Rupa Marya v. Warner Chappell Music Inc

Filing 177

[REDACTED] JOINT EVIDENTIARY APPENDIX IN SUPPORT OF NOTICE OF MOTION AND CROSS-MOTION AND MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT re APPLICATION for Leave to File Under Seal 158 VOLUME 7 OF 8 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Appendix VOLUME 7 OF 8)(Manifold, Betsy)

VOLUME 7 OF 8 - EXS. 108-116
(PAGES 1541-1716)

EXHIBIT 108

Ex. 108
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1541

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1543

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1545

EXHIBIT 109

Ex. 109
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Page 1
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UNITED STATES DISTRICT COURT CENTRAL
DISTRICT OF CALIFORNIA
WESTERN DIVISION

4
5

6

7

8

9

10

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

)
)
)
Plaintiffs,
)
)
VS.
)
)
WARNER/CHAPPELL MUSIC INC., )
et al.,
)
)
Defendants.
)
_____________________________)

Lead Case Number
CV 13-04460-GHK
(MRWx)

11
12
13
14
15
16

DEPOSITION OF JEREMY BLIETZ
Los Angeles, California
Thursday, July 10, 2014

17
18
19
20
21
22
23
24
25

Job No: 81817
Reported by: NIKKI ROY
CSR No. 3052
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Deposition of JEREMY BLIETZ, taken on behalf of

2

the Plaintiffs, at 355 South Grand Avenue,

3

35th Floor, Los Angeles, California, on Thursday,

4

July 10, 2014 at 10:36 a.m., before NIKKI ROY,

5

CSR No. 3052.

6
7
8

APPEARANCES OF COUNSEL:

9
10

FOR THE PLAINTIFFS:

11

WOLF HALDENSTEIN ADLER FREEMAN & HERZ
BY:

12

BETSY C. MANIFOLD, Attorney at Law

Symphony Towers
750 B Street

13

San Diego, California 92101

14
15

DONAHUE FITZGERALD ATTORNEYS
BY:

16

DANIEL SCHACHT, Attorney at Law

1999 Harrison Street
Oakland, California 94612

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///
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APPEARANCES OF COUNSEL (CONTINUED):

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3
4

FOR THE DEFENDANTS:
MUNGER TOLLES & OLSON
BY:

5

MELINDA EADES LeMOINE, Attorney at Law

355 South Grand Avenue
Los Angeles, California 90071

6
7
8

MUNGER TOLLES & OLSON
BY:

9

ADAM KAPLAN, Attorney at Law

560 Mission Street
San Francisco, California 94105

10
11
12
13
14

ALSO PRESENT:
NATHAN OSHER
Vice President Legal & Business Affairs

15

Warner/Chappell Music, Inc.

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I N D E X

2
3

WITNESS

4

JEREMY BLIETZ

EXAMINATION

5

MS. MANIFOLD

6

PAGE

MS. LeMOINE

6, 111, 160
157

7
8

E X H I B I T S

9
10

NUMBER

11

Exhibit

DESCRIPTION
42

PAGE

Plaintiffs' Second Amended

8

Notice Continuing the Taking of
12

Deposition of Jeremy Blietz
Pursuant to Fed. R. Civ. P.

13
14

30(b)(1)
Exhibit

43

Color photocopy of Application

89

for Copyright
15

Exhibit
16

44

Letter from William

137

Lichtenwanger to Robert Olsen,
January 23, 1961

17
18
19

(Exhibits previously marked for identification:
Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6,

20

Exhibit 7, Exhibit 9, Exhibit 10, Exhibit 12,
Exhibit 13, Exhibit 17, Exhibit 19, Exhibit 21,

21

Exhibit 39, Exhibit 40, and Exhibit 41)

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I N D E X (CONTINUED):

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3

QUESTIONS INSTRUCTED NOT TO ANSWER

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Page

Line

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86

18

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7
8
9

INFORMATION REQUESTED
None

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(The record was read as follows:

2

Q

3

recollection -- I know you don't have

4

a specific one.

5

general recollection of sending a song

6

question over to legal on Happy

7

Birthday to You?)

8

MS. LeMOINE:

9

Do you have any general

Do you have any

You can answer to the extent

you don't reveal any communication.

10

THE WITNESS:

11

(The document referred to was marked

12

by the CSR as Deposition Exhibit 43

13

for identification and attached to the

14

deposition transcript hereto.)

15
16

No, I don't.

BY MS. MANIFOLD:
Q.

Okay.

I placed in front of the witness --

17

excuse me -- an exhibit that's been marked as

18

Plaintiffs' Exhibit 43 for identification.

19

same document as Plaintiffs' Exhibit 2 for

20

identification.

21

legible copy.

22

It is the

It's just what I think is a more

Plaintiffs' 2 for identification was used in

23

the Marcotullio's deposition, and we've decided to

24

mark a clearer version so you can look at the

25

document.
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Do you know what this is?

2

A.

Yes.

3

Q.

And for which copyright?

4

A.

Well, I can read the document.

5
6

It's an application for copyright.

It says here

Happy Birthday to You unison song.
Q.

And to the best of your knowledge, in

7

looking at this document, does this refer to

8

copyright number 51988?

9

MS. LeMOINE:

Objection; lacks foundation.

10

You can answer if you can.

11

THE WITNESS:

Well, that is the number that

12

does appear here on the document.

13

BY MS. MANIFOLD:

14

Q.

In the archives at Warner/Chappell, would

15

you have this type of information, pictures of a card

16

catalog?

17

A.

No.

We wouldn't have pictures of a card

18

catalog.

19

are in the files.

20
21
22
23

Q.

We may have copies of registrations if they

Okay.

All that work to get a nice copy, but

at least you had a nice copy to look at.
A.

Yeah.
MS. MANIFOLD:

I'm placing in front of the

24

witness a document that's been previously marked as

25

Plaintiffs' Exhibit 4 for identification, and this is
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1

entitled Copy of Registration E51988.

2

me -- Bates-stamped WC 385 to 387.

It's -- excuse

3

Q.

Do you recognize this document?

4

A.

I recognize that this was a document that I

5

received from the copyright office on a search

6

request.

7
8

Q.

And did you make that search request in or

about December of 2013?

9

A.

Yes, that is correct.

10

Q.

And did the archives at Warner/Chappell not

11

have a copy of this registration prior to December of

12

2013?

13
14

MS. LeMOINE:
overbroad and vague.

15
16

As of the time he made the request or at any
time?

17
18

Objection; it's broad -- It's

MS. MANIFOLD:

At the time he made the

request.

19

THE WITNESS:

I can't say as to whether we

20

had this specific document.

21

different than most typical copyright searches.

22

couldn't say we had it on file.

23

BY MS. MANIFOLD:

24
25

Q.

The look of this looks
So I

And what is this a copyright registration

for?
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2

MS. LeMOINE:

Objection to the extent it

calls for a legal conclusion.

Objection to form.

3

You can answer if you can.

4

THE WITNESS:

I mean, all I can say is I

5

could read this to you, but it looks fairly different

6

from how registrations look today, so I couldn't

7

testify as to the intent here.

8

that appears on the previous picture, but I can't --

9

can't speak to the content here.

10
11

I see the same number

BY MS. MANIFOLD:
Q.

Okay.

I notice in the upper right-hand

12

corner of Bates-stamped 386 of Plaintiffs' Exhibit 4

13

for identification, there's a number 27970.

14

know what that number means?

15

A.

I do not.

16

Q.

Okay.

Do you

17

And it says on this registration,

copy of registration for E51988, it says (reading):

18

Published musical composition by

19

Mildred J. Hill.

20

Do you see that?

21

A.

Yes, I do.

22

Q.

Do you have an understanding of what that

23

means on the registration?

24
25

MS. LeMOINE:
answered.

Objection; that's asked and

That's asked and answered.
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the record while you get a chance to look at.

2

don't want to hurry.

3

I

And it's Plaintiffs' Exhibit 5 for

4

identification.

5

It's entitled Happy Birthday to You unison song,

6

Mildred J. Hill's name appears in caps to the right,

7

arranged by Mrs. RR Forman is on the left, and the

8

front of it is School Choral -- Chorus Music.

9

It's Bates-stamped WC 413, 414.

And I note in pencil in the front cover it

10

says M1998.

11

to as the lead sheet for E51988?

12

MS. LeMOINE:

13

And, again, is this what you would refer

Objection; it calls for

speculation, but you can answer if you can.

14

THE WITNESS:

Yeah.

As I review it here and

15

I see that number printed on the cover, and the

16

contents appear to match with the record that we

17

reviewed.

18

BY MS. MANIFOLD:

19
20

Q.

Do you have an understanding of what a

deposit copy is?

21

A.

Yes, I do.

22

Q.

And what's a deposit copy?

23

A.

A deposit copy is something that we file

24

with the copyright office as support for our

25

copyright certificate and could be a lead sheet,
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could be a recording.

2

item can vary.

3

Q.

Speaking in general terms, the

And do you know whether this Plaintiffs'

4

Exhibit 5 for identification is the deposit copy for

5

E51988?

6

A.

I know that when I inquired to the copyright

7

office as to receive copies of the deposit copies,

8

they informed me that they had separated the lead

9

sheets or the backup copies from the certificates and

10

that I would need to contact their music division.

11

So we did receive this lead sheet with cover from

12

that music division, and I can see the numbers there,

13

but I can't tell you definitively because they have

14

separated the documents.

15
16

Q.

So you have no reason to doubt that

this is the deposit copy for E51988; is that correct?

17
18

Okay.

MS. LeMOINE:

As he sits here today, you're

asking him that question?

19

MS. MANIFOLD:

20

MS. LeMOINE:

As someone reading the

THE WITNESS:

As I sit here today and review

21

Yeah.

document.

22
23

it, I think that it is the deposit copy as I read it

24

here.

25

BY MS. MANIFOLD:
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Q.

As I understand your testimony -- and

2

correct me if I'm misstating it -- you made a request

3

to the US Copyright Office to get both the copy of

4

registration for E51988; is that correct?

5

A.

Yes, that is correct.

6

Q.

And then you made a separate request, since

7

the deposit copy had been separated from the

8

registration, to get the sheet music; is that

9

correct?

10

A.

Yes.

11

Q.

And this is, to the best of your knowledge,

12

a copy of that deposit copy that you received from

13

the US copy department, is that correct, referring to

14

Plaintiffs' Exhibit 5 for identification?

15

A.

To the best of my knowledge, yes.

16

Q.

And looking at Bates stamp WC 414 of

17

Plaintiffs' Exhibit 5 for identification, it says on

18

the left ARR.

19

arranged?

Can we agree that that stands for

20

A.

I think that is the common term used, yes.

21

Q.

Arranged by Mrs. RR Forman.

Do you have an

22

understanding of what that means with regard to this

23

lead sheet?

24
25

A.

I would be speculating because I haven't

reviewed the music itself to know what that -- what
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that is, but it appears that this is a lead sheet of

2

an arrangement by this individual.

3

Q.

And you notice all the way over to the

4

right, it's in all caps, it says Mildred J. Hill.

5

you have an understanding of what that means to have

6

her name all the way over to the right?

7

A.

Do

From the placement of the name on the lead

8

sheet, I would say that they are one of the creators

9

of the work.

10

Lead sheets are often though limited in

11

names and so -- and since it doesn't have anything in

12

front of it clarifying what that individual

13

contributed, all I can say is they're one of the

14

creators of the work based on this.

15
16

Q.

Okay.

I've placed -- I haven't yet, but I

will.

17

I've placed in front of the witness a

18

document that's been previously marked as Plaintiffs'

19

Exhibit 7 for identification.

20

copyright registration.

It's a certificate of

21

And it's Bates-stamped WC 952.

22

Have you seen this document before?

23

A.

Yes, I believe I have, yeah.

24

Q.

And what is it?

25

A.

This is a copyright registration
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2

A.

Could you be -- could you rephrase the

question?

3

Q.

Well, in reviewing the documents in the

4

archives at Warner/Chappell in your database, when

5

you see the use of the word "arrangement," have you

6

ever understood it to include lyrics?

7

A.

I think because people use that term

8

differently, I think I've often received, in general,

9

songs where people call things arrangements and they

10

have changed lyrics, so it's pretty broad.

11

couldn't say specifically.

12
13

MS. MANIFOLD:

I

So I'm going to start on 5 --

can we go off the record for two seconds?

14

MS. LeMOINE:

15

(Off-the-record discussion.)

16

(At 1:21 P.M., the deposition of JEREMY BLIETZ was

17
18

Sure.

adjourned for luncheon recess.)
///

///

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LOS ANGELES, CALIFORNIA, THURSDAY, JULY 12, 2014

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2:19 P.M.

3
4
5

EXAMINATION
BY MS. MANIFOLD:

6

Q.

7
8

Good afternoon.

Back on the record.

Did you discuss your testimony at all with
your counsel during the break?

9

A.

No.

10

Q.

I'm placing in front of the witness a

11

document that's been previously marked as Plaintiffs'

12

Exhibit 9 for identification.

13

registration E51990.

14

It's a copy of

It's Bates-stamped WC 388, 389.

Can you identify this document?

15

A.

Yeah.

This is a copy of a copyright

16

registration that I received from the copyright

17

office in Washington.

18
19

Q.

And did you receive it on or about December

2013?

20

A.

That is correct.

21

Q.

And do you know whether there was a copy of

22

this registration in Warner/Chappell's archives

23

before you requested it?

24

A.

I do not.

25

Q.

Did you make a search of the records to see
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if there was a copy of it?

2

A.

I don't believe I did, no.

3

Q.

And did you also make a request for the

4

deposit copy of the lead sheet for registration

5

E51990?

6

A.

Yes, I did.

7

Q.

And what was the result of that request?

8

A.

Similar to as we discussed with the other

9

registration -- I'm sorry, I can't recall the

10

number -- I was told that the deposit copies had been

11

separated from the registrations and that I would

12

need to speak with the separate department at the

13

copyright office to obtain anything they may have on

14

file.

15

Q.

And did you speak with the separate

16

department at the copyright office in an attempt to

17

obtain a deposit copy for E51990?

18
19
20
21

A.

I did ask for copies of any lead sheets they

had on file, yes.
Q.

I apologize.

Were you done?

I didn't mean

to talk over you.

22

A.

No.

23

Q.

And what were you told by the US Copyright

24
25

Office with regards to lead sheets for E51990?
A.

I was provided with a few lead sheets, but
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DECLARATION UNDER PENALTY OF PERJURY

2
3

I, JEREMY BLIETZ, do hereby certify under

4

penalty of perjury that I have read the foregoing

5

transcript of my deposition taken July 10, 2014; that

6

I have made such corrections as appear noted herein,

7

in ink, initialed by me; that my testimony as

8

contained herein, as corrected, is true and correct.

9
10
11

DATED this _______ day of ________________,
2014, at _____________________, California.

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___________________________
JEREMY BLIETZ

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STATE OF CALIFORNIA

)
) ss.

2

COUNTY OF LOS ANGELES

)

3
4

I, NIKKI ROY, Certified Shorthand Reporter,

5

certificate number 3052, for the State of California,

6

hereby certify:

7

The foregoing proceedings were taken before me

8

at the time and place therein set forth, at which

9

time the deponent was placed under oath by me;

10

The testimony of the deponent and all objections

11

at the time of the examination were recorded

12

stenographically by me and were thereafter

13

transcribed;

14
15
16

The foregoing transcript is a true and correct
transcript of my shorthand notes so taken;
I further certify that I am neither counsel for

17

nor related to any party to said action nor in any

18

way interested in the outcome thereof.

19
20

In witness whereof I have hereunto subscribed my
name this 12th day of July, 2014.

21
22

________________________________
NIKKI ROY

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ERRATA SHEET FOR THE TRANSCRIPT OF:

2

Case Name:

3

Depo. Date:

4

Deponent:

5

Reason codes:

6

1. To clarify the record.

7

2. To conform to the facts.

8

3. To correct transcription errors.

Good Morning to All vs. Warner/Chappell
July 10, 2014
JEREMY BLIETZ

9
10

Pg. Ln.

Now Reads

Should Read

Reason

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12

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EXHIBIT 110

Ex. 110
___
1566

In The Matter Of:
GOOD MORNING TO YOU PRODUCTIONS CORP. 
v.
 WARNER/CHAPPELL MUSIC, INC.
   ___________________________________________________

SACHS, Ph.D., JOEL ‐ Vol. 1
September 9, 2014

   ___________________________________________________

1567

JOEL SACHS, Ph.D. - 9/9/2014
Page 1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
-----------------------------------x
GOOD MORNING TO YOU PRODUCTIONS
CORP.; et al.,

-against-

Plaintiffs,
Lead Case No.
CV 13-04460-GHK

WARNER/CHAPPELL MUSIC, INC.,
et al.,
Defendants.
-----------------------------------x
September 9, 2014
9:32 a.m.

Videotaped Deposition of JOEL SACHS, Ph.D.
taken by Defendants, pursuant to Notice, at the
offices of Paul, Weiss, Rifkind, Wharton &
Garrison, 1285 Avenue of the Americas, New
York, New York, before William Visconti, a
Shorthand Reporter and Notary Public within and
for the State of New York.

Merrill Corporation
800-826-0277
www.deposition.com/southern-california.htm
1568

JOEL SACHS, Ph.D. - 9/9/2014
Page 2
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A P P E A R A N C E S:
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
Attorneys for Plaintiff
270 Madison Avenue
New York, NY 10016
BY:

MARK C. RIFKIN, ESQ.
[e-mail]

5
6
7

MUNGER, TOLLES & OLSON LLP
Attorneys for Defendants
560 Mission Street
San Francisco, California 94105-2907

8

BY:
9
10

MELINDA LE MOINE, ESQ.
[e-mail]
ADAM I. KAPLAN, ESQ.
[e-mail]

11
12
13
14

ALSO PRESENT:
WILLIAM PACE, VIDEOGRAPHER

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Merrill Corporation
800-826-0277
www.deposition.com/southern-california.htm
1569

JOEL SACHS, Ph.D. - 9/9/2014
Page 3
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2

E X H I B I T S
DESCRIPTION

3

(Sachs Exhibit 45 for

4

identification, Deposition Notice

5

for Professor Sachs.)

6

(Sachs Exhibit 46 for

7

identification, letter from

8

Mr. Rifkin to Professor Sachs.)

9

(Sachs Exhibit 47 for

PAGE

10

(Sachs Exhibit 48 for

13

identification, CV of Professor

14

Sachs dated November, 2012.)

15

(Sachs Exhibit 49 for

16

identification, Binder.)

17

(Sachs Exhibit 50 for

18

identification, document.)

19

(Sachs Exhibit 51 for

20

identification, document.)

21

(Sachs Exhibit 52 for

22

identification, document reflecting

23

Irving Berlin's Pretty Girl Is Like

24

45

Professor Sachs.)

12

43

identification, Expert report of

11

14

A Melody.)

45

74

110

140

142

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Merrill Corporation
800-826-0277
www.deposition.com/southern-california.htm
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E X H I B I T S

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DESCRIPTION

3

(Sachs Exhibit 53 for

4

identification, document.)

5

(Sachs Exhibit 54 for

6

identification, document.)

7

(Sachs Exhibit 55 for

8

identification, document.)

9

(Sachs Exhibit 56 for

10

(Sachs Exhibit 57 for

12

144

226

267

272

identification, document.)

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PAGE

identification, document.)

275

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Merrill Corporation
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1571

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Page 5
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IT IS HEREBY STIPULATED AND AGREED

2

by and between the attorneys for the

3

respective parties herein that filing and

4

sealing be and the same are hereby waived.

5

IT IS FURTHER STIPULATED AND AGREED

6

that all objections, except as to the form

7

of the question, shall be reserved to the

8

time of the trial.

9

IT IS FURTHER STIPULATED AND AGREED

10

that the within deposition may be signed

11

and sworn to before any officer authorized

12

to administer an oath with the same force and

13

effect as if signed and sworn to before the

14

Court.

15
16
17
18
19
20
21
22
23
24
25

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Do you have any evidence looking at

11:01:16

2

this that the other words are as you understand

11:01:16

3

them today?

11:01:18

1

Q.

4

A.

No, there is no way to know that.

11:01:21

5

I would say that the odds are that they are

11:01:23

6

because of the structure of the poem.

11:01:26

7

sing Happy Birthday To You, Happy Birthday To

11:01:31

8

You, Happy Birthday Dear So And So, Happy

11:01:34

9

Birthday To You.

11:01:36

10
11

Q.

You

This is not exactly a haiku.

Are you relying on anything other

11:01:37
11:01:37

than just these sentences --

12

A.

No.

11:01:39

13

Q.

-- for the principle that this was

11:01:41

14
15
16

11:01:43

widely known at this time?
A.

I'm relying only on the sentence

and the context of this entire bottom paragraph.

17

Q.

Do have any evidence that this

11:01:47
11:01:50
11:01:53

18

sentence means that it was widely known at the

11:01:53

19

time?

11:01:56

20

A.

No.

It's an inference and I

11:02:02

21

certainly acknowledge that.

I guess you might

11:02:04

22

say it's a kind of circumstantial evidence but

11:02:08

23

only a little type of circumstantial evidence.

11:02:12

24

But it is more an inference which we make all

25

the time as historians.

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We see evidence and we try to

11:02:17
11:02:20

2

decide what it means.

3

things but sometimes it seems so clear what it

11:02:23

4

means that you sort of accept it.

11:02:26

5

don't have the absolute proof of it.

6

not alive in 1901 so we don't immediately know

11:02:32

7

that someone sang Happy Birthday.

11:02:35

8

certainly suggests very strongly that they did.

9

Q.

It could mean various

You know you
We are

But this

So the absence of the additional

11:02:30

11:02:37
11:02:41

10

lyrics suggests to you that the lyrics were

11:02:42

11

well known?

11:02:44

12

A.

That people knew the words.

11:02:55

13

Q.

You didn't survey materials other

11:02:57

14

than what Mr. Rifkin provided you to confirm

11:02:58

15

that belief?

11:03:01

16

A.

Frankly it probably would have taken

11:03:05

17

me a couple of years to locate the materials if

11:03:07

18

they even exist.

11:03:09

19
20

Q.

This could be unique.

That is not my question.

My

question is you did not?

11:03:10
11:03:12
11:03:12

21

A.

22

could do that.

11:03:19

23

Q.

11:03:24

I did not.

I did not feel that I

Do you know whether Clayton F.

24

Summy authorized the publication of Good

25

Morning To You lyrics in the Inland Educator

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11:03:28

Journal here?

2

A.

I have no idea.

11:03:30

3

Q.

Do you have any idea whether

11:03:33

4

Clayton F. Summy knew that the lyrics were

11:03:34

5

reprinted in this book?

11:03:36

6
7

A.

10

There is no evidence

Q.

11:03:37
11:03:39

based on what I have.

8
9

I don't know.

How about the Hill sisters, do you

11:03:43

have any evidence that they knew this was

11:03:45

printed in the Inland Educator Journal?

11:03:47

11

A.

There is no evidence.

Since they

11:03:51

12

were both educators and apparently very dedicated

11:03:54

13

educators, I think there is a reasonable possibility

11:03:54

14

that they read this journal.

11:03:56

15
16

Q.

But you don't have any evidence of

11:03:56
11:03:57

that?

17

A.

I don't have any evidence of that.

11:04:01

18

Q.

Do you have any evidence that they

11:04:04

19

authorized the reprinting of the lyrics in this

11:04:04

20

journal?

11:04:05

21

A.

Neither that they did or they

22

didn't.

23

the Good Morning To You, why would they not

24

11:04:10

have wanted them also to print Happy Birthday

25

11:04:09

To You to be sure that people knew those words.

But if they authorized the reprint of

11:04:14

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That was the question that I asked myself.

2
3

Q.

You don't know whether they

11:04:20
11:04:20
11:04:21

authorized --

4

A.

I don't, no.

11:04:23

5

Q.

Do you have a opinion either way as

11:04:25

6

to whether they authorized this printing of

11:04:26

7

Good Morning To You in this journal?

11:04:28

8
9

A.

I don't.

There is no way to form

an opinion based on what is here.

11:04:41
11:04:42

10

Q.

Look at paragraph 18.

11:04:43

11

A.

18 did you say?

11:04:52

12

Q.

Yes, sir.

11:04:54

Paragraph 18 some of

13

these questions are going to be the same but I

11:04:56

14

want to make sure that your testimony is the

11:04:56

15

same.

11:04:56

16

A.

Right.

11:04:59

17

Q.

This is with regard to material

11:05:02

18

called "Tell Me A True Story Tales Of Bible

11:05:04

19

Heros For The Children Of To-day" which

11:05:10

20

includes a birthday service.

11:05:14

21

here and that is at tab C; correct?

Again, we have

11:05:14

22

A.

That's right.

11:05:16

23

Q.

If we look at tab C?

11:05:18

24

A.

Page 250.

25

Q.

Page 250 the last line says "Sing

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Happy Birthday To You music same as Good-Bye To

11:05:34

2

You."

11:05:37

3

that "Because the author did not include the

11:05:39

4

printed words for Happy Birthday To You that

11:05:42

5

that indicates that the lyrics were well known

11:05:42

6

at that time."?

11:05:44

7

Correct?

A.

And you say in your report

Yes, I probably could have added

11:05:48

8

that it also didn't include the words to Good-Bye

11:05:50

9

To You which would indicate to me that both of

11:05:53

10

those texts were very well known at that time.

11:06:00

11

Q.

If you look at the prior page,

11:06:03

12

those are the lyrics to Good-Bye To You, aren't

11:06:04

13

they?

11:06:07

14

A.

Yes, sure.

11:06:10

15

Q.

Does the fact that those lyrics --

11:06:12

16

A.

I'm sorry, I didn't notice that, I

11:06:14

17

have to say that Good-Bye To You was already

11:06:14

18

printed.

11:06:16

19

Q.

Does the tact that Good-Bye To You

11:06:21

20

was printed indicate to you that the lyrics were

11:06:22

21

not well known at that time?

11:06:24

22

A.

Well since the song always says

23

Good Morning To You I suppose that the author

24

11:06:28

might have wanted to provide the words to

25

11:06:28

Good-Bye To You because maybe you couldn't

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2
3

11:10:08

was?
A.

No, we don't unless we find a

11:10:10
11:10:18

written version of the text.
So when you say well known by that

11:10:20

5

time -- in paragraph 17 you said well known by

11:10:24

6

1901.

The absence of the lyrics here and just

11:10:27

7

the reference in Exhibit C led you to conclude

11:10:27

8

that the lyrics were well known by 1901;

11:10:30

9

correct?

11:10:30

10

A.

Yes.

11:10:40

11

Q.

Let's go through a few more of

11:10:44

4

Q.

Paragraph 18, did we cover that, we

11:10:48

When you say -- I'm at paragraph 18 for

11:10:51

12

these.

13

did.

14

Exhibit C.

11:10:53

15

A.

That is what we just did.

11:10:56

16

Q.

You say it indicates the lyrics

11:10:59

17

were well known by that time.

18

time mean there?

19

A.

What does that

11:11:00
11:11:05

Whenever this came out.

Is there

11:11:10
11:11:15

20

some kind of indication?

21

1909 by Revel & Company which means it was at

11:11:23

22

least by 1909.

11:11:25

23

Q.

11:11:27

24
25

That is copyright

Do you know whether in Exhibit C of

Exhibit 47 -A.

Exhibit C or D did you say?

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2

Q.

I said C.

I'm still at Tell Me A

11:11:32
11:11:32

True Story.

3

A.

Okay.

11:11:36

4

Q.

Do you have any knowledge of

11:11:39

5

whether the Clayton F. Summy Corporation

11:11:46

6

authorized the reprinting of Good-Bye To You?

11:11:47

7

A.

There is no evidence in this.

11:11:48

8

Q.

Do you have any evidence that the

11:11:51

9
10

Hill sisters authorized the reprinting of

11:11:53

Good-Bye To You?

11:11:54

11

A.

There is no evidence.

11:11:58

12

Q.

How about whether they knew that it

11:11:59

13

11:12:00

was reprinted in this book?

14

A.

There is no evidence.

11:12:02

15

Q.

That is true for both the Hill

11:12:04

16
17

sisters and the Summy Corporation; correct?
A.

Based on what we have in front of

11:12:06
11:12:19
11:12:25

18

us there is no evidence of any of that.

19

sorry to just continue that.

20

probability exists that as admired apparently

11:12:32

21

and busy educators that this is the kind of

11:12:36

22

volume that they probably would have seen and

11:12:40

23

they might have gotten very angry.

11:12:42

24

possible that they did authorize it.

25

Q.

However,

I think the same

So it is

11:12:29

Do you have any basis for that

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11:12:47

statement?
No, it is just the inference

11:12:50

3

that it seems to be intended for teachers and

11:12:54

4

they were teachers and lots of teachers who are

11:12:57

5

very diligent would keep up on the journals

11:12:59

6

about teaching and try to be abreast of what is

11:13:01

7

going on.

11:13:01

8

saw it.

2

A.

9
10

No.

So I think it is possible that they

Q.

11:13:03

Do you have any evidence that they

11:13:03
11:13:04

saw it?

11

A.

No.

11:13:07

12

Q.

Are you opining today that they did

11:13:07

13

11:13:09

see it?

14

A.

I'm opining that they may have seen

11:13:12
11:13:13

15

it.

16

don't know.

17

It is the kind of thing that might have crossed

11:13:19

18

their vision.

11:13:21

I would not say they did see it because I
I think they might have seen it.

11:13:16

What are you relying on for that

11:13:22

20

statement other than the fact that they were

11:13:23

21

teachers?

11:13:24

19

22
23
24
25

Q.

A.

That is all and that this is

intended for teachers.
Q.

11:13:26
11:13:29

Did you read any biographies of the

Hill sisters in preparation of your report?

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A.

No, I haven't.

11:13:38

2

Q.

Have you done any study of what the

11:13:40

3

Hill sisters did or how they prepared or what

11:13:41

4

kind of things they read at all?

11:13:43

5
6

A.

No, I only know the fact that they

were educators that had a very good reputation.

11:13:46
11:13:47

7

Q.

How do you know that?

11:13:51

8

A.

Marc probably informed me of that

11:13:54

9

11:13:57

and it seemed like a reasonable supposition

11:13:58

10

since he seemed to have done his research.

11

could have duplicated the research, but I think

11:14:00

12

the main point was that I knew they were

11:14:02

13

educators and that was the market.

11:14:04

14

Q.

I

The only fact that you're relying

11:14:06

15

on to conclude that they may have seen this is

11:14:06

16

something that you learned from Mr. Rifkin; is

11:14:11

17

that correct?

11:14:12

The only thing that led me to this

11:14:15

19

conclusion is that I knew they were educators.

11:14:17

20

That I did know.

11:14:20

21

didn't see any elaborate biography and didn't

11:14:22

22

after that.

11:14:27

23

composer and a writer pair who were educators.

18

A.

I looked them up.

But I

I just needed to know they were

24

And since I know many educators who

25

11:14:30

routinely read all the journals, it seems to me

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2

possible that they did the same.
Q.

Because you know today that

11:14:37
11:14:40

3

educators read journals you're concluding that

11:14:42

4

it is possible that the Hill sisters read this

11:14:44

5

journal in the early 20th century?

11:14:46

6
7

A.

No, I know that educators in the

late 19th early 20th century also read journals.

11:14:52
11:14:52

8

Q.

How do you know that?

11:14:55

9

A.

From my research into Henry Cowell

11:14:56

10
11
12

and his mother.
Q.

But again, just to be clear, you

don't have any evidence, this is speculation?

11:14:57
11:14:59
11:15:07

13

A.

This is purely speculation.

11:15:19

14

Q.

Go to paragraph 19 which refers to

11:15:33

15

Exhibit D or tab D of Exhibit 47, correct?

11:15:36

16

This is an excerpt from something called

11:15:38

17

Program For Beginners' Department?

11:15:38

18

A.

Yes.

11:15:41

19

Q.

This does include the lyrics to

11:15:42

20

Happy Birthday as we understand them.

11:15:43

21

A.

That's right.

11:15:45

22

Q.

And you say that that leads you to

11:15:51

23

conclude that the words were widely known at

24

11:15:51

that time, correct?

25

A.

It leads me to conclude that they

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2

could be widely known at that time.
Q.

But I thought the absence of the

11:15:57
11:15:59

3

lyrics would lead you to conclude that they

11:16:05

4

were widely known at that time?

Here it is the

11:16:09

5

presence -- I'm trying to determine in previous

11:16:12

6

examples the absence of the lyrics led you to

11:16:14

7

conclude they were widely known?

11:16:15

8

A.

Yes.

11:16:17

9

Q.

Here the lyrics are included and

11:16:19

10

that leads you to conclude that they were

11:16:20

11

widely known?

11:16:24

12

A.

Well, in the sense that it seems

11:16:26

13

they are now being picked up by people and put

11:16:28

14

in their books, so in the context of what we

11:16:30

15

have gone through it strikes me that it is

11:16:32

16

becoming known to people who feel that they

11:16:43

17

want to include it for one reason or another.

11:16:45

18

Q.

But doesn't under the prior logic

11:16:48

19

of when we were talking about the words

11:16:50

20

Good-Bye To You having been included, that

11:16:53

21

indicated to you people did not know the

11:16:55

22

lyrics.

11:16:58

23

that these lyrics are included here indicate

24

that people did not know --

25

A.

So by that same logic doesn't the fact

11:16:59

I think that you're quite right

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that that was the question that you asked.

2

MS. LE MOINE:

I asked whether it

11:27:56
11:27:58

3

was authorized by Clayton F. Summy Co. and

11:27:59

4

Professor Sachs testified that he thought the

11:28:02

5

note 2 strongly suggested that it was.

11:28:05

6

MR. RIFKIN:

I would object to the

11:28:07

7

prior question because I don't think the prior

11:28:10

8

question referred to the song Happy Birthday To

11:28:17

9

You that appears on page 63 in Exhibit D to

11:28:19

10

Exhibit 47.

11:28:20

11

general.

12
13
14

I thought the reference was more

11:28:21

MS. LE MOINE:
Q.
clear.

Let's clarify.

Let me be clear then.

I want to be

I apologize if that was not clear.

11:28:23
11:28:25
11:28:27

15

What I'm trying to determine is

11:28:29

16

whether it is your testimony today that the

11:28:31

17

words "Happy Birthday To You, Happy Birthday To

11:28:34

18

You, Happy Birthday Dear John, Happy Birthday

11:28:36

19

To You," the printing of those in this book

11:28:38

20

Program For Beginners' Department was

11:28:41

21

authorized by the Clayton F. Summy Co. or

11:28:44

22

authorized by the Hill sisters?

11:28:47

23

A.

I would have to go back and say I

24

would only say that note 2 indicates that some

25

11:28:51

contact was made between the publisher of this

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and the Clayton F. Summy Company since, as Marc

11:28:59

2

pointed out, we don't actually know whether the

11:29:01

3

words to Happy Birthday To You were included in

11:29:03

4

the volume that referred to Song Stories For

11:29:06

5

The Sunday School.

11:29:07

We simply don't know that.

6

But something in the text of this

11:29:10

7

program for the Beginner's Department I think

11:29:13

8

clearly provoked the publisher of it to make

11:29:16

9

contact with Summy because Summy is referred to

11:29:17

here.

11:29:18

10
11
12
13

Q.

11:29:20

Song Stories For The Sunday School

11:29:21

is referred to here in note 2?
A.

11:29:25

Song Stories For The Sunday School

14

and Clayton F. Summy is given as the publisher.

15

actually.

No, it isn't

11:29:26
11:29:27

16

Q.

It isn't?

11:29:27

17

A.

It isn't, yes.

11:29:30

18

Q.

So let's try again.

Do you have

11:29:33

19

any evidence -- let's start very generally.

11:29:37

20

You pointed me to the note and I want to start -- I'm

11:29:39

21

taking it from the top, very general.

11:29:39

22

A.

Okay.

11:29:41

23

Q.

Are you aware of any evidence that

11:29:43

24

the Clayton F. Summy Co. authorized the

25

printing of the lyrics to Happy Birthday To You

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in Program For Beginners' Department?

11:29:48

2

A.

No.

11:29:50

3

Q.

Are you aware of any evidence that

11:29:55

4

the Hill sisters authorized printing of Happy

11:29:57

5

Birthday To You in Program For Beginners'

11:29:57

6

Department?

11:29:57

7

A.

No.

11:29:59

8

Q.

Are you aware of any evidence that

11:30:03

they are even aware of the printing of Happy

11:30:05

10

Birthday To You in this volume, either the Hill

11:30:07

11

sisters or the Clayton F. Summy Co.?

11:30:08

9

12

A.

There is no direct evidence of

11:30:08

13

that. To that I might add, however, that the

11:30:17

14

confusion in my mind about Song Stories came

11:30:21

15

from Exhibit A which is Song Stories For The

11:30:22

16

Kindergarten Published by Clayton F. Summy

11:30:24

17

Corporation which strikes me as probably

11:30:32

18

related to Song Stories For The Sunday School

11:30:35

19

because the title is the same.

11:30:37

20

So it strongly suggests that it is

11:30:40

21

Clayton F. Summy Company who is referred to in

11:30:43

22

footnote 2.

11:30:46

23

Birthday is in the collection Song Stories.

24
25

Q.

But it does not imply that Happy

11:30:49

Nor does it imply, does it, that

Clayton F. Summy Co. authorized the printing of

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Happy Birthday To You in this volume; is that

11:30:54

2

right?

11:30:56

3

A.

No, it does imply that Clayton F.

11:30:59

4

Summy may have authorized the publication of

11:31:01

5

something in this volume, but it doesn't refer

11:31:02

6

specifically to Happy Birthday To You.

11:31:04

7

Q.

So just to be totally clear, you're

11:31:08

8

not offering any opinion that this is an authorized

11:31:11

9

publication of Happy Birthday To You by Clayton

11:31:14

F. Summy Co. or by the Hill sisters; correct?

11:31:27

10
11

A.

Not on the basis of any evidence.

11:31:29

12

Q.

Let's talk about paragraph 20.

11:31:33

In

13

paragraph 20 and it is referring to tab E,

11:31:38

14

Exhibit E.

11:31:45

15

entitled "The 101 Best Songs For Home School

11:31:50

16

And Meeting."

11:31:59

17

no copyright date, correct?

18

this was published, tab E?

19

A.

We are discussing a song book

And you note that this print has

Well, I don't.

Do you know when

11:32:02
11:32:05

This was the first

11:32:08

20

of the compositions to provoke me to write

11:32:11

21

Nicholas Bell about the backwards based clef on

11:32:14

22

page 23.

Because that struck me as a very old

11:32:17

23

form of musical notation that one almost never

11:32:21

24

sees.

25

in the Julliard Library that was published in

And it happened that there was one song

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the 1840s, if I remember correctly, I think I

11:32:33

2

may refer to it here, which used that backwards

11:32:36

3

based clef.

11:32:39

4

a famous English publisher.

5

And it was publication of Novello,

At that point I wrote to Nicholas

11:32:40
11:32:42

6

Bell and said how late do you see this

11:32:45

7

backwards based clef and he replied that it is

11:32:51

8

impossible from the Novello archives to know

11:32:54

9

when they changed their orthography, but

11:32:58

certainly the 19th century I think he said.

11:33:00

10
11

In any case this is the 10th

11:33:02
11:33:06

12

edition of something.

13

we are looking at goes back probably 10 years,

11:33:10

14

if not more.

11:33:13

15

probably from the very early 20th century or

11:33:15

16

possibly even the late 19th century.

11:33:18

17
18

Q.

It means that whatever

Which makes me infer that it is

Let's take a minute to discuss this

backward based clef issue.

11:33:20
11:33:22

19

A.

Yes.

11:33:24

20

Q.

What can you conclude based on the

11:33:26

21

use of a backwards based clef in a piece of

11:33:27

22

printed music?

11:33:30

23

A.

11:33:33

The same thing that one concludes

24

with various symbols.

25

engraving.

It may date the

It may date the visual practice.

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putting out new editions.

2

put out new editions.

3
4

Q.

It is lot a work to

11:47:50
11:47:51

I think we covered that you don't

have expertise in music publishing in this era?

11:47:58
11:48:00

I don't have any expertise in music

11:48:00

6

publishing, but if you just think about it, you

11:48:02

7

realize that putting out a new edition is an

11:48:04

8

expense and you probably wouldn't want to do it

11:48:05

9

every week.

11:48:10

5

A.

I'm wondering why you are making an

11:48:13

11

assumption about the music publishers' practice

11:48:15

12

in the early 20th century?

11:48:18

10

13

Q.

A.

It is purely instinct based on

11:48:20

14

music that I have looked at and new editions

11:48:21

15

that I looked at that they don't come out that

11:48:23

16

frequently.

11:48:25

17

I have to say that I think that

11:48:27

18

while I understand the need for hard evidence

11:48:33

19

of a lot, I think my 60 or 65 years of experience

11:48:38

20

in working with and looking at music gives me a

11:48:42

21

certain amount of basis to make some

11:48:46

22

inferences.

11:48:48

23

can't always depend upon evidence.

24

evidence may not be there.

25

other circumstances and that includes your own

Because as an historian I know you
The

11:48:50

So you have to take

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1

experience.

2

because you don't want to draw conclusions

11:48:59

3

based on experience that might not prove to be

11:49:00

4

valid.

11:49:02

5

Q.

You have to be careful about it

What I'm trying to define is what

11:49:04

6

is it about your experience that you're relying

11:49:06

7

on when you make some of these inferences?

11:49:07

8

A.

Exactly, in this case it is from

11:49:10

looking at a lot of music that's comes out in

11:49:13

10

multiple editions and having some sense of the

11:49:15

11

time span they covered and therefore some sense

11:49:19

12

of perhaps a publisher's instinct about when it

11:49:21

13

is time to do a new edition.

11:49:27

9

You haven't done

11:49:30

15

any actual study of how frequent editions were

11:49:32

16

issued of music collections in the early 20th

11:49:33

17

century in America?

11:49:39

14

Q.

Just to clarify.

18

A.

That's correct.

11:49:46

19

Q.

In tab E this Good Morning To You

11:49:51

20

printing referred to as number 23 it says under

11:49:54

21

that Good-Bye To You, Happy Birthday To You, my

11:49:56

22

questions are going to be similar to those that

11:49:58

23

we already covered.

11:50:00

24
25

Do you have any evidence that the
Clayton F. Summy Co. was aware of this edition

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11:50:08

of the printing of Good Morning To You?

2

A.

There is no evidence of that.

11:50:13

3

Q.

How about the Hill sisters, do you

11:50:15

4

have any evidence that they knew about this

11:50:17

5

version of Good Morning To You and Happy

11:50:17

6

Birthday To You?

11:50:19

7

A.

There is no evidence of that.

And

11:50:23

8

if I may add there is no evidence that they

11:50:23

9

wrote the thing.

11:50:24

10
11

Q.

A.

11:50:25
11:50:28

wrote what?

12
13

There is no evidence that they

Good Morning To You.

Number 23 in

11:50:29
11:50:38

that publication.

14

Q.

What about tab A?

11:50:40

15

A.

That is the one that we talked

11:50:44
11:50:46

16

about before.

17

composing and arranging and Patty Hill with

11:50:49

18

writing and adapting.

11:50:53

19

only of Good Morning To You which we know is by

11:50:54

20

them.

11:50:56

21

Q.

Where it credits Mildred J. Hill

And that is a publication

Why would you say the song Good

11:50:57

22

Morning To You there is no evidence that they

11:50:58

23

wrote the thing?

11:51:01

24
25

MR. RIFKIN:
A.

He said in tab E.

In tab E there is no evidence that

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2
3
4
5

11:51:05

they wrote the thing.
MR. RIFKIN:

You were asking him

11:51:07

about tab E.
Q.

11:51:06

I want to clarify.

There is

11:51:10
11:51:11

evidence that they wrote that thing?

6

A.

But not in tab E.

11:51:16

7

Q.

What is the significance of that to

11:51:18

8

11:51:20

you that there is none in tab E?
Well, actually, you know, I was not

11:51:22

10

able to really make a conclusion as to why they

11:51:25

11

are not named there.

11:51:28

12

they aren't named there, which did strike me as

11:51:31

13

very strange.

11:51:32

14

without them being named.

9

A.

15

The only thing I see is

Why would this be published

11:51:35

We seem to have the title page,

11:51:39

16

which doesn't refer to the Hill sisters at all.

11:51:43

17

So, I don't know.

11:51:47

18

it also didn't indicate who wrote it.

19

whole thing may be a pirate.

20

Q.

Frankly Amicci the one below
The

Let's go to, there is a lot of

11:52:11
11:52:12
11:52:20
11:52:23

21

referring back and forth.

22

Paragraph 21 we are talking about a book called

11:52:26

23

"The Golden Book Of The Favorite Songs."

11:52:26

24

Correct?

25

A.

Go to paragraph 21.

Yes.

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2
3
4

Q.

And you again reference the

11:52:37

backward -A.

11:52:35

I'm sorry, may I interrupt you to

11:52:37
11:52:38

go back one?

5

Q.

Sure.

11:52:39

6

A.

To the previous example?

11:52:40

7

Q.

Sure.

11:52:42

8

A.

The one thing that we didn't

11:52:45

mention is that the title is Good-Bye To You,

11:52:48

10

Happy Birthday To You, but Happy Birthday To

11:52:49

11

You is not included.

11:52:50

9

12

Q.

What is the significance of that?

11:52:55

13

A.

I could infer that the engraver

11:52:57

14

felt that if he tried to fit two lines of words

11:52:59

15

in there he wouldn't be able to fit the next

11:53:03

16

song in and that would cause him some sort of

11:53:06

17

problem.

11:53:09

18

very end it clearly seems like the double bar

11:53:11

19

for Amicci is there.

11:53:13

20

whole of the second song.

Although this doesn't quite have the

Which means that is the

11:53:20

21

And if he had tried to put the

11:53:20

22

Happy Birthday words under Good Morning To

11:53:23

23

You he would have had to space it out so that

11:53:23

24

that next song would not fit there.

25

solution would have been to put a different

Another

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song there that only occupied two staves, but

11:53:30

2

he didn't or she didn't do that.

11:53:32

3

Again, it implied to me that people

11:53:36

4

knew what the words of Happy Birthday were,

11:53:38

5

they didn't have to be printed.

11:53:43

6

one might say the reasons why Good Morning To

11:53:45

7

You is printed is because that was copyrighted,

11:53:46

8

we know that.

11:53:48

9

Q.

And perhaps

11:53:52

You said you don't have any

10

evidence that this is authorized or they knew

11:53:52

11

about it?

11:53:55

12

A.

No, but the implication is whoever

11:53:59
11:54:01

13

put this together felt that there was no need

14

to put the words of Happy Birthday in there.

I

11:54:04

15

think one can go on to say that since the words

11:54:09

16

of Good Morning To You are in there, Good

11:54:10

17

Morning To All along with the music, whether

11:54:14

18

this is a pirated edition, whoever put it

11:54:16

19

together seems to have respected the

11:54:19

20

association of those two which were

11:54:22

21

copyrighted.

11:54:22

22

association in mind between the Happy Birthday

11:54:25

23

words and anything else, but that so many

11:54:27

24

people knew them that there was no point in

25

fiddling around with the layout of this page in

And it may be that there was no

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2

order to try to fit them in.
Q.

Do you have any evidence of what

11:54:32
11:54:34

3

you're describing right now that that was what

11:54:35

4

was going on in the minds of the engraver?

11:54:38

5

A.

No, I don't have evidence of it.

11:54:40

6

But it would have required a major rearrangement

11:54:44

7

of the page.

11:54:46

8

Happy Birthday To You in addition to the words

11:54:48

9

to Good Morning To You.

11:54:48

10
11
12
13

There is simply no room to fit in

There is no room.

11:54:52

There is no space
Q.

Could that be the reason just as

well that it was widely known?
A.

It could be, but I think the two go

11:54:55
11:54:57
11:54:59

14

hand in hand.

If you want people to know what

11:55:00

15

they are singing you either have to figure out

11:55:01

16

a way to layout the page.

11:55:04

17

clear to me.

18

song for the bottom half of the page and be

11:55:10

19

able to space out the staves a little bit so

11:55:12

20

you can fit in Happy Birthday.

11:55:15

21

The solution was

You have to find a shorter part

It seems, again, we don't know what

11:55:06

11:55:18

22

the engraver was thinking, but it seems that

11:55:19

23

the engraver didn't feel it was necessary to

11:55:21

24

put in those words.

25

probably because people knew the words.

Probably, I have to say

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Q.

But again, the same question, you

11:55:34

2

don't have any evidence that people knew the

11:55:36

3

words at the time other than the documents that

11:55:38

4

you have been provided by Mr. Rifkin?

11:55:39

5

A.

That's right.

11:55:41

6

Q.

We haven't done any independent

11:55:44

7

study about how widely, quote unquote, widely

11:55:47

8

the lyrics to Happy Birthday To You were known

11:55:48

9

at this time, correct?

11:55:49

10

A.

Well as I explained to you before,

11:55:53
11:55:55

11

yes, I don't see how you could do that.

12

talking about lyrics that may be associated

11:55:59

13

with hundreds of thousands, millions of people

11:56:03

14

perhaps even who never wrote down yesterday we

11:56:06

15

sang Happy Birthday or who may have written it

11:56:08

16

down but those letters can't be found anywhere

11:56:11

17

or if you went through 500,000 letters you

11:56:13

18

might find two that referred to it.

11:56:16

19

doesn't prove anything because it is not the

11:56:19

20

sort of thing that you bother writing about.

11:56:22

You're

But that

21

Look at it this way, you write Dear

11:56:24

22

Granny we went yesterday or we had yesterday my

11:56:28

23

birthday party and we sang Happy Birthday.

11:56:30

24

you think that letter is going to be preserved

25

somewhere.

Do

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Q.

Is it possible that it is?

11:56:33

2

A.

Yes, somewhere sure in the

11:56:35

3

11:56:39

universe.

4

Q.

But you have not looked for --

11:56:43

5

A.

It's a haystack.

11:56:46

It's a haystack

6

with maybe a needle in it and maybe not.

11:56:50

7

Because on something that may be, as I have to

11:56:53

8

say may be on a universal popular level the

11:56:58

9

chances of finding documentation are extremely

11:56:59

tiny.

11:57:00

10
11

11:57:05

Live me give you one example of

11:57:08

12

this.

13

know there was popular music in the 17th

11:57:11

14

century that is referred to, but hardly a note

11:57:14

15

of it is preserved because popular music was

11:57:16

16

sung by poorer people and they couldn't even

11:57:19

17

read, so nobody would bother engraving it.

11:57:22

18

even if they engraved it, who had the money to

11:57:22

19

buy it.

11:57:25

20

Popular music in the 17th century.

We

But

We

11:57:27

We can't say there was no

11:57:31

So it is a complete mystery.

21

know it is there.

22

popular music because there is no evidence of

11:57:31

23

it, but it is there.

11:57:33

24

people singing and they were singing something

25

and they are poor.

You see paintings with

This is very much the same.

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If three-quarters of the world were

11:57:39

2

singing Happy Birthday by 1910, which we don't

11:57:41

3

know, the chances of finding evidence of it I

11:57:45

4

would say are extremely small.

11:57:47

5

went through every last page of every English

11:57:50

6

language newspaper in that period you might

11:57:54

7

find some little item about people singing

11:57:55

8

Happy Birthday.

11:57:59

9

Q.

Maybe if you

The paintings you're talking about,

11:58:03

10

you're hypothesizing about a means by which

11:58:05

11

someone could conduct a study, correct?

11:58:08

12

A.

No.

There have been major studies

11:58:09
11:58:11

13

done of what is called musical iconography.

14

didn't do them.

But it's a major part of the

11:58:14

15

music history.

Looking at pictures that show

11:58:17

16

music being made and trying to determine what

11:58:18

17

is happening.

11:58:20

18

which you can read the music, but those are

11:58:22

19

paintings for rich people.

11:58:24

I

There are some paintings in

Are you aware of any such paintings

11:58:27

21

that have any evidence of Happy Birthday To You

11:58:29

22

contained within any of these paintings?

11:58:31

20

23

Q.

A.

None whatsoever.

But that doesn't

24

mean that there wasn't one.

25

11:58:36

have sketched the birthday party which they are

Somebody might

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2
3

11:58:44

all singing Happy Birthday.
Q.

But you're not aware of that

11:58:45
11:58:47

sitting here today?

4

A.

No.

11:58:53

5

Q.

Paragraph 21 The Golden Book Of

11:58:53

6

11:58:59

Favorite Songs.

7

A.

8

Q.

Look at tab F.

11:59:12

Yes

9
10

Look at the piece

11:59:16

of music again similar to the one, the previous

11:59:16

one; is that correct

11:59:19
11:59:20

11

A.

12

backward base.

11:59:21

13

Q.

11:59:23

Yes, the same thing with the

My questions are the same, is there

14

any evidence from this document that this was

11:59:28

15

authorized by the Clayton F. Summy Co., this

11:59:35

16

printing in tab F?

11:59:37

No, although as I think about it it

11:59:43

18

is another Chicago company and maybe that would

11:59:45

19

have been a little dangerous.

11:59:48

17

20
21
22
23
24
25

A.

Q.

When you say a little dangerous,

11:59:57

what do you mean?
A.

To Hall & McCreary.

The publisher

of this excerpt.
Q.

11:59:48

11:59:59
12:00:00

What I'm asking you is do you have

any evidence that it was authorized by the

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12:00:04

Clayton F. Summy Co.

2

A.

No.

12:00:07

3

Q.

Do you have any evidence that it

12:00:10

4

was authorized by the Hill sisters, either one?

12:00:10

5

A.

No.

12:00:11

6

Q.

Do you have any evidence that

12:00:14

7

Clayton F. Summy Co. knew about this publication?

12:00:14

8

A.

No.

12:00:16

9

Q.

How about the Hill sisters, any

12:00:17

10
11

evidence that they knew about this publication?
A.

No.

And in fact it is exactly the

12

same as the example in number E.

13

to be a reprint of something.

14
15

Q.

So this seems

17

compare.

18

Q.

12:00:31

12:00:35

The type phase is a little

A.

12:00:25

12:00:33

12:00:39

different, correct, between E and F?

16

12:00:23

Just looking at this, let me just

12:00:52
12:01:00

I would say it is the same.
In the sample in Exhibit E and the

12:01:02

19

sample Exhibit F of your report you say it is

12:01:03

20

the same.

12:01:04

21

A.

12:01:12

No, I'm sorry, there is one
This

12:01:15

Namely

12:01:17

22

difference.

23

must have been re-engraved in some way.

24

the bottom line, the first cord of the last

25

line in the left-hand and the last cord have

There are two differences.

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their stem facing downward rather than upward.

2
3

Q.

Can you could look at the title,

A.

Yes, the title is redone.

12:01:27
12:01:30

aren't the titles printed differently?

4

12:01:26

That is

12:01:32

5

not a re-engraving that could be done with type

12:01:36

6

I would think.

12:01:40

7

standing brightly Good Morning To You/Happy

12:01:41

8

Birthday To You that all seems to be the same.

12:01:43

9

The rest of it to be sung

In fact it could even be that the

12:01:48

10

engraver of 23 decided to have the left hand

12:01:51

11

stems face up so it wouldn't look so crowded

12:01:53

12

with respect to the next song, I don't know.

12:02:04

13

But they are essentially the same.

12:02:10

Look at tab G paragraph 22 of your

12:02:13

15

report you state that tab G is an undated copy

12:02:24

16

of Harvest Hymns from the '20s.

12:02:25

17

know it is from the '20s?

14

Q.

18

A.

How do you

12:02:28

One of the pieces, "Let Others See

12:02:34
12:02:37

19

Jesus In You" is copyrighted 1924.

20

probably be better to say no later than the

21

'20s.

22

next one is copyrighted 1922 of the three

12:02:53

23

examples that we have here number 37.

12:02:54

24
25

It would

But I suspect pretty close to that.

Q.

12:02:46

The

12:02:49

You note in your report that there

is no author -- Good Morning To You, number

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12:02:59

218?

2

A.

Yes.

12:03:01

3

Q.

And you note in your report that

12:03:04

4

there is no author, composer or copyright

12:03:09

5

indication despite the fact that such information

12:03:11

6

is given for the other two pieces that you

12:03:12

7

include, correct?

12:03:12

8

A.

Yes.

12:03:14

9

Q.

What is the significance of that to

12:03:14

10

12:03:15

you?

12:03:17

11

A.

I don't know.

12

Q.

What do you mean by odd?

12:03:19

13

A.

Supposedly Good Morning To You

12:03:22

It struck me as odd.

14

was copyrighted and yet the compiler of this is

12:03:25

15

very careful to indicate the copyright of the

12:03:29

16

other two specimens that I was sent.

12:03:31

17

very strange that there was no credits for this

12:03:34

18

nor any authorship of either the music or the

12:03:37

19

words.

12:03:40

20

one example and what is his name in the other

12:03:43

21

one for having written the words and music.

12:03:48

22

And you notice in 37 Herbert G. Tovey in the

12:03:52

23

composer's place and HGT on the left hand side

12:03:55

24

as the author.

25

It seems

Whereas Herbert Tovey is credited in

As far as this piece by McKinney

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which doesn't seem to have a number on it,

12:04:01

2

there is -- it is bound in so it is really hard

12:04:03

3

to see.

12:04:05

4

big binder off hand?

5

Do you know what number that is in the

Q.

12:04:15

McKinney, not offhand.

You might

12:04:18

6

know, I'm assuming that these are organized in

12:04:25

7

the way that you provided them?

12:04:28

Whatever, this is bound tightly but

12:04:31

I could see the K period on the left-hand side.

12:04:35

10

So I think what it probably says is BBK or

12:04:36

11

BBMK.

12:04:37

8
9

A.

12

Q.

13

A.

BBMK.

12:04:40

BBM?
But there is a copyright

12:04:44
12:04:48

14

credit there and author.

15

and McKinney apparently did both the words and

12:04:51

16

music and that is carefully credited and yet no

12:04:53

17

information at all about Good Morning To You.

12:04:57

18

Q.

In both cases Tovey

Does the absence of there being any

12:04:58

19

of that sort of information on Good Morning to

12:05:00

20

You suggest to you that Good Morning To You has

12:05:01

21

no author?

12:05:03

22

A.

Yes, that would be the implication.

23

That nobody wrote it.

24

and nobody wrote the words.

25

12:05:05
12:05:08

heaven.

Nobody wrote the music
Dropped from

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Q.

2

A.

We know that is not true.

12:05:12

We know that is not true?
And also

12:05:14

3

if you look at the example of Good Morning To

12:05:17

4

You you can see on the right the beginning of

12:05:20

5

220 where there is credit of some sort.

12:05:22

6

Q.

Is it possible that Good Morning To

12:05:24

7

You the authorship was not known by the

12:05:27

8

publisher, is that possible?

12:05:31

9
10

A.

I suppose anything is possible.

It

seems kind of stupid to me.

12:05:33
12:05:35

11

Q.

Why is that you stupid?

12:05:36

12

A.

That tune was around in

12:05:39

13

circulation.

14

prints of it.

15
16
17

Q.

We know, we have seen so many

12:05:43

What reason do you give for there

being no authorship noted here?
A.

12:05:40

One is I don't know, and the other

12:05:46
12:05:48
12:05:53

18

is the publisher of this was very careless,

12:05:56

19

possibly assuming that everybody knew that it

12:05:59

20

must have been like a folk song that has been

12:06:02

21

in the air for years.

12:06:05

22

is stupid and did not bother to check because

12:06:07

23

it's a little dangerous it strikes me.

12:06:09

24
25

Q.

And the third is that he

For this publication you're not

aware of any evidence that Clayton F. Summy Co.

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2

authorized this publication?
A.

No, actually strangely enough

12:06:17
12:06:19

3

unless I'm missing something here there doesn't

12:06:21

4

seem to be any indication on the cover who

12:06:22

5

published it.

12:06:25

6
7

Q.

You're not aware if Clayton F.

Summy Co. knew about this publication?

12:06:27
12:06:27

8

A.

No idea.

12:06:29

9

Q.

You're not aware that the Hill

12:06:32

10

sisters authorized publication, are you, any

12:06:33

11

evidence of that?

12:06:34

12

A.

There is no evidence.

12:06:35

13

Q.

How about whether they knew about

12:06:36

14
15

12:06:38

this publication?
A.

No evidence.

When I say no

12:06:41

16

evidence it always means maybe so, maybe not.

12:06:41

17

But there is evidence.

12:06:43

18

Q.

No evidence that you're aware of?

12:06:44

19

A.

That I'm aware of, yes.

12:07:02

20

Q.

Let's look at tab H which is

12:07:09

21

referred to in paragraph 23 of your report.

12:07:11

22

Again the version of Happy Birthday To You

12:07:17

23

printed in this volume, do you note that it

12:07:17

24

does not include any author information;

25

correct?

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A.

Whereas the one above it does?

12:07:31

2

Q.

Right.

12:07:33

3

Nor any copyright

information whereas the one above it does?

12:07:37

4

A.

Yes.

12:07:39

5

Q.

I guess my question is the same.

12:07:42
12:07:45

6

What do you conclude based on that?

7

same three things that you concluded about

12:07:46

8

absence in the prior document?

12:07:48

9

A.

Is it the

Yes, the music is identical, I

12:07:54
12:07:56

10

believe it is identical.

11

completely.

It is identical to the music of,

12:08:03

12

for example, tab F with the exception that to

12:08:08

13

accommodate happy and birthday -- sorry, happy,

12:08:11

14

it is always necessary to divide the single

12:08:29

15

pickup D into two parts.

12:08:32

16
17

Q.

I haven't compared it

My questions are the same with

12:08:35
12:08:36

regard to this publication?

18

A.

My answers are the same.

12:08:37

19

Q.

You don't have any evidence of any

12:08:39

20

authorization or knowledge by Clayton F. Summy

12:08:42

21

or the Hill sisters with regard to this publication, correct?

12:08:44

22
23

A.

That's correct and there is no

12:08:49

evidence as to who wrote it.

24

MS. LE MOINE:

25

THE VIDEOGRAPHER:

12:08:47

Let take a break.
Going off the

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12:18:22

record at 12:09.

2
3

THE VIDEOGRAPHER:

12:18:26

(Recess Taken.)
Returning to

12:18:30

4

the record at 12:18.

12:18:30

5

BY MS. LE MOINE:

12:18:34

6

Q.

Professor Sachs, let's look at

12:18:47
12:18:54

7

paragraph 23.

8

number 219 Birthday states copyright 1924 with

12:18:55

9

the composer's name on the right where by

12:18:58

10

convention the music composer is identified and

12:19:00

11

his initials on the left where by convention

12:19:04

12

the lyricist is identified."

12:19:06

Paragraph 23 you say, "In song

Do you see that?

13

A.

Yes.

12:19:07

14

Q.

Is it true that the convention that

12:19:10

15
16
17
18

you're referencing is not always followed?
A.

I would say it is followed about

99.999 percent of the time.
Q.

But the survey you didn't find that

12:19:12
12:19:14
12:19:21
12:19:23

19

it was followed 99.999 percent of the time,

12:19:24

20

right?

12:19:27

21

A.

Well, there were other examples.

12:19:30

22

For example just the indication traditional or

12:19:33

23

nothing at all because it's a Gospel song or

12:19:36

24

things like that.

25

there is author attribution that is where it

But of the ones in which

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1

the composer.

2

frankly if it appeared on the left.

It would

12:25:48

3

be so weird because the composer's name is on

12:25:50

4

the right except for that one example which you

12:25:53

5

managed to find.

12:25:56

6

he wrote his words and music, so there is no

12:25:57

7

reason not to put it that way.

12:25:58

8
9
10
11

Q.

14

At that time everybody knew

By seeing it on the right you would

conclude that he wrote the words and music?
A.

Since there is no other reference

MS. LE MOINE:

I'm going to

identify this as Exhibit 53.
A.

12:26:01
12:26:04
12:26:06
12:26:07

to a writer, yes.

12
13

I don't know what I would think

But I would add that because one

12:26:15
12:26:17
12:26:22

15

does know a little bit about Irving Berlin.

12:26:25

16

What one knows is he wrote his words a music.

12:26:27

17

Q.

You assume perhaps it is outside of

12:26:29

18

the convention because everyone knows that

12:26:31

19

Irving Berlin wrote the words and music?

12:26:34

20
21

A.

remember that he did it all.

22
23
24
25

Or maybe because he wanted you to

MS. LE MOINE:

Mark this as

12:26:46
12:26:47
12:26:48
12:27:12

Exhibit 53.
(Sachs Exhibit 53 for
identification, Document.)

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2

Q.

Similarly we have the composer and

12:27:18
12:27:19

writer of the words in the same place?

3

A.

Yes.

12:27:21

4

Q.

On the right-hand side of the page?

12:27:21

5

A.

Yes.

12:27:23

6

Q.

And it does not say words by,

12:27:23

7

correct?

8

A.

Correct.

12:27:26

9

Q.

So is this consistent with

12:27:30

12:27:23

10

convention for there to be on the right-hand

12:27:33

11

side of the page one name when that person

12:27:35

12

wrote both the words and the music?

12:27:56

13

A.

Yes, I think that is fine.

12:27:59

14

Q.

Go back to paragraph 23 for a

12:28:06
12:28:16

15

moment of your report.

16

page 6 the last line of paragraph 23.

17

"The preface to this volume says that the

12:28:21

18

publishers or compilers pay hundreds of dollars

12:28:23

19

to get permissions, but if that is true, there

12:28:25

20

is no evidence that such permission was

12:28:28

21

required for Happy Birthday To You."

12:28:29

When the preface -It says

Right?

12:28:18

22

A.

Right.

12:28:32

23

Q.

So I want to confirm that though it

12:28:36

24

says in the preface that the publishers and the

25

compilers pay hundreds of dollars to get

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permissions, you don't see any evidence in that

12:28:44

2

volume at tab H that Happy Birthday To You is

12:28:48

3

authorized by the publisher Clayton F. Summy

12:28:48

4

Co.?

12:28:48

5

A.

There is no evidence.

12:28:50

6

Q.

And there is no evidence that the

12:28:51

7

12:28:54

Hill sisters authorized it?

8

A.

There is no evidence.

12:28:55

9

Q.

Right before we took a break you

12:28:59

10

also said there is no evidence that the Hill

12:29:04

11

sisters wrote the song that is at tab H and I

12:29:07

12

want to confirm you're talking about in tab H

12:29:08

13

there is no evidence?

12:30:08

14

A.

In tab H there is no evidence.

12:30:13

15

Q.

Let's look at paragraph 24.

12:30:17

I want

16

to clear up some confusion first and make sure

12:30:19

17

we are clear on the record about this.

12:30:24

18

Tabs B -- you say paragraph 24 "The

12:30:27

19

materials before 1934 carry only two references

12:30:32

20

to Patty Hill.

12:30:37

21

School Journal and D, Program For Beginners'

12:30:39

22

Department."

12:30:44

23

is Inland Educator and D is Program For

24

Beginners' Department.

25

Tab A, Inland Educator and Indiana School

Tabs B, Inland Educator Indiana

Right?

And I'm looking at B it

12:30:45

And only one reference,

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1

Journal to Mildred is author of the song.

2

A is actually Song Stories For The

12:31:03

3

Kindergarten.

12:31:03

4

Inland Educator School Journal?

Tab

So should that read tab B,

12:31:05

5

A.

Tab B, probably, yes.

12:31:10

6

Q.

Significantly Happy Birthday To You

12:31:14
12:31:15

7

is not present in tab A.

8

Educator and Indiana School Journal but I think

12:31:17

9

is what you mean there, tab B?

12:31:21

It says Inland

Since that is

10

where Indiana -- Inland Educator and Indiana

12:31:22

11

School Journal is?

12:31:25

12

A.

Yes, I don't know how those -- oh,

12:31:30

13

yes, that may have come from Marc's office

12:31:32

14

rearranging things in chronological order and

12:31:35

15

perhaps forgetting to change the tab references

12:31:38

16

there.

12:31:40

17

everything to be sure it is clear.

18

That is why I put the titles in on

Q.

If the tabs are incorrect and this

12:31:43
12:31:45

19

happens a few times, there are things that

12:31:47

20

aren't present -- there is a tab that you

12:31:49

21

referenced that doesn't have a document or

12:31:52

22

there is tabs that are called something that

12:31:55

23

don't match up, should we rely on the title

12:31:55

24

rather than the tab?

25

A.

Yes, rely on the title.

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12:54:30

that is in Exhibit J?

2

MS. LE MOINE:

3

question.

4

That is a fair

Marc.

12:54:32
12:54:34

5
6

What I'm asking if I could clarify,

12:54:32

MR. RIFKIN:

I'm trying to follow

12:54:38

all of this.

7

12:54:35

MS. LE MOINE:

Is Professor Sachs

12:54:40

8

relying on anything other than what is behind --

12:54:43

9

because the paragraph referring to what is

12:54:46

10

behind Exhibit J does not reflect what is

12:54:49

11

actually behind the Exhibit J tab.

12:54:50

12

MR. RIFKIN:

I disagree with that

12:54:52
12:54:55

13

characterization.

14

refers to the sample that is attached as

12:54:57

15

Exhibit J and he also references the fact that

12:55:01

16

there are other samples of that same music that

12:55:05

17

are identical except as he knows.

12:55:07

18

I think in paragraph 29 he

If you want to see them I think if

12:55:10

19

we let him point to you in Exhibit 49 where

12:55:14

20

they might be, maybe that is the easiest way to

12:55:17

21

get the information.

12:55:18

22

whatever you want.

23

Q.

It is up to you, do

If it is important -- what I was

24

12:55:23

trying to identify, if this is the only sample

25

12:55:21

you feel that I need to look at to support the

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point that you're making in paragraph 28, fine.

12:55:34

2

If there are other documents that you feel you

12:55:38

3

need to include in your report, then I want you

12:55:39

4

to have the opportunity to do that.

12:55:39

5

don't take that now.

6

you identify it in the production which ones

12:55:40

7

you think --

12:55:42

8

A.

Maybe we

Maybe we take a break and

No, I could tell you right now.

I

12:55:40

12:55:45

just want to look back at that paragraph to see

12:55:48

10

what I actually referred to, but the various

12:55:57

11

samples start in the big black binder, Exhibit 49,

12:56:06

12

up to tab 38 and continue to tab 50.

12:56:09

9

Look at paragraph 28 where it says

12:56:11

14

"Various samples of this piece differ in their

12:56:15

15

cover information, design, publisher or price.

12:56:21

16

Some say Summy Publishing Company, (Summy

12:56:23

17

3075)."

What does Summy 3075 refer to there?

12:56:25

The publication number so you can

12:56:28

13

Q.

18

A.

19

find it among the various samples, some of them

12:56:32

20

have different numbers to indicate what they

12:56:32

21

are.

That is standard.

12:56:35

Q.

12:56:39

22

If I look at J and I see the

23

publication number, I see the number 3075 in

24

12:56:40

the lower left corner?

25

A.

Yes, that is the one.

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Q.

Is that what you're referring to?

12:56:44

2

A.

Yes.

12:56:45

3

Q.

What does that number tell you?

12:56:49

4

A.

Normally when a publisher puts a

12:56:51

5

number it is the number of their publication.

12:56:54

6

It is his 3,075th publication.

12:56:57

7

Q.

So is it sequential?

12:57:04

8

A.

It should be.

12:57:06

9
10

It may be in some

periods it is called a plate number for the

12:57:07

engraving plate.

12:57:11

11

Q.

My question is the one before it

12

the

13

3074 would be something else?

engraving plates would be number.

And

12:57:16
12:57:17
12:57:19
12:57:22

14

A.

Yes.

15

Q.

Can you look at Exhibit L for a

12:57:31

You see in the lower left-hand corner

12:57:32

16

moment.

17

And 76 would follow it.

that is 3076?

12:57:33

18

A.

That is probably the next one.

12:57:34

19

Q.

The next what?

12:57:36

20

A.

The next thing they published.

12:57:40

21

That would be my inference based on what I know

12:57:42

22

that they would number sequentially.

12:57:49

23

Q.

Let's look back at paragraph 28 to

24

make sure that I'm done there.

25

12:58:00

the certificate for the copyright registration,

Did you review

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E 51990, in preparing your report that is

12:58:10

2

referred to in paragraph 28?

12:58:11

3
4

A.

I don't remember

Q.

12:58:12
12:58:15

the number offhand.

5
6

I think I did.

It is referred to here in paragraph

12:58:15
12:58:16

28?

7

A.

Then I did.

12:58:19

8

Q.

It says it suggests that it may be

12:58:22

the print for the December 6th, 1935 copyright

12:58:24

10

certificate which says, "arrangement as easy

12:58:28

11

piano solo with text."

You said the thing that

12:58:33

12

led you to believe that about Exhibit J is that

12:58:37

13

it was copyright 1935.

12:58:40

14

cover of Exhibit J also says it is underlined

12:58:43

15

piano with words, does that also support that?

12:58:46

9

16

A.

Yes.

Does the fact that the

However there are a few of

12:58:48

17

them and that is what is in 30 whatever is the

12:58:50

18

number I just gave you that do that and there

12:58:53

19

are certain differences among them.

12:58:56

20

possibly to be reprinted later, who knows.

21

some of them have Preston Ware Orem's name and

12:59:02

22

some don't and that is peculiar, but that is

12:59:02

23

what it is.

12:59:04

24
25

Q.

They seem
But

12:58:59

The fact that this says this is the

piano solo with words version also supports

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that it is the copy of copyright 51990?

2

MR. RIFKIN:

3

to that says piano solo with words?

4

MS. LE MOINE:

5

MR. RIFKIN:

6

What are we referring

referring to Exhibit J.

7

MS. LE MOINE:

8

MR. RIFKIN:

9

I thought you were

12:59:16
12:59:17
12:59:19
12:59:20
12:59:21

I am.
Where does it say

12:59:22
12:59:22
12:59:24

that.

10

MS. LE MOINE:

11

MR. RIFKIN:

12

Exhibit J.

12:59:13

The title page.
I thought you were

looking at plate number 3074.

13

MS. LE MOINE:

No I'm asking the

12:59:25
12:59:28
12:59:29
12:59:31

14

professor if the fact that that piano solo with

12:59:33

15

words is underlined that that is the indication

12:59:36

16

that this is this piece of music.

12:59:46

17

A.

As far as I could say yes.

12:59:49

18

Q.

Let's look at paragraph 29 which

12:59:58
13:00:02

19

refers to tab K.

20

the Hill sisters both names in the upper right

13:00:04

21

and arranged by Preston Ware Orem underneath

13:00:04

22

that.

13:00:05

If you look at tab K it has

23

A.

Yes.

24

Q.

13:00:07

Do you have any opinion as to why

25

Mildred Hill and Patty Hill are listed in the

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2

13:00:12

upper right?
A.

I don't know why Patty is listed

13:00:15

3

there because again there are no words.

13:00:17

4

Mildred Hill is there because she wrote the

13:00:20

5

original music and Preston Ware Orem made this

13:00:23

6

arrangement.

13:00:24

The problem with that being in J --

7

Q.

I'm in K?

13:00:30

8

A.

I'm sorry, in K is that that is

13:00:33

9

redacted.

But there is an unredacted copy in

13:00:37

10

the big binder which is more important and I'm

13:00:41

11

not sure why this was bound in.

13:00:42

12

could quickly find that for you.

13
14

Q.

Let's see if I

We did not locate it but maybe you

13:00:48
13:00:51
13:00:53

can tell me where it is.
(Witness reviewing document.)

15

13:00:56

16

A.

It is number 42 in the big binder.

13:01:00

17

Q.

So you're saying number 42 in the

13:01:04
13:01:07

18

big binder is the unredacted.

19

include -- this is not exactly the same, is it,

13:01:10

20

because what I'm looking at is behind K has

13:01:14

21

Mildred Hill and Patty Hill and arranged by

13:01:16

22

Preston Ware Orem and the one that you pointed

13:01:20

23

me to behind 42 just says Mildred Hill and

13:01:22

24

arranged by Preston Ware Orem scratched out.

25

A.

Yes.

This does

The problem that I said with

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well with her -- the edition that she had.

2

With her

original version.

13:03:53
13:03:57

3

Q.

You're presuming that she didn't?

13:03:59

4

A.

Well, Preston Ware Orem had to do

13:04:00

5

something and since the piano part has changed,

13:04:05

6

that's what he did.

The piano part is more

13:04:10

7

elaborate than the earlier versions of Good

13:04:12

8

Morning To You and -- because they are all the

13:04:14

9

same up to there.

13:04:16

10

Very, very tiny change.

He has made something that is a

13:04:20
13:04:23

11

little bit more difficult.

12

higher level of piano playing.

13

of perhapses, perhaps Summy Birchard said why

13:04:28

14

don't you do this, we could sell it to a

13:04:31

15

slightly more advanced piano store.

13:04:33

Suggests a slightly
There are a lot

Who knows.

13:04:26

The fact that Preston Ware Orem is

13:04:41

17

referred to in 51990 and not in tab J doesn't -- you still

13:04:46

18

believe tab J has been arranged by Preston Ware

13:04:46

19

Orem?

13:04:49

16

20

Q.

A.

Well, it is identical to the ones

13:04:51
13:04:54

21

that have his name on it.

22

his name was deleted from that copy.

Nobody

13:04:56

23

knows who or why as far as I have been told.

13:05:02

24
25

Q.

We don't know why

My point is the absence of the

attribution to Mr. Orem doesn't indicate it was

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arranged by Mr. Orem?

2

A.

I would say the absence in the

13:05:09
13:05:10

3

attribution does not indicate and in fact that

13:05:14

4

he said later he said wait a minute, I want my

13:05:16

5

name on it.

13:05:20

6

about an easy piano solo with words and that is

13:05:36

7

what this is.

13:05:39

8
9
10

Q.

The copyright certificate talks

In tab K paragraph 29 that refers

13:05:42

to tab K, I apologize for bouncing back and

13:05:42

forth.

13:05:43

11

A.

That's all right.

13:05:44

12

Q.

You say at the end of this

13:05:47

13

paragraph, "The fact that one sample has Orem's

13:05:51

14

name crossed out is immaterial another does

13:05:55

15

not.

13:05:58

16

since he created the new piano part."

It appears that his name should be on it

17
18
19
20
21
22
23
24
25

Again that is not behind tab K but
it is somewhere in there?
A.

It is in the black binder

Do you know why those portions of

tab K were redacted?
A.

13:06:03
13:06:05
13:06:10
13:06:12

somewhere.
Q.

13:06:01

Marc explained it to me a long time

13:06:17
13:06:19
13:06:19

ago and I seem to have forgotten.
Q.

You don't independently know, you

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2

13:06:25

just know from Marc?
A.

Well I assume there was some

13:06:25

3

copyright reason and whoever provided that

13:06:32

4

decided it was better at that point to not

13:06:34

5

provide the actual text lest it being an

13:06:36

6

infringement of some sort.

13:06:40

7

Q.

Let's look at paragraph 30.

13:06:44

8

Paragraph 30 refers to tab L that we looked at

13:06:48

9

briefly.

13:06:51

10
11

The sequential catalog number, right

or engraving plate number, I'm not sure what -A.

Yes.

I don't know what it is

12

called now but that is what it is.

13

kind of publisher's index.

14
15
16
17
18
19

Q.

It is some

And indicating the order in which

Yes, I assume so.

13:07:01

13:07:04
13:07:06

That is what it

always does.
Q.

13:06:57

13:07:03

these items were published?
A.

13:06:54

You have here at the top arranged

by Mrs. R.R. Forman?

13:07:07
13:07:09
13:07:10
13:07:11

20

A.

Yes.

13:07:14

21

Q.

And again Mildred Hill's name on

13:07:14

22

13:07:14

the right?

23

A.

Yes.

24

Q.

13:07:17

And you say, "It is customary for

25

arrangers to appear either on the upper right

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under the composer's name or on the left."

13:07:24

2

A.

Yes.

13:07:25

3

Q.

What is the basis for that?

13:07:26

4

A.

Just experience of looking at many

13:07:27

5

13:07:29

many scores.
I think one of the earlier Preston

13:07:32

7

Ware Orem samples that we just looked at a few

13:07:35

8

moments ago, his name is under the composer's

13:07:35

9

name?

13:07:35

6

Q.

10

A.

Yes, it can appear both ways.

13:07:37

11

Q.

So it can appear both ways?

13:07:39

12

A.

Sometimes it just depends on the

13:07:42

13

eye of the engraver that decides is it's going

13:07:43

14

to look nicer if is balanced rather than with a

13:07:43

15

big space on the right.

13:07:46

16
17
18

Q.

Does it always say arranged by if

13:07:48

it is an arranger?
A.

I would say yes.

I would put it

19

another way.

20

then we don't know.

21

we know that is what the arranger did.

22

Q.

13:07:47

If it doesn't say arranged by
But if it says arranged by

Would you say that this is a custom

23

but, it being a custom but sometimes it is not

24

13:07:51
13:07:53
13:07:58
13:08:00
13:08:05
13:08:05

followed?

25

A.

I would say it is possible that it

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Q.

Paragraph 39 you describe --

14:37:23

2

A.

Exhibit U?

14:37:23

3

Q.

Yes.

Exhibit U.

14:37:29

That is a

4

redacted version of a work.

5

unredacted version of this document?

6
7

A.

Did you obtain an

14:37:37

Let me see what I wrote and then I

could tell you.

14:37:31

14:37:46
14:37:50

That was paragraph?

14:37:53

8

Q.

Paragraph 39.

9

A.

No, if there had been anymore I

Tab U.

14:37:55
14:37:57

10

would have said something more than that.

11

is just based on what little I can glean from

14:38:03

12

looking at the unredacted bits.

14:38:06

13

Q.

This

Again it says Hill - Wilson and

14:38:10
14:38:14

14

Mildred is written on there.

15

anything from the cover and then from Mildred

14:38:16

16

Hill - Wilson on the upper right corner?

14:38:21

17

A.

Can you conclude

Since we know that Mildred Hill was

14:38:23

18

dead and probably didn't remarry in recent

14:38:26

19

years, my conclusion was that Mildred Hill was

14:38:29

20

the original composer and this Wilson, whoever

14:38:33

21

it is, did this vocal instrumental version of

14:38:37

22

it and Gene Barry we know wrote the words

14:38:38

23

because that is clearly identified.

14:39:03

24
25

Q.

Paragraph 40, you note that in the

upper right of tab V it says Mildred J. Hill and the

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upper left of tab V it says traditional?

14:39:17

2

A.

I sure did note that.

14:39:19

3

Q.

You say, "This is consistent with

14:39:22

4

the convention for identifying the author or

14:39:27

5

authors of the words and music and acknowledges

14:39:29

6

that the lyrics were originally a traditional

14:39:30

7

adaptation of the earlier work Good Morning To

14:39:32

8

All."

14:39:35

9

What about this is consistent with

14:39:37

10

the convention for identifying the author or

14:39:39

11

authors of the words and music?

14:39:43

12

A.

Because on the examples that I saw

14:39:47

13

at Julliard where the text was a traditional

14:39:54

14

text, in some cases a psalm or some spirituals

14:39:57

15

that were arranged, it will often say

14:40:00

16

traditional on the left-hand side.

14:40:03

17

doesn't refer to the music because a composer's

14:40:06

18

name is on the right as normal.

14:40:10

19

says the text for Happy Birthday was a

14:40:13

20

traditional text and not something written by a

14:40:13

21

person.

14:40:15

It clearly

This to me

22

Q.

Tell me what a traditional text is?

14:40:22

23

A.

Perhaps from a folk poem, folk

14:40:24

24

song.

25

offhand.

Let's see if I could think of one
Yankee Doodle which was originally an

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1

English popular song.

2

traditional text by now certainly.

3

there are songs by German poets that were used

14:40:43

4

by people like Schubert for songs.

14:40:45

5

ordinary Germans don't realize that they were

14:40:50

6

written by some poet who was published as part

14:40:50

7

of the German literary tradition think it is a

14:40:52

8

traditional text that has been in the folk law

14:40:55

9

for hundreds of years.

14:40:58

That would be a
I do know

But

14:40:39

10

Q.

Does traditional mean no author?

14:41:00

11

A.

Traditional means no known author.

14:41:02

12

Q.

Is sometimes the word traditional

14:41:05

13

used when the publisher doesn't know the author

14:41:09

14

but the author is known generally?

14:41:13

15

A.

Not by any decent publisher.

As

14:41:13

16

you know this was published by C.C. Birchard.

14:41:21

17

I don't know what their relationship to Summy

14:41:23

18

Birchard is but there seems to be some kind of

14:41:24

19

resemblance in the name.

14:41:27

20

Q.

I understood from your testimony

14:41:29

21

earlier that you're not opining as to any

14:41:32

22

connection between -- or rather the history of

14:41:33

23

the Clayton F. Summy Company?

14:41:37

24
25

A.

No, no, all I'm saying it struck me

as odd because the name is the same to think

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they would publish it with the word traditional

14:41:46

2

for the authorship.

14:41:46

3

it.

4
5

That is the reflection on

14:41:50

Q.

If you look at the title page it

says C.C. Birchard Co.; correct?

14:41:51
14:41:51

6

A.

Yes.

14:41:54

7

Q.

And it says sole selling agent

14:41:56

8

14:41:56

Summy Publishing Company?

9

A.

Yes.

14:41:58

10

Q.

So Summy is not the publisher?

14:42:01

11

A.

Summy is not the publisher, no.

14:42:04

12

And since I don't know when Summy and Birchard

14:42:07

13

united, I don't know that.

14:42:08

14

doesn't particularly matter.

15

But it really

What is bizarre to me is that the

14:42:11
14:42:15

16

tune appears here as authorship listed as

14:42:17

17

traditional and somehow there is some

14:42:19

18

connection between the publisher and the

14:42:23

19

original publisher of Happy Birthday.

14:42:25

20

Q.

Did you find any other examples of

14:42:30

21

this song identified, with the authorship

14:42:32

22

identified as traditional?

14:42:32

23

A.

No.

24

Q.

There are examples of songs where

25

authorship is identified by Mildred and Patty

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Hill, correct, that we have seen in this

14:42:41

2

collection?

14:42:43

3

A.

Yes.

Where we don't know -- there

14:42:46

4

is no attribution that says words except in

14:42:49

5

those two examples that we saw back around

14:42:50

6

letter P or Q.

14:42:58

7

Q.

14:43:00

So, there is some examples that --

8

there is this example that calls the authorship

14:43:01

9

traditional?

14:43:02

10

A.

Yes.

14:43:04

11

Q.

There is some examples that don't

14:43:05

12

14:43:06

give any authorship?

13

A.

Yes.

14:43:08

14

Q.

And there is some examples that

14:43:11

15

include both Mildred and Patty's name on the

14:43:12

16

work?

14:43:14

17

A.

Without giving authorship.

14:43:16

18

Q.

Without giving authorship because

14:43:17

19
20

14:43:21

of the placement on the page?
A.

No, it just says by Mildred and

14:43:25

21

Patty Hill.

So we

14:43:28

22

can infer it but it doesn't actually say it.

14:43:29

23

Q.

It doesn't say words by.

And then there are the other two

24

examples that do say words and music by Patty

25

Hill and Mildred Hill?

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1

A.

Yes, that's right.

14:43:37

2

Q.

What can you conclude based on all

14:43:40

3
4
5
6
7
8

14:43:43

of these pieces of evidence?
A.
this.

There is incredible confusion about

Quite extraordinary confusion.
Q.

In the sheet music that you have

Yes.

14:43:49
14:43:51
14:43:55

been provided by Mr. Rifkin?
A.

14:43:48

Patty's name being there when

14:43:58

there were no words, Patty and Mildred with no

14:44:01

10

indication of who did what.

14:44:04

11

looking for evidence based on what is in the

14:44:07

12

specimen that is what you have to go by, there

14:44:07

13

is no evidence.

14:44:10

14

Patty wrote the words.

15

the words are traditional, I mean, I would find

14:44:15

16

it very difficult to come to any firm conclusion

14:44:18

17

about who wrote those words.

It seems to me

14:44:20

18

everything is contradicting everything else.

14:44:30

9

19

Q.

Again, if you're

There is two songs that do say
And then this one says

What did you mean in paragraph 40

14:44:12

14:44:34

20

when you say the lyrics were originally a

14:44:38

21

traditional adaptation of the earlier work Good

14:44:39

22

Morning To All.

14:44:42

23

A.

What does that mean?

That means that if these are

24

traditional -- if they really are traditional

25

words, that there were lyrics Good Morning To

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2

the videotape deposition at 16:09.
(TIME NOTED:

4:09 P.M.)

3
4

_______________________

5

JOEL SACHS, Ph.D.

6
7

Subscribed and sworn to before me

8

this _____ day of _________, 2014

9
10

__________________________________

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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1621

1622

EXHIBIT 111

Ex. 111
___
1623

OEPOSMON EXHIBIT

I
2

FRANCTS M. GREGOREK (14478s)
sresorekfdwhafh.com

BeTsy

fl

H,{nNrpolD (t824s0)

manifold@.whafh.com
RACHELts R. RICKERT (1e0634)
-) [e-mail]
MARTSA C. LTVESAY (223247)
4 [e-mail]
5

6
1
B

9

l0

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

750 B Street, Suite 2770
San Dieso. CA 92101
Telcphone: 619 1239 -4599
Facslmile: 619 1234-4599

Interim Class Counselfor Plaintiff and the Proposed Class

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

11

WESTERN DIVISION
12

t3
14

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

15

Case No.

CV 13-04460-GHK (MRWx)

EXPERT REPORT OF
JOEL SACHS, Ph.D.

t6
t7
18

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

19

20

2t
22
23

24
25
26
27
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1624

I.

Qualifications

i.
professor

I

am a graduate faculty member of Thc Juilliard School, where

I

have been a

of Music History and Chamber Music for over 40 years. The focus of my

academic study is i 9th, 20th and 21st century music history and performance

.

2- I eamed my Bachelor of Arts degrec in Music from Harvard University in
1961, rny Master of Arts dcgree in Musicology from Columbia University

in

1965 and my

Doctorate degree in Musicology from Columbia University in 1968. In20ll, I became an
honorary member of the Phi Beta Kappa Society at Harvard University in recognition of
my work in contemporary music.

3.

I

have received several professional awards and honors, including Columbia

University's Alice

M. Ditson

Conductor's Award, which recognizes distinguished
conductors for their contributions to Amcrican music. In 2011, I received the Gloria Artis
Medal, a decoration in Arts awarded by the Ministry of Culture and National Heritage from
the Republic of Poland for my contributions to polish music and culture.

4. In

I

founded the New Juilliard Ensemble, which celebrates
contemporary music and repertory of the last decade. I also produce and direct The
1993,

Juilliard School's annual FOCUS! Festival and, since 1993, have been the artistic director
of rhe Juilliard School's concerts at the Museum of Modem Art (MoMA). I was a codirector of the Sonic Boom Music Festival, a project organized by some of New york,s
most prestigious contemporary music ensembles.

5.

In June 2012, oxford university press publishcd my book, Henry cowel; A
Man Made of Music, the first complete biography of one of the most influential figures in
20th century Amcrican music.

6. I

have performed a variety

of

traditional and contemporary music as

a

conductor and pianist in hundreds of performances throughout the United States Europe,
Asia, and Latin America and have guest-conducted orchestras and ensembles in Austria,

china, EI Salvador, Germany, Iceland, Mexico, Mongolia, poland, Switzerland, and

-l1625

Ukraine.

I

havc held new music residencies

in Berlin, Germany; London, England;

Salzburg, Austria; Curitiba, Brazil; Helsinki, Finland; and Banff Alberta, Canada.
7.

ln

2006,

I

conducted

the internationally-acclaimed conternporary

music

in Jakarta, Indonesia, including a performance of Tony prabowo's
opcra, The King's witch, in fuil staging, Mr. prabowo's piano concefto, psqlm (both of

ensemble, continuum,

which were composed for and premiered by the New Juilliard Ensemble) and music by
American composers. ln 2007,I conducted a concert of American music at the Shanghai
conservatory, including the Chinese premiere of Ives's SymphonyNo.3, and I conducted
the Danube-Hudson Project, comprising works by Juilliard and Liszt Academy
composition students in Budapest, Hungary.

8-

In2012 and 2013, I conducted the Arthur Rubinstein Philharmonic, in Lodz,
Poland, in the prize-winners' concert of the Grazyna Bacewicz international composition
competition and the Mongolian State Philharmonic Orchestra in Ulaan Baatar, Mongolia. I
also made my third, annual appearance conducting Camerata Aberta, the distinguished Sa6
Paulo contemporary chamber orchestra,

9.

My

keyboard appearances include numerous performances

seminal work, Sonqtas and Interludes

of John

Cage's

for Prepared Piano, in Brazil, China, and mixed

recitals around the world, including a Beethoven and Hummel recital in France.

10.

My recordings appear on the Advance, cRI, Naxos, New Albion, Nonesuch,
and TNC labels. The Dorian Sono Luminus label released a CD of my music with
camerata de las Am6ricas, a leading chamber ensemble based in Mexico city.
1

l. I have been a regular delegate to intemational music conferences and a radio

commentator on contemporary music.

II.

Scope of Assignment

12.

Plaintiffs' counsel in the mattcr captioned Good Morning to You Productions
corp., et al., v. warner/chappell Music, Inc., et ar., case No. cv I3-04460-GHK
(MRWx), have asked me to review certain musical compositions relating to the song

Hrppy Birthday to You, including several versions of the song Happy Birlhclay to you
1

1626

itself, as we[[ as versions of the song Good Morning to All, and to give my expert opinion
regarding the new matter contained in the various versions

13.

Plaintilfs' counsel also have asked mc to give my expert opinion regarding the
historical and conventional meaning ascribed to certain indications in the printed music,
including the placernent and identification of the composer, arranger, and author of Iyrics
on musical scores.

14.

Finally, Plaintiffs' counsel have asked me to give my expert opinion regarding
the conventional meaning of the term "arrangement" as appliecl in musical composition.

15- The various works I

have studied, the sources

of

information

I

have

considered, and my analysis, opinions, and conclusions are set forth below.

III.

Stud

A.
16.

"Good Mornins to

You" Com

Materials Before 1934
Tab

A:

song stories for the Kindergarten o rg96, clayton F. Summy,

in l92l with various reprints. This volumc contains Good Morning to Alt. The
cover attributes the music to Mildred J. Hill and the words to Patty S. Hill. The index to

renewed

this volume does not include any version called, Happy Birthday to You. A later copy of
song stories for the Kindergarten, hand-dated, "l9l8," with the same cover but no
designation

of copyright ownership, was probably

published

by the London-based,

Curwen, whose name appears at the lower right-hand comer. This later copy includes
Good Morning to All in A-major with a more elaborate piano part than thepiano part in the
earlier copy. The British Library catalog shows a Curwen publication of Song Storie.s
for
the Kindergarten as early as 1900.
1'7

-

Tab

B: A chapter called "Flrsl

Grade Opening Exercise.s" within the Inlantl

Educator and Indiana School Journal (January 1901), notes that "[s]implc devices assist in
securing unity." The author suggests singing Good Morning to you, and provides the

words to the song, without any designation of authorship. The chapter also suggests
singing "Hoppy Birthday to You" to the same music for birthday celebrations. The author

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1627

does not include the words to llappy Birthday to You, which indicates that the words were

well known by 1901.

18.

Tab C: "Tell Me

a

True Story; Tales of Bible Heroes

for the Children of

Today" includes a "Birthday service," (p. 250), which suggests that this sample comes
from a volume about teaching in a church-affiHated school. The author advises that when a
student has a birthday, the class should recite a prayer and sing Hoppy Birthday to you.
The sample provides music that is the same as the music for Good-bye to You. Again, that

the author did not include the printed words for Happy Birthday to You indicates that the
lyrics were well-known by that time. The sample does not provide authorship cre6it or
designate copyright ownership.

19. Tab D: unidentified volume, marked l9ll,

"program

for

Beginners'

Department," pp. 63 and 6J, excerpts from a Methodist teachers' manual. The author
writes (p. 63) that when a student has a birthday, the class should sing Happy Birthflay to
You to the same tune as Good Mornine. The section includes the words to Happy Birthday

to

but not the music. In addition, the section includes a note about sources how to
get the music - and refers to "song Stories for the Sunday School," by patty Hill. That the
You.,

author suggests the class should sing Happy Birthday to you to the same tune as *Good
Morning," indicates that the words to Hoppy Birthday to You were widely known at the

time. In any event, the copy of Song Stories for

the Sunday school (Tab D) does not

include Happy Birthday to You.

20.
Meeting,"

Tab E: "The one Hundred and one Best songs

1Oth

for rlome,

school, ancl

edition, published by The cable company, chicago. No. 23. cable, a piang,

player-piano, and organ manufacturer in Chicago, was founded in 1880. This print has no
coplright date. Another print, marked 1912, includes the same rnusic except for one
discrepancy in the Ieft hand of the piano in measure 9, and is a fresh engraving, without the
backwards bass clef. The use of a backwards bass clef implies a reprint of an earlier cdition

of Good-Morning to You. Good-Bye to

Hoppy Birthday to you. see Ufl 21,54,56
(discussing backwards bass cleQ. The usual musical setting; no attribution of author or
You

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1628

composer. Only the text of Good Morning is provided. Again, this short reference to Happy

Birthday to You without accompanying text implies widespread public knowledge of the
alternate words. The sample does not provide authorship credit. I assume that the ,.tenth
edition" sample was printed a number of years before I9i2, again reinforcing the idea that
the words to Happy Birthday to You were well known in the early 20th cenhrry and
possibly the late l9th century.

21.

Tab F: "The Golden Book oJ'Favorite songs," iOth edition, Hall

Chicago O 1915. Compiled and edited by N. H.

& Mccreary,

Aitch. The engraving on the cover is in a

dated sfyle, with a backwards bass clef that I have seen in music as early as 1840, typically

by English engravers. Nicolas Bell, Curator of Music Collections at the British Library,
informed me that the backwards bass clef is associated with Novello, a very old English
publishing house. Mr. Bell could not recall seeing the backward bass clef in music
published afler the late 19th century. on page 8l, "Good Morning to you. Good-Bye to
You - Happy Birthday to You." The music is printed,, but only the text for Good Morning to
You

is printed in full. Again, the short reference to Happy Birthday to You without

accompanying text suggests that the words to that variation were popular and well known
at the time. The sample does not give authorship credit for either the words or music.

22.

Tab G: An undated copy of "Harttest Hymns,, from the 1920s includes song
number 218: Good Morning to You! with four verses, the second of which is Happy
Birthday to You. There is no author, composer, or copyright indication, despite the fact that
such information is given for two other pieces from that collection supplied to me, Let
Others See Jesus in You and The Place of Peace and Res/. This work has the backwards
bass clef, implying that it might have come from an older publication to which other pieces
were added.

23-

Tab H: "Children's Praise and worship

Junior Grades

oJ' the Sunday School" [Anderson

for

the Beginners, primary and

is a Christian College in

Anderson,

Indiana.] wamer Press, Anderson, Indiana. O 1928, Gospel Trumpet company. song no.
220: Happy Birthday to You does not designate an author, composer, or copyright. The
-5

1629

previous piece, Song no.279, Birthday, states o i924, with the composcr's name on the

right (where by convention the music composer is identified) and his initials on the left
(where by convention the lyricist is identified), indicating that he wrote both music and
words. The composer's and author's positions on Happlt Birthday to yotr (Song no. 220)
are empty except for black dots; this meaning is unknown. The use of the backwards bass

clef suggests that many of the songs came from an earlier edition, to which the 1924 piece
was added. The preface to this volume says the publishers or compilers paid hundreds
dollars to get permissions, but

if

of

that is true, there is no evidence that such permission was

required for Happy Birthday to You.

B.
24.

Summarv of Materials Before 1934

The materials before 1934 carry only two references to Patty Hill (Tabs B:
Inland Educqtor and Indiana School Journal and D: Programfor Beginners' Department)

of

to You, and only one reference (Tab A: Inland Educator
and Indiana School Journa[) to Mildred as author of the song. Significantly, Happy
as the author

Good Morning

Birthday to You is not present in Tab A (Inland Educator and Indi(tna School Journa|; it is
mentioned but not included in Tab D (Program

for Beginners' Departmenl). There is no
reference in any of these items to the author or composer of Happy Birthday to You,
although it is clear that the music itself is the same as Mildred's music for Good Morning
to You. Thc short references to the birthday lyrics in prefaces to the various song and hymn
collections strongly implies-that the lyrics were widely known and simply substituted for
the words of Good Morning to You.

25.

Nothing in these materials suggests that the words to Happy Birthday to You

were copyrighted. To the contrary, the absence of copyright or authorship attribution in any

of these works strongly implies that the words werc commonly known as early as the very
bcginning of the 20th century.

26.

Apart from the Curwen edition of Good Morning to All appearing in Tab B

(Inland Educator and Indiana School Journa[1., the piano parts are
samples. The small exception is Good Morning

ide

to You! appearing

ntica] in the pre- I 934

in

in Tab G (Harvest

-6-

1630

Hymns), which includes a fermata in the next-to-last phrase. (ln the vocal line, the rtrl.thm
is altered to provide for the two short syllables of "happy," as opposed to the single syllable

of "good".)

C.
27.

Materials from 1934 and Later
Tab I'. "Happy Birthday! March)'O 1934, Clayton F. Summy Co. is a piano

solo piece with no words or separate rnelodic line. The main credit for the song appears on
the upper-right: "Mildred J. Hill and Patty s.

Warc Orem" appear on the

left. I

Hill."

Also, the words "Arranged by Preston

understand that the copyright

is for the march

arrangement, since the original music for the song itself had been around so
there are no words, the reason for Patty

Hill's

long.

Since

name is unclear; the piece could be construed

as Orem's arrangement of Mildred's copyrighted music to Good Morning to You, with the

title referring to the cornmon practice of singing the words Hoppy Birthday to You to the
melody. On the cover of the specimen in black-white reversal appear the words, "Huppy
Birthday by Mildred Hi11." A vocal vcrsion attached ("Flappy Birthday to You! / Vocal or
instrumental") [WC0000122] docs not mention Patty at all although this parlicular piece is

for voice and piano. Another copy of the same music and copyright date, was published,
with the imprint by Keith Prowse, London, has the same date, 1935 Clayton F. Summy.

28.

Tab J: "Hoppy Birthday" By Mildred

Coplright 1935 Clayton F. Summy Co. This

I at the end, -WC000122,but

i. Hill. Piano Solo with Words.

seems to be the same as the version

in Sample

the negative copy in Sample I is not clear. Various samples

of

this piece differ in their cover information, design, publisher, or price; some say Summy
Publishing Company (Summy 3075); those that say Summy Birchard are clearly reissues.

& Co., Ltd, a London publisher. Although this
the subtitle reads "Vocal or Instrumental" - only Mildred Hill is

One sampie has the imprint of Keith Prowse

copy has words

-

mentioned on the upper right of the score (where by convention the composer of the music
is identified); there is no name on the upper left (where thc lyricist would be identified), nor
any other attribution as to lyricist. For each sample of this publication, the only credit is on
the upper right, to Mildred Fliil. one sample says "Arranged by Preston ware orem," also

-7

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1631

on the upper right below Mildred Hill's narne, suggesting it may be the print for which the
Dec. 6, 1935 copyright certificate (No. E51990) says "arrangement as easy piano solo, with

text." In that sample, Orem is credited with the arangement, but nothing else, indicating
that was his oniy creativc addition to thc original work. For more on this, see my summary
below.

29.

Tab K: *Hoppy Birthday to You: Piano Solo with Words plus

Instrumental Arrangement" Copyrrght 1935

Vocal-

by Surnmy Birchard Company Copyright

renewed 1962. Copyright 1952 by Summy-Birchard Company. Sumco 603 1. On the cover,

by Mildred J Hill, Patty S. Hill. On the score, credit: Mildred J. Hill I Patty S. Hill /
Arranged by Preston Ware Orem. Although there is no explicit mention of who wrote the

words or the music, all of the credits appear on the right where, by convention, the
composer is typically identified; nothing appears on the left, where credit for the lyricist

would appear. Orem is credited as creator of the siightly different piano part. It is not
uncommon

for

composers

to revise their

compositions

to obtain new or

copyrights; Igor Stravinsky, for example, was widely known for doing

extension

this. The fact that

one sample has Orem's name crossed out is immaterial; another does not. It appears that his
name should be on it,, since he created the new piano part. None of the samples include any

implication that Orem provided the familiar words; he could have been credited with the
new arrangement even

if

the words had not been printed. The piece can be played as an

easy piano solo or as a sing-along.

30.

Tab L: School Chorus Music-"Hoppy Birthday to You!" Unison song" O 1935

by Clayton F. Summy Co. Upper right of score: Mildred J. Hill. Upper left: Arr. By Mrs.
R.R. Forman. It is customary for arrangers to appear either on the upper right, under the
composer's name, or on the left. There is no mention

of Patty Hill. Forman doubtless

created the new piano part, which is more elaborate than Orem's arrangement, in the style

of a waltz, with some new harmonies. Forman's arrangement appears intended for more
accomplished pianists, as opposed to Orem's very basic version. The sample includcs a
second verse without crediting authorship.

I

am aware that the 1935 copyright certificatc

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1632

(No. E5 19BB) says "for unison chorus and revised text." The phrase "revisecl text" can only
mean the added second verse since there is no other revised text on the sample. The piano

part is cntirely new and apparently was written by Forman, since Mildred Hill was long
since dead. The phrase "unison chorus" simply means a single line of music sung by any
number of people simuitaneously. With rcgard to musical notation, a piece for a single

singer and a piece for unison chorus are notationally indistinguishable. The notation
signifies absolutely nothing about Forman making a musical contribution to the vocal line,
which differs from other scores of Happy Birthday to You only by the addition of one
dynamic marking, a trivial contribution.
31. Tab M: *HAPPY BIRTHDAY!": A )lan four-hands version of the march,
copyright 1935 by Clay'ton F. Summy Co. on the cover and on the right, where the
the
composer's name usually appears, Mildred J.

Orem. There is no reference to Patty

covcred

by the copyright for the

Hill; on the 1eft, Arranged by Preston

Ware

Hill and no words. This appears to be the work

four-hands anangement, which

is orem's

new

contribution.

32-

Tab N. *HAPPY BIRTHDAY!";

A

piano six-hands version of the march,

copyright clayton F. Summy Co. 1935. on the cover, by Mildred J. Hill. on the score,
right, where the composer's name usually appears, Mildred J. Hill & patty s. Hill. The
sample has no

lyics. Arranged

Preston Ware Orem, on the left. This appears to be the work

covered by the copyight for the six-hands version, which is Orem's new contribution.

33.

Tab O: Two-piano version of the march; the cover reads"second Piano Part".

Copyright 1935 by Clayton F. Summy Co. On the cover, by Mildred J. Hill. On the score
right, where the composer's name usually appears, Mildred J. Hill & patty s. Hill.
Arranged by Preston Ware Orem. This sample, which has no lyrics, appears to be the work
covered by the copyright for the amangement for two pianos, which is again Orem's new
contribution.

34.

Tab P: "The World Famous Birlhday Song Happy Birthday to you,, by
Mildred J. Hill. Waltz arrangement by Debroy Somers, copyright 1935 by clayton F.

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1633

Summy Co. of Chicago. Arrangement copyright MCMXXXIX by Keith prowse fbr all

countries. Authorized for sale only

in the British

Empire, excluding Canada and

Newfoundland. On the right, Mildred S. Hill. On the left, Arr. By Debroy Somers (Irish
band leader, 1890-1952). No niention of Patty, although the words arc provided. But
another print of the same version (P2) says "Words and Music by Patti S. Hill and Mildred
J. Flill." The words, however, have a second verse that is not on the 1935 version and is a
new contribution. On the left, arr. by Debroy Somers. Another, P3, has on the cover various
references to a South African publisher, Gallo (Africa)

very extended, with modulations from G to C to

F.

Ltd.

The music is very different,

The music is a unique composition.

35.

Tab Q: Htppy Birthday, by Mildred Hill, arranged By charles Lee Hill.
Instrumentation for full band. Redacted, but clearly an elaboration. Southem Music
company, san Antonio. copyright 1948 by clayton F. summy Co. No mention of patty,
although even through the redactions one can see that there are words.

36-

Tab R: "Hoppy Birthday to You by Mildred J.

Hill;'My

copy has no copyright

information, which was cut off. A redacted copy [R1] seems to be the same, with copyright
date of 1948 by Clayton F. Summy Co. On the right, where the composer is identified,

Hill-Coburn. Borrowing from the original musical composition, this sample is a
sentimental version in 414, with new melodies and more elaborate harmonies throughout.
The second system of the last page has very elaborate chromatic harmonies not seen before.
These changes appear to be the musical composition of Coburn. The original lyrics have
been rcwritten and expanded. On the left, where the lyricist is identified, "Words by Gene

Banl'." This appears to attribute authorship of the expanded and rewritten lyrics to Gene
Barry. There is no attribution for authorship of the original lyrics.

37. Tab S: "Hoppy Birthday to

You,,, with an arrangement

for any size

instrumental combination on thc back cover. Clayton F. Summy Co. Chicago copyright

1950. The score, which has a new piano part, reads "arranged by Kenneth Kimes,, on the
upper right side, and "by Mildred and Patty Hill" on the left. This is highly unconventional
and the only example like

it I have seen.

The piano part is quite different from the other
10-

1634

versions, including a key change from the key of G to the key of C and diffcrent harmonies
at the end.

38.

Tab

T: "Hrppy Birthday to yoi' with an amangement for any size

instrumental combination on back cover. Redacted score and set of parts for instruments.

Copyright 1950, Clayton F. Summy Co. The left side of the redacted score reads,
"Arranged by Kenneth Kimes," on the right, "by Mildred and patty

Hill."

39-

Tab U: Hrppy Birthday to You. Vocal-inst. Edition Hill-Wilson. Vocal in G.
Redacted. On the score: on right, Mildred Hill-Wilson; on left, Gene Barry. No mention of

Patty. An

extended version. Although redacted, the visible chord changes show very
elaborate harmonies.

40.

Tab

v:

"Twice 55 community songs, The Brown Book," Revised edition. c.
c. Birchard co. Sole selling agent Summy publishing company. o 1957. song no. 15
"Happy Birthday to You!" for voice only. Upper right: Mildred J. Hill. upper left, the

normal place for the author of the words, "Traditional." This is consistent with the
convention for identifiiing the author or authors of the words and the music, and
acknowledges that the lyrics were originally a traditional adaptation
"Good Morning to All-"

4l-

Tab W:

A vocal instrumental version

arranged

of the earlier work

by Robert Dahnert,

whose

name appears along with Mildred and Patty's on the upper right corner of the score. On the
upper left (where by convention the author of the lyrics is listed) is the name Gene Barry.

Robert Dahnert is clearly identified as the person who aranged

it with instruments

and

made the transposed parts for B flat and E flat instruments (clarinets and saxophones). The
piano paft is also very different frorn earlier one, with new harmonies and different voiceleading throughout, plus chord symbols. Gene Barry must be the author of the considerably
lengthened words for the vocal-instrumental version. Also another copy with different

cover and no mention of Patty

Hill at all. Marked

1952 by hand, which is wrong, on the

bottom, markcd l99B by hand, which could be correct.

ll

-

1635

42.

Tab X: "Hoppy Birthday to You!" Mildred J

1935, Summy-Birchard Music, division
administered by Alfred Publishing Inc.

Hill and Patty

S.

Hill. Copyright

of Sumrny-Birchard Inc. Exclusive print

I

rights

am informed that Summy-Birchard Music and

Summy-Birchard Inc. did not exist in 1935, meaning that this sample was printed later than

the copyright date. On the right: Words and Music by Mildred

i. Hill

and Patty S. Hill.

This is a new musical version, with a four-measure introduction and many changes to the
piano part, including a distinctive harmonic change on the last beat of the third bar from the

end. This version also has chord symbols. It

seems to be a later version than the prior

versions of the song; however, it bears no credit to who revised the music, nor any sign of a

later copyright, but the new version is a unique

work. A short introduction claims that

Mildred Hill and Patty Hill wrote the song, although who made what contribution is not

stated.

I

am generally aware of historical evidence that Mildred

composed the music for Good Morning to
the words for that song.
Tab Y: *Hoppy

43.

All

and Patty

Hill

Hill (a music teacher)

(a kindergarten teacher) wrote

Birthday to You!" The same as Tab X, but on the text on the

right reads, "Mildred J. Hill I Patty S. Hill" without the phrase "Words and Music by''.

o

1935 Summy Birchard Music, division of Birch Tree Group, Ltd., Princeton New Jersey.

Copyright renewed. This arrangement has a copyright date

of 1979. This sample is

otherwise identical to the previous Tab X, suggesting that the arrangement in both samples,

which is very different from any other arrangements, was created in 1979. I am informed
that Birch Tree Group came into existence after Summy-Birchard Inc., suggesting that this
sample is more recent than the sample in Tab

X.

The deletion of the phrase "Words and

Music by" appears to correct the earlier sample.

D.
44.

Summarv of Materials liom 1935 and Later
Perhaps the most important aspect

of the samples from 1935 and latcr is the

ncw piano pafts by R.R. Forman and Preston Ware Orem. Orem's and Fonnan's new piano

parts began

a

series

of

transformations dcparting from the simple G-major diatonic

harmonic style in which the song was first composed by Mildred

Hill, then gradually

-t21636

"modemizing" the song with chromatic alterations, secondary dominants, and elaborate
voice leadings or piano writing. Based on all the materials I rcviewed, I conclude that
Mildred Hil['s original music was never again published after 1935. Orem's score, though
described in the copyright (No. E51990) as an easy piano solo, is not parlicularly simpler
than Mildred Hill's original composition.

45.

These later samples have considerable contradictory information. The fact that

on some of them, only Mildred Hill is listed on thc cover but both sisters are on the score is
not unusual in music publishing. Typically, only the composer's name is listed on the front
cover, unless the composer is also the lyricist, in which event a phrase such as "Words and
Music by" may appear with the author's name. If the lyricist is also identified along with
the composer, the contributions of both

will

be delineated on the cover. I cannot recall ever

seeing only the lyricist's name listed on the cover of published music.

46-

What is odd is that Patty Hill's name does not appear on any vocal version
until Tabs S, T, X, and Y, all of which were published much later than 1935. On the other
hand, Patty's name appears on many of the purely instrumental versions, usually without
being identified as the author of the "text" or "words." Even when Patty Hill is referred to
as the author of the words, there usually are no words at

all.

Furthermore, the samples also

contain reprints of exactly the same plates,, making dating of the various samples quitc
diff,rcult.
47.

As noted above, there are a number of variations to the original composition

Good Morning to All., one of which is the familiar lyrics Hoppy Birthday to You.

of

I saw no

definitive indication of whether the attribution of text authorship to Patty Hill in a few 1935
publications refers to the lyrics to Happy Birthday to you or to Good Morning to All.

48-

From my review of the materials from 1935 and later, it is certain that Forman

wrote a new second birthday verse; Gene Barry also wrote new and expanded lyrics.

49.

The familiar Happy Birthday to You words resemble a folk text commonly

sung to this tune, as is also suggested by the short-hand references prior to 1934. The later
samples added new work in the form of changes in the music, including arrangements for
13 -

1637

other perforfiIers, new harmonies,

ctc. The new words by Forman and Barry arc original

works. Other than thc new words by Forman and Barry, the only new work that appears in
any of the scores from 1935 and later are the new arrangements (such as the march in Tab

I, the four-hand piano part in Tab M,

and the second piano part in Tab

o)

and the more

complex musical compositions as I have notcd above.

50.

Orem was 70 years old at the time his arrangement was publishcd (and

presumably around the time it was composed). By then, he had a long career behind him as
an educator and author of an elementary harmony text book (published in 1919) and had
been a prolific composer. As an aside,

I

note that

I

was taught from Orem's elementary

harmony text book around 1954. Apart from Orem's vast experience as a musical
composer, having spent decades as a teacher Orem surely heard Happy Birthday to You
sung many times before 1935. I do not recall seeing any lyrics credited to Orem. Since the

published version of Happy Birthday to You credits him for the arrangement but not for the
words, I conciude that his contribution to the publication was limited to the new, simple
piano part.

51.

My conclusion is not contradicted by any additional information that I have
reviewed, namely, that the "new matter" for which a copyright was claimed is an
as .,easy piano
solo, with text" is different than "easy piano solo" without referring to .,text,', the addition

"arrangement as an easy piano solo, with

text." Although the description

of the term "with text" does not carry any implication that Orem wrote the text. Rathcr, it
merely describes the music as an easy piano part with some words, which can be performed
either as a piano solo or with the melody sung, by the pianist or other pcrsons.

52.

I

understand that Orem served as a Director and Vice President

of Summy,

which makes it extraordinarily unlikely he did not know of Forman's version with revised
text, which also included the familiar Hoppy Birthday to You lyrics. If her revision of the

text consisted of the added second verse as well as the familiar Hoppy Birthday to You
words, and if Orem also had been the author of the Happy Birthday to You words, then both
of them wrote and copyrighted Happy Birthday to You for the same employer at the same

-14-

1638

time, which would be a rernarkable coincidence. Considering Orem's position at Summy,
he in all probability he knew that Forman was creating another version of the song with

a

more elaborate part and a new verse. Indeed, it appears that what Summy wanted was two

versions of Happy Birthday to You with piano parts of different difficulty intended for
pianists of different skill levels.

53.

The sample in Tab

Y

(Twice 55 Community Songs, The Brown Book)

is

particularly informative. Published in 1957 by C.C. Birchard, which apparently had some
formal publishing arrangemcnt with Summy
as Summy-Birchard,Inc.

-

-

I note that the company was later identified

this score identifies the authorship of the words as "traditional."

In common publishing practice, this attribution means that the words are a folk-type text,
for which no individual is known as the author. All the works I have discussed, including
the early works that referred to the short-hand Happy Birthday to You words or that used
the words in combination with the song Good Morning to All without attributing authorship

of the lyrics to anyone, strongly suggest that the Hoppy Birthday to You lyrics (except the
second verse plainly written by Forman and those additional lyrics plainly written by

Ba.ry) were widely known without any single author being identified. Therefore, I agree

with the designation in Tab V that the words were traditional. In Tab V, the publisher
acknowledged there was no known author of the Happy Birthday to You words.

54.

One other matter concems the form of the bass clef, which represents the lcttcr

F. The two dots are the remains of the cross bars of the letter; theytook on this form over
many years of notational evolution. The curved part of the clef is normally open to the left.

In

the Happy Birthday

to You samples, some are open to the right, an oldcr form which, in

my experience, has not been used since the early 20th century.

55.

Two scores at Juilliard, both from about 1840, show this older form. In my

memory, it was used by some British publishers through the 19th century and early in the
20th ccntury, after which it disappeared.

56. To verify my recollections, I

askcd Nicolas Bell, thc Curator

of

Music

Collections at the British Library, if he recalled seeing that form of the clef . He rcplied that
15 -

1639

he remcmbered it only from some lgth century publications, especially by Novello Co., a
Ieading London publisher. I believe, therefore, that any original publications using that clef

would have originated in the lB90s and perhaps prior to Wortd War
most likely to be reprints using old plates.

IV.

I.

After that, they are

Study of Position of Composers and Auth

'Names on Scor
51 .
By convention, the credit for the author of words normaily appears on the
upper-left side of the score or the score will identifu the author of the words explicitly,
using terminology such as "lyrics by" or "words by" together with the author,s name.

58.

I reviewed 560 scores of single songs that I selected from approximately 1,500
such scorcs in the Juilliard library, an extensive collection of musical compositions. These
were all scores for authors whose last names began from

"A" to ..Ha.', I

selected these

scores as a representative sample of the fulI number of approximately 1,500 scores in the

Juilliard library. My purpose was to determine where the name of the composer is listed,
and where the name of the author of the words is listed. All of these scores werc published
from the late l9th century to very recently.

59.

The convention is clear in the scores I reviewed. In 460 or i2-5o/o of the

scores, the composer's name is placed on the upper right of the first page of the score. The

lyricist's name is placed with no meaningful exception on the upper left. In the two
exceptions I saw where the lyricist is also on the right, the functions of composer and

lyricist are clearly differentiated. This was how- the composer and the lyricist were
identified in 406 of the 560 scores I reviewed-

60.

In 49 or 8.15% of the scores, the name of the author of the words was glvcn
only on the cover, or a preface. In all 49 of those instances, the author of the lyrics was
identified as such-

61.

In 28 or 5% of the scores, the pieces used sacred texts for which no author was
given because the words are of ancient origin and the authors are unknown.

t6

-

1640

62'

In 38 or 6-70/o of the scores the words are considered traditional

-

either of

folkloric or spiritual (but not liturgical) origin. In a few cases, the arranger,s
name was
given on the right; the author of the words and composer of the
melody are both unknown.
63' In 45 or BYo of the scores, mostly arrangements of extracts from famous
operas, no author's name was given.
64.

In only

I

case was the author's name given on the right side of the score.
In

that lone instance, the words and music were written by the same person,
which was
indicated by the phrase 'kords and music by" preceding the author,s
name.

65'

In a few instances, especially in German publications, the name of the author
is centered under the title of the composition, sometimes in parentheses;
the composer is on
the right, as usual. There are also some instances where the name
of the author is printed
on the cover but not credited on the first page ofthe score.

66.

when the text is traditional, such as a carol, a spirihral, a folk text or

a

religious text, there may be a credit such as "traditional,,, .,gospel,,, etc.,
but there is almost
never any citation of an author (or a composer, for that matter).
Also, in my experience,
the absence of a citation of an author for either words or music indicates
that that part of the
work is traditional.
V. Meaning of ,,Arranqement,
6l

- In conventional musical terminology,

an "arrangcment,, applies to changes

(additions, elaborations, instrumentations, and the like)

to the musical

content

of

a

composition.

68.

The term "arrangement" is defined that way in The New Grove Dictionary,
an
authoritative text in the field of music. The New Grove Dictionary has
an extensive article
on the history of arranging, which makes clear that the term is used as
I have seen it.

69.

The word "arranger" is usecl only for a person who has made some kind of
changes to the original music, such as a new instrumentation, some
kind of elaboration
which can be small or extensive

-

-

and similar. In my long experience as a musician and
music historian, I do not recall ever secing the term used for someone who
has set words to
17-

1641

music. That includes hundreds, if not thousands, of pieces composed during the period
from the late l9th ccntury through the present day.

10.

In my experiencc, the term "arrangement" is never used to describe adding

words to an existing song or instrumental piece. The tcchnical term for adding words to an
existing song or instrumental picce is "setting." Thus, words are "set" to music; to the best

of my knowledge, thcy are never said to be "arranged" to music. In my recollection, I am
not aware of ever seeing the word "arrangcment" or any derivative thereof used to refer to
the addition of words to music.

71. I do not believe anyone active in the music field and familiar

with

conventional music notation would understand the word "arrangement" to mean setting
words to music. I believe that to be true in the early part of the 20th ccntury as well as
today.

72.

The claim that Forman and Orem composed arrangements of the pre-existing

song Happy Birthday

to You does not indicate that either of them wrote any lyrics or set

existing lyrics to the cxisting melody. The arrangements that Forman and Orem composed
are unique works,

above,

it

fbr which the arrangement claim gives them credit. ln addition,

appears that Forman also wrote a second versc

as noted

of lyrics for Hoppy Birthday lo

Youthat is dilferent from the familiar Happy Birthday to Youlyrics.
73.

I hold

these opinions to a reasonable degree

ol certainry in my professional

judgment.

18

1642

$flppy Bl \Tilpn
l/

ffi

'AA.tLD$D J. lt

I tL

Piono 5o/o wilh words.. ..25 cents
Plono Sdo-Morch ..j0 cenls
{our Jlonds
..10 cenls
Sixllonds
...10 cenfs
port.. . ..10 cen/s
Second Pnno
Unson Chorus. . ..00 cen/s

(L{yt0N {. tuMMy (0.
yo\K
curc{oo
N(w

\A/COOOOq77

1643

HAPPY BIRTHDAY TO YOU
(\'ocal or Instrumental

I

)

MILDRED J. [I II-L

Brightly

Jour

/ou,

,

Hap-py

Hap-py

Birth- day, dear

Flap-p1.

{a Horo ineort tho nsm6 of tho oflo oslobrstinf.

Cotyriahl

1986

tr

Ctryro. f. Su6h, ctr.
CDpIriEit

Inro..ll6rt

/:

t-/

..

\A/C.OnnO978

1644

No.

.lr

sorlo or cREETING (sA"D).
. .caetano o.nir"tti lij
o THE caRFEw (szfa)
Harvoy B.Gaql .to
e? coME TEE EOrRS AXe TLETTING (,ssl) .
Jessie L, caynor .u
86 TIIE SLITMBER BoAT f.!lJ
Jessie L. Gaynor . to
?a THE SLITMBER BOAT /ASl)
. Jessie L, cayBor .10
6s TO DAFroDILS fssl].
- Howarct G. Bstr;ett .06
8a THE CUCX0O CLOCK (S,t)
.
. G. A- Grarrt - Schaefer .10
ts THE COCKOO CLOCK /s.tl).
. . G. A. Graot_Schaefer .to
aa lT ISN T RAtNf c RAIN TO NE (Or;aoa) , .
l ill A. Hardins .o6
e{ THE MAN rN TnE MooN atito+)
will A. HJil
.;;
sz CARMENA (SSS)
. H. Lane Wilsoo .lZ
55 A SONG OF CHEER fsl).
Franz Schubert .O8
s6 THE TROUT f8l).
. Fraa? Schobert .O8
sr WHIN TEE REGTMENT GOES MARCIIING (.sd). . _ Jessie L. Geyoor
.06
ss A SAILoR DEAR rgs,t) . ctela L- perkine .10
sd HAPPY BIRTIIDAY (Oataat) . .
Mildred J. HiU .O8
(

1
1

1

)
1

1
4
1

,l

I

.1

4
.,1
4

4
.t
4
4

1
a

I
)

I

\A/COOnOq74

1645

6S

ffi

Huppy Birthday to you!
lrr by urs. a. n.

?orn

Unison Song

dn

MILDRED J. HILL

Iou

,

H"p-py birtl -

May

lignt,

*

Eare iuscrt thc

30?6

H^p-

your

W

birtlr

day, dear

- day be

biril - day,

t

H"P-py

bright,

dear *

Fult of cheer and de

-

H^FW

ltae ef tha ouo cohUnl,iag.
Copyri6'ht 1935 by Cleloa F- Suoqr Co.

Ilt6r!.ticD*l Coltritht

\ /coonng7s
1646

EXHIBIT 112

Ex. 112
___
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EXHIBIT 113

Ex. 113
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EXHIBIT 114

Ex. 114
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EXHIBIT 115

Ex. 115
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EXHIBIT 116A

Ex. 116A
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EXHIBIT 116B

Ex. 116B
____
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