
If the Court had, in fact, been presented with an accurate
comparison of what the musical notation of the two bass lines actually
is, a visual inspection would have revealed what is clear to Amici: that
these two bass lines are entirely different. Here is such an accurate
comparison of the bass lines:

This chart was prepared by Amici for this Appeal and is a comparison of
the actual bass line in the GIVE Deposit Copy, ER 2411, and the actual
bass line in the BLURRED sheet music, ER 2299. (Chart VII).
As the correct alignment of the bass lines of the two songs
indicates, the syncopated fragments comprising these two bass lines
correspond neither rhythmically nor in pitch sequence, and are clearly
dissimilar. For instance, in GIVE, the last bass note of the first three
measures occurs in the third measure and is “tied” (by the slightly
curved line below) to the first quarter note of the following measure.
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This “tie” extends the duration of the single note that is tied (i.e. not
reiterated)15. In BLURRED, on the other hand, in the parallel location
there are two untied and therefore separate bass notes, one in the last
beat of the third measure and one on the downbeat of one in the
succeeding measure. This difference between the metric placement of
these notes is extremely significant because it results in two very
different sounding bass lines. See Chart VII.
D. Professor Monson’s Testimony Regarding Implied
Melodic Similarities Is Indefensible
Professor Monson takes two slices of vocal melody out of context, a
portion of the lead vocal of GIVE and a melodic vocal line from
BLURRED, and claims that the fact that they both feature chromatic
ascensions indicates musical similarity that cannot be attributed to
coincidence. This is an invalid conclusion based on distortion of the
musical evidence.
The notes of these two snippets of melody themselves are different
(D-D#-E16 on BLURRED and G-G-A17 on GIVE), and the rhythms are
also different. Here is the correct alignment of the musical notation of
the relevant portions of the melodies in BLURRED and GIVE:

See fn. 7, supra.
These are the correct letter names in sequence of the three notes in
the BLURRED fragment above.
17 These are the correct letter names in sequence of the three notes in
the GIVE fragment above.
15
16

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This chart was prepared by Amici for this Appeal and is a visual
depiction of the portions of the GIVE Deposit Copy, ER 2413, and the
BLURRED sheet music, ER 2299, which Professor Ms. Monson
addresses (Chart VIII).
A visual comparison of these two measures reveals that the
placement of the notes in the measures, their pitches and their
durations are different. In BLURRED, the measures comprise a halfnote rest, a quarter note rest, followed by three eighth notes with the
last one landing on an eighth note which is the first beat of the
following measure. In sharp contrast, in GIVE, the parallel measures
begin with a half-note rest, an eighth rest, followed by three eighth
notes tied to a quarter note on the first beat of the following measure.
This simple shift of an eighth note changes the whole character of the
melody and this melodic and metric dissimilarity result in works that
have a markedly different musical character. This is the identical issue
Amicus raises with respect to Ms. Finell’s discussion of bracket [b] in
Chart I. See pages 10-11, supra.
Furthermore, Professor Monson’s statement that the two threenote phrases being compared both “chromatically ascend,” ER 131-32,
ER 2080, is misleading. These two three note phrases ascend differently
– BLURRED by two ascending chromatic half steps, and GIVE by one
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ascending whole step. This seemingly minor difference in fact renders
the melodies highly dissimilar in the eyes and ears of both performers
and listeners.
E.

Professor Monson Does Not Demonstrate Substantial
Harmonic Similarities

The “harmony” of a popular song refers to the progression of
chords -- simultaneous sounding pitches that typically serve as an
underpinning for the melody. Popular music tends to use a very limited
number of standardized and predictable chord progressions.
Accordingly, the fact that two songs in a similar genre share a similar
chord progression is mostly inconsequential on the question of
infringing substantial similarity.
As one can easily see from the BLURRED sheet music in question,
ER 2298-2306, BLURRED has only two chords throughout – an A chord
and an E chord.18 GIVE, in contrast, has a progression of seventh
chords19 throughout. ER 2410-2416. This harmonic progression
The chords in BLURRED and GIVE are indicated by the letters
appearing on top of the staff. The “A” chord indicated is an A Major
chord which consists of three notes, the root A, plus the 3 and 5 notes
(C# and E). The “E” is an E major chord which also consists of three
notes, the root E, plus the 3 and 5 notes (here G# and B)
19 The difference between an E and an E7 is that this notation indicates
that the seventh note above the root of the chord (and E here) is to occur
simultaneously with the basic E chord which creates a different
harmony. (so the four notes are E-G#-B plus a D). The difference
between an A and an A7 is that this notation indicates that the seventh
note above the root of the chord (A here) is to occur simultaneously with
the basic A chord which creates a different harmony. (so the four notes
are A-C#-E plus a G). The inclusion of a seventh on top of the basic
18

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contrasts starkly with the more rudimentary A and E chords
alternating in BLURRED. In fact, the Court observed the fact that
between the songs “the chords and tones differ.” ER 131. This
observation should have ended the District Court’s inquiry as to
whether there was any harmonic similarity. See Williams, 2014 WL
787773 at *17. Professor Monson’s contentions to the contrary that
there is harmonic similarity are confusing and of no consequence for the
following reasons:
First, Professor Monson’s conclusion that the chords in GIVE can
substitute for the chords in BLURRED because of the “resemblance” of
the two melodies, is of no moment as to whether BLURRED and GIVE
are musically similar. ER 131, ER 2079-2081. The only relevant
harmonies that the District Court should have considered are the actual
harmonies in the two songs as fixed, and not harmonies that might
effectively substitute for those used in in the other song.
Second, Professor Monson also bases her claim of harmonic
similarity on the fact that the BLURRED chord progression, which she
admits is different from the chord progression in GIVE, “prolongs the
tonic”. ER 2080. The tonic, as set forth above, establishes in the
listener’s ear the harmonic “home” of the music that follows. Prolonging
the tonic is a technical term that means implying that the tonic is still
the underlying harmony despite interpolation of non-tonic (“static”)
harmonies between each instance where the tonic is sounded. Virtually
all Western music throughout history has the fundamental behavior of
centering on a single pitch (i.e. prolonging the tonic) to one degree or
major chord indicates a bluesy feel that does not exist in the straight
major chords.
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another. But whether or not the tonic has been prolonged has no
bearing whatsoever as to whether these harmonies are the same.
Finally, Professor Monson disputes Ms. Wilbur’s characterization
of GIVE as having a “minor sound”. But the nature of the “sound” of a
song is not relevant to the question of the similarity of the music of the
two works that is unequivocally established in the music notation of the
songs. GIVE’s harmonic content is made up of a series of seventh
chords; that of BLURRED is comprised of only two major chords. In
short, the harmonic progressions of the two songs are entirely
dissimilar.

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III.

Conclusion
Amici contend that, despite their elaborate but misleading

testimony, neither Ms. Finell nor Professor Monson demonstrated any
significant similarities in the melody or harmony of BLURRED and
GIVE. If this jury verdict is allowed to stand, it will set the dangerous
precedent of allowing for academically speculative musical analyses to
taint the forthright “analytic dissection” of two musical works by a
District Court in a music copyright infringement lawsuit. This will have
a deleterious effect on composers who will have the spectre of frivolous
lawsuits hanging over them as they create new musical works tapping
into the rich commonality of musical ideas that musicians have relied
upon since time immemorial.
Amici urge this Court to reverse or vacate this verdict.
Dated: Encino, California
August 30, 2016
Respectfully submitted,
s/ Kenneth D. Freundlich
Kenneth D. Freundlich
FREUNDLICH LAW
16133 Ventura Blvd., 1270
Encino, California, 91436

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(C) AND
CIRCUIT RULE 32-1
Pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit Rule 32-1, the
attached opening brief is proportionately spaced, has a typeface of 14
points or more and contains 5904 words.
DATED: August 30, 2016

FREUNDLICH LAW
s/Kenneth D. Freundlich
Kenneth D. Freundlich
Attorneys for Amici Curae

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CERTIFICATE OF SERVICE
I, Kenneth D. Freundlich, a member of the Bar of this Court,
hereby certify that on August 30, 2016, I electronically filed the
foregoing BRIEF OF AMICUS CURIAE MUSICOLOGISTS IN
SUPPORT OF PLAINTIFFS-APPELLANTS-CROSS-APPELLEES with
the Clerk of the Court for the United States Court of Appeals for the
Ninth Circuit by using the appellate CM/ECF system. I certify that all
participants in the case are registered CM/ECF users and that service
will be accomplished by the appellate CM/ECF system.
s/Kenneth D. Freundlich

25