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 E

Page 43
1

UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA

3

WESTERN DIVISION

4

5

-----~------------------------------------x

6

GOOD MORNING TO YOU PRODUCTIONS CORP.,

7

et al.;

8

Plaintiffs,

9

10

vs.
WARNER/CHAPPELL MUSIC INC., et al.,

11

Defendants.

12

------------------------------------------x

13

Lead Case No. CV 13-04460-GHK (MRWx)

14
15
16

V 0 L U M E

I

I

17

CONTINUED VIDEOTAPED DEPOSITION

18

OF RICHARD REIMER

19

New York, New York

20

Monday, July 21, 2014

21

22
23
24

Reported by:

25

David Henry

JOB 82467
TSG Reporting· Worldwide

877·702-9580

Page 47
1

A.

So I understand.

2

Q.

Yes.

And I appreciate your

3

coming back today, so I don't want to keep

4

anybody here any longer than necessary and

5

let's just jump right into this.
First, since you have worked at

6

7

ASCAP, who has set the prices at which

8

ASCAP issues its blanket licenses?

9

A.

As you may know, Mr. Rifkin,

10

ASCAP operates in conformity with a consent

11

judgment entered in a federal antitrust

12

action.

13

decree, as we refer to it, is a procedure

14

by which any music user can apply to ASCAP

15

for a license.

16

cannot agree on the terms of that license,.

17

either the applicant or ASCAP may ask that

18

the fees be determined by a judge of the

19

United States District Court for the

20

Southern District of New York.

21

said, ASCAP attempts to negotiate licenses

22

on behalf of all of its members with music

23

users.

24

to negotiate those rates,

25

and the rates with industrywide committees.

One of the provision of that

If ASCAP and the user

.With that

In many instances we have been able
those licenses,

TSG Reporting· Worldwide

877·702·9580

Page 48
1

To cite two examples, the Radio .Music

2

License Committee that represents several

3

thousand commercial radio stations, and the

4

Television Music License Committee that

s

represents about a thousand commercial

6

television stations.

7

negotiate license fees with industrywide

8

committees or groups, we. engage in

9

negotiations directly with music users.

If we are unable to

10

From time to time.we will promulgate

11

license terms.

12

blankets licenses on behalf of all of

13

ASCAP's members and offer those licenses to

14

a wide array of music users.

15

example of that is the

16

license.

17

negotiate with ASCAP in terms of licenses,

18

so as a result we promulgated a license

19

agreement with rates about five, six, seven

20

years ago and offered it to the entire

21

bar-grill industry.

22

long answer, but I think if I were to

23

summarize, I would say that whenever

24

possible the rates are negotiated.

25

not possible, we will offer a l:i.cense on

Again these are for

The best

bar~grill

restaurant.

No industry group has seen fit to

I think that's a very

TSG Reporting· Worldwide

If it's

877· 702-9580

Page 49
1

terms that we believe are reasonable, and

2

again,

3

ASCAP members.

4

it's for a blanket license for all

Q.

Leaving apart occasions when

5

either ASCAP or a user seeks judicial

6

intervention through the rate court.

7

A.

Of course, and in that instance

8

the fee would be determined by the rate

9

court judge.

10

Q.

But leaving those instances

11

apart, when ASCAP enters into agreements

12

either with individual users or industry

13

groups representing large groups of users,

14

ASCAP is negotiating on behalf of the

15

licensors of the music -- well,

16

back.

17

the music,

18

I take that

ASCAP is actually the licensor of

A.

correct?
Well, there are two licensors in

19

that instance.

20

from the members to on their behalf grant

21

licenses in turn to the music users.

22

23

Q. ·

We're getting the license

.And the party to the license with

the user is ASCAP, correct?

24

A.

Correct.

25

Q.

And in that instance ASCAP
TSG Reporting· Worldwide

877·702·9580

Page 50
1

negotiates the fee with the user or the

2

user group,

3

where one or the other seeks intervention

4

by the rate court, correct?

leaving apart the instances

5

A.

Correct.

6

Q.

Okay.

Since you have.worked at

7

ASCAP, has any ASCAP member had the right

8

to instruct ASCAP how much to charge for

9

ASCAP's blanket licenses?

10

A.

Yes.

11

Q.

How does that work?

12

A.

Well, again in the first

13

instance, members grant to us the right to

14

license on their behalf ail of their

15

copyrighted musical works and then we;

16

attempt to negotiate blanket licenses.

17

ASCAP consent decree also has a provision

18

that enables any music user and ASCAP

19

member to effectively instruct ASCAP to

20

license individual works.

21

happen frequently, but it certainly is an

22

available option.

23

Q.

The

It doesn't

And we may have spoken past each

24

other.

I was asking about not with respect

25

to individual musical works,
TSG Reporting- Worldwide

I was asking
877-702-9580

Page 53
1

2

applies.
Q.

Okay.

Since you have worked at

3

ASCAP, has ASCAP helped any of its members

4

to create new music?

5

A.

If I understand that question

6

correctly,

7

like to think of ASCAP as a full service

8

performing rights organization, and one of

9

the services we provide for our members is

let me answer it this way.

We

10

a variety of industry events, workshops,

11

seminars, at which members, both

12

prospective members, new members, old

13

members, may participate; and so to that

14

extent, of course one of the outcomes of

15

those kinds of events is the creation

16

new music.

17

Q.

o~

So since you have wOrked at

18

ASCAP, has ASCAP helped any of its members

19

create new music?

20.

MR. JOHNSON:

21

and answered.

22

A.

Objection, asked

23
24

25

Well,

I think my previous answer

indicates yes.
Q.

Has ASCAP worked on those new

compositions?
TSG Reporting- Worldwide

877-702-9580

Page 55
1

2

MR. JOHNSON:
and answered.

3
4

Objection, asked

MS. LeMOINE:
A.

Join.

Anyone at ASCAP is a very broad

5

statement or description.

ASCAP has a

6

board of directors.

7

is 12 writers and 12 publishers.

8

to guess that many or all of the writers

9

who are currently members of the board of

The board of directors
I venture

10

directors or have been in the past have

11

collaborated with others in creating new

12

music.

13

Q.

And when they have done so in

14

those instances, are you aware of them

15

having done so in their official capacity

16

on behalf of ASCAP?

17

18

A.

I doubt that they were doing it

as an ASCAP officer or director.

19
20
21

22

23
24
25

significant aspect of ASCAP's operation is
TSG Reporting- Worldwide

877-702-9580

,,

Page 56
1

the maintenance of records regarding the

2

ASCAP repertory, I assume the answer to

3

that has to be yes.

4

Q.

And how has that happened?

5

has ASCAP helped any of its members

6

How

register copyrights?

7

A.

Well,

for one thing we've

8

maintained an extensive.catalogue of all

9

members' works.

Now it's done

10

electronically of course ..

11

online registration facility that's

12

available to all members.

We have an

13

Q.

Registration from what?

14

A.

Registration of their works.

15

Q.

For membership in ASCAP? •

16

A.

Correct.

17

Q.

Okay, and what I meant is

18

registering copyrights with the Copyright

19

Office.

20

register copyrights with the Copyright

21

Office?

22

A.

Does ASCAP assist its members to

It may from time to time be the

23

case that one or another staff member of

24

the ASCAP repertory department or ASCAP's

25

membership department answers questions
TSG Reporting- Worldwide

877-702-9580

Page 57
1

from members as to how to properly go about

2

registering their works with the copyright

3

office.

4

Q.

Are you aware of any instance

5

when that has happened during the 43 years

6

you've worked for ASCAP?

7

A.

I certainly am aware.

I can't

8

give you specifics, but I know that that's

9

one of the functions performed by the staff

10

members of the two departments I've

11

identified.

12

Q.

You're not able to identify a

13

single instance when someone at ASCAP has

14

helped one of ASCAP's members to register a

15

copyright with the copyright office?
MS. LeMOINE:

16
17

and answered.

18

A.

Objection, asked

If by identify you mean a

19

specific instance in which a specific

20

member sought help for registering a

21

specific work,

22
23
24

25

Q.

Okay.

the answer is no.
You did prepare for

today's resumed deposition, correct?
A.

By reading the questions that

were agreed upon, yes,

that's correct.

TSG Reporting· Worldwide

877· 702-9580

Page 67
1
2

3

of any ASCAP member?
A.

before I came here today.
MR. RIFKIN:

4
5

I was aware of that question

further.

Thank you, Mr. Reimer.

MS. LeMOINE:

6

I have nothing

I've got a few

7

questions for you, Mr. Reimer.

8

need a break at this time?
THE WITNESS:

9

10
11

12

Do you

I'll let you know

if I do.
EXAMINATION BY MS. LeMOINE:
Q.

Okay.

So Mr. Rifkin has asked a
relationshi~

13

series of questions about the

14

between ASCAP and its members, but can you

15

just explain in your own words, what is the

16

relationship between ASCAP and its members?

17

A.

Well, I think as I began to

18

indicate, ASCAP obtains from its members a

19

non-exclusive right to license non-dramatic

20

public performances on behalf of the

21

members.

22

license anyone that is publicly performing

23

music and whose performances are not

24

otherwise subject to exemption under the

25

federal copyright law.

As such, ASCAP attempts to

As ASCAP does not

TSG Reporting- Worldwide

877-702-9580

Page 68
1

own any of the rights of the music it

2

licenses, ASCAP's interest if you will is

3

in being certain that ASCAP's members do in

4

fact own the works on behalf of which, or

5

for which ASCAP is licensing the performing

6

rights.

7

Q.

And is that in fact a licensing

8

agent on its members' behalf for the works

9

in the ASCAP repertory?

10

A.

That I think is one way to

11

characterize the relationship.

12

that relations~ip is set out in the

13

membership agreement between ASCAP and

14

members, and it speaks in terms of a grant

15

of rights to license on behalf of the

16

members.

17
18

Q.

Of course

~ts

Did ASCAP litigate rate court

proceedings on members' behalf?

19

A.

Frequently, yes.

20

Q.

Does ASCAP pursue copyright

21

infringement actions on its members'

22

behalf?

23

A.

Yes,

24

Q.

Does it conduct lobbying efforts

25

it does.

on its members' behalf?
TSG Reporting· Worldwide

877-702-9580

Page 69
1

A.

Yes, it does.

2

Q.

So in the context of the

3

relationship between ASCAP and its members

4

that you've just described today, does

5

ASCAP have an interest in the validity of

6

the copyrights in its members' works in the

7

ASCAP repertory?

s
9

A.

Well, certainly ASCAP has an

interest in making certain that when it's

10

licensing on behalf of its members,

11

those members actually have the rights in

12

the works that ASCAP is licensing.

13

that would apply to any member of ASCAP and

14

the entire ASCAP repertory.

15

Q.

that

And

So does ASCAP engage in

16

confidential communication with its members

17

concerning the validity of the copyright in

18

those musical works that are in the ASCAP

19

repertory?

20

A.

As with many of my answers to

21

Mr. Rifkin,

22

in the past, but I don't have any specific

23

examples to cite to you. ·

24
25

Q.

I'm sure that that has occurred

How about does ASCAP engage in

privileged communication with its members
TSG Reporting· Worldwide

877·702-9580

Page 70
1

concerning the validity of the copyrights

2

for their musical works in the ASCAP

3

repertory?

4

A.

Same answer.

·I'm virtually

5

certain that has occurred, but I don't have

6

any specific examples for you.

7

Q.

Do you have any reason to doubt

8

as you sit here today that the

9

communication between Summy-Birchard and

10

ASCAP concerning the validity of the

11

copyright for Happy Birthday To You were

12

intended to be confidential and privileged

13

communication?

14

A.

15
16

17
18

No.
MS. LeMOINE:

That's all I

have.
EXAMINATION BY MR. RIFKIN:
Q.

I have some followup.
Mr. Reimer, you said that ASCAP

19
20

engages in rate court proceedings on behalf

21

of its members, correct?

22

A.

Correct.

23

Q.

Those are proceedings to fix the

24

25

rates for blanket licenses, correct?
A.

Well, blanket licenses among
TSG Reporting- Worldwide

877-702-9580

Page 72
1

A.

Yes, I am.

2

Q.

Have you ever done that for the

3

song Happy Birthday To You?

4

A.

I have not.

5

Q.

And has ASCAP ever done that for

6

7

the song Happy Birthday To You?
A.

Mr. Rifkin, over the course of

8

more than the 43 years that I've been at

9

ASCAP, ASCAP has brought literally

10

thousands of infringement actions.

11

know whether Happy Birthday was among them.

12

Q.

I·don't

You said that ASCAP is interested

13

in the validity of copyrights in its

14

repertory, correct?

15

A.

Correct.

16

Q.

What did ASCAP do to determine

17

the validity of the copyright to Happy

18

Birthday To You?

19

20

21

A.

I don't know that ASCAP has done

anything.
Q.

When you say that ASCAP is

22

interested in the validity of its

23

copyrights, what did you mean by that?

24
25

A.

I thought I gave a fairly

complete answer.

Could we read it back?

TSG Reporting· Worldwide

877-702-9580

Page 73
1

Q.

Does ASCAP have a legal interest

2

in the validity of any copyrights in its

3

repertory?

4

MS. LeMOINE:

5

and answered.

6

A.

Objection, asked

7

8

9
10

I don't know what, you mean by a

legal interest.
Q.

Are ASCAP's rights affected one

way or another by the validity of
copyrights in its repertory?

'11

A.

It could well be, yes.

12

Q.

How so?

13

A.

We could not license works that

14
15

are not the subject of valid copyrights.
Q.

When you say you could not

16

license works that are not the subject of

17

valid copyrights, you mean individual works

18

that are not the subject of valid

1~

copyrights?

20

A.

I do.

21

Q.

Okay.

When ASCAP sells a blanket

22

license, is it limited in any respect to

23

particular works, or is it all of the works

24

in the repertory?

25

A.

It is typically all of the works
TSG Reporting- Worldwide

877-702-9580

Page 86
1

sure that its members do own valid

2

copyrights in the music they license

3

through ASCAP, does ASCAP have that

4

interest as well?

5

MR. JOHNSON:

6

form.

7

Objection to

sense.

8

That question doesn't make any

MS. LeMOINE:

Join.

9

A.

I don't understand it.

10

Q.

If a member does not have a valid

11

copyright in music that it has identified

12

to be licensed with the ASCAP blanket

13

license, what interest does ASCAP have in

14

that particular music?

15

MR. JOHNSON:

Objection to

MS. LeMOINE:

Objection to

16

form.

17
18

form.

19

A.

If your question is,

if I

20

understand it correctly, if the member has

21

no interest, what is ASCAP's interest?

22

have no idea.

23

question.

24

25

Q.

I

To me that's a meaningless

Does ASCAP stand to gain or lose

anything by a determination that a
TSG Reporting- Worldwide

877-702-9580

Page 87
1

2

copyright is invalid?
A.

If you're talking about a single

3

copyright, I don't know the answer to that.

4

Certainly we can't license on behalf of

5

members if the members don't have the

6

rights.

7

Q.

Are you able to identify for me

8

any instance in which ASCAP has appeared in

9

any judicial proceeding to defend the

10

validity of any copyright on behalf of any

11

member during the entire period of your

12

employment at ASCAP?
MR. JOHNSON:

13
14

and answered.

15

A.

Objection, asked

I can't conceive of any reason

16

why ASCAP would appear in a proceeding to

17

defend a copyright.

18

members that are at stake.

19
20

It's the rights of the

MR. RIFKIN:

I have nothing

further.

21

MS. LeMOINE:

22

anything further.

23
24

25

MR. RIFKIN:

I don't have

Thank you,

Mr. Reimer.
(Time noted:

5:18p.m.)

TSG Reporting· Worldwide

877· 702·9580