Rupa Marya v. Warner Chappell Music Inc

Filing 178

[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 8 OF 8 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Appendix VOLUME 8 OF 8)(Manifold, Betsy)

VOLUME 8 OF 8 - EXS. 117-126
(PAGES 1751 TO 1949)

EXHIBIT 117 - CONFIDENTIAL
[PROVISIONALLY LODGED & FILED UNDER SEAL

Ex. 117
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[PAGES 1752-1754 INTENTIONALLY
OMITTED – FILED UNDER SEAL]

EXHIBIT 118 - CONFIDENTIAL
[PROVISIONALLY LODGED & FILED UNDER SEAL

Ex. 118
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1755

[PAGES 1756-1759 INTENTIONALLY
OMITTED – FILED UNDER SEAL]

EXHIBIT 1

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EXHIBIT 120

Ex. 120
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Plaintiff Rupa Marya d/b/a/ Rupa Marya & The April Fishes (“Marya”), on

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behalf of herself and all others similarly situated, by her undersigned attorneys, as

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and for her Class Action Complaint against defendant Warner/Chappell Music, Inc.

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(“Warner/Chappell”), alleges as follows:
JURISDICTION AND VENUE

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1.

The Court has subject-matter jurisdiction over this action pursuant to

28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory
and other relief arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant
to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; pursuant to the Class
Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental jurisdiction pursuant
to 28 U.S.C. § 1367 over the entire case or controversy.
2.

The Court has personal jurisdiction and venue is proper in this District

under 28 U.S.C. §§ 1391(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in
this Judicial District where defendant Warner/Chappell’s principal place of business
is located and where Warner/Chappell regularly conducts business and may be
found.
INTRODUCTION
3.

This is an action to declare invalid the copyright that defendant

Warner/Chappell claims to own to the world’s most popular song, Happy Birthday
to You (the “Song”), to declare that Happy Birthday to You is dedicated to public use
and in the public domain; and to return millions of dollars of unlawful licensing fees
collected by defendant Warner/Chappell pursuant to its wrongful assertion of
copyright ownership of the Song.
4.

According to the United States Copyright Office (“Copyright Office”),

a “musical composition consists of music, including any accompanying words, and
is normally registered as a work of the performing arts.” Copyright Office Circular
56A, “Copyright Registration of Musical Compositions and Sound Recordings,” at 1
(Feb. 2012) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a
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musical composition generally is the composer, and the lyricist (if a different

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person). Id.

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5.

More than 120 years after the melody to which the simple lyrics of

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Happy Birthday to You is set was first published, defendant Warner/Chappell

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boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy

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Birthday to You, and with that copyright the exclusive right to authorize the song’s

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reproduction, distribution, and public performances pursuant to federal copyright

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law. Defendant Warner/Chappell either has silenced those wishing to record or

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perform Happy Birthday to You, or has extracted millions of dollars in unlawful

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licensing fees from those unwilling or unable to challenge its ownership claims.
6.

Irrefutable documentary evidence, some dating back to 1893, shows

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that the copyright to Happy Birthday to You, if there ever was a valid copyright to

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any part of the song, expired no later than 1921 and that if defendant

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Warner/Chappell owns any rights to Happy Birthday to You, those rights are limited

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to the extremely narrow right to reproduce and distribute specific piano

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arrangements for the song published in 1935. Significantly, no court has ever

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adjudicated the validity or scope of the defendant' claimed interest in Happy
s

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Birthday to You, nor in the song' melody or lyrics, which are themselves
s

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independent works.

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7.

Plaintiff Marya, on behalf of herself and all others similarly situated,

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seeks a declaration that Happy Birthday to You is dedicated to public use and is in

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the public domain as well as monetary damages and restitution of all the unlawful

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licensing fees that defendant Warner/Chappell improperly collected from Marya and

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all other Class members.
PARTIES

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8.

Plaintiff Marya is a musician and leader of the band entitled “Rupa &

The April Fishes” (“RTAF”), and a member of the American Society of Composers,
Authors and Publishers (“ASCAP”). Plaintiff Marya is a resident of San Mateo
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County, California. RTAF recorded Happy Birthday to You at a live show in San

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Francisco, California, on April 27, 2013. Under a claim of copyright by defendant

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Warner/Chappell, on or about June 17, 2013, Plaintiff Marya d/b/a RTAF paid to

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defendant Warner/Chappell the sum of $455 for a compulsory license pursuant to 17

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U.S.C. § 115 (commonly known as a “mechanical license”) to use Happy Birthday

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to You, as alleged more fully herein.

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Defendant Warner/Chappell is a Delaware corporation with its

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principal place of business located at 10585 Santa Monica Boulevard, Los Angeles,

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California 90025. Warner/Chappell regularly conducts business within this Judicial

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District, where it may be found.
FACTUAL BACKGROUND

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Good Morning to All and the Popular Adoption of Happy Birthday to You
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Sometime prior to 1893, Mildred J. Hill (“Mildred Hill”) and her sister

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Patty Smith Hill (“Patty Hill”) (Mildred and Patty Hill are collectively referred to as

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the “Hill Sisters”) authored a written manuscript containing sheet music for 73

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songs composed or arranged by Mildred Hill, with words written and adapted by

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Patty Hill.

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11.

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The manuscript included Good Morning to All, a song written by the

Hill Sisters.
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On or about February 1, 1893, the Hill Sisters sold and assigned all

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their right, title, and interest in the written manuscript to Clayton F. Summy

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(“Summy”) in exchange for 10 percent of retail sales of the manuscript. The sale

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included the song Good Morning to All.

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13.

In or around 1893, Summy published the Hill Sisters’ written

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manuscript with an introduction by Anna E. Bryan (“Bryan”) in a songbook titled

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Song Stories for the Kindergarten. Song Stories for the Kindergarten included the

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song Good Morning to All.

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14.

On or about October 16, 1893, Summy filed a copyright application

(Reg. No. 45997) with the Copyright Office for Song Stories for the Kindergarten.
15.

On the October 16, 1893, copyright application, Summy claimed to be

the copyright’s proprietor, but not the author of the copyrighted works.
16.

Song Stories for the Kindergarten bears a copyright notice reading

“Copyright 1893, by Clayton F. Summy.”
17.

As proprietor of the 1893 copyright in Song Stories for the

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Kindergarten, Summy owned the rights to both the songbook as a compilation and

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the individual songs published therein, including Good Morning to All.

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18.

The lyrics to Good Morning to All are:

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Good morning to you

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Good morning to you

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Good morning dear children

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Good morning to all.

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19.

The lyrics to Happy Birthday to You are set to the melody from the

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song Good Morning to All. As nearly everyone knows, the lyrics to Happy Birthday

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to You are:

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Happy Birthday to You

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Happy Birthday to You

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Happy Birthday dear [NAME]

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Happy Birthday to You.

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20.

The lyrics to Happy Birthday to You were not published in Song Stories

for the Kindergarten.
21.

On or about January 14, 1895, Summy incorporated the Clayton F.

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Summy Co. (“Summy Co.”) under the laws of the State of Illinois for a limited term

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of 25 years.

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22.

In 1896, Summy published a new, revised, illustrated, and enlarged

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version of Song Stories for the Kindergarten, which contained eight previously

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unpublished songs written by the Hill Sisters as well as illustrations by Margaret

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Byers.

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23.

On or about June 18, 1896, Summy filed a copyright application (Reg.

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No. 34260) with the Copyright Office for the 1896 publication of Song Stories for

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the Kindergarten.

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24.

On its June 18, 1896, copyright application, Summy again claimed to

be the copyright’s proprietor, but (again) not the author of the copyrighted works.
25.

The 1896 version of Song Stories for the Kindergarten bears a

copyright notice reading “Copyright 1896, by Clayton F. Summy.”
26.

As proprietor of the 1896 copyright in the revised Song Stories for the

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Kindergarten, Summy owned the rights to both the songbook as a compilation and

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the individual songs published therein, including Good Morning to All.

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27.

The lyrics to Happy Birthday to You were not published in the 1896

version of Song Stories for the Kindergarten.
28.

In 1899, Summy Co. published 17 songs from the 1893 version of Song

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Stories for the Kindergarten in a songbook titled Song Stories for the Sunday

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School. One of those songs included in Song Stories for the Sunday School was

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Good Morning to All.

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29.

On or about March 20, 1899, Summy Co. filed a copyright application

(Reg. No. 20441) with the Copyright Office for Song Stories for the Sunday School.
30.

On the 1899 copyright application, Summy Co. claimed to be the

copyright’s proprietor, but not the author of the copyrighted works.

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31.

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This collection of songs has been published in response to earnest

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requests from various sources. They are taken from the book, Song

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Stories for the Kindergarten by the MISSES HILL, and are the

The title page to Song Stories for the Sunday School states:

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copyright property of the publishers. (Emphasis added).

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Song Stories for the Sunday School bears a copyright notice reading

“Copyright 1899 by Clayton F. Summy Co.”
33.

As proprietor of the 1899 copyright in Song Stories for the Sunday

School, Summy Co. owned the rights to both the songbook as a compilation and the
individual songs published therein, including Good Morning to All.
34.

The lyrics to Happy Birthday to You were not published in Song Stories

for the Sunday School.
35.

Even though the lyrics to Happy Birthday to You and the song Happy

Birthday to You had not been fixed in a tangible medium of expression, the public
began singing Happy Birthday to You no later than the early 1900s.
36.

For example, in the January 1901 edition of Inland Educator and

Indiana School Journal, the article entitled “First Grade Opening Exercises”
described children singing the words “happy birthday to you,” but did not print the
song’s lyrics or melody.
37.

In or about February, 1907, Summy Co. republished the song Good

Morning to All as an individual musical composition.
38.

On or about February 7, 1907, Summy Co. filed a copyright application

(Reg. No. 142468) with the Copyright Office for the song Good Morning to All.
39.

The lyrics to Happy Birthday to You do not appear in the 1907

publication of Good Morning to All.
40.

In 1907, Fleming H. Revell Co. (“Revell”) published the book Tell Me

a True Story, arranged by Mary Stewart, which instructed readers to:
Sing: “Good-bye to you, good-bye to you, good-bye dear children,
good-bye to you.” Also: “Good-bye dear teacher.” (From “Song
Stories for the Sunday-School,” published by Summy & Co.)
Sing: “Happy Birthday to You.” (Music same as “Good-bye to

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You.”)

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A239690) with the Copyright Office for Tell Me a True Story.
42.

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43.

of Sunday Schools of the Methodist Episcopal Church (“Board of Sunday Schools”)
in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester
Lincoln, as follows:
Happy birthday to you, Happy birthday to you, Happy birthday,
dear John, Happy birthday to you. (Sung to the same tune as the

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“Good Morning”) [NOTE: The songs and exercises referred to in

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this program may be found in these books:... “Song Stories for the

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Sunday School,” by Patty Hill.]

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Upon information and belief, the lyrics to Happy Birthday to You

(without the sheet music for the melody) were first published in 1911 by the Board

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Tell Me a True Story did not include the lyrics to Happy Birthday to

You.

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On or about May 18, 1909, Revell filed an application (Reg. No.

44.

On or about January 6, 1912, the Board of Sunday Schools filed a

copyright application (Reg. No. A303752) with the Copyright Office for The
Elementary Worker and His Work.
45.

The Elementary Worker and His Work attributed authorship or

identified the copyrights to many of the works included in the book. Significantly, it
did not attribute authorship or identify any copyright for the song Happy Birthday to
You.
46.

On or about January 14, 1920, Summy Co. was dissolved in accordance

with its limited (not perpetual) 25-year term of incorporation. Summy Co. did not
extend or renew the 1899 (Reg. No. 20441) or 1907 (Reg. No. 142468) copyrights
prior to its dissolution.
47.

Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights

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to the original and revised Song Stories for the Kindergarten were vested solely in

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their proprietor, Summy.

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48.

Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights

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to Song Stories for the Sunday School and Good Morning to All were vested solely

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in their proprietor, Summy Co.

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49.

The copyright to the original Song Stories for the Kindergarten (Reg.

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No. 45997) was not extended by Summy, and consequently expired on October 16,

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1921. Song Stories for the Kindergarten, including the song Good Morning to All,

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became dedicated to public use and fell into the public domain by no later than that

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date.
50.

The copyright to the revised Song Stories for the Kindergarten (Reg.

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No. 34260) was not extended by Summy, and consequently expired on June 18,

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1924. The revised Song Stories for the Kindergarten became dedicated to public

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use and fell into the public domain by no later than that date.

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51.

In or around March 1924, the sheet music (with accompanying lyrics)

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to Happy Birthday to You was in a songbook titled Harvest Hymns, published,

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compiled, and edited by Robert H. Coleman (“Coleman”). Upon information and

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belief, Harvest Hymns was the first time the melody and lyrics of Happy Birthday to

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You were published together.

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52.

Coleman did not claim authorship of the song entitled Good Morning

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to You or the lyrics to Happy Birthday to You. Although Harvest Hymns attributed

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authorship or identified the copyrights to many of the works included in the book, it

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did not attribute authorship or identify any copyright for Good Morning to You or

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Happy Birthday to You.

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53.

On or about March 4, 1924, Coleman filed a copyright application

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(Reg. No. A777586) with the Copyright Office for Harvest Hymns. On or about

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February 11, 1952, the copyright was renewed (Reg. No. R90447) by the Sunday

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School Board of the Southern Baptist Convention.

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54.

On or about April 15, 1925, Summy incorporated a new Clayton F.

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Summy Co. (“Summy Co. II”) under the laws of the State of Illinois.

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information and belief, Summy Co. II was not a successor to Summy Co.; rather, it

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was incorporated as a new corporation.

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55.

Upon

The sheet music (with accompanying lyrics) to Happy Birthday to You

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was again published in 1928 in the compilation Children’s Praise and Worship,

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compiled and edited by A.L. Byers, Bessie L. Byrum, and Anna E. Koglin (“Byers,

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Byrum & Koglin”). Upon information and belief, Children’s Praise and Worship

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was the first time the song was published under the title Happy Birthday to You.

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56.

On or about April 7, 1928, Gospel Trumpet Co. (“Gospel”) filed a

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copyright application (Reg. No. A1068883) with the Copyright Office for

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Children’s Praise and Worship.

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57.

Children’s Praise and Worship attributed authorship or identified the

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copyrights to many of the works included in the book. Significantly, it did not

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attribute authorship or identify any copyright for the song Happy Birthday to You.

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58.

Children’s Praise and Worship did not provide any copyright notice for

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the combination of Good Morning to All with the lyrics to Happy Birthday to You,

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nor did it include the names of Mildred Hill or Patty Hill and did not attribute any

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authorship or ownership to the Hill Sisters.

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59.

Upon information and belief, the Hill Sisters had not fixed the lyrics to

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Happy Birthday to You or the song Happy Birthday to You in a tangible medium of

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expression, if ever, at any time before Gospel published Children’s Praise and

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Worship in 1928.

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60.

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Upon information and belief, Summy sold Summy Co. II to John F.

Sengstack (“Sengstack”) in or around 1930.
61.

Upon information and belief, on or about August 31, 1931, Sengstack

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incorporated a third Clayton F. Summy Co. (“Summy Co. III”) under the laws of the

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State of Delaware.

Upon information and belief, Summy Co. III was not a

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successor to Summy Co. or Summy Co. II; rather, it was incorporated as a new

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corporation.

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62.

On May 17, 1933, Summy Co. II was dissolved for failure to pay taxes.

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63.

On July 28, 1933, Happy Birthday to You was used in the world’s first

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singing telegram.

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64.

On September 30, 1933, the Broadway show As Thousands Cheer,

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produced by Sam Harris with music and lyrics written by Irving Berlin, began using

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the song Happy Birthday to You in public performances.

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65.

On August 14, 1934, Jessica Hill, a sister of Mildred and Patty Hill,

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commenced an action against Sam Harris in the Southern District of New York,

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captioned Hill v. Harris, Eq. No. 78-350, claiming that the performance of Happy to

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Birthday to You in As Thousands Cheer infringed on the Hill Sisters’ 1893 and 1896

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copyrights to Good Morning to All. Jessica Hill asserted no claim in that action

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regarding Happy Birthday to You, alone or in combination with Good Morning to

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All.

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66.

On January 21, 1935, Jessica Hill commenced an action against the

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Federal Broadcasting Corp. in the Southern District of New York, captioned Hill v.

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Federal Broadcasting Corp., Eq. No. 79-312, claiming infringement on the Hill

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Sisters’ 1893 and 1896 copyrights to Good Morning to All. Jessica Hill asserted no

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claim in that action regarding Happy Birthday to You, alone or in combination with

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Good Morning to All.

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67.

In 1934 and 1935, Jessica Hill sold and assigned to Summy Co. III

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certain piano arrangements of Good Morning to All, including publishing, public

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performance, and mechanical reproduction rights, copyright, and extension of

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copyright in exchange for a percentage of the retail sales revenue from the sheet

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music.

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68.

On or about December 29, 1934, Summy Co. III filed an Application

for Copyright for Republished Musical Composition with new Copyright Matter

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(Reg. No. E45655) with the Copyright Office for the song Happy Birthday.

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69.

In that December 1934 Application for Copyright, Summy Co. III

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claimed to be the proprietor of the copyright as a work for hire by Preston Ware

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Orem (“Orem”) and claimed the copyrighted new matter as “arrangement by piano

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solo.”

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70.

The lyrics to Happy Birthday to You were not included on the work

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registered with the Copyright Office as Reg. No. E45655. The application did not

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contain the names of the Hill Sisters and did not claim copyright in the lyrics to

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Happy Birthday to You alone or in combination with the melody of Good Morning

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to All.

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71.

The work registered with the Copyright Office as Reg. No. E45655 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the arrangement itself.

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72.

On or about February 18, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E46661) with the Copyright Office for the song Happy Birthday.

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73.

In that February 1935 Application for Copyright, Summy Co. III

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claimed to be the proprietor of the copyright as a work for hire by Orem and claimed

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the copyrighted new matter as “arrangement for four hands at one piano.”

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74.

The lyrics to Happy Birthday to You were not included on the work

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registered with the Copyright Office as Reg. No. E46661. The application did not

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contain the names of the Hill Sisters and did not claim copyright in the lyrics to

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Happy Birthday to You alone or in combination with the melody of Good Morning

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to All.

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75.

The work registered with the Copyright Office as Reg. No. E46661 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the arrangement itself.

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76.

On or about April 5, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E47439) with the Copyright Office for the song Happy Birthday.

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77.

In that April 1935 Application for Copyright, Summy Co. III claimed

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to be the proprietor of the copyright as a work for hire by Orem and claimed the

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copyrighted new matter as “arrangement of second piano part.”

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78.

The lyrics to Happy Birthday to You were not included on the work

registered with the Copyright Office as Reg. No. E47439.

The application did not

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contain the names of the Hill Sisters and did not claim copyright in the lyrics to

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Happy Birthday to You alone or in combination with the melody of Good Morning

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to All.

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79.

The work registered with the Copyright Office as Reg. No. E47439 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the arrangement itself.

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80.

On or about April 5, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E47440) with the Copyright Office for the song Happy Birthday.

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81.

In that additional April 1935 Application for Copyright, Summy Co. III

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claimed to be the proprietor of the copyright as a work for hire by Orem and claimed

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the copyrighted new matter as “arrangement for six hands at one piano.”

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82.

The lyrics to Happy Birthday to You were not included on the work

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registered with the Copyright Office as Reg. No. E47440. The application did not

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contain the names of the Hill Sisters and did not claim copyright in the lyrics to

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Happy Birthday to You alone or in combination with the melody of Good Morning

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to All.

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83.

The work registered with the Copyright Office as Reg. No. E47440 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the arrangement itself.

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84.

On December 9, 1935, Summy Co. III filed an Application for

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Copyright for Republished Musical Composition with new Copyright Matter (Reg.

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No. E51988) with the Copyright Office for Happy Birthday to You.

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85.

In that December 1935 Application for Copyright, Summy Co. III

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claimed to be the proprietor of the copyright as a work for hire by R.R. Forman

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(“Forman”) and claimed the copyrighted new matter as “arrangement for Unison

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Chorus and revised text.” The sheet music deposited with the application credited

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Forman only for the arrangement, not for any lyrics, and did not credit the Hill

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Sisters with writing the lyrics to Happy Birthday to You.

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86.

The lyrics to Happy Birthday to You, including a second verse as the

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revised text, were included on the work registered with the Copyright Office as Reg.

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No. E51988. However, the December 1935 Application for Copyright did not

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attribute authorship of the lyrics to either of the Hill Sisters and did not claim

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copyright in the lyrics to Happy Birthday to You alone or in combination with the

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melody of Good Morning to All.

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87.

The work registered with the Copyright Office as Reg. No. E51988 was

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not eligible for federal copyright protection in that it consisted entirely of

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information that was common property and contained no original authorship, except

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as to the sheet music arrangement itself.

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88.

The work registered as Reg. No. E51988 was not eligible for federal

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copyright protection because Summy Co. III did not have authorization from the

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author to publish that work.

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89.

On December 9, 1935, Summy Co. III filed an Application for

27

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

28

No. E51990) with the Copyright Office for Happy Birthday to You.

- 13 -

1778

Case 2:13-cv-04460-GHK-MRW Document 1 Filed 06/20/13 Page 15 of 34 Page ID #:23

1

90.

In that additional December 1935 Application for Copyright, Summy

2

Co. III claimed to be the proprietor of the copyright as a work for hire by Orem and

3

claimed the copyrighted new matter as “arrangement as easy piano solo, with text.”

4

The sheet music deposited with the application credited Orem only for the

5

arrangement, not for any lyrics, and did not credit the Hill Sisters with writing the

6

lyrics to Happy Birthday to You.

7

91.

The lyrics to Happy Birthday to You were included on the work

8

registered with the Copyright Office as Reg. No. E51990. However, the additional

9

December 1935 Application for Copyright did not attribute authorship of the lyrics

10

to either of the Hill Sisters, did not contain the names of either of the Hill Sisters,

11

and did not claim any copyright in the lyrics to Happy Birthday to You alone or in

12

combination with the melody of Good Morning to All.

13

92.

The work registered with the Copyright Office as Reg. No. E51990 was

14

not eligible for federal copyright protection in that it consisted entirely of

15

information that was common property and contained no original authorship, except

16

as to the sheet music arrangement itself.

17

93.

The work registered as Reg. No. E51990 was not eligible for federal

18

copyright protection because Summy Co. III did not have authorization from the

19

author to publish that work.

20

94.

In or about February, 1938, Summy Co. III purported to grant to

21

ASCAP the right to license Happy Birthday to You for public performances and to

22

collect fees for such use on behalf of Summy Co. III. ASCAP thus began working

23

as agent for Summy Co. III in collecting fees for Summy Co. III for licensing Happy

24

Birthday to You.

25

95.

On October 15, 1942, The Hill Foundation commenced an action

26

against Summy Co. III in the Southern District of New York, captioned The Hill

27

Foundation, Inc. v. Clayton F. Summy Co., Case No. 19-377, for an accounting of

28

the royalties received by it for the licensing of Happy Birthday to You. The Hill

- 14 -

1779

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1

Foundation asserted claims under the 1893, 1896, 1899, and 1907 copyrights for

2

Good Morning to All and did not claim any copyright to the lyrics to Happy

3

Birthday to You, alone or in combination with the melody of Good Morning to All.

4

96.

On March 2, 1943, The Hill Foundation commenced an action against

5

the Postal Telegraph Cable Company in the Southern District of New York,

6

captioned The Hill Foundation, Inc. v. Postal Telegraph-Cable Co., Case No. 20-

7

439, for infringement of the Hill Sisters’ purported 1893, 1896, and 1899 copyrights

8

to Good Morning to All. The Hill Foundation asserted claims only under the 1893,

9

1896, and 1899 copyrights for Good Morning to All and did not claim any copyright

10

to the lyrics to Happy Birthday to You, alone or in combination with the melody of

11

Good Morning to All.

12

97.

Despite the filing of four prior cases in the Southern District of New

13

York asserting copyrights to Good Morning to All, there has been no judicial

14

determination of the validity or scope of any copyright related to Good Morning to

15

All.

16

98.

17

Company.

18

99.

In or about 1957, Summy Co. III changed its name to Summy-Birchard
In 1962, Summy Co. III (renamed as Summy-Birchard Company) filed

19

renewals for each of the six registrations it obtained in 1934 and 1935 (Reg. Nos.

20

E45655, E46661, E47439, E47440, E51988, and E51990), each renewal was

21

specifically and expressly confined to the musical arrangements.

22

100. In particular, on December 6, 1962, Summy Co. III filed a renewal

23

application for Reg. No. E51988, as employer for hire of Forman. Forman did not

24

write the lyrics to Happy Birthday to You or the combination of those lyrics with the

25

melody of Good Morning to All, and neither Summy Co. III nor defendant

26

Warner/Chappell has claimed otherwise.

27

101. Also on December 6, 1962, Summy Co. III filed a renewal application

28

for Reg. No. E51990, as employer for hire of Orem. Orem did not write the lyrics to

- 15 -

1780

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1

Happy Birthday to You or the combination of those lyrics with the melody of Good

2

Morning to All, and neither Summy Co. III nor defendant Warner/Chappell has

3

claimed otherwise.

4

102. Summy-Birchard Company was renamed Birch Tree Ltd. in the 1970s

5

and was acquired by Warner/Chappell in or about 1998.

6

Happy Birthday to You – 100 Years Later

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

103. According to a 1999 press release by ASCAP, Happy Birthday to You
was the most popular song of the 20th Century.
104. The 1998 edition of the Guinness Book of World Records identified
Happy Birthday to You as the most recognized song in the English language.
105. Defendant Warner/Chappell currently claims it owns the exclusive
copyright to Happy Birthday to You based on the piano arrangements that Summy
Co. III published in 1935.
106. ASCAP provides public performance licenses to bars, clubs, websites,
and many other venues. ASCAP “blanket licenses” grant the licensee the right to
publicly perform any or all of the over 8.5 million songs in ASCAP repertory in
exchange for an annual fee. The public performance license royalties are distributed
to ASCAP members based on surveys of performances of each ASCAP repertory
song across different media. By registering Happy Birthday to You with ASCAP,
Defendant Warner/Chappell obtains a share of blanket license revenue that would
otherwise be paid to all other ASCAP members, in proportion to their songs’ survey
shares.
107. Plaintiff Marya d/b/a RTAF recorded the song Happy Birthday to You
at a live show in San Francisco, to be released as part of a “live” album. She learned
that defendant Warner/Chappell claimed exclusive copyright ownership to Happy
Birthday to You, including for purposes of issuing mechanical licenses.
108. Accordingly, on June 17, 2013, Plaintiff Marya paid Warner/Chappell
$455 for a mechanical license for the reproduction and distribution of 5,000 albums.
- 16 -

1781

Case 2:13-cv-04460-GHK-MRW Document 1 Filed 06/20/13 Page 18 of 34 Page ID #:26

CLASS ALLEGATIONS

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

109. Plaintiff Marya brings this action under Federal Rules of Civil
Procedure 23(a) and (b) as a class action on behalf of herself and all others similarly
situated for the purpose of asserting the claims alleged in this Complaint on a
common basis.
110. The proposed Class is comprised of:
All persons or entities (excluding Warner/Chappell’s directors,
officers, employees, and affiliates) who entered into a license with
Warner/Chappell, or paid Warner/Chappell, directly or indirectly
through its agents, a licensing fee for the song Happy Birthday to
You at any time from June 18, 2009, until Warner/Chappell’s
conduct as alleged herein has ceased.
111. Although Plaintiff Marya does not know the exact size of the Class or
the identities of all members of the Class, upon information and belief that
information can be readily obtained from the books and records of defendant
Warner/Chappell. Plaintiff believes that the Class includes thousands of persons or
entities who are widely geographically disbursed. Thus, the proposed Class is so
numerous that joinder of all members is impracticable.
112. The claims of all members of the Class involve common questions of
law and fact including:
a.

to public use;
b.

27
28

whether Warner/Chappell is the exclusive owner of the copyright to
Happy Birthday to You and is thus entitled to all of the rights conferred

25
26

whether Happy Birthday to You is in the public domain and dedicated

in 17 U.S.C. § 102;
c.

whether Warner/Chappell has the right to collect fees for the use of
Happy Birthday to You;

- 17 -

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1

d.

whether Warner/Chappell has violated the law by demanding and

2

collecting fees for the use of Happy Birthday to You despite not having

3

a valid copyright to the song; and

4

e.

whether Warner/Chappell is required to return unlawfully obtained

5

payments to plaintiff Marya and the other members of the Class and, if

6

so, what amount is to be returned.

7
8

113. With respect to Claim III, the common questions of law and fact
predominate over any potential individual issues.

9

114. Plaintiff Marya’s claims are typical of the claims of all other members

10

of the Class and plaintiff Marya’s interests do not conflict with the interests of any

11

other member of the Class, in that plaintiff and the other members of the Class were

12

subjected to the same unlawful conduct.

13

115. Plaintiff Marya is committed to the vigorous prosecution of this action

14

and has retained competent legal counsel experienced in class action and complex

15

litigation.

16

116. Plaintiff is an adequate representative of the Class and, together with its

17

attorneys, is able to and will fairly and adequately protect the interests of the Class

18

and its members.

19

117. A class action is superior to other available methods for the fair, just,

20

and efficient adjudication of the claims asserted herein. Joinder of all members of

21

the Class is impracticable and, for financial and other reasons, it would be

22

impractical for individual members of the Class to pursue separate claims.

23

118. Moreover, the prosecution of separate actions by individual members

24

of the Class would create the risk of varying and inconsistent adjudications, and

25

would unduly burden the courts.

26
27

119. Plaintiff Marya anticipates no difficulty in the management of this
litigation as a class action.

28

- 18 -

1783

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1

FIRST CLAIM FOR RELIEF

2

DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201

3

(On Behalf Of Plaintiff And The Class)

4

(Against Defendant Warner/Chappell)

5
6

120. Plaintiff Marya repeats and realleges paragraphs 1 through 119 set forth
above as though they were fully set forth herein.

7

121. Plaintiff Marya brings this claim individually on her own behalf and on

8

behalf of the proposed Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil

9

Procedure.

10

122. Plaintiff Marya seeks adjudication of an actual controversy arising

11

under the Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with defendant

12

Warner/Chappell’s purported copyright claim to Happy Birthday to You. Plaintiff

13

seeks the Court’s declaration that the Copyright Act does not bestow upon

14

Warner/Chappell the rights it has asserted and enforced against plaintiff Marya and

15

the other members of the Class.

16

123. Defendant Warner/Chappell asserts that it is entitled to royalties

17

pursuant to 17 U.S.C. § 115 for the creation and distribution of phonorecords and

18

digital downloads of the composition Happy Birthday to You, under threat of a claim

19

of copyright infringement.

20

124. Plaintiff Marya’s claim presents a justiciable controversy because

21

plaintiff Marya’s agreement to pay defendant Warner/Chappell and its actual

22

payment to Warner/Chappell for use of the song Happy Birthday to You in her

23

album, was the involuntary result of Warner/Chappell’s assertion of a copyright and

24

the risk that plaintiff Marya would be exposed to substantial statutory penalties

25

under the Copyright Act had she failed to enter such an agreement and pay

26

Warner/Chappell standard mechanical license royalties it demanded, but then paid

27

for the mechanical license anyway.

28

125. Plaintiff Marya seeks the Court’s determination as to whether

- 19 -

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1

defendant Warner/Chappell is entitled to assert ownership of the copyright to Happy

2

Birthday to You against Marya pursuant to the Copyright Act as Warner/Chappell

3

claims, or whether Warner/Chappell is wielding a false claim of ownership to inhibit

4

plaintiff Marya’s use and enjoyment (and the public’s use and enjoyment) of

5

intellectual property which is rightfully in the public domain.

6

126. If and to the extent that defendant Warner/Chappell relies upon the

7

1893, 1896, 1899, or 1907 copyrights for the melody for Good Morning to All, those

8

copyrights expired or were forfeited as alleged herein.

9

127. As alleged above, the 1893 and 1896 copyrights to the original and

10

revised versions of Song Stories for the Kindergarten, which contained the song

11

Good Morning to All, were not renewed by Summy and accordingly expired in 1921

12

and 1924, respectively.

13

128. As alleged above, the 1899 copyright to Song Stories for the Sunday

14

School, which contained Good Morning to All, and the 1907 copyright to Good

15

Morning to All were not renewed by Summy Co. before its expiration in 1920 and

16

accordingly expired in 1927 and 1935, respectively.

17

129. The 1893, 1896, 1899, and 1907 copyrights to Good Morning to All

18

were forfeited by the republication of Good Morning to All in 1921 without proper

19

notice of its original 1893 copyright.

20
21

130. The copyright to Good Morning to All expired in 1921 because the
1893 copyright to Song Stories for the Kindergarten was not properly renewed.

22

131. The piano arrangements for Happy Birthday to You published by

23

Summy Co. III in 1935 (Reg. Nos. E51988 and E51990) were not eligible for

24

federal copyright protection because those works did not contain original works of

25

authorship, except to the extent of the piano arrangements themselves.

26
27
28

132. The 1934 and 1935 copyrights pertained only to the piano
arrangements, not to the melody or lyrics of the song Happy Birthday to You.
133. The registration certificates for The Elementary Worker and His Work

- 20 -

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1

in 1912, Harvest Hymns in 1924, and Children’s Praise and Worship in 1928, which

2

did not attribute authorship of the lyrics to Happy Birthday to You to anyone, are

3

prima facie evidence that the lyrics were not authored by the Hill Sisters.

4

134. If declaratory relief is not granted, defendant Warner/Chappell will

5

continue wrongfully to assert the exclusive copyright to Happy Birthday to You at

6

least until 2030, when the current term of the copyright expires under existing

7

copyright law.

8

135. Plaintiff therefore requests a declaration that:

9

(a)

defendant Warner/Chappell does not own the copyright to, or possess

10

the exclusive right to reproduce, distribute, or publicly perform, Happy

11

Birthday To You;

12

(b)

13

license for use of Happy Birthday To You; and

14

(c)

15

public use.

Warner/Chappell does not own the exclusive right to demand or grant a
Happy Birthday to You is in the public domain and is dedicated to the

16

SECOND CLAIM FOR RELIEF

17

UPON ENTRY OF DECLARATORY JUDGMENT

18

DECLARATORY AND INJUNCTIVE RELIEF

19

PURSUANT TO 28 U.S.C § 2202

20

(On Behalf of Plaintiff and the Class)

21

(Against Defendant Warner/Chappell)

22
23

136. Plaintiff Marya repeats and realleges paragraphs 1 through 135 set forth
above as though they were fully set forth herein.

24

137. Plaintiff Marya brings this claim individually on her own behalf and on

25

behalf of the Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil

26

Procedure.

27

138. Under 28 U.S.C. § 2202 empowers this Court to grant, “necessary or

28

proper relief based on a declaratory judgment or decree . . . after reasonable notice

- 21 -

1786

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1

and hearing, against any adverse party whose rights have been determined by such

2

judgment.”

3

139. Plaintiff Marya and the other proposed Class members have been

4

harmed, and defendant Warner/Chappell has been unjustly enriched, by

5

Warner/Chappell’s takings.

6
7

140. Plaintiff Marya seeks relief for herself and the other members of the
proposed Class upon the entry of declaratory judgment upon Claim I, as follows:

8

(a)

9

making further representations of ownership of the copyright to

an injunction to prevent defendant Warner/Chappell from

10

Happy Birthday To You;

11

(b)

12

license fees paid to defendant Warner/Chappell, directly or indirectly

13

through its agents, in connection with the purported licenses it granted

14

to Marya and the other Class members;

15

(c)

16

Warner/Chappell, directly or indirectly through its agents, from

17

plaintiff Marya and the other Class members in connection with its

18

claim to ownership of the copyright to Happy Birthday to You; and

19

(d)

restitution to plaintiff Marya and the other Class members of

an accounting for all monetary benefits obtained by defendant

such other further and proper relief as this Court sees fit.

20

THIRD CLAIM FOR RELIEF

21

UNFAIR BUSINESS ACTS AND PRACTICES IN VIOLATION OF

22

CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200 ET SEQ.

23

(On Behalf of Plaintiff and the Class)

24

(Against Defendant Warner/Chappell)

25
26

141. Plaintiff Marya repeats and realleges paragraphs 1 through 119 set forth
above as though they were fully set forth herein.

27

142. Plaintiff Marya brings this claim individually on her own behalf and on

28

behalf of the Class pursuant to Rule 23(b)(3) of the Federal Rules of Civil

- 22 -

1787

Case 2:13-cv-04460-GHK-MRW Document 1 Filed 06/20/13 Page 24 of 34 Page ID #:32

1

Procedure.

2

143. As alleged herein, plaintiff Marya and the other Class members have

3

paid licensing fees to defendant Warner/Chappell and have therefore suffered injury

4

in fact and have lost money or property as a result of defendant Warner/Chappell’s

5

conduct.

6
7

144. California’s Unfair Competition Law, Business & Professions Code §§
17200 et seq. (“UCL”), prohibits any unlawful or unfair business act or practice.

8

145. UCL § 17200 further prohibits any fraudulent business act or practice.

9

146. Defendant Warner/Chappell’s actions, claims, nondisclosures, and

10

misleading statements, as alleged in this Complaint, were unfair, false, misleading,

11

and likely to deceive the consuming public within the meaning of UCL §§ 17200,

12

17500.

13

147. Defendant Warner/Chappell’s conduct in exerting control over

14

exclusive copyright ownership to Happy Birthday to You to extract licensing fees is

15

deceptive and misleading because Warner/Chappell does not own the rights to

16

Happy Birthday to You.

17

148. Plaintiff Marya and the other members of the Class have, in fact, been

18

deceived as a result of their reasonable reliance upon defendant Warner/Chappell’s

19

materially false and misleading statements and omissions, as alleged above.

20

149. As a result of defendant Warner/Chappell’s unfair and fraudulent acts

21

and practices as alleged above, plaintiff Marya and the other Class members have

22

suffered substantial monetary injuries.

23

150. Plaintiff Marya and the other Class members reserve the right to allege

24

other violations of law which constitute other unfair or deceptive business acts or

25

practices. Such conduct is ongoing and continues to this date.

26
27
28

151. As a result of its deception, defendant Warner/Chappell has been able
to reap unjust revenue and profit.
152. Upon information and belief, defendant Warner/Chappell has collected

- 23 -

1788

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1

and continues to collect at least $2 million per year in licensing fees for Happy

2

Birthday to You. Therefore, the amount in controversy exceeds $5 million in the

3

aggregate.

4

153. Unless restrained and enjoined, defendant Warner/Chappell will

5

continue to engage in the above-described conduct. Accordingly, injunctive relief is

6

appropriate.

7

154. Plaintiff Marya, individually on its own behalf and on behalf of the

8

other members of the Class, seeks restitution and disgorgement of all money

9

obtained from plaintiff and the other members of the Class, collected as a result of

10

unfair competition, and all other relief this Court deems appropriate, consistent with

11

UCL § 17203.

12

FOURTH CLAIM FOR RELIEF

13

COMMON COUNT FOR MONEY HAD AND RECEIVED

14

(On Behalf of Plaintiff and the Class)

15

(Against Defendant Warner/Chappell)

16
17

155. Plaintiff Marya repeats and realleges paragraphs 1 through 135 set forth
above as though they were fully set forth herein.

18

156. Within the last four years Defendant Warner/Chappell became indebted

19

to all Plaintiff Marya and all class members for money had and received by

20

Defendant Warner/Chappell for the use and benefit of Plaintiff Marya and class

21

members. The money in equity and good conscience belongs to Plaintiff Marya and

22

class members.

23

FIFTH CLAIM FOR RELIEF

24

RECISSION FOR FAILURE OF CONSIDERATION,

25

(On Behalf of Plaintiff and the Class)

26

(Against Defendant Warner/Chappell)

27
28

157. Plaintiff Marya repeats and realleges paragraphs 1 through 135 set forth
above as though they were fully set forth herein.

- 24 -

1789

Case 2:13-cv-04460-GHK-MRW Document 1 Filed 06/20/13 Page 26 of 34 Page ID #:34

1
2
3
4

158. Defendant’s purported licenses were worthless and ineffective, and do
not constitute a valid consideration.
159. The complete lack of consideration obviates any need for notice to
Defendant.
SIXTH CLAIM FOR RELIEF

5
6

FALSE ADVERTISING, CAL. BUS. & PROF. CODE §§ 17500 ET SEQ.

7

(On Behalf of Plaintiff and the Class)

8

(Against Defendant Warner/Chappell)

9
10

160. Plaintiff Marya repeats and realleges paragraphs 1 through 135 set forth
above as though they were fully set forth herein.

11

161. On information and belief, Defendant Warner/Chappell intended to

12

induce the public to enter into an obligation related to its alleged property, namely

13

the composition Happy Birthday to You.

14

162. Defendant Warner/Chappell publicly disseminated advertising which

15

contained statements which were untrue and misleading and which concerned the

16

composition Happy Birthday to You, for which they improperly sought and received

17

licensing fees. Defendant knew, or in the exercise of reasonable care should have

18

known, that these statements were untrue and misleading.

19
20

163. Plaintiff and class members have suffered injury in fact and have lost
money as a result of such unfair competition.
DEMAND FOR JURY TRIAL

21
22
23

160. Plaintiff Marya hereby demands a trial by jury to the extent that the
allegations herein are triable by jury under Federal Rules of Civil Procedure 38-39.
PRAYER RELIEF

24
25
26

WHEREFORE, plaintiff Marya, on behalf of herself and the other members
of the Class, prays for judgment against defendant Warner/Chappell as follows:

27

A.

certifying the Class as requested herein;

28

B.

declaring that the song Happy Birthday to You is not protected by

- 25 -

1790

Case 2:13-cv-04460-GHK-MRW Document 1 Filed 06/20/13 Page 27 of 34 Page ID #:35

1
2
3
4
5
6

federal copyright law, is dedicated to public use, and is in the public domain;
C.

permanently enjoining defendant Warner/Chappell from asserting any

copyright to the song Happy Birthday to You;
D.

permanently enjoining defendant Warner/Chappell from charging or

collecting any licensing or other fees for use of the song Happy Birthday to You;
E.

imposing

a

constructive

trust

upon

the

money

defendant

7

Warner/Chappell unlawfully collected from plaintiff Marya, the other members of

8

the Class, and ASCAP for use of the song Happy Birthday to You;

9

F.

ordering defendant Warner/Chappell to return to plaintiff Marya and

10

the other members of the Class all the licensing or other fees it has collected from

11

them, directly or indirectly through its agents, for use of the song Happy Birthday to

12

You, together with interest thereon;

13
14
15
16

G.

awarding plaintiff Marya and the other members of the Class restitution

for Warner/Chappell’s prior acts and practices;
H.

awarding plaintiff Marya and the Class reasonable attorneys’ fees and

costs; and
granting such other and further relief as the Court deems just and

17

I.

18

proper.

19

Dated: June 19, 2013

20

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

fl
22

BETSY

/J

f/t(th.
MANIFOA
.

23
24
25
26
27
28

FRANCIS M. GREGOREK
BETSY C. MANIFOLD
RACHELE R. RICKERT
MARISA C. LIVESAY
750 B Street, Suite 2770
SanDiego, CA 92101
Telephone: [phone]

-

26

-

1791

Case 2:13-cv-04460-GHK-MRW Document 1 Filed 06/20/13 Page 28 of 34 Page ID #:36

Facsimile: 619/234-4599
gregorek@whath corn
[e-mail]
[e-mail]
[e-mail]

1
2
3
4

WOLF IHLALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN
JANINE POLLACK
BETH A LANDES
GITI BAGHBAN
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753
ri&in@whafhcom
[e-mail]
[e-mail]
baghbanwhafh.corn

5
6
7
8

10

12
13
14
15
16

Dated: June 19, 2013

DONAHUE GALLAGHER WOODS LLP

17
18
19
20
21
22
23

25

DANIEL J. SCHACHT
WILLIAM R. HILL (114954)
rock(donahue.com
AN1E5ThEW S. MACKAY (197074)
andrew(ä)donahue.com
DANJEt J. SCHACHT (259717)
danie1cZidonahue.com
DONAFIUE GALLAGI-R WOODS LLP
1999 Harrison Street, 25 Floor
Oakland, CA 946 12-3520
Teleohone: 510/451-0544
Facsimile: 510/832-1486

26
27
28

-

27
1792

Case 2:13-cv-04460-GHK-MRW Document 1 Filed 06/20/13 Page 29 of 34 Page ID #:37

5

RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (SBN 190547)
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]
Facsimile: 212/797-3172
[e-mail]

6

Attorneys for Plaintiff Rupa Marya

1
2
3
4

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8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

WARNER:19984.complaint

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1793

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1797

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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET

dismissed, remanded or closed?
VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and

j NO

fl

YES

fl

J

YES

If yes, list case number(s):

VIlI(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case?

NO

cvi 3-4418 GHK (MRWx)

If yes, list case number(s):

Civil cases are deemed related if a previously filed case and the present case:
(Check all boxes that apply)

fl A. Arise from the same or closely related transactions, happenings, or events; or
B. Call for determination of the same or substantially related or similar questions of law and fact; or
C. For other reasons would entail substantial duplication of labor if heard by different judges; or
0. Involve the same patent, trademark or copyright,anione of the factors identified above in a, b or c also is present.

IX.

VENUE: (When completing the following information, use an additional sheet if necessary.)

EACH named
(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which
plaintiff resides.
Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b).
California County outside of this District; State, if other than California; or Foreign

County in this District:*

Country
SAN MATEO

EACH named
(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which
defendant resides.
Check here if the government, its agencies or employees is a named defendant. If this box is checked, go to item (c).
California County outside of this District; State, if other than California; or Foreign
.
.
County in this Distrlct:*
Country
LOS ANGELES
.

(c)

.

Country, in which
List the County in this District; California County outside of this District; State if other than California; or Foreign

EACH claim arose.

NOTE: In land condemnation cases, use the location of the tract of land involved.

California County outside of this District; State,

County in this Dlstrlct:*
.

.

.

if other than California; or Foreign

Country

LOS ANGELES
Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties

Note:

In land condemnation cases, use the location of the tract of land involved
(-.

,

I-

4

L /
DATE: 06/19/2013
X. SIGNATURE OF ATTORNEY (OR SELF-REPRESENTED LITIGANT):
Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and the informatioontained herein iher rep’ice nor supplement the filing and service of pleadings or
ptember 1974, is required pursuant to Local Rule 3-1 is not filed
other papers as required by law. This form, approved by the Judicial Conference of the United States i
but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet).

2

‘

i/

Key to Statistical codes relating to Social Security Cases:
Substantive Statement of Cause of Action
Nature of Suit Code Abbreviation
All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also,
HIA
861
include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program.
(42 U.S.C. 1935FF(b))
862

BL

All claims for Black Lung benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C.
923)

863

DIWC

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus
all claims filed for child’s insurance benefits based on disability. (42 U.S.C. 405 (g))

863

DIWW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as
amended. (42 U.S.C. 405 (g))

864

SSID

865

RSI

CV-71 (02/13)

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as
amended.
All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended.
(42 U.S.C. 405 (g))
CIVIL COVER SHEET

Page 2 of 2

1798

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1800

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EXHIBIT 122

Ex. 122
____
1834

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 1 of 40 Page ID #:366

4

BETSY C. MANIFOLD (182450)
manifold @whafu.com
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Die§.o, CA 92101
Tel.: [phone]; Fax: [phone]

5

Counsel for Plaintiffs

6

[Additional Counsel Appear on Signature Page]

1
2
3

7

(J.Jo

-1

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

8
9

GOOD MORNING TO YOU
PRODUCTIONS CORP.; ROBERT
11 SIEGEL; RUPAMARYA; and
12 MAJAR PRODUCTIONS, LLC; On
Behalf of Themselves and All Others
13 Similarly Situated,
14
Plaintiffs,
15

10

Nfo

16
17
18
19
20
21
22
23
24
25
26
27

v.
WARNER/CHAPPELL MUSIC,
INC., and SUMMY-BIRCHARD,
INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

)

Lead Case No. CV 13-04460-GHK
(MRWx)
SECOND AMENDED
CONSOLIDATED COMPLAINT
FOR (1) INVALIDITY OF
COPYRIGHT UNDER THE
COPYRIGHT ACT (17 U.S.C. §§ 101
et seq.); (2) DECLARATORY AND
INJUNCTIVE RELIEF; (3)
VIOLATIONS OF CALIFORNIA
UNFAIR COMPETITION LAWS
(Cal. Bus. & Prof. Code§§ 17200 et
seq.); (4) BREACH OF CONTRACT;
(5) MONEY HAD AND RECEIVED;
(6) RESCISSION FOR FAILURE OF
CONSIDERATION; and (7)
VIOLATIONS OF CALIFORNIA
FALSE ADVERTISING LAWS (Cal.
Bus. & Prof. Code§ 17500 et seq.)
CLASS ACTION
DEMAND FOR JURY TRIAL
Room: 650 (Roybal)
Judge: Hon. George H. King, Chief Judge

28

1835

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 2 of 40 Page ID #:367

1

Plaintiffs, Good Morning to You Productions Corp. ("GMTY"), Robert

2

Siegel ("Siegel"), Rupa Marya d/b/a/ Rupa Marya & The April Fishes ("Rupa"), and

3

Majar Productions, LLC ("Majar") (collectively herein "Plaintiffs"), on behalf of

4

themselves and all others similarly situated, by their undersigned attorneys, as and

5 for their Consolidated Second Amended Complaint For Declaratory Judgment;
6

Injunctive And Declaratory Relief; And Damages For: (1) Invalidity Of Copyright

7

(Copyright Act, 17 U.S.C. §§ 101 et seq.); (2) Declaratory and Injunctive Relief

8

Upon Entry of Declaratory Judgment; (3) Unfair Competition Laws (Cal. Bus. &

9

Prof. Code§§ 17200 et seq.); (4) Breach of Contract; (5) Common Law Money Had

10

and Received; (6) Recission for Failure of Consideration; and (7) Violations of

11

California False Advertising Laws (Bus. & Prof. Code § 17500, et seq.) against

12

defendant Warner/Chappell Music, Inc. ("Warner/Chappell") and Summy-Birchard,

13

Inc. ("SBI") (collectively "Defendants"), hereby allege as follows:

14
15

JURISDICTION AND VENUE
1.

The Court has subject-matter jurisdiction over this action pursuant to

16

28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory

17

and other relief arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant

18

to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; pursuant to the Class

19

Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental jurisdiction pursuant

20

to 28 U.S.C. § 1367 over the entire case or controversy.

21

2.

The Court has personal jurisdiction and venue is proper in this District

22

under 28 U.S.C. §§ 139l(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in

23

this Judicial District where both Defendants' principal places of business are located

24

and where they regularly conduct business.

25

3.

Paragraph 8 of the Film and Synchronization and Performance License

26

("Synchronization License") by and between assignee Plaintiff Siegel and defendant

27

Warner/Chappell states:

"this license has been entered into in, and shall be

28
- 11836

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 3 of 40 Page ID #:368

1 interpreted in accordance with the laws of the state of California, and any action or
2

proceeding concerning the interpretation and/or enforcement of this license shall be

3

heard only in the state or federal courts situated in Los Angeles county .... "

4

Defendant Warner/Chappell requires any action or proceeding related thereto to be

5

brought in this District under the Synchronization License.

6

INTRODUCTION

7

4.

This is an action to declare invalid the copyright that Defendants claim

8

to own to the world's most popular song, Happy Birthday to You (the "Song"), to

9

declare that the Song is dedicated to public use and in the public domain; and to

10 return millions of dollars of unlawful licensing fees collected by defendant
11

Warner/Chappell pursuant to its wrongful assertion of copyright ownership of the

12

Song.

13

5.

According to the United States Copyright Office ("Copyright Office"),

14

a "musical composition consists of music, including any accompanying words, and

15

is normally registered as a work of the performing arts." Copyright Office Circular

16

56A, "Copyright Registration of Musical Compositions and Sound Recordings," at 1

17

(Feb. 2012) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a

18

musical composition generally is the composer, and the lyricist (if a different

19

person). Id.

20

6.

More than 120 years after the melody to which the simple lyrics of

21

Happy Birthday to You is set was first published, defendant Warner/Chappell

22

boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy

23

Birthday to You, and with that copyright the exclusive right to authorize the Song's

24

reproduction, distribution, and public performances pursuant to federal copyright

25

law. Warner/Chappell declares in the first two sentences on the "About Us" page of

26

its website that "Warner/Chappell Music is [Warner Music Group]'s award-winning

27

global music publishing company. The Warner/Chappell Music catalog includes

28

standards such as 'Happy Birthday To You' .... " Available

-21837

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 4 of 40 Page ID #:369

1

at: http://www. wamerchappell.com/about.jsp?currenttab=about_us.

2

Defendant W amer/Chappell either has silenced those wishing to record or perform

3

Happy Birthday to You, or has extracted millions of dollars in unlawful licensing

4

fees from those unwilling or unable to challenge its ownership claims.

5

7.

Irrefutable documentary evidence, some dating back to 1893, shows

6

that the copyright to Happy Birthday to You, if there ever was a valid copyright to

7

any part of the Song, expired no later than 1921 and that if defendant

8

Wamer/Chappell owns any rights to Happy Birthday to You, those rights are limited

9

to the extremely narrow right to reproduce and distribute specific piano

10

arrangements for the song published in 1935.

11

adjudicated the validity or scope of the Defendants' claimed interest in Happy

12

Birthday to You, nor in the Song's melody or lyrics, which are themselves

13

independent works.

14

8.

Significantly, no court has ever

Various legal scholars and copyright and music industry experts agree

15

with the foregoing, questioning the validity of Defendants' assertion of copyright in

16

the Song, and supporting the conclusion that Happy Birthday properly exists in the

17

public domain. For example, Professor Robert Brauneis, Professor of Law and Co-

18

Director of the Intellectual Property Law Program at George Washington

19

University, and a leading legal scholar in intellectual property law, has stated that it

20

is "doubtful" that Happy Birthday "is really still under copyright."

21

9.

Plaintiffs GMTY, Siegel, Rupa, and Majar on behalf of themselves and

22

all others similarly situated, seek a declaration that Happy Birthday to You is

23

dedicated to public use and is in the public domain as well as monetary damages and

24

restitution of all the unlawful licensing fees that defendants have improperly

25

collected from Plaintiffs and all other Class members.

PLAINTIFFS

26
27
28

10.

Plaintiff GMTY is a New York corporation with its principal place of

business located in New York County. Under a claim of copyright by defendant

-31838

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 5 of 40 Page ID #:370

1

Warner/Chappell, on or about March 26, 2013, GMTY paid defendant

2

Warner/Chappell the sum of $1,500 for a synchronization license to use Happy

3

Birthday to You and on or about April 24, 2013, GMTY entered into a

4

synchronization license with Warner/Chappell, as alleged more fully herein.

5

11.

Plaintiff Robert Siegel is the assignee of BIG FAN PRODUCTIONS,

6

INC. ("BIG FAN"), an inactive New York corporation and a resident of New York,

7

New York. Under a claim of copyright by defendant Warner/Chappell, on or about

8

September 1, 2009, BIG FAN paid to defendant Warner/Chappell the sum of $3,000

9

for the Synchronization Licenses to use Happy Birthday to You, as alleged more

10

fully herein. Plaintiff Siegel, the then-President of BIG FAN, was assigned BIG

11

FAN's rights and claims, including those pertaining to the Synchronization License

12

pursuant to Paragraph 7 thereof between defendant Warner/Chappell and BIG FAN,

13

entered into on or about July 20, 2009.

14

12.

Plaintiff Rupa is a musician and leader of the band entitled "Rupa &

15

The April Fishes" ("RTAF"), and a member of the American Society of Composers,

16

Authors and Publishers ("ASCAP").

17

County, California. RTAF recorded Happy Birthday to You at a live show in San

18

Francisco, California, on April 27, 2013. Under a claim of copyright by defendant

19

Warner/Chappell, on or about June 17, 2013, Plaintiff Rupa d/b/a RTAF paid to

20

defendant Warner/Chappell the sum of $455 for a compulsory license pursuant to 17

21

U.S.C. § 115 (commonly known as a "mechanical license") to use Happy Birthday

22

to You, as alleged more fully herein.

23

13.

Plaintiff Rupa is a resident of San Mateo

Plaintiff Majar is a Los Angeles-based film production company that

24

produced the award winning documentary film "No Subtitles Necessary: Laszlo &

25

Vilmos" (hereafter, "No Subtitles Necessary" or the "Film"). The Film follows the

26

lives of renowned cinematographers Laszlo Kovacs ("Kovacs") and Vilmos

27

Zsigmond ("Zsigmond") from escaping the 1956 Soviet invasion of Hungary to the

28

present day. As film students in Hungary, Kovacs and Zsigmond shot footage of the

-41839

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 6 of 40 Page ID #:371

1 Russian invasion of Budapest and subsequently risked their lives to smuggle it out
2

of the country. They fled to America and settled in Hollywood, eventually saving

3

enough money to buy their own 16mm camera to begin shooting movies. Both rose

4

to prominence in the late 1960's and 1970's having shot films such as "Easy Rider,"

5

"Five Easy Pieces," "McCabe and Mrs. Miller," "Deliverance," "Paper Moon," and

6

"Close Encounters of the Third Kind." No Subtitles Necessary tells the story of

7

their lives and careers.

8
9

DEFENDANTS
14.

Defendant Warner/Chappell is a Delaware corporation with its

10

principal place of business located at 10585 Santa Monica Boulevard, Los Angeles,

11

California 90025 and regularly conducts business within this Judicial District.

12

15.

Defendant SBI is a Wyoming corporation with its principal place of

13

business located at 10585 Santa Monica Boulevard, Los Angeles, California 90025.

14

SBI regularly conducts business within this Judicial District, where it may be found.

15

On information and belief, SBI is a subsidiary of Warner/Chappell, having been

16

acquired by Warner/Chappell in or around 1998.

17
18
19

FACTUALBACKGROUND
Good Morning to All and the Popular Adoption of Happy Birthday to You

16.

Sometime prior to 1893, Mildred J. Hill ("Mildred Hill") and her sister

20

Patty Smith Hill ("Patty Hill") (Mildred and Patty Hill are collectively referred to as

21

the "Hill Sisters") authored a written manuscript containing sheet music for 73

22

songs composed or arranged by Mildred Hill, with words written and adapted by

23

Patty Hill.

24

17.

25
26

The manuscript included Good Morning to All, a song written by the

Hill Sisters.
18.

On or about February 1, 1893, the Hill Sisters sold and assigned all

27

their right, title, and interest in the written manuscript to Clayton F. Summy

28

("Summy") in exchange for 10 percent of retail sales of the manuscript. The sale

-51840

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 7 of 40 Page ID #:372

1 included the song Good Morning to All.
2

19.

In or around 1893, Summy published the Hill Sisters' written

3

manuscript with an introduction by Anna E. Bryan ("Bryan") in a songbook titled

4

Song Stories for the Kindergarten. Song Stories for the Kindergarten included the

5

song Good Morning to All.

6
7
8
9
10
11
12

20.

On or about October 16, 1893, Summy filed a copyright application

(Reg. No. 45997) with the Copyright Office for Song Stories for the Kindergarten.
21.

On the October 16, 1893, copyright application, Summy claimed to be

the copyright's proprietor, but not the author of the copyrighted works.
22.

Song Stories for the Kindergarten bears a copyright notice reading

"Copyright 1893, by Clayton F. Summy."
23.

As proprietor of the 1893 copyright in Song Stories for the

13

Kindergarten, Summy asserted copyright ownership in the compilation of songs, as

14

well as, the individual songs published therein, including Good Morning to All.

15

24.

The lyrics to Good Morning to All are:

16

Good morning to you

17

Good morning to you

18

Good morning dear children

19

Good morning to all.

20
21

25.

The lyrics to Happy Birthday to You are set to the melody from the

22

song Good Morning to All. As nearly everyone knows, the lyrics to Happy Birthday

23

to You are:

24

Happy Birthday to You

25

Happy Birthday to You

26
27

28

Happy Birthday dear [NAME]
Happy Birthday to You.

-61841

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 8 of 40 Page ID #:373

1

26.

The lyrics to Happy Birthday to You were not published in Song Stories

2 for the Kindergarten.
3

27.

On or about January 14, 1895, Summy incorporated the Clayton F.

4

Summy Company ("Summy Co.") under the laws of the State of lllinois for a

5

limited term of 25 years. On that same date, Summy purported to assign all his

6

right, title, and interest in Song Stories for the Kindergarten to Summy Co.

7

28.

In 1896, Summy published a new, revised, illustrated, and enlarged

8

version of Song Stories for the Kindergarten, which contained eight previously

9

unpublished songs written by the Hill Sisters as well as illustrations by Margaret

10
11

Byers.
29.

On or about June 18, 1896, Summy filed a copyright application (Reg.

12

No. 34260) with the Copyright Office for the 1896 publication of Song Stories for

13

the Kindergarten.

14
15
16
17
18

30.

On its June 18, 1896, copyright application, Summy again claimed to

be the copyright's proprietor, but (again) not the author of the copyrighted works.
31.

The 1896 version of Song Stories for the Kindergarten bears a

copyright notice reading "Copyright 1896, by Clayton F. Summy."
32.

As proprietor of the 1896 copyright in the revised Song Stories for the

19

Kindergarten, Summy owned the rights to both the songbook as a compilation and

20

the individual songs published therein, including Good Morning to All.

21
22
23

33.

The lyrics to Happy Birthday to You were not published in the 1896

version of Song Stories for the Kindergarten.
34.

In 1899, Summy Co. published 17 songs from the 1893 version of Song

24

Stories for the Kindergarten in a songbook titled Song Stories for the Sunday

25

School. One of those songs included in Song Stories for the Sunday School was

26

Good Morning to All. And yet again, neither the song Happy Birthday nor the lyrics

27

to Happy Birthday were published in "Song Stories for the Sunday School."

28

35.

On or about March 20, 1899, Summy Co. filed a copyright application

-71842

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 9 of 40 Page ID #:374

1 (Reg. No. 20441) with the Copyright Office for Song Stories for the Sunday School.
2
3

36.

On the 1899 copyright application, Summy Co. claimed to be the

copyright's proprietor, but not the author of the copyrighted works.

4

37.

5

This collection of songs has been published in response to earnest requests

6

from various sources. They are taken from the book, Song Stories for the

7

Kindergarten by the MISSES HILL, and are the copyright property of the

8

publishers. (Emphasis added).

9

38.

10
11

The title page to Song Stories for the Sunday School states:

Song Stories for the Sunday School bears a copyright notice reading

"Copyright 1899 by Clayton F. Summy Co."
39.

As proprietor of the 1899 copyright in Song Stories for the Sunday

12

School, Summy Co. owned the rights to both the songbook as a compilation and the

13

individual songs published therein, including Good Morning to All.

14

40.

The lyrics to Happy Birthday to You were not published in Song Stories

15 for the Sunday School.
16

41.

Even though the lyrics to Happy Birthday to You and the song Happy

17

Birthday to You had not been fixed in a tangible medium of expression, the public

18

began singing Happy Birthday to You no later than the early 1900s.

19

42.

For example, in the January 1901 edition of Inland Educator and

20

Indiana School Journal, the article entitled "First Grade Opening Exercises"

21

described children singing the words "happy birthday to you," but did not print the

22

Song's lyrics or melody.

23
24
25
26
27
28

43.

In or about February, 1907, Summy Co. republished the song Good

Morning to All as an individual musical composition.
44.

On or about February 7, 1907, Summy Co. filed a copyright application

(Reg. No. 142468) with the Copyright Office for the song Good Morning to All.
45.

The lyrics to Happy Birthday to You do not appear in the 1907

publication of Good Morning to All.

- 81843

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 10 of 40 Page ID #:375

1
2

46.

In 1907, Fleming H. Revell Co. ("Revell") published the book Tell Me

a True Story, arranged by Mary Stewart, which instructed readers to:

3

Sing: "Good-bye to you, good-bye to you, good-bye dear children, good-

4

bye to you." Also: "Good-bye dear teacher." (From "Song Stories for the

5

Sunday-School," published by Summy & Co.)

6

Sing: "Happy Birthday to You." (Music same as "Good-bye to You.")

7
8

47.

A239690) with the Copyright Office for Tell Me a True Story.
48.

Tell Me a True Story did not include the lyrics to Happy Birthday to

49.

9
10

On or about May 18, 1909, Revell filed an application (Reg. No.

Upon information and belief, the lyrics to Happy Birthday to You

You.

11
12

(without the sheet music for the melody) were first published in 1911 by the Board

13

of Sunday Schools of the Methodist Episcopal Church ("Board of Sunday Schools")

14

in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester

15

Lincoln, as follows:

16

Happy birthday to you, Happy birthday to you, Happy birthday, dear John,

17

Happy birthday to you. (Sung to the same tune as the "Good Morning")

18

[NOTE: The songs and exercises referred to in this program may be found in

19

these books: ... "Song Stories for the Sunday School," by Patty Hill.]

20

50.

On or about January 6, 1912, the Board of Sunday Schools filed a

21

copyright application (Reg. No. A303752) with the Copyright Office for The

22

Elementary Worker and His Work.

23
24
25
26
27
28

51.

The Elementary Worker and His Work attributed authorship or

identified the copyrights to many of the works included in the book. Significantly, it
did not attribute authorship or identify any copyright for the song Happy Birthday to

You.
52.

On or about January 14, 1920, Summy Co. was dissolved in accordance

with its limited (not perpetual) 25-year term of incorporation. Summy Co. did not

-91844

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 11 of 40 Page ID #:376

1 extend or renew the 1893 (Reg. No. 45997) or 1907 (Reg. No. 142468) copyrights
2
3

prior to its dissolution.
53.

Upon information and belief, by 1912, various companies (such as

4

Cable Company Chicago) had begun producing unauthorized printings of sheet

5

music which included the song known today as Happy Birthday (i.e., the melody of

6

Good Morning to You with the lyrics changed to those of Happy Birthday). On

7

information and belief, Cable Company Chicago never asserted copyright ownership

8

in Happy Birthday.

9

Copyright History of Good Morning to All

10

54.

Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights

11

to the original Song Stories for the Kindergarten, Song Stories for the Sunday

12

School, and Good Morning to All were vested solely in their proprietor, Summy Co.

13

55.

Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights

14

to the revised Song Stories for the Kindergarten were vested solely in their

15
16

proprietor, Summy Co.

17

No. 45997) was not extended by Summy Co., and consequently expired on October

18

16, 1921. The original Song Stories for the Kindergarten, including the song Good

19

Morning to All, became dedicated to public use and fell into the public domain by

20
21

no later than that date.

22

No. 34260) was not extended by Summy, and consequently expired on June 18,

23

1924. The revised Song Stories for the Kindergarten became dedicated to public

24

use and fell into the public domain by no later than that date.

25

56.

57.

58.

The copyright to the original Song Stories for the Kindergarten (Reg.

The copyright to the revised Song Stories for the Kindergarten (Reg.

In or around March 1924, the sheet music (with accompanying lyrics)

26

to Happy Birthday to You was in a songbook titled Harvest Hymns, published,

27

compiled, and edited by Robert H. Coleman ("Coleman"). Upon information and

28

belief, Harvest Hymns was the first time the melody and lyrics of Happy Birthday to

- 101845

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 12 of 40 Page ID #:377

1
2

You were published together.
59.

Coleman did not claim authorship of the song entitled Good Morning

3

to You or the lyrics to Happy Birthday to You. Although Harvest Hymns attributed

4

authorship or identified the copyrights to many of the works included in the book, it

5

did not attribute authorship or identify any copyright for Good Morning to You or

6

Happy Birthday to You.

7

60.

On or about March 4, 1924, Coleman filed a copyright application

8

(Reg. No. A777586) with the Copyright Office for Harvest Hymns. On or about

9

February 11, 1952, the copyright was renewed (Reg. No. R90447) by the Sunday

10
11

School Board of the Southern Baptist Convention.
61.

On or about April 15, 1925, Summy incorporated a new Clayton F.

12

Summy Co. ("Summy Co. II") under the laws of the State of Illinois.

13

information and belief, Summy Co. II was not a successor to Summy Co.; rather, it

14

was incorporated as a new corporation.

15

62.

Upon

The sheet music (with accompanying lyrics) to Happy Birthday to You

16

was again published in 1928 in the compilation Children's Praise and Worship,

17

compiled and edited by A.L. Byers, Bessie L. Byrum, and Anna E. Koglin ("Byers,

18

Byrum & Koglin"). Upon information and belief, Children's Praise and Worship

19

was the first time the song was published under the title Happy Birthday to You.

20

63.

On or about April 7, 1928, Gospel Trumpet Co. ("Gospel") filed a

21

copyright application (Reg. No. A1068883) with the Copyright Office for

22

Children's Praise and Worship.

23

64.

Children's Praise and Worship attributed authorship or identified the

24

copyrights to many of the works included in the book. Significantly, it did not

25

attribute authorship or identify any copyright for the song Happy Birthday to You.

26

65.

Children's Praise and Worship did not provide any copyright notice for

27

the combination of Good Morning to All with the lyrics to Happy Birthday to You,

28

nor did it include the names of Mildred Hill or Patty Hill and did not attribute any

- 111846

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 13 of 40 Page ID #:378

1

2

authorship or ownership to the Hill Sisters.
66.

Upon information and belief, the Hill Sisters had not fixed the lyrics to

3

Happy Birthday to You or the song Happy Birthday to You in a tangible medium of

4

expression, if ever, at any time before Gospel published Children's Praise and

5

Worship in 1928.

6

67.

7
8
9

Upon information and belief, Summy sold Summy Co. II to John F.

Sengstack ("Sengstack") in or around 1930.
68.

Upon information and belief, on or about August 31, 1931, Sengstack

incorporated a third Clayton F. Summy Co. ("Summy Co. III") under the laws of the

10

State of Delaware.

Upon information and belief, Summy Co. III was not a

11

successor to Summy Co. or Summy Co. II; rather, it was incorporated as a new

12

corporation.

13

69.

On May 17, 1933, Summy Co. II was dissolved for failure to pay taxes.

14

70.

On July 28, 1933, Happy Birthday to You was used in the world's first

15

singing telegram.

16

71.

On September 30, 1933, the Broadway show As Thousands Cheer,

17

produced by Sam Harris with music and lyrics written by Irving Berlin, began using

18

the song Happy Birthday to You in public performances.

19

72.

On August 14, 1934, Jessica Hill, a sister of Mildred Hill and Patty

20

Hill, commenced an action against Sam Harris in the Southern District of New

21

York, captioned Hill v. Harris, Eq. No. 78-350, claiming that the performance of

22

Happy to Birthday to You in As Thousands Cheer infringed on the Hill Sisters' 1893

23

and 1896 copyrights to Good Morning to All. Jessica Hill asserted no claim in that

24

action regarding Happy Birthday to You, alone or in combination with Good

25

Morning to All.

26

73.

On January 21, 1935, Jessica Hill commenced an action against the

27

Federal Broadcasting Corp. in the Southern District of New York, captioned Hill v.

28

Federal Broadcasting Corp., Eq. No. 79-312, claiming infringement on the Hill

- 121847

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1 Sisters' 1893 and 1896 copyrights to Good Morning to All. Jessica Hill asserted no
2

claim in that action regarding Happy Birthday to You, alone or in combination with

3

Good Morning to All.

4

74.

In 1934 and 1935, Jessica Hill sold and assigned to Summy Co. ill

5

certain piano arrangements of Good Morning to All, including publishing, public

6

performance, and mechanical reproduction rights, copyright, and extension of

7

copyright in exchange for a percentage of the retail sales revenue from the sheet

8

mUSIC.

9 Applications for Copyright for New Musical Arrangement
10

75.

On or about December 29, 1934, Summy Co. III filed an Application

11

for Copyright for Republished Musical Composition with new Copyright Matter

12

(Reg. No. E45655) with the Copyright Office for the song Happy Birthday.

13

76.

In that December 1934 Application for Copyright, Summy Co. III

14

claimed to be the proprietor of the copyright as a work for hire by Preston Ware

15

Orem ("Orem") and claimed the copyrighted new matter as "arrangement by piano

16

solo."

17

77.

The lyrics to Happy Birthday to You were not included on the work

18

registered with the Copyright Office as Reg. No. E45655. The application did not

19

contain the names of the Hill Sisters and did not claim copyright in the lyrics to

20

Happy Birthday to You alone or in combination with the melody of Good Morning

21

toAll.

22

78.

The work registered with the Copyright Office as Reg. No. E45655 was

23

not eligible for federal copyright protection in that it consisted entirely of

24

information that was common property and contained no original authorship, except

25

as to the arrangement itself.

26

79.

On or about February 18, 1935, Summy Co. Ill filed an Application for

27

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

28

No. E46661) with the Copyright Office for the song Happy Birthday.

- 131848

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 15 of 40 Page ID #:380

1

80.

In that February 1935 Application for Copyright, Summy Co. III

2

claimed to be the proprietor of the copyright as a work for hire by Orem and claimed

3

the copyrighted new matter as "arrangement for four hands at one piano."

4

81.

The lyrics to Happy Birthday to You were not included on the work

5

registered with the Copyright Office as Reg. No. E46661. The application did not

6

contain the names of the Hill Sisters and did not claim copyright in the lyrics to

7

Happy Birthday to You alone or in combination with the melody of Good Morning

8

toAll.

9

82.

The work registered with the Copyright Office as Reg. No. E46661 was

10

not eligible for federal copyright protection in that it consisted entirely of

11

information that was common property and contained no original authorship, except

12

as to the arrangement itself.

13

83.

On or about April 5, 1935, Summy Co. III filed an Application for

14

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

15

No. E47439) with the Copyright Office for the song Happy Birthday.

16

84.

In that April 1935 Application for Copyright, Summy Co. III claimed

17

to be the proprietor of the copyright as a work for hire by Orem and claimed the

18

copyrighted new matter as "arrangement of second piano part."

19

85.

The lyrics to Happy Birthday to You were not included on the work

20

registered with the Copyright Office as Reg. No. E47439.

21

contain the names of the Hill Sisters and did not claim copyright in the lyrics to

22

Happy Birthday to You alone or in combination with the melody of Good Morning

23

toAll.

24

86.

The application did not

The work registered with the Copyright Office as Reg. No. E47439 was

25

not eligible for federal copyright protection in that it consisted entirely of

26

information that was common property and contained no original authorship, except

27

as to the arrangement itself.

28

87.

On or about April 5, 1935, Summy Co. Ill filed an Application for

- 141849

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 16 of 40 Page ID #:381

1 Copyright for Republished Musical Composition with new Copyright Matter (Reg.
2

No. E47440) with the Copyright Office for the song Happy Birthday.

3

88.

In that additional April1935 Application for Copyright, Summy Co. III

4

claimed to be the proprietor of the copyright as a work for hire by Orem and claimed

5

the copyrighted new matter as "arrangement for six hands at one piano."

6

89.

The lyrics to Happy Birthday to You were not included on the work

7

registered with the Copyright Office as Reg. No. E47440. The application did not

8

contain the names of the Hill Sisters and did not claim copyright in the lyrics to

9

Happy Birthday to You alone or in combination with the melody of Good Morning

10
11

toAll.
90.

The work registered with the Copyright Office as Reg. No. E47440 was

12

not eligible for federal copyright protection in that it consisted entirely of

13

information that was common property and contained no original authorship, except

14

as to the arrangement itself.

15

91.

On December 9, 1935, Summy Co. III filed an Application for

16

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

17

No. E51988) with the Copyright Office for Happy Birthday to You.

18

92.

In that December 1935 Application for Copyright, Summy Co. III

19

claimed to be the proprietor of the copyright as a work for hire by R.R. Forman

20

("Forman") and claimed the copyrighted new matter as "arrangement for Unison

21

Chorus and revised text." The sheet music deposited with the application credited

22

Forman only for the arrangement, not for any lyrics, and did not credit the Hill

23

Sisters with writing the lyrics to Happy Birthday to You.

24

93.

For the first time, the lyrics to Happy Birthday to You, including a

25

second verse as the revised text, were included on the work registered with the

26

Copyright Office as Reg. No. E51988. However, the December 1935 Application

27

for Copyright did not attribute authorship of the lyrics to either of the Hill Sisters

28

and did not claim copyright in the lyrics to Happy Birthday to You alone or in

- 151850

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 17 of 40 Page ID #:382

1 combination with the melody of Good Morning to All.
2

94.

The work registered with the Copyright Office as Reg. No. E51988 was

3

not eligible for federal copyright protection in that it consisted entirely of

4

information that was common property and contained no original authorship, except

5

as to the sheet music arrangement itself.

6

95.

The work registered as Reg. No. E51988 was not eligible for federal

7

copyright protection because Summy Co. III did not have authorization from the

8

author to publish that work.

9

96.

On December 9, 1935, Summy Co. III filed an Application for

10

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

11

No. E51990) with the Copyright Office for Happy Birthday to You.

12

97.

In that additional December 1935 Application for Copyright, Summy

13

Co. III claimed to be the proprietor of the copyright as a work for hire by Orem and

14

claimed the copyrighted new matter as "arrangement as easy piano solo, with text."

15

The sheet music deposited with the application credited Orem only for the

16

arrangement, not for any lyrics, and did not credit the Hill Sisters with writing the

17

lyrics to Happy Birthday to You.

18

98.

The lyrics to Happy Birthday to You were included on the work

19

registered with the Copyright Office as Reg. No. E51990. However, the additional

20

December 1935 Application for Copyright did not attribute authorship of the lyrics

21

to either of the Hill Sisters, did not contain the names of either of the Hill Sisters,

22

and did not claim any copyright in the lyrics to Happy Birthday to You alone or in

23

combination with the melody of Good Morning to All.

24

99.

The work registered with the Copyright Office as Reg. No. E51990 was

25

not eligible for federal copyright protection in that it consisted entirely of

26

information that was common property and contained no original authorship, except

27

as to the sheet music arrangement itself.

28

- 161851

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1

100. The work registered as Reg. No. E51990 was not eligible for federal

2

copyright protection because Summy Co. III did not have authorization from the

3

author to publish that work.

4

101. Based upon information and belief, in or about February, 1938, Summy

5

Co. III purported to grant to ASCAP the right to license Happy Birthday to You for

6

public performances and to collect fees for such use on behalf of Summy Co. III.

7

ASCAP thus began working as agent for Summy Co. III in collecting fees for

8

Summy Co. III for licensing Happy Birthday to You.

9
10

102. On or about June 8, 1942, Patty Hill and Jessica Hill assigned all of
their interest in the 1893, 1896, 1899 and 1907 copyrights to The Hill Foundation.

11

103. On October 15, 1942, The Hill Foundation commenced an action

12

against Summy Co. III in the Southern District of New York, captioned The Hill

13

Foundation, Inc. v. Clayton F. Summy Co., Case No. 19-377, for an accounting of

14

the royalties received by Summy Co. III for the licensing of Happy Birthday to You.

15

The Hill Foundation asserted claims under the 1893, 1896, 1899, and 1907

16

copyrights for Good Morning to All and did not claim any copyright to the lyrics to

17

Happy Birthday to You, alone or in combination with the melody of Good Morning

18

to All.

19

104. On March 2, 1943, The Hill Foundation commenced an action against

20

the Postal Telegraph Cable Company in the Southern District of New York,

21

captioned The Hill Foundation, Inc. v. Postal Telegraph-Cable Co., Case No. 20-

22

439, for infringement of the Hill Sisters' purported 1893, 1896, and 1899 copyrights

23

to Good Morning to All. The Hill Foundation asserted claims only under the 1893,

24

1896, and 1899 copyrights for Good Morning to All and did not claim any copyright

25

to the lyrics to Happy Birthday to You, alone or in combination with the melody of

26

Good Morning to All.

27

105. Despite the filing of at least four prior cases in the Southern District of

28

New York asserting copyrights to Good Morning to All, there has been no judicial

- 171852

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1

determination of the validity or scope of any copyright related to Good Morning to

2

All.

3
4

106. In or about 1957, Summy Co. III changed its name to Summy-Birchard
Company.

5

107. In 1962, Summy Co. III (renamed as Summy-Birchard Company) filed

6

renewals for each of the six registrations it obtained in 1934 and 1935 (Reg. Nos.

7

E45655, E46661, E47439, E47440, E51988, and E51990), each renewal was

8

specifically and expressly confined to the musical arrangements.

9

108. In particular, on December 6, 1962, Summy Co. III filed a renewal

10

application for Reg. No. E51988, as employer for hire of Forman. Forman did not

11

write the lyrics to Happy Birthday to You or the combination of those lyrics with the

12

melody of Good Morning to All, and neither Summy Co. III nor Defendants have

13

claimed otherwise.

14

109. Also on December 6, 1962, Summy Co. III filed a renewal application

15

for Reg. No. E51990, as employer for hire of Orem. Orem did not write the lyrics to

16

Happy Birthday to You or the combination of those lyrics with the melody of Good

17

Morning to All, and neither Summy Co. III nor Defendants have claimed otherwise.

18

110. Summy-Birchard Company was renamed Birch Tree Ltd. in the 1970s

19

and was acquired by Warner/Chappell in or about 1998. On information and belief,

20

this entity now operates as "Summy Birchard, Inc." - currently a subsidiary of

21

Warner/Chappell and Warner/Chappell's co-Defendant herein.

22

Happy Birthday to You -100 Years Later

23
24
25
26

111. According to a 1999 press release by ASCAP, Happy Birthday to You
was the most popular song of the 20th Century.
112. The 1998 edition of the Guinness Book of World Records identified
Happy Birthday to You as the most recognized song in the English language.

27
28

113. Defendant Warner/Chappell currently claims it owns the exclusive

- 181853

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1 copyright to Happy Birthday to You based on the piano arrangements that Summy
2

Co. III published in 1935.

3

114. ASCAP provides non-dramatic public performance licenses to bars,

4

dubs, websites, and many other venues.

ASCAP "blanket licenses" grant the

5

licensee the right to publicly perform any or all of the over 8.5 million songs in

6

AS CAP's repertory in exchange for an annual fee. The non-dramatic public

7

performance license royalties are distributed to ASCAP members based on surveys

8

of performances of each ASCAP repertory song across different media. As an

9

ASCAP member and assignee of the copyrights in Happy Birthday to You,

10

Defendant Warner/Chappell obtains a share of blanket license revenue that would

11

otherwise be paid to all other AS CAP members, in proportion to their songs' survey

12 shares.
13 PlaintiffGMTY's Use of Happy Birthday to You
14
15

115. Plaintiff GMTY is producing a documentary movie, tentatively titled
Happy Birthday, about the song Happy Birthday to You.

16
17

116. In one of the proposed scenes to be included in Happy Birthday, the
song Happy Birthday to You is to be sung.

18
19

117. During the production process, plaintiff GMTY learned that defendant
Warner/Chappell claimed exclusive copyright ownership to Happy Birthday to You.

20

118. Accordingly, in September 2012, plaintiff requested a quote from

21

Warner/Chappell for a synchronization license to use Happy Birthday to You from

22

Warner/Chappell's website.

23

119. On or about September 18, 2012, defendant Warner/Chappell

24

responded to plaintiff GMTY' s inquiry by demanding that GMTY pay it the sum of

25

$1 ,500 and enter into a synchronization license agreement to use Happy Birthday to

26

You.

27

120. On or about March 12, 2013, defendant Warner/Chappell agam

28

contacted plaintiff GMTY and insisted that GMTY was not authorized to use Happy

- 191854

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1 Birthday to You unless it paid the licensing fee of $1 ,500 and entered into the
2

synchronization license that Warner/Chappell demanded.

3

121. Because defendant Warner/Chappell notified plaintiff GMTY that it

4

claimed exclusive copyright ownership of Happy Birthday to You, GMTY faced a

5

statutory penalty of up to $150,000 under the Copyright Act if it used the song

6

without Warner/Chappell's permission if Warner/Chappell, in fact, owned the

7

copyright that it claimed.

8

122. Faced with a threat of substantial penalties for copyright infringement,

9

on or about March 26, 2013, plaintiff GMTY was forced to and did pay defendant

10

Warner/Chappell the sum of $1,500 for a synchronization license and, on or about

11

April 24, 2013, GMTY was forced to and did enter into the synchronization license

12

agreement to use Happy Birthday to You.

13

Plaintiff Siegel's Use of Happy Birthday to You

14

123. BIG FAN produced a movie titled Big Fan.

15

124. In one of the scenes in Big Fan, the song Happy Birthday to You was

16

sung.

17
18

125. During the production process, Plaintiff Siegel learned that defendant
Warner/Chappell claimed exclusive copyright ownership to Happy Birthday to You.

19

126. Accordingly, in July 2009, Plaintiff Siegel requested a quote from

20

Warner/Chappell for a Synchronization License to use Happy Birthday to You in Big

21

Fan.

22

127. On or about July 20, 2009, defendant Warner/Chappell responded to

23

plaintiff Siegel's inquiry by demanding that BIG FAN pay it the sum of $3,000 and

24

enter into a Synchronization License for use of Happy Birthday to You.

25

128. Because Defendant Warner/Chappell notified BIG FAN that it claimed

26

exclusive copyright ownership of Happy Birthday to You, BIG FAN faced a

27

statutory penalty of $150,000 under the Copyright Act, 17 U.S.C. § 101 et seq. if

28

-201855

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 22 of 40 Page ID #:387

1 BIG
2

FAN

used

the

Song

without

Warner/Chappell's

permission

and

Warner/Chappell, in fact, owned the copyright that it claimed.

3

129. On July 20, 2009, Plaintiff Siegel as President of BIG FAN executed

4

the Synchronization License with Warner/Chappell and agreed to pay $3,000 based

5

upon Big Fan's theatrical release.

6

130. Faced with a threat of substantial penalties for copyright infringement,

7

on or about September 1, 2009, BIG FAN was forced to, and did, pay defendant

8

Warner/Chappell the sum of $3,000 pursuant to the Synchronization License.

9

Rupa's Performance of Happy Birthday to You

10

131. PlaintiffRupa d/b/a RTAF recorded the song Happy Birthday to You at

11

a live show in San Francisco, to be released as part of a "live" album. She learned

12

that defendant Warner/Chappell claimed exclusive copyright ownership to Happy

13

Birthday to You, including the right to issue mechanical licenses.

14

132. Section 115 of the Copyright Act provides for compulsory licenses for

15

the distribution of phonorecords and digital phonorecord deliveries (i.e., Web-based

16

"downloads") of musical compositions. Failure to obtain such a license prior to

17

distribution of a cover version of a song constitutes a copyright infringement subject

18

to the full remedies of the Copyright Act.

19

133. Accordingly, on June 17, 2013, Plaintiff Rupa provided a Notice of

20

Intention

to

Obtain Compulsory License

to

Warner/Chappell

and paid

21

Warner/Chappell $455 for a mechanical license for the reproduction and distribution

22

of 5,000 copies of the Song.

23

Plaintiff Majar Use of Happy Birthday to You

24

134. Plaintiff Majar wished to use the Happy Birthday in the opening scene

25

of the Film, wherein Zsigmond and others sang the Happy Birthday to You to

26

Kovacs in a celebration of Kovacs' life and the friendship of the two, thereby setting

27

the tone for the Film.

28

claimed exclusive copyright ownership to Happy Birthday, including for purposes

Plaintiff Majar learned that defendant Warner/Chappell

- 211856

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 23 of 40 Page ID #:388

1 of issuing synchronization licenses. Accordingly, on or about October 29, 2009,
2

Plaintiff Majar paid to defendant Warner/Chappell the sum of $5000 for a

3

synchronization license to use Happy Birthday in the Film.

4

CLASS ALLEGATIONS

5

135. Plaintiffs GMTY, Siegel, Rupa and Majar bring this action under

6

Federal Rules of Civil Procedure 23(a) and (b) as a class action on behalf of

7

themselves and all others similarly situated for the purpose of asserting the claims

8

alleged in this Consolidated First Amended Complaint on a common basis.

9

136. The proposed Class is comprised of:

10

AU persons or entities (excluding Defendants' directors, officers,

11

employees,

12

Warner/Chappell, or paid Warner/Chappell or SBI, directly or indirectly

13

through its agents, a licensing fee for the song Happy Birthday to You at

14

any time from June 18,2009, until Defendants' conduct as alleged herein

15

has ceased.

16

137. Although Plaintiffs GMTY, Siegel, Rupa, and Majar do not know the

17

exact size of the Class or the identities of all members of the Class, upon

18

information and belief that information can be readily obtained from the books and

19

records of defendant Wamer/Chappell. Plaintiffs believe that the Class includes

20

thousands of persons or entities who are widely geographically disbursed. Thus, the

21

proposed Class is so numerous that joinder of all members is impracticable.

22
23

24

affiliates)

who

entered

into

a

license

with

138. The claims of all members of the Class involve common questions of
law and fact including:
a.

25
26

and

whether Happy Birthday to You is in the public domain and dedicated
to public use;

b.

whether Wamer/Chappell is the exclusive owner of the copyright to

27

Happy Birthday to You and is thus entitled to all of the rights conferred

28

in 17 U.S.C. § 102;

-221857

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 24 of 40 Page ID #:389

1

c.

2
3

whether Warner/Chappell has the right to collect fees for the use of
Happy Birthday to You;

d.

whether Warner/Chappell has violated the law by demanding and

4

collecting fees for the use of Happy Birthday to You despite not having

5

a valid copyright to the song; and

6

e.

whether Warner/Chappell is required to return unlawfully obtained

7

payments to plaintiffs GMTY, Siegel, Rupa and Majar and the other

8

members of the Class and, if so, what amount is to be returned.

9
10

139. With respect to Claims III and VII, the common questions of law and
fact predominate over any potential individual issues.

11

140. Plaintiffs GMTY, Siegel, Rupa and Majar's claims are typical of the

12

claims of all other members of the Class and plaintiffs GMTY, Siegel, Rupa and

13

Majar' s interests do not conflict with the interests of any other member of the Class,

14

in that plaintiffs and the other members of the Class were subjected to the same

15

unlawful conduct.

16

141. Plaintiffs GMTY, Siegel, Rupa and Majar are committed to the

17

vigorous prosecution of this action and have retained competent legal counsel

18

experienced in class action and complex litigation.

19

142. Plaintiffs are adequate representatives of the Class and, together with

20

their attorneys, are able to and will fairly and adequately protect the interests of the

21

Class and its members.

22

143. A class action is superior to other available methods for the fair, just,

23

and efficient adjudication of the claims asserted herein. Joinder of all members of

24

the Class is impracticable and, for financial and other reasons, it would be

25

impractical for individual members of the Class to pursue separate claims.

26

144. Moreover, the prosecution of separate actions by individual members

27

of the Class would create the risk of varying and inconsistent adjudications, and

28

would unduly burden the courts.

-231858

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1
2

145. Plaintiffs GMTY, Siegel, Rupa and Majar anticipate no difficulty in the
management of this litigation as a class action.

3

FIRST CLAIM FOR RELIEF

4

DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201

5

(On Behalf Of Plaintiffs And The Class)

6

(Against Defendants)

7
8

146. Plaintiffs repeat and reallege paragraphs 1 through 145 set forth above
as though they were fully set forth herein.

9

147. Plaintiffs bring these claims individually on behalf of themselves and

10

on behalf of the proposed Class pursuant to Rule 23(b)(2) of the Federal Rules of

11

Civil Procedure.

12

148. Plaintiffs seek adjudication of an actual controversy arising under the

13

Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with Defendants' purported

14

copyright claim to Happy Birthday to You. Plaintiffs seek the Court's declaration

15

that the Copyright Act does not bestow upon Warner/Chappell and/or SBI the rights

16

it has asserted and enforced against plaintiffs and the other members of the Class.

17

149. Defendants assert that they are entitled to mechanical and performance

18

royalties pursuant to 17 U.S.C. § 115 for the creation and distribution of

19

phonorecords and digital downloads of the composition Happy Birthday to You,

20

under threat of a claim of copyright infringement

21

150. Defendant Warner/Chappell demanded that plaintiff GMTY enter into

22

a synchronization license agreement to use Happy Birthday to You and pay

23

Warner/Chappell the sum of $1,500 for that synchronization license based upon its

24

claim of copyright ownership. Warner/Chappell's demand was coercive in nature,

25

and GMTY' s entering into the license agreement and payment of $1 ,500 was

26

involuntary.

27

151. Plaintiff GMTY's claim presents a justiciable controversy because

28

plaintiff GMTY' s agreement to pay defendant Warner/Chappell and its actual

-241859

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 26 of 40 Page ID #:391

1 payment to Warner/Chappell for use of the song Happy Birthday to You in its film
2

was the involuntary result of Warner/Chappell's assertion of a copyright and the risk

3

that plaintiff GMTY would be exposed to substantial statutory penalties under the

4

Copyright Act had it failed to enter such an agreement and pay Warner/Chappell the

5

price it demanded.

6

152. Defendant Warner/Chappell demanded that BIG FAN as assignor of

7

plaintiff Siegel enter into the Synchronization License agreement to use Happy

8

Birthday to You and pay Warner/Chappell the sum of $3,000 for that

9

Synchronization License based upon its claim of copyright ownership.

10

Warner/Chappell's demand was coercive in nature, and BIG FAN'S entering into

11

the Synchronization License and payment of $3,000 was involuntary.

12

153. Plaintiff Siegel's claim presents a justiciable controversy because

13

plaintiff Siegel's agreement to pay defendant Warner/Chappell and its actual

14 payment to Warner/Chappell for use of the song Happy Birthday to You in its film
15

Big Fan, was the involuntary result of Warner/Chappell's assertion of a copyright

16

and the risk that plaintiff Siegel would be exposed to substantial statutory penalties

17

under the Copyright Act had it failed to enter such an agreement and pay

18

Warner/Chappell the price it demanded, but then used Happy Birthday to You in its

19

film anyway.

20

154. Plaintiff Rupa's claim presents a justiciable controversy because

21

plaintiff Rupa's agreement to pay defendant Warner/Chappell and its actual

22 payment to Warner/Chappell for use of the song Happy Birthday to You in her
23

album, was the involuntary result of Warner/Chappell's assertion of a copyright and

24

the risk that plaintiff Rupa would be exposed to substantial statutory penalties under

25

the Copyright Act had she failed to enter such an agreement and pay

26

Warner/Chappell standard mechanical license royalties it demanded, but then paid

27

for the mechanical license anyway.

28

-251860

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 27 of 40 Page ID #:392

1

155. Defendants demanded that Plaintiff Majar pay to Defendants a

2

licensing fee in the sum of $5000 pursuant to Defendants' claim of copyright

3

ownership, in order for Plaintiff Majar to use Happy Birthday in the Film.

4
5

Defendants' demand was coercive in nature and Majar's agreement to pay the fee
was involuntary.

6

156. Plaintiff Majar's claim presents a justiciable controversy because its

7

actual payment of Defendants' demanded fee to use Happy Birthday in the Film was

8

the involuntary result of Defendants' assertion of a copyright and the risk that

9

Plaintiff Majar would be exposed to substantial statutory penalties under the

10
11

Copyright Act had it failed to seek Defendants' approval to use the Song and/or
failed to pay Defendants' demanded fee.

12

157. Plaintiffs seek the Court's determination as to whether Defendants are

13

entitled to assert ownership of the copyright to Happy Birthday to You against

14

Plaintiffs pursuant to the Copyright Act as Defendants claim, or whether Defendants

15

are wielding a false claim of ownership to inhibit Plaintiffs' use and enjoyment (and

16
17

the public's use and enjoyment) of intellectual property which is rightfully in the

18
19

158. If and to the extent that Defendants relies upon the 1893, 1896, 1899,
or 1907 copyrights for the melody for Good Morning to All, those copyrights

20

expired or were forfeited as alleged herein.

public domain.

21

159. As alleged above, the 1893 and 1896 copyrights to the original and

22

revised versions of Song Stories for the Kindergarten, which contained the song

23

Good Morning to All, were not renewed by Summy Co. or Summy and accordingly

24

expired in 1921 and 1924, respectively.

25

160. As alleged above, the 1893 copyright to Song Stories for the

26

Kindergarten and the 1899 copyright to Song Stories for the Sunday School, which

27

contained Good Morning to All, and the 1907 copyright to Good Morning to All

28

were not renewed by Summy Co. before Summy Co. was dissolved in 1920 and

-261861

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 28 of 40 Page ID #:393

1

accordingly, those copyrights expired in 1927 and 1935, respectively.

2

161. The 1893, 1896, 1899, and 1907 copyrights to Good Morning to All

3

were forfeited by the republication of Good Morning to All in 1921 without proper

4

notice of its original 1893 copyright

5
6

162. The copyright to Good Morning to All expired in 1921 because the
1893 copyright to Song Stories for the Kindergarten was not properly renewed.

7

163. The piano arrangements for Happy Birthday to You published by

8

Summy Co. III in 1935 (Reg. Nos. E51988 and E51990) were not eligible for

9

federal copyright protection because those works did not contain original works of

10
11
12

authorship, except to the extent of the piano arrangements themselves.
164. The 1934 and 1935 copyrights pertained only to the p1ano
arrangements, not to the melody or lyrics of the song Happy Birthday to You.

13

165. The registration certificates for The Elementary Worker and His Work

14

in 1912, Harvest Hymns in 1924, and Children's Praise and Worship in 1928, which

15

did not attribute authorship of the lyrics to Happy Birthday to You to anyone, are

16 prima facie evidence that the lyrics were not authored by the Hill Sisters.
17

166. If declaratory relief is not granted, defendant Warner/Chappell will

18

continue wrongfully to assert the exclusive copyright to Happy Birthday to You at

19

least until 2030, when the current term of the copyright expires under existing

20

copyright law.

21

167. Plaintiffs therefore request a declaration that:

22

(a)

23

copyright to, or possess the exclusive right to reproduce, distribute, or

24

publicly perform, Happy Birthday To You;

25

(b)

26

exclusive right to demand or grant a license for use of Happy Birthday To

27

You;and

defendant Warner/Chappell and defendant SBI do not own the

defendant Warner/Chappell and defendant SBI do not own the

28

-271862

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 29 of 40 Page ID #:394

Happy Birthday to You is in the public domain and is dedicated to the

1

(c)

2

public use.

3

SECOND CLAIM FOR RELIEF

4

UPON ENTRY OF DECLARATORY JUDGMENT

5

DECLARATORY AND INJUNCTIVE RELIEF

6

PURSUANT TO 28 U.S.C § 2202

7

(On Behalf of Plaintiffs and the Class)

8

(Against Defendant Warner/Chappell)

9
10

168. Plaintiffs repeat and reallege paragraphs 1 through 167 set forth above
as though they were fully set forth herein.

11

169. Plaintiffs bring these claims individually on their own behalf and on

12

behalf of the Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil

13

Procedure.

14

170. Under 28 U.S.C. § 2202 empowers this Court to grant, "necessary or

15

proper relief based on a declaratory judgment or decree . . . after reasonable notice

16

and hearing, against any adverse party whose rights have been determined by such

17 judgment."
18

171. Plaintiffs and the other proposed Class members have been harmed,

19

and Defendants have been unjustly enriched, by Defendant Warner/Chappell's

20

takings.

21
22

172. Plaintiffs seek relief for themselves and the other members of the
proposed Class upon the entry of declaratory judgment upon Claim I, as follows:

23

(a)

an injunction to prevent Defendants Warner/Chappell and SBI from

24

making further representations of ownership of the copyright to Happy

25

Birthday To You;

26

(b)

27

to Defendants, directly or indirectly through its agents, in connection with the

28

purported licenses it granted to Plaintiffs GMTY, Siegel, Rupa and Majar and

restitution to Plaintiffs and the other Class members of license fees paid

-281863

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 30 of 40 Page ID #:395

1

the other Class members;

2

(c)

3

directly or indirectly through its agents, from plaintiffs and the other Class

4

members in connection with its claim to ownership of the copyright to Happy

5

Birthday to You; and

6

(d)

an accounting for all monetary benefits obtained by Defendants,

such other further and proper relief as this Court sees fit.

7

THIRD CLAIM FOR RELIEF

8

UNFAIR BUSINESS ACTS AND PRACTICES IN VIOLATION OF

9

CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200 ET SEQ.

10

(On Behalf of Plaintiffs and the Class)

11

(Against Defendants)

12
13

173. Plaintiffs repeat and reallege paragraphs 1 through 172 set forth above
as though they were fully set forth herein.

14

174. Plaintiffs GMTY, Siegel, Rupa, and Majar bring these claims

15

individually on their own behalf, and also on behalf of the Class pursuant to Rule

16

23(b)(3) of the Federal Rules of Civil Procedure.

17

175. As alleged herein, Plaintiffs GMTY, Siegel, Rupa and Majar and the

18

other Class members have paid licensing fees to defendants Warner/Chappell and/or

19

SBI and have therefore suffered injury in fact and have lost money or property as a

20

result of Defendants' conduct.

21

176. California's Unfair Competition Laws, Business & Professions Code

22

§§ 17200 et seq. ("UCL"), prohibit any unlawful or unfair business act or practice.

23

177. UCL § 17200 further prohibits any fraudulent business act or practice.

24

178. Defendants'

actions,

claims,

nondisclosures,

and

misleading

25

statements, as alleged in this Complaint, were unfair, false, misleading, and likely to

26

deceive the consuming public within the meaning of UCL §§ 17200, 17500.

27

179. The conduct of Defendants in exerting control over exclusive copyright

28

ownership to Happy Birthday to You to extract licensing fees is deceptive and

-291864

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 31 of 40 Page ID #:396

1

misleading because neither Warner/Chappell nor SBI own the rights to Happy

2

Birthday to You.

3

180. Plaintiffs and the other members of the Class have, in fact, been

4

deceived as a result of their reasonable reliance upon Defendants' materially false

5

and misleading statements and omissions, as alleged above.

6

181. As a result of Defendants' unfair and fraudulent acts and practices as

7

alleged above, Plaintiffs and the other Class members have suffered substantial

8

monetary injuries.

9

182. Plaintiffs and the other Class members reserve the right to allege other

10

violations of law which constitute other unfair or deceptive business acts or

11

practices. Such conduct is ongoing and continues to this date.

12
13

183. As a result of its deception, Defendants Warner/Chappell and SBI have
been able to reap unjust revenue and profit.

14

184. Upon information and belief, Defendants have collected and continue

15

to collect at least $2 million per year in licensing fees for Happy Birthday to You.

16

Therefore, the amount in controversy exceeds $5 million in the aggregate.

17
18

185. Unless restrained and enjoined, Defendants will continue to engage in
the above-described conduct. Accordingly, injunctive relief is appropriate.

19

186. Plaintiffs, individually on their own behalf and on behalf of the other

20

members of the Class, seek restitution and disgorgement of all money obtained from

21

Plaintiffs and the other members of the Class, collected as a result of unfair

22

competition, and all other relief this Court deems appropriate, consistent with UCL

23

§ 17203.

24

FOURTH CLAIM FOR RELIEF

25

BREACH OF CONTRACT

26

(On Behalf of Plaintiffs and the Class Against All Defendants)

27
28

187. Plaintiffs repeat and reallege each and every foregoing allegation as
though fully set forth herein.

-301865

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 32 of 40 Page ID #:397

1

188. Plaintiffs

entered

into

license

agreements

with

Defendant

2

Warner/Chappell wherein Warner/Chappell represented and warranted that it and/or

3
4

its co-Defendant SBI owned the rights to Happy Birthday as licensed therein.

5
6

agreements are the same or substantially similar as to all Class members,
particularly with respect to Defendants' claim of ownership of the copyright to

7

Happy Birthday.

8

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

26

189. Plaintiffs are informed and believe that Defendants' licensing

190. Plaintiffs and the Class have satisfied their obligations under each such
licensing agreement with Warner/Chappell.
191. As alleged herein, Defendants do not own the copyright interests
claimed in Happy Birthday and, as a result of its unlawful and false assertions of the
same, Defendants have violated the representations and warranties made in the
licensing agreements, thereby materially breaching the licensing agreements.
192. Byreason of the foregoing, Plaintiffs and the Class have been damaged
in an amount to be determined at trial.

FIFTH CLAIM FOR RELIEF
COMMON COUNT FOR MONEY HAD AND RECEIVED
(On Behalf of Plaintiffs and the Class)
(Against Defendants)
193. Plaintiffs repeat and reallege paragraphs 1 through 192 set forth above
as though they were fully set forth herein.
194. Within the last four years, Defendants Warner/Chappell and/or SBI
became indebted to Plaintiffs and all class members for money had and received by
Defendants for the use and benefit of Plaintiffs and class members. The money in
equity and good conscience belongs to Plaintiffs and class members.

27

28

- 311866

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 33 of 40 Page ID #:398

1

SIXTH CLAIM FOR RELIEF

2

RESCISSION FOR FAILURE OF CONSIDERATION

3

(On Behalf of Plaintiffs and the Class)

4

(Against Defendants)

5
6
7
8

9
10

195. Plaintiffs repeat and reallege paragraphs 1 through 194 set forth above
as though they were fully set forth herein.

196. Defendants' purported licenses were worthless and ineffective, and do
not constitute a valid consideration.

197. The complete lack of consideration obviates any need for notice to
Defendants.

SEVENTH CLAIM FOR RELIEF

11

12 FALSE ADVERTISING, CAL. BUS. & PROF. CODE§§ 17500 ET SEQ.
13

(On Behalf of Plaintiffs and the Class)

14

(Against Defendants)

15
16

198. Plaintiffs repeat and reallege paragraphs 1 through 197 set forth above
as though they were fully set forth herein.

17

199. On information and belief, Defendants Warner/Chappell and SBI

18

intended to induce the public to enter into an obligation related to its alleged

19

property, namely the composition Happy Birthday to You.

20

200. Defendants Warner/Chappell and/or SBI publicly disseminated

21

advertising which contained statements which were untrue and misleading and

22

which concerned the composition Happy Birthday to You, for which they

23

improperly sought and received licensing fees. Defendants knew, or in the exercise

24

of reasonable care should have known, that these statements were untrue and

25

misleading.

26
27

201. Plaintiffs and class members have suffered injury in fact and have lost
money as a result of such unfair competition.

28

-321867

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 34 of 40 Page ID #:399

1

DEMAND FOR .JURY TRIAL

2

Plaintiffs GMTY, Siegel, Rupa and Majar hereby demand a trial by jury to the

3

extent that the allegations contained herein are triable by jury under Federal Rules of

4

Civil Procedure 38-39.

5

PRAYER RELIEF

6

WHEREFORE, Plaintiffs GMTY, Siegel, Rupa and Majar on behalf of

7

themselves and the other members of the Class, pray for judgment against

8

Defendants as follows:

9

A.

certifying the Class as requested herein;

10

B.

declaring that the song Happy Birthday to You is not protected

11

by federal copyright law, is dedicated to public use, and is in the public

12

domain;

13

C.

14

from asserting any copyright to the song Happy Birthday to You;

15

D.

16

from charging or collecting any licensing or other fees for use of the

17

song Happy Birthday to You;

18

E.

19

Warner/Chappell and SBI unlawfully collected from plaintiffs, the

20

other members of the Class, and ASCAP for use of the song Happy

21

Birthday to You;

22

F.

23

Plaintiffs and the other members of the Class all the licensing or other

24

fees they have collected from them, directly or indirectly through its

25

agents, for use of the song Happy Birthday to You, together with

26

interest thereon;

27

G.

28

restitution for defendant Warner/Chappell and SBI' s prior acts and

permanently enJommg Defendants Warner/Chappell and SBI
permanently enjoining Defendants Warner/Chappell and SBI

imposing a constructive trust upon the money Defendants

ordering Defendants Warner/Chappell and SBI to return to

awarding Plaintiffs and the other members of the Class

-331868

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 35 of 40 Page ID #:400

1

practices;

2

H.

3

costs; and

4

I.

5

proper.

6

7
8

9
10

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

awarding Plaintiffs and the Class reasonable attorneys' fees and
granting such other and further relief as the Court deems just and

Dated: August 21, 2013

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

By:rD~~SYC.MA OLD
c~~M
B
FRANCIS M. GREGOREK (144785)
BETSY C. MANIFOLD (182450)
RACHELE R. RICKERT (190634)
MARISA C. LIVESAY (223247)
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599
[e-mail]
manifold @whafh.com
[e-mail]
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (Pro Hac Vice)
JANINE POLLACK (Pro Hac Vice)
BETH A. LANDES (Pro Hac Vice)
GITI BAGHBAN
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753
rifkin @whafh.com
[e-mail]

-341869

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 36 of 40 Page ID #:401

Iandes @whafh.com
baghban @whafh.com

1
2
3

RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]
Facsimile: 212/797-3172
rsn@ randallnewman.net

4
5
6
7
8

DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
ANDREWS. MACKAY (197074)
DANIEL J. SCHACHT (259717)
1999 Harrison Street, 25t11 Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486
rock @donahue.com
[e-mail]
daniel @donahue. com

9
10
11

12
13
14
15
16
17
18
19
20

Dated: August 21,2013

By:

21
22
23
24

LIONEL Z. GLANCY (134180)
MARC L. GODINO (182689)
KA1lAM. WOLKE(24152}) ···.·

1925 Century ,Par~ ];!~, Su1te 2100
CA90007

lOY ~01~?150

25

e: ( J0)20l"'9l~O

26
27
28

-35-

1870

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 37 of 40 Page ID #:402
" '

HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
KATHERINE J. ODENBREIT (184619)
TINA B. NIEVES (134384)
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone: [phone]
Facsimile: 949-251-5111
odenbreit@ huntortmann.com
tina@ nieves-law .com

1
2
3
4
5
6
7
8

Attorneys for Plaintiffs

9
10

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

WARNER:20137 .amd.cons.comp

26
27
28

-361871

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 38 of 40 Page ID #:403
'

'

'

1

'

I

DECLARATION OF SERVICE

2

I, LaDonna Cothran, the undersigned, declare:

3

1.

That declarant is and was, at all times herein mentioned, a citizen of

4

the United States and a resident of the County of San Diego, over the age of 18

5

years, and not a party to or interested in the within action; that declarant's business

6

address is 750 B Street, Suite 2770, San Diego, California 92101.

7

2.

That on September 4, 2013 declarant served the following:

8
9

10
11
12
13
14

15

SECOND AMENDED CONSOLIDATED COMPLAINT FOR (1)
INVALIDITY OF COPYRIGHT UNDER THE COPYRIGHT ACT
(17 U.S.C. §§ 101 et seq.); (2) DECLARATORY AND
INJUNCTIVE RELIEF; (3) VIOLATIONS OF CALIFORNIA
UNFAIR COMPETITION LAWS (Cal. Bus. & Prof. Code§§ 17200
et seq.); (4) BREACH OF CONTRACT; (5) MONEY HAD AND
FOR
FAILURE
OF
RECEIVED;
(6)
RESCISSION
CONSIDERATION; and (7) VIOLATIONS OF CALIFORNIA
FALSE ADVERTISING LAWS (Cal. Bus. & Prof. Code § 17500 et
seq.);

16

17

via U.S. Mail and E-mail to all parties as designated on the attached service list.

18

3.

19

I declare under penalty of perjury that the foregoing is true and correct.

20

That there is regular communication between the parties.

Executed this 4th day of September 2013, at San Diego, California.

21
22

23
24

LADONNA COTHRAN
WARNER:20094.POS

25

26
27

28
- 11872

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 39 of 40 Page ID #:404

WARNER/CHAPPELL MUSIC, INC.
Service List- Aug. 5, 2013
Page 1

COUNSEL FOR PLAINTIFFS:
Francis M. Gregorek
Betsy C. Manifold
Rachele R. Rickert
Marisa C. Livesay
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
619/239-4599
619/234-4599 (fax)
[e-mail]
manifold @whath.com
rickert @whath.com
[e-mail]
Mark C. Rifkin
Janine Pollack
Beth A. Landes
Giti Baghban (SBN 284037)
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
212/545-4600
212/545-4753 (fax)
rifkin @whath.com
[e-mail]
[e-mail]
baghban @whath.com

William R. Hill
Andrew S. MacKay
Daniel J. Schacht
DONAHUE GALLAGHER
WOODSLLP
1999 Harrison St., 25th Floor
Oakland, CA 94612-3520
510/451-0544
510/832-1486 (fax)
[e-mail]
[e-mail]
daniel@ donahue.com
Randall S. Newman (SBN 190547)
RANDALL S. NEWMAN PC
3 7 Wall Street, Penthouse D
New York, NY 10005
212/797-3737
212/797-3172 (fax)
rsn @randallnewman.net
Katherine J. Odenbreit (184619)
Tina B. Nieves (134384)
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
626/440-5200
626/796-0107 (fax)
odenbreit@ huntortmann.com
[e-mail]

Attorneys for Plaintiffs Good Morning
To You Productions Corp., Robert
Siegel and Rupa Marya

20095

1873

Case 2:13-cv-04460-GHK-MRW Document 59 Filed 09/04/13 Page 40 of 40 Page ID #:405

COUNSEL FOR DEFENDANTS:
*Glen Pomerantz
MUNGER TOLLES & OLSON LLP
355 South Grand Ave., 35th Floor
Los Angeles, CA 90071
213/683-9100
213/687-3702 (fax)
[e-mail]

Attorneys for Defendant
Warner/Chappell Music, Inc. and
Summy-Birchard, Inc.
*DENOTES SERVICE BY U.S. MAIL

20095

1874

EXHIBIT 123

Ex. 123
____
1875

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 1 of 43 Page ID #:613

1
2
3
4
5
6

BETSY C. MANIFOLD (182450)
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599
Interim Lead Class Counsel for Plaintiffs
[Additional Counsel on Signature Page]

7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

10
11
12
13
14
15

GOOD MORNING TO YOU
PRODUCTIONS CORP.;
ROBERT SIEGEL;
RUPA MARYA; and
MAJAR PRODUCTIONS, LLC;
On Behalf of Themselves and All
Others Similarly Situated,

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Plaintiffs,

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v.
WARNER/CHAPPELL MUSIC,
INC.; and SUMMY-BIRCHARD,
INC.,

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Defendants.

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Lead Case No. CV 13-04460-GHK (MRWx)
THIRD AMENDED CONSOLIDATED
COMPLAINT FOR:
(1) DECLARATORY JUDGMENT
(28 U.S.C. § 2201);
(2) DECLARATORY AND
INJUNCTIVE RELIEF AND
DAMAGES (28 U.S.C. § 2202);
(3) VIOLATIONS OF CALIFORNIA’S
UNFAIR COMPETITION LAWS
(Bus. & Prof. Code §§ 17200 et seq.);
(4) BREACH OF CONTRACT;
(5) COMMON LAW MONEY HAD
AND RECEIVED;
(6) RESCISSION FOR FAILURE OF
CONSIDERATION; and
(7) VIOLATIONS OF CALIFORNIA’S
FALSE ADVERTISING LAWS
(Bus. & Prof. Code §§ 17500 et seq.)
CLASS ACTION
DEMAND FOR JURY TRIAL

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Plaintiffs, Good Morning to You Productions Corp. (“GMTY”), Robert

2

Siegel (“Siegel”), Rupa Marya d/b/a/ Rupa Marya & The April Fishes (“Rupa”), and

3

Majar Productions, LLC (“Majar”) (collectively herein “Plaintiffs”), on behalf of

4

themselves and all others similarly situated, by their undersigned attorneys, as and

5

for their Third Amended Consolidated Complaint For: (1) Declaratory Judgment (28

6

U.S.C. § 2201); (2) Declaratory and Injunctive Relief and Damages (28 U.S.C. §

7

2202); (3) Violations of California’s Unfair Competition Laws (Bus. & Prof. Code

8

§§ 17200 et seq.); (4) Breach of Contract; (5) Common Law Money Had and

9

Received; (6) Rescission for Failure of Consideration; and (7) Violations of

10

California’s False Advertising Laws (Bus. & Prof. Code §§ 17500 et seq.) against

11

defendants Warner/Chappell Music, Inc. (“Warner/Chappell”) and Summy-

12

Birchard, Inc. (“SBI”) (collectively “Defendants”), hereby allege as follows:

13
14

JURISDICTION AND VENUE
1.

The Court has subject-matter jurisdiction over this action pursuant to

15

28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory

16

and other relief arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant

17

to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; pursuant to the Class

18

Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental jurisdiction pursuant

19

to 28 U.S.C. § 1367 over the entire case or controversy.

20

2.

The Court has personal jurisdiction and venue is proper in this District

21

under 28 U.S.C. §§ 1391(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in

22

this Judicial District where both Defendants’ principal places of business are located

23

and where they regularly conduct business.

24

3.

Paragraph 8 of the Film and Synchronization and Performance License

25

(“Synchronization License”) by and between assignee Plaintiff Siegel and defendant

26

Warner/Chappell states: “this license has been entered into in, and shall be

27

interpreted in accordance with the laws of the state of California, and any action or

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proceeding concerning the interpretation and/or enforcement of this license shall be

2

heard only in the state or federal courts situated in Los Angeles county. . . .”

3

Defendant Warner/Chappell requires any action or proceeding related thereto to be

4

brought in this District under the Synchronization License.

5
6

INTRODUCTION
4.

This is an action to declare that Defendants do not own a copyright to

7

the world’s most popular song, Happy Birthday to You (the “Song”), that if

8

Defendants own any copyright to the Song, it is limited to four specific piano

9

arrangements or an obscure second verse that has no commercial value, that any

10

other copyright to the Song that Defendants may own or ever owned are invalid or

11

have expired, and that the Song is dedicated to public use and in the public domain;

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and in turn to declare that Defendants must return millions of dollars of unlawful

13

licensing fees collected by defendant Warner/Chappell pursuant to its wrongful

14

assertion of copyright ownership of the Song.

15

5.

According to the United States Copyright Office (“Copyright Office”),

16

a “musical composition consists of music, including any accompanying words, and

17

is normally registered as a work of the performing arts.” Copyright Office Circular

18

56A, “Copyright Registration of Musical Compositions and Sound Recordings,” at 1

19

(Feb. 2012) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a

20

musical composition generally is the composer, and the lyricist (if a different

21

person). Id.

22

6.

More than 120 years after the melody to which the simple lyrics of

23

Happy Birthday to You is set was first published, defendant Warner/Chappell

24

boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy

25

Birthday to You, and with that copyright the exclusive right to authorize the Song’s

26

reproduction, distribution, and public performances pursuant to federal copyright

27

law. At all relevant times, Warner/Chappell declared in the first two sentences on

28

the “About Us” page of its website that “Warner/Chappell Music is [Warner Music

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Group]’s award-winning global music publishing company. The Warner/Chappell

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Music catalog includes standards such as ‘Happy Birthday To You’. . .” (available

3

at www.warnerchappell.com/about.jsp?currenttab=about_us as of June 18, 2013).

4

Defendant Warner/Chappell either has silenced those wishing to record or perform

5

Happy Birthday to You, or has extracted millions of dollars in unlawful licensing

6

fees from those unwilling or unable to challenge its ownership claims.

7

7.

Irrefutable documentary evidence, some dating back to 1893, shows

8

that if defendant Warner/Chappell owned or owns any copyrights to Happy Birthday

9

to You, those rights were and are limited to the extremely narrow right to reproduce

10

and distribute specific piano arrangements for the Song, or an obscure second verse

11

that has no commercial value, which were published in 1935. That same evidence

12

also shows that if Warner/Chappell ever owned a copyright to any other part of the

13

Song, it was invalid or expired no later than 1921. Significantly, no court has ever

14

adjudicated either the scope or validity of the Defendants’ claimed interest in Happy

15

Birthday to You, nor in the Song’s melody or its familiar lyrics, which are,

16

themselves, independent works.

17

8.

Various legal scholars and copyright and music industry experts agree

18

with the foregoing, questioning the validity of Defendants’ assertion of copyright in

19

the Song, and supporting the conclusion that Happy Birthday properly exists in the

20

public domain. For example, Professor Robert Brauneis, Professor of Law and Co-

21

Director of the Intellectual Property Law Program at George Washington

22

University, and a leading legal scholar in intellectual property law, has stated that it

23

is “doubtful” that Happy Birthday “is really still under copyright.”

24

9.

Plaintiffs GMTY, Siegel, Rupa, and Majar on behalf of themselves and

25

all others similarly situated, seek a declaration that Happy Birthday to You is

26

dedicated to public use and is in the public domain as well as monetary damages and

27

restitution of all the unlawful licensing fees that defendants have improperly

28

collected from Plaintiffs and all other Class members.

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2

PLAINTIFFS
10.

Plaintiff GMTY is a New York corporation with its principal place of

3

business located in New York County. Under a claim of copyright by defendant

4

Warner/Chappell, on or about March 26, 2013, GMTY paid defendant

5

Warner/Chappell the sum of $1,500 for a synchronization license to use Happy

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Birthday to You and on or about April 24, 2013, GMTY entered into a

7

synchronization license with Warner/Chappell, as alleged more fully herein.

8

11.

Plaintiff Robert Siegel is the assignee of BIG FAN PRODUCTIONS,

9

INC. (“BIG FAN”), an inactive New York corporation and a resident of New York,

10

New York. Under a claim of copyright by defendant Warner/Chappell, on or about

11

September 1, 2009, BIG FAN paid to defendant Warner/Chappell the sum of $3,000

12

for the Synchronization Licenses to use Happy Birthday to You, as alleged more

13

fully herein. Plaintiff Siegel, the then-President of BIG FAN, was assigned BIG

14

FAN’s rights and claims, including those pertaining to the Synchronization License

15

pursuant to Paragraph 7 thereof between defendant Warner/Chappell and BIG FAN,

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entered into on or about July 20, 2009.

17

12.

Plaintiff Rupa is a musician and leader of the band entitled “Rupa &

18

The April Fishes” (“RTAF”), and a member of the American Society of Composers,

19

Authors and Publishers (“ASCAP”). Plaintiff Rupa is a resident of San Mateo

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County, California. RTAF recorded Happy Birthday to You at a live show in San

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Francisco, California, on April 27, 2013. Under a claim of copyright by defendant

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Warner/Chappell, on or about June 17, 2013, Plaintiff Rupa d/b/a RTAF paid to

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defendant Warner/Chappell the sum of $455 for a compulsory license pursuant to 17

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U.S.C. § 115 (commonly known as a “mechanical license”) to use Happy Birthday

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to You, as alleged more fully herein.

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13.

Plaintiff Majar is a Los Angeles-based film production company that

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produced the award winning documentary film “No Subtitles Necessary: László &

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Vilmos” (hereafter, “No Subtitles Necessary” or the “Film”). The Film follows the

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lives of renowned cinematographers László Kovacs (“Kovacs”) and Vilmos

2

Zsigmond (“Zsigmond”) from escaping the 1956 Soviet invasion of Hungary to the

3

present day. As film students in Hungary, Kovacs and Zsigmond shot footage of the

4

Russian invasion of Budapest and subsequently risked their lives to smuggle it out

5

of the country. They fled to America and settled in Hollywood, eventually saving

6

enough money to buy their own 16mm camera to begin shooting movies. Both rose

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to prominence in the late 1960’s and 1970’s having shot films such as “Easy Rider,”

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“Five Easy Pieces,” “McCabe and Mrs. Miller,” “Deliverance,” “Paper Moon,” and

9

“Close Encounters of the Third Kind.” No Subtitles Necessary tells the story of

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their lives and careers.

11
12

DEFENDANTS
14.

Defendant Warner/Chappell is a Delaware corporation with its

13

principal place of business located at 10585 Santa Monica Boulevard, Los Angeles,

14

California 90025 and regularly conducts business within this Judicial District.

15

15.

Defendant SBI is a Wyoming corporation with its principal place of

16

business located at 10585 Santa Monica Boulevard, Los Angeles, California 90025.

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SBI regularly conducts business within this Judicial District, where it may be found.

18

On information and belief, SBI is a subsidiary of Warner/Chappell, having been

19

acquired by Warner/Chappell in or around 1998.

20
21
22

FACTUAL BACKGROUND
Good Morning to All and the Popular Adoption of Happy Birthday to You
16.

Sometime prior to 1893, Mildred J. Hill (“Mildred Hill”) and her sister

23

Patty Smith Hill (“Patty Hill”) (Mildred and Patty Hill are collectively referred to as

24

the “Hill Sisters”) authored a written manuscript containing sheet music for 73

25

songs composed or arranged by Mildred Hill, with words written and adapted by

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Patty Hill.

27

17.

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The manuscript included Good Morning to All, a song written by the

Hill Sisters.

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18.

On or about February 1, 1893, the Hill Sisters sold and assigned all

2

their right, title, and interest in the written manuscript to Clayton F. Summy

3

(“Summy”) in exchange for 10 percent of retail sales of the manuscript. The sale

4

included the song Good Morning to All.

5

19.

In or around 1893, Summy published the Hill Sisters’ written

6

manuscript with an introduction by Anna E. Bryan (“Bryan”) in a songbook titled

7

Song Stories for the Kindergarten. Song Stories for the Kindergarten included the

8

song Good Morning to All.

9
10
11
12
13
14
15

20.

On or about October 16, 1893, Summy filed a copyright application

(Reg. No. 45997) with the Copyright Office for Song Stories for the Kindergarten.
21.

On the October 16, 1893, copyright application, Summy claimed to be

the copyright’s proprietor, but not the author of the copyrighted works.
22.

Song Stories for the Kindergarten bears a copyright notice reading

“Copyright 1893, by Clayton F. Summy.”
23.

As proprietor of the 1893 copyright in Song Stories for the

16

Kindergarten, Summy asserted copyright ownership in the compilation of songs, as

17

well as, the individual songs published therein, including Good Morning to All.

18

24.

The lyrics to Good Morning to All are:

19

Good morning to you

20

Good morning to you

21

Good morning dear children

22

Good morning to all.

23
24

25.

The lyrics to Happy Birthday to You are set to the melody from the

25

song Good Morning to All. As nearly everyone knows, the lyrics to Happy Birthday

26

to You are:

27
28

Happy Birthday to You
Happy Birthday to You
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Happy Birthday dear [NAME]

2

Happy Birthday to You.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

26.

The lyrics to Happy Birthday to You were not published in Song Stories

for the Kindergarten.
27.

On or about January 14, 1895, Summy incorporated the Clayton F.

Summy Company (“Summy Co.”) under the laws of the State of Illinois for a
limited term of 25 years. On that same date, Summy purported to assign all his
right, title, and interest in Song Stories for the Kindergarten to Summy Co.
28.

In 1896, Summy published a new, revised, illustrated, and enlarged

version of Song Stories for the Kindergarten, which contained eight previously
unpublished songs written by the Hill Sisters as well as illustrations by Margaret
Byers.
29.

On or about June 18, 1896, Summy filed a copyright application (Reg.

No. 34260) with the Copyright Office for the 1896 publication of Song Stories for
the Kindergarten.
30.

On its June 18, 1896, copyright application, Summy again claimed to

be the copyright’s proprietor, but (again) not the author of the copyrighted works.
31.

The 1896 version of Song Stories for the Kindergarten bears a

copyright notice reading “Copyright 1896, by Clayton F. Summy.”
32.

As proprietor of the 1896 copyright in the revised Song Stories for the

Kindergarten, Summy owned the rights to both the songbook as a compilation and
the individual songs published therein, including Good Morning to All.
33.

The lyrics to Happy Birthday to You were not published in the 1896

version of Song Stories for the Kindergarten.
34.

In 1899, Summy Co. published 17 songs from the 1893 version of Song

Stories for the Kindergarten in a songbook titled Song Stories for the Sunday
School. One of those songs included in Song Stories for the Sunday School was

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Good Morning to All. And yet again, neither the song Happy Birthday nor the lyrics

2

to Happy Birthday were published in “Song Stories for the Sunday School.”

3
4

35.

(Reg. No. 20441) with the Copyright Office for Song Stories for the Sunday School.

5
6

On or about March 20, 1899, Summy Co. filed a copyright application

36.

On the 1899 copyright application, Summy Co. claimed to be the

copyright’s proprietor, but not the author of the copyrighted works.

7

37.

8

This collection of songs has been published in response to earnest requests

9

from various sources. They are taken from the book, Song Stories for the

10

Kindergarten by the MISSES HILL, and are the copyright property of the

11

publishers. (Emphasis added).

12

38.

13

The title page to Song Stories for the Sunday School states:

Song Stories for the Sunday School bears a copyright notice reading

“Copyright 1899 by Clayton F. Summy Co.”

14

39.

As proprietor of the 1899 copyright in Song Stories for the Sunday

15

School, Summy Co. owned the rights to both the songbook as a compilation and the

16

individual songs published therein, including Good Morning to All.

17
18

40.

The lyrics to Happy Birthday to You were not published in Song Stories

for the Sunday School.

19

41.

Even though the lyrics to Happy Birthday to You and the song Happy

20

Birthday to You had not been fixed in a tangible medium of expression, the public

21

began singing Happy Birthday to You no later than the early 1900s.

22

42.

For example, in the January 1901 edition of Inland Educator and

23

Indiana School Journal, the article entitled “First Grade Opening Exercises”

24

described children singing the words “happy birthday to you,” but did not print the

25

Song’s lyrics or melody.

26

43.

In or about February, 1907, Summy Co. republished the song Good

27

Morning to All as an individual musical composition.

28

///

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1
2

44.

(Reg. No. 142468) with the Copyright Office for the song Good Morning to All.

3
4

45.

The lyrics to Happy Birthday to You do not appear in the 1907

publication of Good Morning to All.

5
6

On or about February 7, 1907, Summy Co. filed a copyright application

46.

In 1907, Fleming H. Revell Co. (“Revell”) published the book Tell Me

a True Story, arranged by Mary Stewart, which instructed readers to:

7

Sing: “Good-bye to you, good-bye to you, good-bye dear children, good-

8

bye to you.” Also: “Good-bye dear teacher.” (From “Song Stories for the

9

Sunday-School,” published by Summy & Co.)

10

Sing: “Happy Birthday to You.” (Music same as “Good-bye to You.”)

11
12

47.

A239690) with the Copyright Office for Tell Me a True Story.

13
14
15

On or about May 18, 1909, Revell filed an application (Reg. No.

48.

Tell Me a True Story did not include the lyrics to Happy Birthday to

49.

Upon information and belief, the lyrics to Happy Birthday to You

You.

16

(without the sheet music for the melody) were first published in 1911 by the Board

17

of Sunday Schools of the Methodist Episcopal Church (“Board of Sunday Schools”)

18

in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester

19

Lincoln, as follows:

20

Happy birthday to you, Happy birthday to you, Happy birthday, dear John,

21

Happy birthday to you. (Sung to the same tune as the “Good Morning”)

22

[NOTE: The songs and exercises referred to in this program may be found in

23

these books:... “Song Stories for the Sunday School,” by Patty Hill.]

24

50.

On or about January 6, 1912, the Board of Sunday Schools filed a

25

copyright application (Reg. No. A303752) with the Copyright Office for The

26

Elementary Worker and His Work.

27
28

51.

The Elementary Worker and His Work attributed authorship or

identified the copyrights to many of the works included in the book. Significantly, it

-9-

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1

did not attribute authorship or identify any copyright for the song Happy Birthday to

2

You.

3

52.

On or about January 14, 1920, Summy Co. was dissolved in accordance

4

with its limited (not perpetual) 25-year term of incorporation. Summy Co. did not

5

extend or renew the 1893 (Reg. No. 45997) or 1907 (Reg. No. 142468) copyrights

6

prior to its dissolution.

7

53.

Upon information and belief, by 1912, various companies (such as

8

Cable Company Chicago) had begun producing unauthorized printings of sheet

9

music which included the song known today as Happy Birthday (i.e., the melody of

10

Good Morning to You with the lyrics changed to those of Happy Birthday). On

11

information and belief, Cable Company Chicago never asserted copyright ownership

12

in Happy Birthday.

13

Copyright History of Good Morning to All

14

54.

Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights

15

to the original Song Stories for the Kindergarten, Song Stories for the Sunday

16

School, and Good Morning to All were vested solely in their proprietor, Summy Co.

17

55.

Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights

18

to the revised Song Stories for the Kindergarten were vested solely in their

19

proprietor, Summy Co.

20

56.

The copyright to the original Song Stories for the Kindergarten (Reg.

21

No. 45997) was not extended by Summy Co., and consequently expired on October

22

16, 1921. The original Song Stories for the Kindergarten, including the song Good

23

Morning to All, became dedicated to public use and fell into the public domain by

24

no later than that date.

25

57.

The copyright to the revised Song Stories for the Kindergarten (Reg.

26

No. 34260) was not extended by Summy, and consequently expired on June 18,

27

1924. The revised Song Stories for the Kindergarten became dedicated to public

28

use and fell into the public domain by no later than that date.

- 10 -

1886

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1

58.

In or around March 1924, the sheet music (with accompanying lyrics)

2

to Happy Birthday to You was in a songbook titled Harvest Hymns, published,

3

compiled, and edited by Robert H. Coleman (“Coleman”). Upon information and

4

belief, Harvest Hymns was the first time the melody and lyrics of Happy Birthday to

5

You were published together.

6

59.

Coleman did not claim authorship of the song entitled Good Morning

7

to You or the lyrics to Happy Birthday to You. Although Harvest Hymns attributed

8

authorship or identified the copyrights to many of the works included in the book, it

9

did not attribute authorship or identify any copyright for Good Morning to You or

10
11

Happy Birthday to You.
60.

On or about March 4, 1924, Coleman filed a copyright application

12

(Reg. No. A777586) with the Copyright Office for Harvest Hymns. On or about

13

February 11, 1952, the copyright was renewed (Reg. No. R90447) by the Sunday

14

School Board of the Southern Baptist Convention.

15

61.

On or about April 15, 1925, Summy incorporated a new Clayton F.

16

Summy Co. (“Summy Co. II”) under the laws of the State of Illinois.

17

information and belief, Summy Co. II was not a successor to Summy Co.; rather, it

18

was incorporated as a new corporation.

19

62.

Upon

The sheet music (with accompanying lyrics) to Happy Birthday to You

20

was again published in 1928 in the compilation Children’s Praise and Worship,

21

compiled and edited by A.L. Byers, Bessie L. Byrum, and Anna E. Koglin (“Byers,

22

Byrum & Koglin”). Upon information and belief, Children’s Praise and Worship

23

was the first time the song was published under the title Happy Birthday to You.

24

63.

On or about April 7, 1928, Gospel Trumpet Co. (“Gospel”) filed a

25

copyright application (Reg. No. A1068883) with the Copyright Office for

26

Children’s Praise and Worship.

27
28

64.

Children’s Praise and Worship attributed authorship or identified the

copyrights to many of the works included in the book. Significantly, it did not

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1
2

attribute authorship or identify any copyright for the song Happy Birthday to You.
65.

Children’s Praise and Worship did not provide any copyright notice for

3

the combination of Good Morning to All with the lyrics to Happy Birthday to You,

4

nor did it include the names of Mildred Hill or Patty Hill and did not attribute any

5

authorship or ownership to the Hill Sisters.

6

66.

Upon information and belief, the Hill Sisters had not fixed the lyrics to

7

Happy Birthday to You or the song Happy Birthday to You in a tangible medium of

8

expression, if ever, at any time before Gospel published Children’s Praise and

9

Worship in 1928.

10

67.

11
12

Upon information and belief, Summy sold Summy Co. II to John F.

Sengstack (“Sengstack”) in or around 1930.
68.

Upon information and belief, on or about August 31, 1931, Sengstack

13

incorporated a third Clayton F. Summy Co. (“Summy Co. III”) under the laws of the

14

State of Delaware.

15

successor to Summy Co. or Summy Co. II; rather, it was incorporated as a new

16

corporation.

Upon information and belief, Summy Co. III was not a

17

69.

On May 17, 1933, Summy Co. II was dissolved for failure to pay taxes.

18

70.

On July 28, 1933, Happy Birthday to You was used in the world’s first

19

singing telegram.

20

71.

On September 30, 1933, the Broadway show As Thousands Cheer,

21

produced by Sam Harris with music and lyrics written by Irving Berlin, began using

22

the song Happy Birthday to You in public performances.

23

72.

On August 14, 1934, Jessica Hill, a sister of Mildred Hill and Patty

24

Hill, commenced an action against Sam Harris in the Southern District of New

25

York, captioned Hill v. Harris, Eq. No. 78-350, claiming that the performance of

26

Happy to Birthday to You in As Thousands Cheer infringed on the Hill Sisters’ 1893

27

and 1896 copyrights to Good Morning to All. Jessica Hill asserted no claim in that

28

action regarding Happy Birthday to You, alone or in combination with Good

- 12 -

1888

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1

Morning to All.

2

73.

On January 21, 1935, Jessica Hill commenced an action against the

3

Federal Broadcasting Corp. in the Southern District of New York, captioned Hill v.

4

Federal Broadcasting Corp., Eq. No. 79-312, claiming infringement on the Hill

5

Sisters’ 1893 and 1896 copyrights to Good Morning to All. Jessica Hill asserted no

6

claim in that action regarding Happy Birthday to You, alone or in combination with

7

Good Morning to All.

8

74.

In 1934 and 1935, Jessica Hill sold and assigned to Summy Co. III

9

certain piano arrangements of Good Morning to All, including publishing, public

10

performance, and mechanical reproduction rights, copyright, and extension of

11

copyright in exchange for a percentage of the retail sales revenue from the sheet

12

music.

13

Applications for Copyright for New Musical Arrangement

14

75.

On or about December 29, 1934, Summy Co. III filed an Application

15

for Copyright for Republished Musical Composition with new Copyright Matter

16

(Reg. No. E45655) with the Copyright Office for the song Happy Birthday.

17

76.

In that December 1934 Application for Copyright, Summy Co. III

18

claimed to be the proprietor of the copyright as a work for hire by Preston Ware

19

Orem (“Orem”) and claimed the copyrighted new matter as “arrangement by piano

20

solo.”

21

77.

The lyrics to Happy Birthday to You were not included on the work

22

registered with the Copyright Office as Reg. No. E45655. The application did not

23

contain the names of the Hill Sisters and did not claim copyright in the lyrics to

24

Happy Birthday to You alone or in combination with the melody of Good Morning

25

to All.

26

78.

The work registered with the Copyright Office as Reg. No. E45655 was

27

not eligible for federal copyright protection in that it consisted entirely of

28

information that was common property and contained no original authorship, except

- 13 -

1889

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1

as to the arrangement itself.
79.

2

On or about February 18, 1935, Summy Co. III filed an Application for

3

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

4

No. E46661) with the Copyright Office for the song Happy Birthday.

5

80.

In that February 1935 Application for Copyright, Summy Co. III

6

claimed to be the proprietor of the copyright as a work for hire by Orem and claimed

7

the copyrighted new matter as “arrangement for four hands at one piano.”

8

81.

The lyrics to Happy Birthday to You were not included on the work

9

registered with the Copyright Office as Reg. No. E46661. The application did not

10

contain the names of the Hill Sisters and did not claim copyright in the lyrics to

11

Happy Birthday to You alone or in combination with the melody of Good Morning

12

to All.

13

82.

The work registered with the Copyright Office as Reg. No. E46661 was

14

not eligible for federal copyright protection in that it consisted entirely of

15

information that was common property and contained no original authorship, except

16

as to the arrangement itself.

17

83.

On or about April 5, 1935, Summy Co. III filed an Application for

18

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

19

No. E47439) with the Copyright Office for the song Happy Birthday.

20

84.

In that April 1935 Application for Copyright, Summy Co. III claimed

21

to be the proprietor of the copyright as a work for hire by Orem and claimed the

22

copyrighted new matter as “arrangement of second piano part.”

23

85.

The lyrics to Happy Birthday to You were not included on the work

24

registered with the Copyright Office as Reg. No. E47439.

25

contain the names of the Hill Sisters and did not claim copyright in the lyrics to

26

Happy Birthday to You alone or in combination with the melody of Good Morning

27

to All.

28

///

- 14 -

The application did not

1890

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 16 of 43 Page ID #:628

1

86.

The work registered with the Copyright Office as Reg. No. E47439 was

2

not eligible for federal copyright protection in that it consisted entirely of

3

information that was common property and contained no original authorship, except

4

as to the arrangement itself.

5

87.

On or about April 5, 1935, Summy Co. III filed an Application for

6

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

7

No. E47440) with the Copyright Office for the song Happy Birthday.

8
9
10

88.

In that additional April 1935 Application for Copyright, Summy Co. III

claimed to be the proprietor of the copyright as a work for hire by Orem and claimed
the copyrighted new matter as “arrangement for six hands at one piano.”

11

89.

The lyrics to Happy Birthday to You were not included on the work

12

registered with the Copyright Office as Reg. No. E47440. The application did not

13

contain the names of the Hill Sisters and did not claim copyright in the lyrics to

14

Happy Birthday to You alone or in combination with the melody of Good Morning

15

to All.

16

90.

The work registered with the Copyright Office as Reg. No. E47440 was

17

not eligible for federal copyright protection in that it consisted entirely of

18

information that was common property and contained no original authorship, except

19

as to the arrangement itself.

20

91.

On December 9, 1935, Summy Co. III filed an Application for

21

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

22

No. E51988) with the Copyright Office for Happy Birthday to You.

23

92.

In that December 1935 Application for Copyright, Summy Co. III

24

claimed to be the proprietor of the copyright as a work for hire by R.R. Forman

25

(“Forman”) and claimed the copyrighted new matter as “arrangement for Unison

26

Chorus and revised text.”

27

Forman did not write the familiar first verse lyrics to Happy Birthday to You. The

28

sheet music deposited with the application credited Forman only for the

Upon information and belief, Plaintiffs allege that

- 15 -

1891

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 17 of 43 Page ID #:629

1

arrangement and for the obscure second verse lyrics that lack commercial value, not

2

for the familiar first verse lyrics, and did not credit the Hill Sisters with writing the

3

lyrics to Happy Birthday to You.

4

93.

For the first time, the lyrics to Happy Birthday to You, including an

5

obscure second verse that lacks commercial value as the revised text, were included

6

on the work registered with the Copyright Office as Reg. No. E51988. However,

7

the December 1935 Application for Copyright did not attribute authorship of the

8

lyrics to either of the Hill Sisters and did not claim copyright in the familiar first

9

verse lyrics to Happy Birthday to You alone or in combination with the melody of

10
11

Good Morning to All.
94.

The work registered with the Copyright Office as Reg. No. E51988 was

12

expressly limited in scope and neither claimed nor provided copyright protection to

13

the familiar lyrics to Happy Birthday to You. If and to the extent the work registered

14

with the Copyright Office as Reg. No. E51988 had claimed copyright protection to

15

those familiar lyrics, that work was not eligible for federal copyright protection in

16

that it consisted entirely of work that was common property and contained no

17

original authorship, except as to the sheet music arrangement itself.

18

95.

Based upon information and belief, the work registered as Reg. No.

19

E51988 was not eligible for federal copyright protection because Summy Co. III did

20

not have authorization from the author to publish any part of that work except as to

21

the arrangement and the obscure second verse.

22

96.

On December 9, 1935, Summy Co. III filed an Application for

23

Copyright for Republished Musical Composition with new Copyright Matter (Reg.

24

No. E51990) with the Copyright Office for Happy Birthday to You.

25

97.

In that additional December 1935 Application for Copyright, Summy

26

Co. III claimed to be the proprietor of the copyright as a work for hire by Orem and

27

claimed the copyrighted new matter as “arrangement as easy piano solo, with text.”

28

Upon information and belief, Plaintiffs allege that Orem did not write the familiar

- 16 -

1892

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 18 of 43 Page ID #:630

1

lyrics to Happy Birthday to You. Upon information and belief, Plaintiffs also allege

2

that the sheet music deposited with the application did not credit either Orem or the

3

Hill Sisters for writing the lyrics to Happy Birthday to You.
98.

4

The lyrics to Happy Birthday to You were included on the work

5

registered with the Copyright Office as Reg. No. E51990. However, the additional

6

December 1935 Application for Copyright did not attribute authorship of the lyrics

7

to either of the Hill Sisters, did not contain the names of either of the Hill Sisters,

8

and did not claim any copyright in the lyrics to Happy Birthday to You alone or in

9

combination with the melody of Good Morning to All.

10

99.

The work registered with the Copyright Office as Reg. No. E51990 was

11

expressly limited in scope and neither claimed nor provided copyright protection to

12

the familiar lyrics to Happy Birthday to You. If and to the extent the work registered

13

with the Copyright Office as Reg. No. E51990 had claimed copyright protection to

14

those familiar lyrics, that work was not eligible for federal copyright protection in

15

that it consisted entirely of information that was common property and contained no

16

original authorship, except as to the sheet music arrangement itself.

17

100. Based upon information and belief, the work registered as Reg. No.

18

E51990 was not eligible for federal copyright protection because Summy Co. III did

19

not have authorization from the author to publish any part of that work except as to

20

the arrangement.

21

101. Based upon information and belief, in or about February, 1938, Summy

22

Co. III purported to grant to ASCAP the right to license Happy Birthday to You for

23

public performances and to collect fees for such use on behalf of Summy Co. III.

24

ASCAP thus began working as agent for Summy Co. III in collecting fees for

25

Summy Co. III for licensing Happy Birthday to You.

26

102. On or about June 8, 1942, Patty Hill and Jessica Hill assigned all of

27

their interest in the 1893, 1896, 1899 and 1907 copyrights to The Hill Foundation.

28

///

- 17 -

1893

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 19 of 43 Page ID #:631

1

103. On October 15, 1942, The Hill Foundation commenced an action

2

against Summy Co. III in the Southern District of New York, captioned The Hill

3

Foundation, Inc. v. Clayton F. Summy Co., Case No. 19-377, for an accounting of

4

the royalties received by Summy Co. III for the licensing of Happy Birthday to You.

5

The Hill Foundation asserted claims under the 1893, 1896, 1899, and 1907

6

copyrights for Good Morning to All and did not claim any copyright to the lyrics to

7

Happy Birthday to You, alone or in combination with the melody of Good Morning

8

to All.

9

104. On March 2, 1943, The Hill Foundation commenced an action against

10

the Postal Telegraph Cable Company in the Southern District of New York,

11

captioned The Hill Foundation, Inc. v. Postal Telegraph-Cable Co., Case No. 20-

12

439, for infringement of the Hill Sisters’ purported 1893, 1896, and 1899 copyrights

13

to Good Morning to All. The Hill Foundation asserted claims only under the 1893,

14

1896, and 1899 copyrights for Good Morning to All and did not claim any copyright

15

to the lyrics to Happy Birthday to You, alone or in combination with the melody of

16

Good Morning to All.

17

105. Despite the filing of at least four prior cases in the Southern District of

18

New York asserting copyrights to Good Morning to All, there has been no judicial

19

determination of the validity or scope of any copyright related to Good Morning to

20

All.

21
22

106. In or about 1957, Summy Co. III changed its name to Summy-Birchard
Company.

23

107. In 1962, Summy Co. III (renamed as Summy-Birchard Company) filed

24

renewals for each of the six registrations it obtained in 1934 and 1935 (Reg. Nos.

25

E45655, E46661, E47439, E47440, E51988, and E51990), each renewal was

26

specifically and expressly confined to the musical arrangements.

27

108. In particular, on December 6, 1962, Summy Co. III filed a renewal

28

application for Reg. No. E51988, as employer for hire of Forman. Forman did not

- 18 -

1894

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 20 of 43 Page ID #:632

1

write the familiar first verse lyrics to Happy Birthday to You or the combination of

2

those lyrics with the melody of Good Morning to All, and neither Summy Co. III nor

3

Defendants have claimed otherwise.

4

109. Also on December 6, 1962, Summy Co. III filed a renewal application

5

for Reg. No. E51990, as employer for hire of Orem. Orem did not write the lyrics to

6

Happy Birthday to You or the combination of those lyrics with the melody of Good

7

Morning to All, and neither Summy Co. III nor Defendants have claimed otherwise.

8

110. Summy-Birchard Company was renamed Birch Tree Ltd. in the 1970s

9

and was acquired by Warner/Chappell in or about 1998. On information and belief,

10

this entity now operates as “Summy Birchard, Inc.” – currently a subsidiary of

11

Warner/Chappell and Warner/Chappell’s co-defendant herein.

12

Happy Birthday to You – 100 Years Later

13
14
15
16

111. According to a 1999 press release by ASCAP, Happy Birthday to You
was the most popular song of the 20th Century.
112. The 1998 edition of the Guinness Book of World Records identified
Happy Birthday to You as the most recognized song in the English language.

17

113. Defendant Warner/Chappell currently claims it owns the exclusive

18

copyright to Happy Birthday to You based on the piano arrangements that Summy

19

Co. III published in 1935.

20

114. ASCAP provides non-dramatic public performance licenses to bars,

21

clubs, websites, and many other venues.

22

licensee the right to publicly perform any or all of the over 8.5 million songs in

23

ASCAP’s repertory in exchange for an annual fee. The non-dramatic public

24

performance license royalties are distributed to ASCAP members based on surveys

25

of performances of each ASCAP repertory song across different media. As an

26

ASCAP member and assignee of the copyrights in Happy Birthday to You,

27

Defendant Warner/Chappell obtains a share of blanket license revenue that would

ASCAP “blanket licenses” grant the

28

- 19 -

1895

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 21 of 43 Page ID #:633

1

otherwise be paid to all other ASCAP members, in proportion to their songs’ survey

2

shares.
Plaintiff GMTY’s Use of Happy Birthday to You

3
4
5

115. Plaintiff GMTY is producing a documentary movie, tentatively titled
Happy Birthday, about the song Happy Birthday to You.

6
7

116. In one of the proposed scenes to be included in Happy Birthday, the
song Happy Birthday to You is to be sung.

8
9

117. During the production process, plaintiff GMTY learned that defendant
Warner/Chappell claimed exclusive copyright ownership to Happy Birthday to You.

10

118. Accordingly, in September 2012, plaintiff requested a quote from

11

Warner/Chappell for a synchronization license to use Happy Birthday to You from

12

Warner/Chappell’s website.

13

119. On or about September 18, 2012, defendant Warner/Chappell

14

responded to plaintiff GMTY’s inquiry by demanding that GMTY pay it the sum of

15

$1,500 and enter into a synchronization license agreement to use Happy Birthday to

16

You.

17

120. On or about March 12, 2013, defendant Warner/Chappell again

18

contacted plaintiff GMTY and insisted that GMTY was not authorized to use Happy

19

Birthday to You unless it paid the licensing fee of $1,500 and entered into the

20

synchronization license that Warner/Chappell demanded.

21

121. Because defendant Warner/Chappell notified plaintiff GMTY that it

22

claimed exclusive copyright ownership of Happy Birthday to You, GMTY faced a

23

statutory penalty of up to $150,000 under the Copyright Act if it used the song

24

without Warner/Chappell’s permission if Warner/Chappell, in fact, owned the

25

copyright that it claimed.

26

122. Faced with a threat of substantial penalties for copyright infringement,

27

on or about March 26, 2013, plaintiff GMTY was forced to and did pay defendant

28

Warner/Chappell the sum of $1,500 for a synchronization license and, on or about

- 20 -

1896

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 22 of 43 Page ID #:634

1

April 24, 2013, GMTY was forced to and did enter into the synchronization license

2

agreement to use Happy Birthday to You.

3

Plaintiff Siegel’s Use of Happy Birthday to You

4

123. BIG FAN produced a movie titled Big Fan.

5

124. In one of the scenes in Big Fan, the familiar lyrics of the song Happy

6

Birthday to You was sung by the actors.

7

125. (a)

8

before Big Fan was released, BIG FAN retained the services of a music

9

supervisor to secure the rights to all the music that was used in the movie.

10

(b)

In the early summer of 2009, after filming was complete but

The

music

supervisor

identified

which

music

was

11

copyrighted, and advised BIG FAN that it would have to obtain a license

12

from Warner/Chappell and pay a fee to Warner/Chappell to perform

13

Happy

14

claimed to own the

15

(c)

Birthday to You in the movie because Warner/Chappell
exclusive copyright to the Song.

Reasonably relying upon the information provided by the

16

music producer regarding the copyright claim by Warner/Chappell, BIG

17

FAN reasonably believed that Warner/Chappell owned the copyright to

18

Happy Birthday to You, and would have to obtain a synchronization

19

license from and pay a fee to Warner/Chappell to use the Song in the

20

movie.

21

126. Accordingly, in July 2009, BIG FAN requested that the music

22

supervisor obtain a quote from Warner/Chappell for a Synchronization License to

23

use Happy Birthday to You in Big Fan.

24

127. On or about July 20, 2009, defendant Warner/Chappell responded to

25

the music supervisor by demanding that BIG FAN pay it the sum of $3,000 and

26

enter into a synchronization license for use of Happy Birthday to You.

27

128. Because Defendant Warner/Chappell notified BIG FAN through the

28

music supervisor that it claimed exclusive copyright ownership of Happy Birthday

- 21 -

1897

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 23 of 43 Page ID #:635

1

to You, BIG FAN faced a statutory penalty of $150,000 under the Copyright Act if

2

BIG

3

Warner/Chappell, in fact, owned the copyright that it claimed.

FAN

used

the

Song

without

Warner/Chappell’s

permission

and

4

129. On July 20, 2009, Plaintiff Siegel as President of BIG FAN executed

5

the synchronization license with Warner/Chappell and agreed to pay $3,000 based

6

upon Big Fan’s theatrical release.

7

130. (a)

8

infringement, on or about September 1, 2009, BIG FAN was forced to, and

9

did, pay defendant Warner/Chappell the sum of $3,000 pursuant to the

10
11

Faced with a threat of substantial penalties for copyright

synchronization license.
(b)

BIG FAN, the music producer it hired, and Plaintiff Siegel

12

did not know, and had no reason to know, that Warner/Chappell did not

13

own any copyright to Happy Birthday to You, that the rights

14

Warner/Chappell could claim were limited just to the piano arrangements

15

or the obscure second verse of the Song (which was not performed in Big

16

Fan), or that any copyright other than that was invalid or expired.

17

(c)

BIG FAN, the music producer it hired, and Plaintiff Siegel

18

had no reason to question Warner/Chappell’s claim to own the copyright

19

to the Song.

20

(d)

Warner/Chappell did not specify which registration(s) or

21

renewal(s) thereof under which it claimed a copyright to Happy Birthday

22

to You, and thus BIG FAN, the music producer it hired, and Plaintiff

23

Siegel could not investigate Warner/Chappell’s claim to determine

24

whether Warner Chappell owned the copyright it claimed or whether that

25

copyright was valid.

26

(e)

The commencement of this action on or about June 13, 2013,

27

was widely reported in the press. Prior to the date when the press first

28

reported the claims asserted herein, no one in the position of BIG FAN, the

- 22 -

1898

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 24 of 43 Page ID #:636

1

music producer hired by BIG FAN, or Plaintiff Siegel would know, or

2

have any reason to know, that Warner/Chappell’s copyright claim for

3

Happy Birthday to You was in doubt.

4

(f)

Plaintiff Siegel learned of the commencement of this action

5

on or about June 14, 2013, from the press reports. Before then, BIG FAN,

6

the music producer it hired, and Plaintiff Siegel did not know, and had no

7

reason to know, that Warner/Chappell’s copyright claim for Happy

8

Birthday to You had been disputed by anyone or was in doubt.

9

(g)

Shortly thereafter, on or about June 19, 2013, and

10

significantly less than three years after he knew or reasonably could or

11

should have known that Warner/Chappell does not own a copyright to the

12

Song, or that its copyright is not valid, plaintiff Siegel commenced a

13

separate class action in Los Angeles County pursuant to the terms of the

14

Synchronization License.

15

Rupa’s Performance of Happy Birthday to You

16

131. Plaintiff Rupa d/b/a RTAF recorded the song Happy Birthday to You at

17

a live show in San Francisco, to be released as part of a “live” album. She learned

18

that defendant Warner/Chappell claimed exclusive copyright ownership to Happy

19

Birthday to You, including the right to issue mechanical licenses.

20

132. Section 115 of the Copyright Act provides for compulsory licenses for

21

the distribution of phonorecords and digital phonorecord deliveries (i.e., Web-based

22

“downloads”) of musical compositions. Failure to obtain such a license prior to

23

distribution of a cover version of a song constitutes a copyright infringement subject

24

to the full remedies of the Copyright Act.

25

133. Accordingly, on June 17, 2013, Plaintiff Rupa provided a Notice of

26

Intention to Obtain Compulsory License to Warner/Chappell and paid

27

Warner/Chappell $455 for a mechanical license for the reproduction and distribution

28

of 5,000 copies of the Song.

- 23 -

1899

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 25 of 43 Page ID #:637

1

Plaintiff Majar Use of Happy Birthday to You

2

134. (a) Plaintiff Majar produced the Film entitled “No Subtitles

3

Necessary: László & Vilmos.” The Film follows the lives of renowned

4

cinematographers László Kovacs (“Kovacs”) and Vilmos Zsigmond

5

(“Zsigmond”) from escaping the 1956 Soviet invasion of Hungary to the

6

present day.

7

(b)

Plaintiff Majar wished to use the Happy Birthday to You in

8

the opening scene of the Film, wherein Zsigmond and others sang the

9

Song to Kovacs in a celebration of Kovacs’ life and the friendship of the

10
11

two, thereby setting the tone for the Film.
(c)

In or around the fall of 2008, during production of the Film,

12

Plaintiff Majar learned from the music clearance supervisor working on

13

the Film that defendant Warner/Chappell claimed exclusive copyright

14

ownership to Happy Birthday to You, including for purposes of issuing

15

synchronization licenses, and that if Majar wished to include the Song in

16

the Film, a license would have to be procured and a fee be paid to

17

Warner/Chappell. The director of the Film, James Chressanthis, spoke to

18

experienced producers in the industry, who confirmed that it was common

19

knowledge within the entertainment industry that Warner/Chappell widely

20

claimed exclusive copyright ownership of the Song.

21

(d)

Accordingly, upon making the final determination to include

22

use of the Song in the Film, Plaintiff Majar proceeded to obtain a license

23

for the Song from Warner/Chappell. Indeed, Warner/Chappell held itself

24

out to Plaintiff Majar as the exclusive owner of the copyright in the Song

25

(although it did not specify which registration number(s) or renewal

26

number(s) under which it claimed to own a copyright). Thus, on or about

27

October 29, 2009, Plaintiff Majar paid to defendant Warner/Chappell the

28

sum of $5,000 for a synchronization license to use Happy Birthday in the

- 24 -

1900

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 26 of 43 Page ID #:638

1

Film. At the time, Plaintiff Majar did not question and had no reason to

2

question Warner/Chappell’s claim of copyright ownership.

3

Plaintiff Majar is informed and believes that Warner/Chappell continued to

4

hold itself out as the exclusive copyright owner of the Song for years after

5

Majar licensed it.
(e)

6

Moreover,

Because Defendant Warner/Chappell claimed exclusive

7

copyright ownership of Happy Birthday to You, Plaintiff Majar faced a

8

statutory penalty of $150,000 under the Copyright Act, 17 U.S.C. § 101 et

9

seq., if it used the Song without Warner/Chappell’s permission and

10

Warner/Chappell, in fact, owned the copyright that it claimed.

11

(f)

12

question,

13

Warner/Chappell’s claim to own the copyright to the Song. Moreover,

14

Plaintiff Majar did not know, and had no reason to know, on October 29,

15

2009 (and continuing thereafter), that Warner/Chappell’s copyright claim

16

for Happy Birthday to You had been disputed by anyone.

17

(g)

Plaintiff Majar did not question, and had no reason to
on

October

29,

2009

(and

continuing

thereafter),

Plaintiff Majar only first learned that Warner/Chappell’s

18

claim of exclusive copyright ownership in the Song was subject to dispute

19

when news of the same was published in a New York Times article on June

20

13, 2013. Plaintiff Majar contacted counsel and joined as a plaintiff in this

21

action promptly thereafter.

22

CLASS ALLEGATIONS

23

135. Plaintiffs GMTY, Siegel, Rupa, and Majar bring this action pursuant to

24

Rule 23(a)-(b) of the Federal Rules of Civil Procedure as a class action on behalf of

25

themselves and all others similarly situated for the purpose of asserting the claims

26

alleged in this Consolidated Third Amended Complaint on a common basis.

27

///

28

///

- 25 -

1901

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 27 of 43 Page ID #:639

1

136. The proposed Class is comprised of:

2

All persons or entities (excluding Defendants’ directors, officers,

3

employees, and affiliates) who entered into a license with

4

Warner/Chappell, or paid Warner/Chappell or SBI, directly or

5

indirectly through its agents, a licensing fee for the song Happy

6

Birthday to You at any time from June 18, 2009, until Defendants’

7

conduct as alleged herein has ceased.

8

137. Although Plaintiffs GMTY, Siegel, Rupa, and Majar do not know the

9

exact size of the Class or the identities of all members of the Class, upon

10

information and belief that information can be readily obtained from the books and

11

records of defendant Warner/Chappell. Plaintiffs believe that the Class includes

12

thousands of persons or entities who are widely geographically disbursed. Thus, the

13

proposed Class is so numerous that joinder of all members is impracticable.

14
15
16

138. The claims of all members of the Class involve common questions of
law and fact including:
a.

17
18

whether Happy Birthday to You is in the public domain and dedicated
to public use;

b.

19

whether the 1935 copyrights claimed by Warner/Chappell cover the
popular lyrics to Happy Birthday to You;

20

c.

whether the 1935 copyrights claimed by Warner/Chappell are valid;

21

d.

whether Warner/Chappell is the exclusive owner of the copyright to

22

Happy Birthday to You and is thus entitled to all of the rights conferred

23

in 17 U.S.C. § 102;

24

e.

25
26

whether Warner/Chappell has the right to collect fees for the use of
Happy Birthday to You;

f.

whether Warner/Chappell has violated the law by demanding and

27

collecting fees for the use of Happy Birthday to You despite not having

28

a valid copyright to the song; and

- 26 -

1902

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 28 of 43 Page ID #:640

1

g.

whether Warner/Chappell is required to return unlawfully obtained

2

payments to plaintiffs GMTY, Siegel, Rupa and Majar and the other

3

members of the Class and, if so, what amount is to be returned.

4
5

139. With respect to Claims III and VII, the common questions of law and
fact predominate over any potential individual issues.

6

140. Plaintiffs GMTY, Siegel, Rupa and Majar’s claims are typical of the

7

claims of all other members of the Class and plaintiffs GMTY, Siegel, Rupa and

8

Majar’s interests do not conflict with the interests of any other member of the Class,

9

in that plaintiffs and the other members of the Class were subjected to the same

10

unlawful conduct.

11

141. Plaintiffs GMTY, Siegel, Rupa and Majar are committed to the

12

vigorous prosecution of this action and have retained competent legal counsel

13

experienced in class action and complex litigation.

14

142. Plaintiffs are adequate representatives of the Class and, together with

15

their attorneys, are able to and will fairly and adequately protect the interests of the

16

Class and its members.

17

143. A class action is superior to other available methods for the fair, just,

18

and efficient adjudication of the claims asserted herein. Joinder of all members of

19

the Class is impracticable and, for financial and other reasons, it would be

20

impractical for individual members of the Class to pursue separate claims.

21

144. Moreover, the prosecution of separate actions by individual members

22

of the Class would create the risk of varying and inconsistent adjudications, and

23

would unduly burden the courts.

24
25

145. Plaintiffs GMTY, Siegel, Rupa and Majar anticipate no difficulty in the
management of this litigation as a class action.

26
27
28

- 27 -

1903

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 29 of 43 Page ID #:641

1

FIRST CLAIM FOR RELIEF

2

DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201

3

(On Behalf Of Plaintiffs And The Class)

4

(Against All Defendants)

5
6

146. Plaintiffs repeat and reallege paragraphs 1 through 145 set forth above
as though they were fully set forth herein.

7

147. Plaintiffs bring these claims individually on behalf of themselves and

8

on behalf of the proposed Class pursuant to Rule 23(b)(2) of the Federal Rules of

9

Civil Procedure.

10

148. Plaintiffs seek adjudication of an actual controversy arising under the

11

Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with Defendants’ purported

12

copyright claim to Happy Birthday to You. Plaintiffs seek the Court’s declaration

13

that the Copyright Act does not bestow upon Warner/Chappell and/or SBI the rights

14

it has asserted and enforced against plaintiffs and the other members of the Class.

15

This is because either: (a) the 1935 registrations E51988 and E51990, under which

16

Warner/Chappell claims those copyrights, and the resulting copyrights do not

17

purport to cover and do not cover the familiar lyrics to Happy Birthday to You, but

18

instead are limited just to the particular arrangements written by Forman or Orem

19

(and, in the case of E51988, the obscure second verse which has no commercial

20

value); or (b) if and to the extent that those copyrights purport to cover the familiar

21

lyrics to Happy Birthday to You, the copyrights are invalid or have expired.

22

149. Defendants assert that they are entitled to mechanical and performance

23

royalties pursuant to 17 U.S.C. § 115 for the creation and distribution of

24

phonorecords and digital downloads of the composition Happy Birthday to You,

25

under threat of a claim of copyright infringement.

26

150. Defendant Warner/Chappell demanded that plaintiff GMTY enter into

27

a synchronization license agreement to use Happy Birthday to You and pay

28

Warner/Chappell the sum of $1,500 for that synchronization license based upon its

- 28 -

1904

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 30 of 43 Page ID #:642

1

claim of copyright ownership. Warner/Chappell’s demand was coercive in nature,

2

and GMTY’s entering into the license agreement and payment of $1,500 was

3

involuntary.

4

151. Plaintiff GMTY’s claim presents a justiciable controversy because

5

plaintiff GMTY’s agreement to pay defendant Warner/Chappell and its actual

6

payment to Warner/Chappell for use of the song Happy Birthday to You in its film

7

was the involuntary result of Warner/Chappell’s assertion of a copyright and the risk

8

that plaintiff GMTY would be exposed to substantial statutory penalties under the

9

Copyright Act had it failed to enter such an agreement and pay Warner/Chappell the

10

price it demanded.

11

152. Defendant Warner/Chappell demanded that BIG FAN as assignor of

12

plaintiff Siegel enter into the Synchronization License agreement to use Happy

13

Birthday to You and pay Warner/Chappell the sum of $3,000 for that

14

Synchronization License based upon its claim of copyright ownership.

15

Warner/Chappell’s demand was coercive in nature, and BIG FAN’S entering into

16

the Synchronization License and payment of $3,000 was involuntary.

17

153. Plaintiff Siegel’s claim presents a justiciable controversy because

18

plaintiff Siegel’s agreement to pay defendant Warner/Chappell and its actual

19

payment to Warner/Chappell for use of the song Happy Birthday to You in its film

20

Big Fan, was the involuntary result of Warner/Chappell’s assertion of a copyright

21

and the risk that plaintiff Siegel would be exposed to substantial statutory penalties

22

under the Copyright Act had it failed to enter such an agreement and pay

23

Warner/Chappell the price it demanded, but then used Happy Birthday to You in its

24

film anyway.

25

154. Plaintiff Rupa’s claim presents a justiciable controversy because

26

plaintiff Rupa’s agreement to pay defendant Warner/Chappell and its actual

27

payment to Warner/Chappell for use of the song Happy Birthday to You in her

28

album, was the involuntary result of Warner/Chappell’s assertion of a copyright and

- 29 -

1905

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 31 of 43 Page ID #:643

1

the risk that plaintiff Rupa would be exposed to substantial statutory penalties under

2

the Copyright Act had she failed to enter such an agreement and pay

3

Warner/Chappell standard mechanical license royalties it demanded, but then paid

4

for the mechanical license anyway.

5

155. Defendants demanded that Plaintiff Majar pay to Defendants a

6

licensing fee in the sum of $5,000 pursuant to Defendants’ claim of copyright

7

ownership, in order for Plaintiff Majar to use Happy Birthday in the Film.

8

Defendants’ demand was coercive in nature and Majar’s agreement to pay the fee

9

was involuntary.

10

156. Plaintiff Majar' claim presents a justiciable controversy because its
s

11

actual payment of Defendants’ demanded fee to use Happy Birthday in the Film was

12

the involuntary result of Defendants’ assertion of a copyright and the risk that

13

Plaintiff Majar would be exposed to substantial statutory penalties under the

14

Copyright Act had it failed to seek Defendants’ approval to use the Song and/or

15

failed to pay Defendants’ demanded fee.

16

157. Plaintiffs seek the Court’s determination as to whether Defendants are

17

entitled to assert ownership of the copyright to Happy Birthday to You against

18

Plaintiffs pursuant to the Copyright Act as Defendants claim, or whether Defendants

19

are wielding a false claim of ownership to inhibit Plaintiffs’ use and enjoyment (and

20

the public’s use and enjoyment) of intellectual property which is rightfully in the

21

public domain.

22

158. If and to the extent that Defendants rely upon the 1893, 1896, 1899, or

23

1907 copyrights for the melody for Good Morning to All, those copyrights expired

24

or were forfeited as alleged herein.

25

159. As alleged above, the 1893 and 1896 copyrights to the original and

26

revised versions of Song Stories for the Kindergarten, which contained the song

27

Good Morning to All, were not renewed by Summy Co. or Summy and accordingly

28

expired in 1921 and 1924, respectively.

- 30 -

1906

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 32 of 43 Page ID #:644

1

160. As alleged above, the 1893 copyright to Song Stories for the

2

Kindergarten and the 1899 copyright to Song Stories for the Sunday School, which

3

contained Good Morning to All, and the 1907 copyright to Good Morning to All

4

were not renewed by Summy Co. before Summy Co. was dissolved in 1920 and

5

accordingly, those copyrights expired in 1927 and 1935, respectively.

6

161. The 1893, 1896, 1899, and 1907 copyrights to Good Morning to All

7

were forfeited by the republication of Good Morning to All in 1921 without proper

8

notice of its original 1893 copyright.

9
10

162. The copyright to Good Morning to All expired in 1921 because the
1893 copyright to Song Stories for the Kindergarten was not properly renewed.

11

163. The piano arrangements for Happy Birthday to You published by

12

Summy Co. III in 1935 (Reg. Nos. E51988 and E51990): (a) do not give

13

Warner/Chappell copyrights to the familiar lyrics to Happy Birthday to You, but

14

instead are limited just to the particular arrangements written by Forman or Orem

15

(and, in the case of E51988, the obscure second verse which has no commercial

16

value); and (b) were not eligible for federal copyright protection because those

17

works did not contain original works of authorship, except to the extent of the piano

18

arrangements themselves.

19

164. The 1934 and 1935 copyrights pertained only to the piano

20

arrangements or the obscure second verse, not to the melody or familiar first verse

21

lyrics of the song Happy Birthday to You.

22

165. The registration certificates for The Elementary Worker and His Work

23

in 1912, Harvest Hymns in 1924, and Children’s Praise and Worship in 1928, which

24

did not attribute authorship of the lyrics to Happy Birthday to You to anyone, are

25

prima facie evidence that the lyrics were not authored by the Hill Sisters.

26

166. If declaratory relief is not granted, defendant Warner/Chappell will

27

continue wrongfully to assert the exclusive copyright to Happy Birthday to You at

28

least until 2030, when the current term of the copyright expires under existing

- 31 -

1907

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 33 of 43 Page ID #:645

1

copyright law.

2

167. Plaintiffs therefore request a declaration that:

3

(a)

4

copyright to, or possess the exclusive right to reproduce, distribute, or

5

publicly perform, Happy Birthday To You;

6

(b)

7

copyright to Happy Birthday to You, it is limited to four specific piano

8

arrangements or an obscure second verse that has no commercial value,

9

(c)

defendant Warner/Chappell and defendant SBI do not own the

if defendant Warner/Chappell and defendant SBI own any

any other copyright to Happy Birthday to You that defendant

10

Warner/Chappell and defendant SBI may own or ever owned are

11

invalid or have expired;

12

(d)

13

exclusive right to demand or grant a license for use of Happy Birthday

14

To You; and

15

(e)

16

to the public use.

defendant Warner/Chappell and defendant SBI do not own the

Happy Birthday to You is in the public domain and is dedicated

17

SECOND CLAIM FOR RELIEF

18

UPON ENTRY OF DECLARATORY JUDGMENT

19

DECLARATORY AND INJUNCTIVE RELIEF

20

PURSUANT TO 28 U.S.C § 2202

21

(On Behalf of Plaintiffs and the Class)

22

(Against All Defendants)

23
24

168. Plaintiffs repeat and reallege paragraphs 1 through 167 set forth above
as though they were fully set forth herein.

25

169. Plaintiffs bring these claims individually on their own behalf and on

26

behalf of the Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil

27

Procedure.

28

///

- 32 -

1908

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 34 of 43 Page ID #:646

1

170. Under 28 U.S.C. § 2202 empowers this Court to grant, “necessary or

2

proper relief based on a declaratory judgment or decree . . . after reasonable notice

3

and hearing, against any adverse party whose rights have been determined by such

4

judgment.”

5

171. Plaintiffs and the other proposed Class members have been harmed,

6

and Defendants have been unjustly enriched, by Defendant Warner/Chappell’s

7

takings.

8
9

172. Plaintiffs seek relief for themselves and the other members of the
proposed Class upon the entry of declaratory judgment upon Claim I, as follows:

10

(a)

11

from making further representations of ownership of the copyright to

12

Happy Birthday To You;

13

(b)

14

fees paid to Defendants, directly or indirectly through its agents, in

15

connection with the purported licenses it granted to Plaintiffs GMTY,

16

Siegel, Rupa and Majar and the other Class members;

17

(c)

18

directly or indirectly through its agents, from plaintiffs and the other

19

Class members in connection with its claim to ownership of the

20

copyright to Happy Birthday to You; and

21

(d)

an injunction to prevent Defendants Warner/Chappell and SBI

restitution to Plaintiffs and the other Class members of license

an accounting for all monetary benefits obtained by Defendants,

such other further and proper relief as this Court sees fit.

22

THIRD CLAIM FOR RELIEF

23

UNFAIR BUSINESS ACTS AND PRACTICES IN VIOLATION OF

24

CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200, ET SEQ.

25

(On Behalf of Plaintiffs and the Class)

26

(Against All Defendants)

27
28

173. Plaintiffs repeat and reallege paragraphs 1 through 172 set forth above
as though they were fully set forth herein.

- 33 -

1909

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 35 of 43 Page ID #:647

1

174. Plaintiffs GMTY, Siegel, Rupa, and Majar bring these claims

2

individually on their own behalf, and also on behalf of the Class pursuant to Rule

3

23(b)(3) of the Federal Rules of Civil Procedure.

4

175. As alleged herein, Plaintiffs GMTY, Siegel, Rupa and Majar and the

5

other Class members have paid licensing fees to defendants Warner/Chappell and/or

6

SBI and have therefore suffered injury in fact and have lost money or property as a

7

result of Defendants’ conduct.

8

176. California’s Unfair Competition Laws, Business & Professions Code

9

§§ 17200 et seq. (“UCL”), prohibit any unlawful or unfair business act or practice.

10

177. UCL § 17200 further prohibits any fraudulent business act or practice.

11

178. Defendants’

actions,

claims,

nondisclosures,

and

misleading

12

statements, as alleged in this Complaint, were unfair, false, misleading, and likely to

13

deceive the consuming public within the meaning of UCL §§ 17200, 17500.

14

179. The conduct of Defendants in exerting control over exclusive copyright

15

ownership to Happy Birthday to You to extract licensing fees is deceptive and

16

misleading because neither Warner/Chappell nor SBI own the rights to Happy

17

Birthday to You.

18

180. Plaintiffs and the other members of the Class have, in fact, been

19

deceived as a result of their reasonable reliance upon Defendants’ materially false

20

and misleading statements and omissions, as alleged above.

21

181. As a result of Defendants’ unfair and fraudulent acts and practices as

22

alleged above, Plaintiffs and the other Class members have suffered substantial

23

monetary injuries.

24

182. Plaintiffs and the other Class members reserve the right to allege other

25

violations of law which constitute other unfair or deceptive business acts or

26

practices. Such conduct is ongoing and continues to this date.

27
28

183. As a result of its deception, Defendants Warner/Chappell and SBI have
been able to reap unjust revenue and profit.

- 34 -

1910

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 36 of 43 Page ID #:648

1

184. Upon information and belief, Defendants have collected and continue

2

to collect at least $2 million per year in licensing fees for Happy Birthday to You.

3

Therefore, the amount in controversy exceeds $5 million in the aggregate.

4
5

185. Unless restrained and enjoined, Defendants will continue to engage in
the above-described conduct. Accordingly, injunctive relief is appropriate.

6

186. Plaintiffs, individually on their own behalf and on behalf of the other

7

members of the Class, seek restitution and disgorgement of all money obtained from

8

Plaintiffs and the other members of the Class, collected as a result of unfair

9

competition, and all other relief this Court deems appropriate, consistent with UCL

10

§ 17203.

11

FOURTH CLAIM FOR RELIEF

12

BREACH OF CONTRACT

13

(On Behalf of Plaintiffs and the Class)

14

(Against All Defendants)

15

187. Plaintiffs repeat and reallege each and every foregoing allegation as

16

though fully set forth herein.

17

188. Plaintiffs

18
19
20
21
22
23
24
25
26

entered

into

license

agreements

with

Defendant

Warner/Chappell wherein Warner/Chappell represented and warranted that it and/or
its co-Defendant SBI owned the rights to Happy Birthday as licensed therein.
189. Plaintiffs are informed and believe that Defendants’ licensing
agreements are the same or substantially similar as to all Class members,
particularly with respect to Defendants’ claim of ownership of the copyright to
Happy Birthday.
190. Plaintiffs and the Class have satisfied their obligations under each such
licensing agreement with Warner/Chappell.

27

191. As alleged herein, Defendants do not own the copyright interests

28

claimed in Happy Birthday and, as a result of its unlawful and false assertions of the

- 35 -

1911

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 37 of 43 Page ID #:649

1

same, Defendants have violated the representations and warranties made in the

2

licensing agreements, thereby materially breaching the licensing agreements.

3
4

192. By reason of the foregoing, Plaintiffs and the Class have been damaged
in an amount to be determined at trial.

5

FIFTH CLAIM FOR RELIEF

6

COMMON LAW FOR MONEY HAD AND RECEIVED

7

(On Behalf of Plaintiffs and the Class)

8

(Against All Defendants)

9
10

193. Plaintiffs repeat and reallege paragraphs 1 through 192 set forth above
as though they were fully set forth herein.

11

194. Within the last four years, Defendants Warner/Chappell and/or SBI

12

became indebted to Plaintiffs and all class members for money had and received by

13

Defendants for the use and benefit of Plaintiffs and class members. The money in

14

equity and good conscience belongs to Plaintiffs and class members.

15

SIXTH CLAIM FOR RELIEF

16

RESCISSION FOR FAILURE OF CONSIDERATION

17

(On Behalf of Plaintiffs and the Class)

18

(Against All Defendants)

19
20

195. Plaintiffs repeat and reallege paragraphs 1 through 194 set forth above
as though they were fully set forth herein.

21
22

196. Defendants’ purported licenses were worthless and ineffective, and do
not constitute valid consideration.

23

197. The complete lack of consideration obviates any need for notice to

24

Defendants.

25

///

26

////

27

///

28

///

- 36 -

1912

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 38 of 43 Page ID #:650

1

SEVENTH CLAIM FOR RELIEF

2

FALSE ADVERTISING LAWS IN VIOLATION OF

3

CALIFORNIA BUSINESS & PROFESSIONS CODE §§ 17500, ET SEQ.

4

(On Behalf of Plaintiffs and the Class)

5

(Against All Defendants)

6
7

198. Plaintiffs repeat and reallege paragraphs 1 through 197 set forth above
as though they were fully set forth herein.

8

199. On information and belief, Defendants Warner/Chappell and SBI

9

intended to induce the public to enter into an obligation related to its alleged

10

property, namely the composition Happy Birthday to You.

11

200. Defendants Warner/Chappell and/or SBI publicly disseminated

12

advertising which contained statements which were untrue and misleading and

13

which concerned the composition Happy Birthday to You, for which they

14

improperly sought and received licensing fees. Defendants knew, or in the exercise

15

of reasonable care should have known, that these statements were untrue and

16

misleading.

17
18

201. Plaintiffs and class members have suffered injury in fact and have lost
money as a result of such unfair competition.

19

PRAYER FOR RELIEF

20

WHEREFORE, Plaintiffs GMTY, Siegel, Rupa and Majar on behalf of

21

themselves and the other members of the Class, pray for judgment against

22

Defendants as follows:

23

A.

certifying the Class as requested herein;

24

B.

declaring that the song Happy Birthday to You is not protected

25

by federal copyright law, is dedicated to public use, and is in the public

26

domain;

27

C.

28

from asserting any copyright to the song Happy Birthday to You;

permanently enjoining Defendants Warner/Chappell and SBI

- 37 -

1913

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 39 of 43 Page ID #:651

1

D.

2

from charging or collecting any licensing or other fees for use of the

3

song Happy Birthday to You;

4

E.

5

Warner/Chappell and SBI unlawfully collected from Plaintiffs, the

6

other members of the Class, and ASCAP for use of the song Happy

7

Birthday to You;

8

F.

9

Plaintiffs and the other members of the Class all the licensing or other

10

fees they have collected from them, directly or indirectly through its

11

agents, for use of the song Happy Birthday to You, together with

12

interest thereon;

13

G.

14

restitution for defendant Warner/Chappell and SBI’s prior acts and

15

practices;

16

H.

17

costs; and

18

I.

19

proper.

20
21
22
23
24
25
26
27
28

permanently enjoining Defendants Warner/Chappell and SBI

imposing a constructive trust upon the money Defendants

ordering Defendants Warner/Chappell and SBI to return to

awarding Plaintiffs and the other members of the Class

awarding Plaintiffs and the Class reasonable attorneys’ fees and
granting such other and further relief as the Court deems just and

Dated: November 5, 2013

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By:

s/Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
[e-mail]
RACHELE R. RICKERT (190634)
[e-mail]
MARISA C. LIVESAY (223247)
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101

- 38 -

1914

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 40 of 43 Page ID #:652

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Telephone: [phone]
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
BETH A. LANDES (pro hac vice)
[e-mail]
GITI BAGHBAN (284037)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753
Interim Lead Class Counsel for Plaintiffs
RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
[e-mail]
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]
Facsimile: 212/797-3172
DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
ANDREW S. MACKAY (197074)
DANIEL J. SCHACHT (259717)
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486
[e-mail]
[e-mail]
[e-mail]
GLANCY BINKOW & GOLDBERG, LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (182689)
[e-mail]
KARA M. WOLKE (241521)
[e-mail]
1925 Century Park East, Suite 2100

- 39 -

1915

Case 2:13-cv-04460-GHK-MRW Document 72 Filed 11/05/13 Page 41 of 43 Page ID #:653

Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]

1
2
3

HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
KATHERINE J. ODENBREIT (184619)
[e-mail]
TINA B. NIEVES (134384)
[e-mail]
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone: [phone]
Facsimile: 949-251-5111

4
5
6
7
8
9

Counsel for Plaintiffs

10
11

DEMAND FOR JURY TRIAL

12

Plaintiffs GMTY, Siegel, Rupa and Majar hereby demand a trial by jury to the

13

extent that the allegations contained herein are triable by jury under Rules 38-39 of

14

the Federal Rules of Civil Procedure 38-39 and Civil L.R. 38-1.

15
16

Dated: November 5, 2013

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

17
18
19
20
21
22
23
24
25
26

By:

s/Betsy C. Manifold
BETSY C. MANIFOLD

FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
[e-mail]
RACHELE R. RICKERT (190634)
[e-mail]
MARISA C. LIVESAY (223247)
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

27
28

- 40 -

1916

EXHIBIT 124

Ex. 124
____
1917

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 1 of 18 Page ID #:760

1 FRANCIS M. GREGOREK (144785)
[e-mail]
2 BETSY C. MANIFOLD (182450)
[e-mail]
3 RACHELE R. RICKERT (190634)
[e-mail]
4 MARISA C. LIVESAY (223247)
[e-mail]
5 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Street, Suite 2770
San Diego, CA 92101
7 Telephone: [phone]
Facsimile: 619/234-4599
8
9 Interim Lead Counsel for Plaintiffs and the [Proposed] Class
10
UNITED STATES DISTRICT COURT
11

CENTRAL DISTRICT OF CALIFORNIA -

12

WESTERN DIVISION

13
14 GOOD MORNING TO YOU
15 PRODUCTIONS CORP., et al.,
16
17
18

Plaintiffs,
v.

19 WARNER/CHAPPELL MUSIC,
20 INC., et al.
21

Defendant.

22
23

)
)
)
)
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Lead Case No. CV 13-04460-GHK (MRWx)
JOINT REPORT ON PARTIES’
PLANNING MEETING

Date:
Time:
Room:
Judge:

February 24, 2014
1:30 p.m.
650
Hon. George H. King, Chief Judge

24
25
26
27
28

22807218.1

1918

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 2 of 18 Page ID #:761

1

Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure (“FRCP”), Civil

2 Local Rule 26-1, and the Court’s Orders entered October 21, 2013 and December 13,
3 2013 (Dkts. 71, 80, respectively), plaintiffs Good Morning To You Productions
4 Corp. (“GMTY”), Robert Siegel (“Siegel”), Rupa Marya (“Marya”), and Majar
5 Productions, LLC (“Majar”) (collectively the “Plaintiffs”) and defendants
6 Warner/Chappell

Music,

Inc.

and

Summy-Birchard,

Inc.

(together

7 “Warner/Chappell” or “Defendants”) (Plaintiffs and Defendants are jointly referred
8 to herein as the “Parties”) submit this Joint Report on Parties’ Planning Meeting,
9 through their respective counsel of record, which was jointly prepared subsequent to
10 the in-person meeting of counsel conducted on January 16, 2014 (hereafter the
11 “Parties’ Planning Meeting”).
12

LIMITATION OF JOINT REPORT AS TO MERITS ISSUES WITH

13

RESPECT TO CLAIM ONE

14

By Order entered October 21, 2013 (Dkt. 71), Claim One of Plaintiffs’

15 Operative Complaint was BIFURCATED from all other claims through summary
16 judgment, and all other claims, including any discovery specific to such claims, are
17 STAYED until further order by the Court. October 21, 2013 Order (Dkt. 71 at 4).
18 Defendants’ pending motion to dismiss with respect to the stayed claims was
19 DENIED without prejudice as premature with leave to refile such motions after the
20 stay is lifted. Id. The Court further dismissed the Operative Complaint on behalf of
21 Plaintiffs Siegel and Majar with leave to amend to plead delayed accrual or tolling of
22 the Copyright Act’s three-year statute of limitations.
23

On November 6, 2013, Plaintiffs filed their Third Amended Consolidated

24 Complaint (“TAC”). The TAC includes, among other things, amended claims on
25 behalf of Plaintiffs Siegel and Majar relating to their theories of delayed accrual or
26 tolling of the Copyright Act’s three-year statute of limitations. On December 11,
27 2013, Defendants’ answered Claim One of Plaintiffs’ TAC and did not respond to
28
-1-

1919

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 3 of 18 Page ID #:762

1

Plaintiffs’ other claims for relief absent further order by this Court. See October 21,

2

2013 Order (Dkt. 71 at 4); Defs. Ans. to Pls. TAC (Dkt. 79) at 1 n.1.

3

Based on the Court’s October 21, 2013 Order bifurcating Claim One from the

4

other claims in the TAC, the Parties’ Planning Meeting was limited to Plaintiffs’

5

Claim One. In addition, to further the purposes of the bifurcation and to defer

6

potentially unnecessary discovery unless and until the action proceeds past a motion

7

for summary judgment, Warner/Chappell proposed, and Plaintiffs agreed, that the

8

Parties recommend that the first phase of the bifurcated action be limited to the

9

merits issues involved in Claim One, and need not include discovery or motion

10

practice directed to the allegations of Plaintiffs Siegel and Majar relating to their

11

theories of delayed accrual or tolling of the Copyright Act’s three-year statute of

12

limitations. If Claim One proceeds past summary judgment on the merits issues,

13

Warner/Chappell would be permitted to take discovery and file motions relating to

14

such theories of delayed discovery or tolling, whether on behalf of Plaintiffs Siegel

15

and Majar or any other members of the putative class.

16

I.

ITEMS LISTED IN THE DECEMBER 13, 2013 ORDER

17

A.

18

The Court has subject-matter jurisdiction over Claim One of the action

19

pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to relief arising

20

under the Copyright Act, 17 U.S.C. §§ 101 et seq.; and pursuant to the Declaratory

21

Judgment Act, 28 U.S.C. §§ 2201 et seq. Plaintiffs also have alleged jurisdiction

22

pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental

23

jurisdiction pursuant to 28 U.S.C. § 1367 over the non-federal claims in the TAC.

24

Warner/Chappell does not admit the latter bases for subject matter jurisdiction, but

25

that issue is irrelevant for purposes of Claim One, as to which the Court has

26

jurisdiction.

Basis For Subject Matter Jurisdiction

27
28

-2-

1920

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 4 of 18 Page ID #:763

1

B.

2

Statement of Factual and Legal Bases of Claims and Defenses
1.

3

Plaintiffs’ Statement
a.

Plaintiffs’ Statement Regarding Factual Basis

4

This is an action to declare that Defendants do not own a copyright to the

5

world’s most popular song, Happy Birthday to You (the “Song”), that if Defendants

6

own any copyright to the Song, it is limited to two specific piano arrangements or an

7

obscure second verse that has no commercial value, that any other copyright to the

8

Song that Defendants may own or ever owned are invalid or have expired, and that

9

the Song is dedicated to public use and in the public domain; and in turn to declare

10

that Defendants must return the substantial and allegedly unlawful licensing fees

11

collected by defendant Warner/Chappell pursuant to its allegedly wrongful assertion

12

of copyright ownership of the Song.

13

According to the United States Copyright Office (“Copyright Office”), a

14

“musical composition consists of music, including any accompanying words, and is

15

normally registered as a work of the performing arts.” Copyright Office Circular

16

56A, “Copyright Registration of Musical Compositions and Sound Recordings,” at 1

17

(Feb. 2012) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a

18

musical composition generally is the composer, and the lyricist (if a different

19

person). Id.

20

More than 120 years after the melody to which the simple lyrics of Happy

21

Birthday to You is set was first published, defendant Warner/Chappell, based on

22

Plaintiffs’ allegations, wrongfully and unlawfully claims that it owns the copyright to

23

the Song, and with that copyright the exclusive right to authorize the Song’s

24

reproduction, distribution, and public performances pursuant to federal copyright

25

law. Plaintiffs allege that Defendants have collected millions of dollars in unlawful

26

licensing fees from Plaintiffs as well as others unwilling or unable to challenge its

27

ownership claims.

28

-3-

1921

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 5 of 18 Page ID #:764

1

Plaintiffs allege that if Defendants owned or owns any copyrights to the Song,

2

those rights were and are limited to the extremely narrow right to reproduce and

3

distribute specific piano arrangements for the Song, or an obscure second verse that

4

has no commercial value, which were published in 1935, and that if the Defendants

5

ever owned a copyright to any other part of the Song itself, that copyright was invalid

6

or expired no later than 1921. No court has ever adjudicated either the scope or

7

validity of the Defendants’ claimed interest in the Song, nor in the Song’s melody or

8

its familiar lyrics, which are, themselves, independent works.

9

Plaintiffs GMTY, Siegel, Marya, and Majar on behalf of themselves and all

10

others similarly situated, seek a declaration that the Song is dedicated to public use

11

and is in the public domain as well as monetary damages and restitution of all the

12

unlawful licensing fees that Defendants have improperly collected from Plaintiffs

13

and all other Class members.

14

b.

Plaintiffs’ Legal Basis for Claim One

15

Plaintiffs’ TAC alleges claims for: (1) Declaratory Judgment (28 U.S.C. §

16

2201); (2) Declaratory and Injunctive Relief and Damages (28 U.S.C. § 2202); (3)

17

Violations of California’s Unfair Competition Laws (Bus. & Prof. Code §§ 17200 et

18

seq.); (4) Breach of Contract; (5) Common Law Money Had and Received; (6)

19

Rescission for Failure of Consideration; and (7) Violations of California’s False

20

Advertising Laws (Bus. & Prof. Code §§ 17500 et seq.) against Defendants.

21

At the October 7, 2013, hearing on Defendants’ Motion to Dismiss (Dkt. 52),

22

the Parties agreed that the most efficient way to proceed in this case would be to

23

bifurcate Claim One from the six other claims for the purposes of discovery and

24

summary judgment.

25

BIFURCATED these proceedings as follows: (1) Claim One is bifurcated from all

26

other claims through judgment; and (2) all other claims, including discovery specific

27

to such claims, are STAYED until further order by the Court. Id. In compliance

See October 21, 2013 Order (Dkt. 71).

The Court

28

-4-

1922

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 6 of 18 Page ID #:765

1

with the stay set forth in the October 21, 2013 Order, Plaintiffs limit their legal

2

analysis herein to Claim One pending further order of the Court.

3

(a)

Claim One – Declaratory Judgment Pursuant to 28 U.S.C. § 2201

4

Plaintiff brings Claim One individually on behalf of themselves and on behalf

5

of the proposed Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil

6

Procedure. Plaintiffs seek adjudication of an actual controversy arising under the

7

Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with Defendants’ purported

8

copyright claim to the Song.

9

Copyright Act does not bestow upon the Defendants the rights they have asserted and

10

enforced against Plaintiffs and the other members of the Class. This is because

11

either: (a) the 1935 registrations E51988 and E51990, under which the Defendants

12

claim those copyrights, and the resulting copyrights, do not purport to cover and do

13

not cover the familiar lyrics to the Song, but instead are limited just to the particular

14

arrangements written by Forman or Orem (and, in the case of E51988, the obscure

15

second verse which has no commercial value); or (b) if and to the extent that those

16

copyrights purport to cover the familiar lyrics to the Song, the copyrights are invalid

17

or have expired.

Plaintiffs seek the Court’s declaration that the

18

Defendants assert that they are entitled to mechanical and performance

19

royalties pursuant to 17 U.S.C. § 115 for the creation and distribution of

20

phonorecords and digital downloads of the Song, under threat of a claim of copyright

21

infringement.

22

Plaintiff GMTY entered into a Synchronization License agreement to use the

23

Song and paid Warner/Chappell the sum of $1,500 for that Synchronization License

24

based upon its claim of copyright ownership. BIG FAN, assignor of plaintiff Siegel,

25

entered into the Synchronization License agreement to use the Song and paid

26

Warner/Chappell the sum of $3,000 for that Synchronization License based upon its

27

claim of copyright ownership. Plaintiff Marya paid defendant Warner/Chappell the

28

sum of $455 as a compulsory mechanical license royalty to use the Song in her

-5-

1923

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 7 of 18 Page ID #:766

1

album based upon Warner/Chappell’s claim of copyright ownership. Plaintiff Majar

2

paid Warner/Chappell a licensing fee in the sum of $5,000 pursuant to its claim of

3

copyright ownership, in order for Plaintiff Majar to use the Song in an award

4

winning documentary film: No Subtitles Necessary:

5

Warner/Chappell’s demand to each plaintiff was coercive in nature, and each

6

individual plaintiff involuntarily entered into the respective license agreement.

Lázló & Vilmos.

7

Plaintiffs’ claim presents a justiciable controversy because each plaintiff’s

8

agreement to pay defendant Warner/Chappell and the actual payment to

9

Warner/Chappell

for

use

of

the

Song

was

the

involuntary

result

of

10

Warner/Chappell’s assertion of a copyright and the risk that each individual plaintiff

11

would be exposed to substantial statutory penalties under the Copyright Act had it

12

failed to enter such an agreement and pay Warner/Chappell the price it demanded.

13

Plaintiffs seek the Court’s determination as to whether Defendants are entitled

14

to assert ownership of the copyright to Happy Birthday to You against Plaintiffs

15

pursuant to the Copyright Act as Defendants claim, or whether Defendants are

16

wielding a false claim of ownership to inhibit Plaintiffs’ use and enjoyment (and the

17

public’s use and enjoyment) of the Song, which is rightfully in the public domain.

18

More specifically, the 1893 and 1896 copyrights to the original and revised

19

versions of Song Stories for the Kindergarten, which contained the song Good

20

Morning to All, were not renewed by Summy or Summy Co. and accordingly expired

21

in 1921 and 1924, respectively. Likewise, the 1893 copyright to Song Stories for the

22

Kindergarten and the 1899 copyright to Song Stories for the Sunday School, which

23

contained Good Morning to All, and the 1907 copyright to Good Morning to All were

24

not renewed by Summy Co. before Summy Co. was dissolved in 1920 and

25

accordingly, those copyrights expired in 1921, 1924, 1927 and 1935, respectively. In

26

addition, the 1893, 1896, 1899, and 1907 copyrights to Good Morning to All were

27

forfeited by the republication of Good Morning to All in 1921 without proper notice

28

of its original 1893 copyright.

-6-

1924

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 8 of 18 Page ID #:767

1

The registration certificates for The Elementary Worker and His Work in 1912,

2

Harvest Hymns in 1924, and Children’s Praise and Worship in 1928, which did not

3

attribute authorship of the lyrics to Happy Birthday to You to anyone, are prima facie

4

evidence that the lyrics were not authored by either Patty or Mildred Hill.

5

The piano arrangements for Happy Birthday to You published by Summy Co.

6

in 1935 (Reg. Nos. E51988 and E51990): (a) do not give Warner/Chappell

7

copyrights to the familiar lyrics to the Song, but instead are limited just to the

8

particular musical arrangements written by Forman or Orem (and, in the case of

9

E51988, the obscure second verse which has no commercial value), who did not

10

write the popular lyrics to the Song; and (b) were not eligible for federal copyright

11

protection because those works did not contain original works of authorship, except

12

to the extent of the piano arrangements themselves.

13

The 1935 copyrights pertained only to the piano arrangements or the obscure

14

second verse, not to the melody or familiar first verse lyrics of the Song, which lyrics

15

were not written by Forman or Orem.

16

If declaratory relief is not granted, the Defendants will continue to wrongfully

17

assert the exclusive copyright to the Song at least until 2030, when the current term

18

of the copyright expires under existing copyright law.

19

Plaintiffs therefore request a declaration that:

20

(a)

21

exclusive right to reproduce, distribute, or publicly perform the Song;

22

(b)

23

two specific piano arrangements or an obscure second verse that has no

24

commercial value,

25

(c)

26

ever owned are invalid or have expired;

27

(d)

28

a license for use of the Song; and

the Defendants do not own the copyright to, or possess the
if the Defendants own any copyright to the Song, it is limited to

any other copyright to the Song that the Defendants may own or
the Defendants do not own the exclusive right to demand or grant

-7-

1925

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 9 of 18 Page ID #:768

1

(e)

2

use.

3

the Song is in the public domain and is dedicated to the public
2.

Warner/Chappell’s Statement Regarding Plaintiffs’ Claim One

4

Warner/Chappell and its predecessors-in-interest own and have owned the

5

copyright to the lyrics to the musical composition entitled Happy Birthday to You.

6

The United States Copyright Office registered the copyright in December 1935.

7

Under the Copyright Act, Warner/Chappell’s copyright expires in December 2030.

8

17 U.S.C. § 304(b). While the Plaintiffs have each requested and obtained licenses

9

from Warner/Chappell for their respective commercial uses of the lyrics to Happy

10

Birthday to You, Plaintiffs now come to the Court challenging Warner/Chappell’s

11

longstanding and uninterrupted exercise of its copyright interests in this musical

12

composition.

13

Warner/Chappell is the owner of copyright registration certificate E51990,

14

“Happy Birthday to You,” issued in December 1935, to Warner/Chappell’s

15

predecessor-in-interest, Clayton F. Summy Co.

16

familiar lyrics to Happy Birthday to You.

17

presumption of ownership by Warner/Chappell. Contrary to how Plaintiffs would

18

like to proceed, the burden is on them to disprove the validity of Warner/Chappell’s

19

copyright and the facts stated in the registration certificate. This is not an issue of

20

Warner/Chappell’s affirmative defense, but rather a failure of proof that will be fatal

21

to Plaintiffs’ claim for declaratory relief (and, along with it, all other claims in

22

Plaintiffs’ Complaint).

Certificate E51990 covers the

The copyright registration raises a

23

Under the Copyright Act and Ninth Circuit precedent, Warner/Chappell’s

24

certificate E51990 “constitute[s] prima facie evidence of the validity of the copyright

25

and of the facts stated in the certificate.” 17 U.S.C. § 410(c). Warner/Chappell does

26

“not have to produce any evidence” to substantiate either the validity of the copyright

27
28

or the facts stated in the registration certificate. Warner/Chappell “is presumed to
own a valid copyright, 17 U.S.C. § 410(c), and the facts stated therein, including the
-8-

1926

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 10 of 18 Page ID #:769

1

chain of title … are entitled to the presumption of truth.” United Fabrics Int’l, Inc. v.

2

C&J Wear Inc., 630 F.3d 1255, 1258 (9th Cir. 2011).

3

Certificate E51990 applies on its face to a “published musical composition”

4

entitled “Happy Birthday to You,” and the listing under the byline is as follows: “By

5

Mildred J. Hill, arr. by Preston Ware Orem;* pf., with words.” (Emphasis added.)

6

The certificate further states: “(© is claimed on arrangement as easy piano solo with

7

text).” (Emphasis added.) The registration certificate lists the date of publication as

8

December 6, 1935, and states that copies were received and registered in the

9

Copyright Office on December 9, 1935. All of this, as well as the validity of the

10

copyright, is prima facie presumed true in this litigation.

11

In response to the Court’s Order that Plaintiffs replead the bases for their

12

declaratory judgment claim, Plaintiffs have alleged that (1) certificate E51990 is

13

limited to a particular piano arrangement and does not cover the “popular” lyrics to

14

Happy Birthday to You, and (2) the work published under this copyright was not

15

original, except with respect to the piano arrangement. Plaintiffs have been, and

16

continue to be, less than clear about what evidence they believe they have that will

17

rebut the presumptions afforded by certificate E51990. Warner/Chappell believes

18

that Plaintiffs will not be able to rebut the presumptions.

19

First, Plaintiffs cannot show that the registration certificate was not intended to

20

cover the lyrics to Happy Birthday to You. As noted above, certificate E51990

21

expressly states that copyright is claimed on “arrangement as easy piano solo with

22

text” (emphasis added). The certificate also describes the copyrighted material as

23

“pf. [“pianoforte,” or piano], with words” (emphasis added). The references to “text”

24

and “words” can only mean the lyrics to Happy Birthday to You. There is no text or

25
26
27
28

words on which copyright could have been intended to be claimed other than those
lyrics.
Second, Plaintiffs cannot rebut the presumption that the lyrics are validly
copyrighted. To support their claim, Plaintiffs allege that these lyrics were published
-9-

1927

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 11 of 18 Page ID #:770

1

on various occasions prior to the December 1935 registration. Even if true, this

2

would not show that the author of the lyrics copyrighted under certificate E51990

3

copied those lyrics from somewhere else. Copyright law requires originality, not

4

novelty. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

5

Accordingly, Plaintiffs will not be able to satisfy their burden of overcoming

6

Warner/Chappell’s ownership of a valid copyright to the lyrics to Happy Birthday to

7

You. Warner/Chappell will move for summary judgment on Claim One of Plaintiffs’

8

Third Amended Consolidated Complaint.

9

Warner/Chappell has a statute of limitations defense to the claims of any

10

Plaintiff who licensed Happy Birthday to You more than three years before their

11

complaint was filed. The Copyright Act’s three-year statute of limitations, 17 U.S.C.

12

§ 507(b), governs the declaratory relief claim. In the interest of minimizing the

13

needless expense of litigating Plaintiff Majar’s and Plaintiff Siegel’s allegations of

14

delayed accrual or tolling, Warner/Chappell proposes to reserve its challenges to

15

those allegations unless and until the litigation reaches a second phase.

16

C.

17

The Parties met and conferred and believe that the discovery and briefing

18

related to class certification should be deferred until after the Court decides the

19

Parties’ joint summary judgment motion on Claim One of the TAC. The Parties are

20

prepared to discuss their position with the Court at the Scheduling Conference.

Motion for Class Certification Deadlines

21

D.

22

As to the merits issues with respect to Claim One only, and excluding

23

discovery and motion practice with respect to any theory of delayed accrual or tolling

24

(see Statement Re Limitation, pages 1-2, supra), the Parties have agreed to the

25
26
27
28

Discovery Completion

following pre-trial discovery plan:
1.

Initial Rule 26(f) Disclosures: Completed on January 30, 2014, as
required.

2.

Discovery on Claim One Cut-Off: June 27, 2014.
- 10 -

1928

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 12 of 18 Page ID #:771

1

3.

Discovery Motions Deadline: May 30, 2014.

2

As to the merits issues on Claim One only, reports and/or disclosures from expert

3

witnesses as provided under Rule 26(a)(2) of the Federal Rules of Civil Procedure

4

should be as follows:

5

1.

Initial Expert Disclosures: July 25, 2014.

6

2.

Rebuttal Expert Disclosures: August 25, 2014

7

3.

Expert Discovery Cut-Off: September 26, 2014.

8

4.

Expert Discovery Motions Deadline: September 15, 2014.

9

Electronically stored information will be produced in accordance with Rule 34 of the

10

Federal Rules of Civil Procedure. Plaintiffs reserve the right to request that all

11

electronically stored information be produced in native form, if available, and

12

searchable pdf, if not. Plaintiffs further request that all meta-data in electronically

13

stored information be preserved.

14

Procedures for asserting claims of privilege or work product protection, including

15

any claims made after production, shall be in accordance with Rule 26(b)(5) of the

16

Federal Rules of Civil Procedure.:

17

The Parties are discussing and will present for the Court’s review a proposed

18

protective order.

19

E.

Pre-Trial and Trial Dates

20

1.

21

2014.

22

2.

23

during first phase of Bifurcated proceeding.

24

3.

25
26
27
28

Motion Cut-Off as to Merits Issues on Claim One: November 7,
Final Pre-Trial Conference: Not applicable as to proceedings
Trial as to Claim One: Not applicable as to proceedings during

first phase of Bifurcated proceeding.
F.

Major Procedural Or Evidentiary Problems

This action involves historical information and documents and the Parties will
work cooperatively to resolve any authentication or admissibility issues.
- 11 -

1929

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 13 of 18 Page ID #:772

1

G.

2

Counsel believes that a settlement conference is premature at this time. After

3

the Court rules on the motion for summary judgment as to the merits issues on Claim

4

One, if the action proceeds past summary judgment, counsel will meet and confer to

5

select a settlement procedure pursuant to Civil Local Rules 16-15 and 16-15.9.

Settlement Procedures

6

H.

Length of Trial

7

1.

Plaintiffs’ Case-in-Chief: Not applicable as to proceedings during first

8

phase of Bifurcated proceeding.

9

2.

Defendants’ Case-in-Chief: Not applicable as to proceedings during

10

first phase of Bifurcated proceeding.

11

3.

12

during first phase of Bifurcated proceeding.

13

4.

14

during first phase of Bifurcated proceeding.

15

I.

The estimated time required for trial: Not applicable as to proceedings
The case should be ready for trial: Not applicable as to proceedings
Trial By Jury or Court

16

Not applicable as to proceedings during first phase of Bifurcated

17

proceeding. Plaintiffs reserve their jury demand if the action proceeds past

18

summary judgment at the end of the first phase of the Bifurcated proceeding.

19

J.

Name of Trial Attorneys

20

Plaintiffs:

21

Mark C. Rifkin, Wolf Haldenstein Adler Freeman & Herz LLP

22

Betsy C. Manifold, Wolf Haldenstein Adler Freeman & Herz LLP

23

Randall S. Newman, Randall S. Newman P.C.

24

Defendants:

25
26
27
28

Glenn D. Pomerantz, Munger, Tolles & Olson LLP
Kelly M. Klaus, Munger, Tolles & Olson LLP
Adam I. Kaplan, Munger, Tolles & Olson LLP

- 12 -

1930

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 14 of 18 Page ID #:773

1

K.

2

The Parties do not consent to a Magistrate Judge for all purposes.

3

II.

4

ITEMS LISTED IN FRCP 26(f)
A.

5
6

Consent to Magistrate Judge for All Purposes

Initial Disclosures:
Initial disclosures as to the merits issues in Claim One were exchanged

on January 30, 2014, which was 14 days after the Parties’ Planning Meeting.

7

B.

8

The Parties will proceed to serve discovery in accordance with the Federal

9

Discovery:

Rules related to the merits issues concerning Claim One.

10

C.

11

The Parties do not contemplate any changes to the discovery limitations set

12

forth by Federal Rules of Civil Procedure at this time, but instead reserve the right to

13

request an appropriate extension by either stipulation or motion.

Changes to Limitations on Discovery:

14

D.

15

The parties do not seek any additional orders at this time but reserve the right

Other Orders:

16

to do so as the need arises.

17

III.

ITEMS LISTED IN CivL.R. 26-1

18

To the extent that these elements are not addressed above:

19

A.

20

The complexity of this matter, including Plaintiffs’ motion for class

21
22
23
24
25
26
27
28

Complex Case:

certification, are not issues for the first phase of the Bifurcated proceeding.
B.

Motion Schedule:
The Parties expect to file summary judgment papers as to merits issues

on Claim One by November 7, 2014.

At the current time, the Parties do not

anticipate other merits-related motions prior to that motion.
C.-D. Trial and Final Pre-Trial Conference:
Not applicable to the first phase of the Bifurcated proceeding.

- 13 -

1931

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 15 of 18 Page ID #:774

1

E.

2

The Parties jointly requested the following briefing schedule for the motion for

3

Dispositive Motion Hearing Cut-Off:

summary judgment as to merits issues relating to Claim One:

4

Joint Motion for Summary Judgment filed by: November 7, 2014.

5

F.-G. Discovery Cutoff and Initial Expert Disclosures:

6

These issues are addressed in Section I.D., above.

7

H.

8

This issue is addressed in Section I.G., above.

9

I.

Settlement:
Trial Estimate:

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Not applicable to the first phase of the Bifurcated proceeding.

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J.

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No additional parties are contemplated by either party at this time.

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K.

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The Parties contemplate retaining experts. The schedule for disclosure of

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Additional Parties:
Expert Witnesses:

experts and expert reports is set forth in Section I.D., above.

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Respectfully Submitted,
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

Dated: February 10, 2014

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By:

/s/Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]

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1932

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 16 of 18 Page ID #:775

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750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
BETH A. LANDES (pro hac vice)
[e-mail]
GITI BAGHBAN (284037)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

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Interim Lead Counsel for Plaintiffs

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RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
[e-mail]
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]

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HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]

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1933

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 17 of 18 Page ID #:776

Facsimile 626/796-0107
Facsimile: 212/797-3172

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DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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GLANCY BINKOW & GOLDBERG LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160

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Attorneys for Plaintiffs

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MUNGER TOLLES & OLSON LLP

Dated: February 10, 2014
By:

/s/Kelly M. Klaus
KELLY M.KLAUS
KELLY M. KLAUS (161091)
[e-mail]
ADAM I. KAPLAN (268182)
[e-mail]
560 Mission St., 27th Floor
San Francisco, CA 94105
Telephone: [phone]
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1934

Case 2:13-cv-04460-GHK-MRW Document 89 Filed 02/10/14 Page 18 of 18 Page ID #:777

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MUNGER TOLLES & OLSON LLP
GLENN D. POMERANTZ (112503)
[e-mail]
355 South Grand Ave., 35th Floor
Los Angeles, CA 90071
Telephone: [phone]

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Attorneys for Defendants

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DECLARATION REGARDING CONCURRENCE
I, BETSY C. MANIFOLD, am the ECF/CM User whose identification login
and password are being used to file this JOINT REPORT ON PARTIES’
PLANNING MEETING. In compliance with L.R. 5-4.3.4(2)(i), I hereby attest that

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Kelly M. Klaus has concurred in this filing’s content and has authorized its filing.

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DATED: February 10, 2014

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By:

/s/ Betsy C. Manifold
BETSY C. MANIFOLD

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WARNER/CHAPPELL:20396v.3.jsr

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EXHIBIT 125

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EXHIBIT 126

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