Rupa Marya v. Warner Chappell Music Inc

Filing 157

MEMORANDUM in Support /MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR REVIEW OF MAGISTRATE JUDGE WILNERS ORDER RE: DISCOVERY MOTION DENYING PLAINTIFFS MOTION TO OVERRULE DEFENDANTS CLAIM OF ATTORNEY-CLIENT PRIVILEGE filed by Defendant Warner Chappell Music Inc. (Attachments: # 1 Declaration DECLARATION OF KELLY M. KLAUS IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR REVIEW OF MAGISTRATE JUDGE WILNERS ORDER RE: DISCOVERY MOTION DENYING PLAINTIFFS MOTION TO OVERRULE DEFENDANTS CLAIM OF ATTORNEY-CLIENT PRIVILEGE, # 2 Exhibit A to K. Klaus Declaration, # 3 Exhibit B - Under Seal, # 4 Exhibit C - Under Seal, # 5 Exhibit D to K. Klaus Declaration, # 6 Exhibit E to K. Klaus Declaration, # 7 Exhibit F to K. Klaus Declaration)(Klaus, Kelly)

Exhibit A

Page 1
1

UNITED STATES DISTRICT COURT CENTRAL

2

DISTRICT OF CALIFORNIA

3

WESTERN DIVISION

4
5

GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,

6

Plaintiffs,
7

Lead Case Number
CV 13-04460-GHK

vs.

(MRWx)

8

WARNER/CHAPPELL MUSIC INC.,
9

et al. ,
Defendants.

10

11

12
13

14

DEPOSITION OF JEREMY BLIETZ

15

Los Angeles, California

16

Thursday, July 10, 2014

17
18
19

20
21
22

23

Job No: 81817

24

Reported by:

25

NIKKI ROY
CSR No. 3052
TSG Reporting· Worldwide

877·702-9580

l

Page 45
1

Q.

And who at Warner/Chappell would make the

2

judgment as to whether something is an arrangement or

3

not an arrangement?
MS. LeMOINE:

4

5

registration?

6
7

MS. MANIFOLD:

For the purposes of the

Warner/Chappell songbook database.

8
9

For the purposes of

MS. LeMOINE:

Just it's vague.

I don't know

what that means.

10

You can answer the question.

11

THE WITNESS:

As I understand the question,

12

I would say it would be a legal department question.

13

BY MS. MANIFOLD:

14

·15

'Q.

Okay,

And in looking at ):Ccensing

•arranqements with, for example, ASCAP, d,o

}'()U

look at>
'i

whether it's an arraJJ.\J'§!ment or an oil~inal mus cai)
17

composition?

18
19

MS. LeMOINE:

Objection; vague.

It lacks

foundation, calls for SI?eculation:

20

THE WITNESS:,

21

.it's a question o:( whether: the creators and the

22.

publishers invoiy~d are .A_~~AP mernJ::ie~rs~ and,

.2 3 ;

are, we would look to ASCAP to license rights thai::

24

they would typically license on our behalf. 1

25

Ill
877-702-9580

I
I
I

In terms of ASC.A_P, . fen::. us,)

TSG Reporting- Worldwide

I

I

ifiJ::te:¥

i

Page 46
1

MS. MANIFOLD:

Okay.

I'd like to place in

2

front of the witness an exhibit that's been

3

previously marked as Plaintiffs' Exhibit 41.

4

for identification.

5

6

And I apologize.

So 41 ·

The exhibit label really

does say 41, but the copy is quite badly copied.

7

And it,

for the record,

is a Stock Purchase

8

Agreement between Warner/Chappell Music and David K.

9

Sengstack.

If I said that wrong,

I apologize.

And

10

it is Bates-stamped WC 760 to 827.

11

the copy we've been using as an exhibit, not all the

12

Bates stamping came through on the copying, so there

13

may be some pages without a Bates stamp, but I can

14

represent to you that this is a consistent copy of

15

the exhibit, and at some point I'll discuss with

16

defendants substituting Exhibit 41 with a complete

17

Bates-stamped copy, but we can look at this document

18

with the numbers at the top, which would be on the

19

upper right-hand corner.

Unfortunately,

20

Q.

Have you seen this document before?

21

A.

Yes,

22

Q.

And in what context did you last see it?

23

A.

As I recall, it was in the song file and was

I have.

24

a document that I copied as part of the document

25

review process.
TSG Reporting· Worldwide

877·702-9580

Page 157
1

MS. MANIFOLD:

2

MS. LeMOINE:

3

MS. MANIFOLD:

4

All right.
We're off the record.
We are off the record.

(Recess held 3:13p.m. to 3:43p.m.)

5

EXAMINATION

6

7

BY MS. LeMOINE:

8

Q.

.All rigb.t., (if

xou

9

A.

.AS CAP is owned

l:J:y: its members,

10

11

kn.ow,

who owns AS CAP
INh~ch are thee

writers and I-Jublls-b.ers wb.icb. are affiliated
Q.

w:i. t:h Tt ~'

And earlier Ms. Manifold asked you, did you

12

interact with ASCAP at all with regard to

13

unauthorized reproduction and distribution.

14

recall that?

15

MS. MANIFOLD:

16

THE WITNESS:

17
18
19

Do you

Objection; leading.
I do recall the question, yes.

BY MS. LeMOINE:
Q.

Are you the only person at Warner/Chappell

who interacts with ASCAP?

20

A.

No, I'm not.

21

Q.

Who else at Warner/Chappell interacts with

22

23

AS CAP?
A.

As I understand it, our legal department

24

interacts with ASCAP, our creative department

25

interacts with ASCAP, and our executive departments
TSG Reporting- Worldwide

877-702-9580

Page 158
1

interact with ASCAP.

2
3

Q.

And can you tell me what does the legal

department interact with ASCAP for,

4

MS. MANIFOLD:

5

You can answer.

6

Ambiguous.
Sorry,

BY MS. LeMOINE:

7
8

if you know?

Q.

What's the nature of ASCAP in :Your legal}

-department?

9

A.-

..

----

··-··

,I would say in general terms, when issues

10

relate to rights that are rep:r::esented hy ASCAP,':

11

there's a common interest between Warner/Chappell and'

,12

ASCAP to address those matters in terms o(

13

litigating -- not litigatin<;r ::-- bt1t a,s I2l1f3hin<;r for)

14

.artist :r:ight§ 'or scmg~~rt:e:r ri~ilts' ~ w:3,£ii_e:!/_¢:ila:P:rJeli\

'is:

:works with ASCAP

16,

:1a.w-.

in

try~~q tci_ ::;t::rengt:ll:E~I1_ S:()k>Y:r:Jghf

'17

:we have a shared--interest in intellectual
.......... ___ -·
property rights, and so commonly we're working

-18

together to -- to support those rights for'.

19

songwriters and publishers .1

'"

20
21

Q.

24

25

MS. MANIFOLD:

Objection; form.

I
•

BY MS. LeMOINE:
Q.

1

And so in your role in the administration

department, what role do you provide?

22

23

__

What do you provide as the person in charge)

of the administration department?'

l

I

~--------------------------------~-----------='J

TSG Reporting- Worldwide

877-702-9580

Page 159
1

MS. MANIFOLD: . )unbiguous. •

2

THE WITNESS: . In terms of
I

3

MS. MANIFOLD: · Go ahead ..

4

THE WITNESS:

5

\In terms of administration, m:::,r

area is. responsible for the registration of works at
ASCAP. . We also h)rovide them c:gpies o{ CO;P::,rrig~l~)
certificates when they requir:E! t;he~ for ~iitig(it~()n,

T

they're. pursuing or imi:sul t o:E rionu~e
9

?:r

nonilcensin~·

o:fworks when requested. • (So su,ppcn·tTn teJ::1lls of the
catalog that we've regis tei:e(f with them.
BY MS. LeMOINE:

1

12

Q.

And without

without gE!ttlng ir1t;o Cil1::(

13

detail, if there was -- if there is a litigation or a.

14

t.Jen(ling litigation reg(ird~rlg _a11 unauthoi:Ized use ____o_,~-::...... c.·/

15

work; are there . occasions when :you would _provi(ie)

16.

'information?•

1i
18

MS. MANIFOLD:

•o:b]ec:t:.ion; oU.tsid.ethe scope.·

BY MS. LeMOINE: .

19

.Q.

.To provide information?•

2o:

A.·

Yes.

Based on direction from the i~~9"13.i')

21.

department:., I hay~_ provided cop:j:r:Ig.ht:_ ~~J:-t:I:Elcat§s!

2 2·

and internal Information

23

MS. LeMOINE:

to

ASCAP as requeste-d~:

Okay.

That's all I have.

24.

25

TSG Reporting- Worldwide

877-702-9580

Page 160
1

2
3
4

5
6
7

EXAMINATION
BY MS. MANIFOLD:
Q.

During the break, did you discuss your

counsel's cross-examination?
A.

Just we spoke generally.

Didn't discuss any

specifics about it.
Q.

What did you discuss generally?

8

MS. LeMOINE:

9

invades the privilege.

10

11

MS. MANIFOLD:

Objection to the extent it

With open testimony, I'm

entitled to know what you talked about.

12

THE WITNESS:

13

company.

14

Talked about my role in the

BY MS. MANIFOLD:

15

Q.

And with regard to the word "common

16

interest," did you use that word or did your counsel

17

use that word?

18
19

20
21

A.

It's a word I've heard used within the

company, and I've used it myself.
Q.

Did counsel mention the word "common

interest" to you in the conversation?

22

A.

No, I mentioned the word "common interest."

23

Q.

Okay.

Other than the discussion of your

24

role at the company, was there any other discussion

25

with counsel?
TSG Reporting· Worldwide

877-702-9580

Page 161
1

A.

Not with me.

2

Q.

During the break, did counsel ask you to

3

testify in any specific way?

4

A.

No.

5

Q.

Did counsel mention whether you should

6

discuss your role with regard to pending litigation

7

at ASCAP?

8

A.

No.

9

Q.

Who else at the company interacts with

10

11

ASCAP?
A.

Our creative departments interact with ASCAP

12

to sign writers.

13

the legal department at ASCAP on matters that would

14

be handled there, and people within the company are

15

actually on the board of directors, and they're

16

involved on the executive side.

Our legal departments interact with

17

Q.

And how do you know who owns ASCAP?

18

A.

How do I -- I'm sorry?

19

Q.

What's the basis for your information of the

2o
21

owners of ASCAP?

A.

It's a basic understanding of the company

22

that it is owned by its members, that it is a

23

nonprofit.

24

2s

Q.

And Warner/ChaL)pell is.considered a member

of ASCAP; is ~6at correct?'
TSG Reporting- Worldwide

877-702-9580

I
I

Page 162
1
2

3
4

.5
6

A.

We have our company, WB Music CO:t:'J?., ,:

affiliated as a member of ASCAP ..
Q.

And the writers and publishers that Y()_11~'

represent, are they also inc1ividual members of ASCAPi
.A.·'

Songwriters can affiliate with a!ly_of the .

.three performing rigl11:s soc:ieties :i.n the url._lted)
... _..

7

States, so some of our writers are at ASCAP, some are•

8

at BMI' and some are at SESAC..

9

10
11

12

I COl.J.ld

So

saY:

t::haf

.those writer memb.ers that are ASCAP members are_also
owners of the organization.

Q.

And does Warner/Chappell use any of the)

other performing rights societies?'

13

A ..

Yes, we do.

14.

,Q.

So it would be accurate to

We use all three.,

sax.1:l1Cit: ASCAP is':

15,

not your exclusive perfo~Il\irl.g rigl1ts society; . is that:'

16

.
correct ?'
..

17

.A.

We have companies set up at each of the\

18

three societies to represent rights that songwriters

19

own, so we follow the affiliaj:ion society of the'

20

songwriter ..

21

Q.

.22

'A.;

'23

BMI company.

24

our SESAC compai1y., rn' s really the fact that writers)

25

can affiliate with any ofthe three, that weneedt;_c)

.Okay.
--------------·

.

-

----~-

.

So when we a sign a BMI writer, we use our•
When we a sign a SESAC writer' we u'se\

TSG Reporting- Worldwide

877-702-9580

Page 163
1
2

3

'he members of all three societies ..'

Q.

And what role, if any, is AS CAP role in'

pending litigation, toyourknowledge?

4

A.·

.To my knowledge, ASCAP pursues Iiti.ga:i::ioi1~

7

Q.

And what's your role, if any, in providing

8

information to ASCAP with regard to pending

9

litigation?

10

A.

So ASCAP comes to me on occasion and asks

11

for copies of copyright certificates, and I provide

12

them with copies.

13
'14

Q.

That's the extent of it.

What ' s your understanding of . what the common

.interest is between ASCAP and Warner /Cha:r;Jpell?
A.

16

organization and we both represent intellectuaL

17

property rights, the common interest is that they're:

is

representing writers and publishersto :protect those

19

intellectual.property rights to ensure.that in cases:

,20

where they 're_us~d they're be~Il:g~LLcei1secLJ

,21

a common-interest

.22

intellec'tual property and that of our songwriters.

23

24
25

Q.

In

.so

t~at_' s;

the ~i)~()Fection of ou~)

ASCAP doesn't own any intellectual property;

is that correct?
A.

ASCAP doesn't own the rights, no.
- '"'"'' ''" '"" ......___,,_____.__ ~-----..-----~·- .,,,,,___, ,,_______,,,JJ'
TSG Reporting- Worldwide

877-702-9580

Page 164
1

MS. LeMOINE:

2

It calls for a

legal conclusion ..

3

Objection.

BY MS. MANIFOLD:

4

5
6
7

8
9

Q.

on the royalties; is that correct?
A.

Can you clarify that question, when you say

"own the rights"?
Q.

What rights does ASCAP have with regard to

the collection of royalties?

10
11

And ASCAP doesn't own any rights to collect

MS. LeMOINE:

Objection based on it calls

for a legal conclusion.

12

But you may answer.

13

THE WITNESS:

ASCAP is entitled to collect

14

and license our performance rights, and they acquire

15

that right through our affiliation agreements.

16

BY MS. MANIFOLD:

17

Q.

How does ASCAP license performance rights?

18

A.

I'm not knowledgeable of their specific

19

handle on our behalf and on behalf of, you know,

21

thousands of other publishers and songwriters.

j

internal practices, but it is a right that they

20

l

22

Q.

What information do you routinely --

23

routinely -- what information do you routinely

24

provide for ASCAP

25

certificate that you just mentioned?

I
1
I

l

to ASCAP, other than the routine

I

~==========-==--=--=-======================================~"~
TSG Reporting- Worldwide

877-702-9580

Page 165
1

A.

Sure.

The most common information is

2

registrations.

3

performance registrations.

4

writers, publishing information to them in electronic

5

files biweekly, which updates them on what new works

6

we've acquired, what works in our catalog- have

7

changed, and then they electronically process them

8

and include them as part of the works they represent

9

on our behalf.

10

Q.

And when I say registrations, I mean
So we submit titles,

I

Do you know how, if any, the electronic

11

files that you send them would differ from the public

12

database that Warner/Chappell provides with regard to

13

information of the catalogs they represent?

14

A.

It would be consistent.

15

Q.

_And is i t your understanding that ASCAP,

16

actually brings litigation on behalf of ir1.d.ivid.uaf

17

writers and publishers?,

18

A.•

That is my under-standing; yes .

19

Q.

So rather than have WarnerjC:ttCl,P:PeTl·b~ii1~J

20'

directly an infrir1~ement rig:ht _acti()I1• _t:hat actJ()ili

21

would be brought by ASCAP?i

22

-·-

A.

-

-

----

-

In terms of performing riQ"hts,they're'•

23

acting on our behalf, 8() the-y, as i understand it,

24

bring action on behalf of all of the members.

25

oftentimes-- for larger cases i t ' s on behalf of all
TSG Reporting- Worldwide

877-702-9580

So

I
I

Page 166
1

2

ASCAP members, which. we wouldbe included in.
.Q.

I'm talking with regard . to SI,Jecific:

performing rights.

5

.Let's :te1.)<e, :for exami,Jle,

j'OU

krlow

Hap];)y Birthda:r i~ perfor!U~<:I ~n Broadwax and it• s~
.. ······- -·- ----- . --considered to be a vio1Cl_ti<)r1, an infringement of one
of War!ler/Chapi,JelJ.; s cop:{rights:;

WJ:"J.o

1

would --- who

would file the enforcement action?,
MS. LeMOINE: • Well, objection to the extent·
9

i t calls for a- leg-alconc:L\lsi.on.\

1You're

talk.ing

,·there ~- that would be grand rights, wJ:lich is noi::'i
i1

within ASCAP' s .. (rt' s-outs~cfet:he ·-sc;o];)~.

12

MS. MANIFOLD:

13

_MS. LeMOINE:

14.

(of.hat' s what i•m Ci<lk.i.!lg-J
We~l, it's o11:tsic'le tJ::le scoi:Je"
-- -- ..

.. - ---

of ASCAP though.· 'ASCAP doesn't control grand rights.
Performing rights_are different.

16

i.MS. MANIFOLD:
asking the_(illest:ion.

18

'.J: __ g-et

tJ::lat:
- ..

--

(rrha t • s
-

wl:J.y i · m)

---

I'd like the answer from the

witness.·

19

THE WITNESS:.

ASCAP represents our

20

performance rights, not our grancf rTghts ..·

21

BY MS. MANIFOLD:

22
23

Q.

I

Performance of our music in a venue on the·

I

right.
A.

25

1
Give me an example of a I,Jerformar1ce'

Okay.

__ j

:radio.
TSG Reporting- Worldwide

877-702-9580

Page 167
1

q.

.So let's sax-there was a performcmce of a

specific song in a venue i!l J:,os An~eles that:·
3

infringed a copyright that warner/chappellowned. ·.

4

What would ASCAP do?,'

5
6

MS. LeMOINE:\

Ob]ection to. the . extent it

calls for speculation.

7

But you can answer.

8

THE WITNESS: · tn ·general terms, ·AS CAP

9

licenses venues that are including

(so

10

their public presentation.

11.

action a~ainst theveiJ.U.e tg either try to g:et. them'

12:

licensed or address th,e issue

13'

standpoint .•

14

BY MS. MANIFOLD:

15

Q •.

they woul(l pursue)

from

a. ieg~i:

So you would anticipate that ASCAP would:

:file a lawsuit against the venue?:
MS. LeMOINE:
18

calls for speculation.

19

Tim WITNESS:

(o:b]ec:t~on to the extent it •

20

Yeah, I'm not -aware of what'

their speci:Eic internal t:Jractices would be,,
.,

...

-

·~·-·

....

·····~~.

-· ·-

.....

21

know it would be handled by_,t:tl_em since

22

those rights on our

but I)

~~····~····~··~~····-·

'tl1E:X

repr_esent'

behalf~)

BY MS. MANIFOLD:
Q~ ·
25

•. So

when you say "handle, " what are the

options that ASCAP does to handle them other than.
TSG Reporting- Worldwide

877-702-9580

Page 168
1

.talk to the venue and sayyou need to pay for tlie

2

license?

3

4
.5

A.

My understanding is that they work to obtain:

an executed license with the venue, and if that .c:an' t)
. -'--. be done, they pursue action against the venue.'
~-----

'

"Q.
-:

)ill_cl what type of action would that be?

7

A.

r . couldn't:

8.

Q.

·Generally?!

9

A.

I would think that they make a claim against';

6

\

10

speak specificaiiy.

·them.·

11

Q.

And how?

12

A.

I'm not knowledgeable about those specifics.

13
14

MS. MANIFOLD:

17

Want to step out for a

second.

15
16

Okay.

(Recess from 3:45p.m. to 4:00p.m.)
BY MS. MANIFOLD:
Q.

You said that ASCAP and Warner/Chappell

18

share intellectual property interests; is that

19

correct?

I don't want to misstate your testimony.

20

A.

I'm sorry.

21

Q.

I believe you stated that ASCAP and

Could you say that again?

22

Warner /Chappell, quote, share Interest in

23

intellectual property. •

24
25

A.

I think I said they share an interest in.

protecting intellectual property· rig-hts.
TSG Reporting- Worldwide

877-702-9580

rsince ASCAP

Page 169

its membe!s,

1

is ownedby

2

and songwriters, the organization is owned by the

3

verypeople that created that intellectual property

4

and -- and hope to license i t and collect ont::J:io-se

5

licenses.

6

/Q.

which consists of publishers

So other than an organizati()I1 set up to_

7

.protect the rights, ASCAPdoesn't own anyspecific.·

8

interest in any song or any performance rights or_

'.9

anything like that?

10.
11

MS. LeMOINE:·. :()l:Jje:ction
calls for a

-~e~al

conclusion.
- ........ ---·.

12

But }'OU_can answer.

13

•THE WITNESS:·

I haven't analyzed the

i4

specific contract that a songw:dt~r signs

15

or that a publisher does, so I couldn't S];Jeak to the

16

legal:

17

those. rights on our behalf.

18

BY MS. MANIFOLD:

19

20

Q.

with ASCAP

But the:y are there as our agent licensing-)

Have you reviewed any of the ASCAP

agreements between Warner/Chappell and ASCAP?

21

A.

I have not.

22

Q.

Have you ever seen an agreement between

23

Warner

24

AS CAP?

25

A.

between a publishing agent or artist and

I

I
I

I haven't looked at in detail.

In my time

I

~....,, __:=_::::_:-::_--=---=-=--=-=-=-=-=-=--=-=---=---=--=-=-=--=-=--=-=-=·-=-=-=--=--~=-=·=----=-=-=-=--·=-=-=-==-··=·=·= =---===--=-=======~
___
-·
TSG Reporting- Worldwide 877-702-9580

Page 170
1

in BMI before I came to Warner/Chappell, part of my

2

responsibility was helping affiliate those contracts.

3

I can't say that I've analyzed in detail or looked at

4

an ASCAP affiliation agreement, which I wouldn't be

5

qualified to do.

6
7

Q.

When was the last time you spoke to somebody

at ASCAP?

8

A.

Earlier this week.

9

Q.

When was the last time you communicated with

10

somebody at ASCAP in terms of writing something,

11

paper?

12
13

14
15
16

17

18
19

A.
week.

In terms -- I met with them in person last
E-mailed late last week.

Q.

And what was the nature of the information

that you e-mailed?
A.

It was related to questions around specific

song registrations that we filed with them.
Q.

Okay.
MS. LeMOINE:

I have one clarification,

20

which is I want to make sure the testimony is clear

21

that you testified.

22

23

24

25

MS. MANIFOLD:

You're not allowed to clarify

the witness's testimony.
MS. LeMOINE:

I think it's important because

he's testifying other than as -- with counsel.
TSG Reporting· Worldwide

877·702·9580

You

Page 171
1

asked him about membership agreements, and I just

2

wanted to make sure it's other than with counsel.

3

MS. MANIFOLD:

Okay.

I don't understand the

4

clarification, but whatever you said on the record

5

you said on the record.

6
7

Okay.

Thank you for your time today,

Mr. Blietz.

8

MS. LeMOINE:

9

MS. MANIFOLD:

10

11
12

Thank you.
Appreciate it.

MS. LeMOINE:

Off the record.

(Deposition concluded at 4:03p.m.)

*

*

*

13

14
15

16
17
18

19
20
21
22
23

24
25

TSG Reporting· Worldwide

877· 702·9580