Rupa Marya v. Warner Chappell Music Inc

Filing 180

JOINT STATEMENT of UNCONTROVERTED FACTS IN SUPPORT OF Cross MOTION for Summary Judgment as to Declaratory Judgment #179 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Manifold, Betsy)

BETSY C. MANIFOLD (182450)
1 [e-mail]
WOLF HALDENSTEIN ADLER
2
FREEMAN & HERZ LLP
750 B Street, Suite 2770
3 San Diego, CA 92101
619/239-4599
4 Telephone: [phone]
Facsimile:
5

Interim Lead Counsel for Plaintiffs and the
6 [Proposed] Class
7 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
8 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
9 MELINDA E. LeMOINE (State Bar No. 235670)
[e-mail]
10 ADAM I. KAPLAN (State Bar No. 268182)
[e-mail]
11 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
12 Thirty-Fifth Floor
Los Angeles, California 90071-1560
13 Telephone: [phone]
Facsimile: [phone]
14
15 Attorneys for Defendants Warner/Chappell Music, Inc.
and Summy-Birchard, Inc.
16
UNITED STATES DISTRICT COURT
17
CENTRAL DISTRICT OF CALIFORNIA 18
19
20
21
22
23
24
25
26
27
28

WESTERN DIVISION
) Lead Case No. CV 13-04460-GHK (MRWx)
GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
)
) JOINT STATEMENT OF
Plaintiffs,
) UNCONTROVERTED FACTS IN
) SUPPORT OF PARTIES’ NOTICE OF
v.
) CROSS-MOTION AND CROSS) MOTION FOR SUMMARY
WARNER/CHAPPELL MUSIC, ) JUDGMENT
INC., et al.,
)
) Date:
January 26, 2015
Defendants.
) Time:
9:30 a.m.
) Room:
650
Hon. George H. King,
) Judge:
Chief Judge
)

JOINT STATEMENT OF UNCONTROVERTED FACTS*

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

P1.

Attached to the Joint
• Evidentiary Appendix (“App’x”), Ex. 1
Evidentiary Appendix is a
true, correct and admissible
copy of Plaintiffs’ Fourth
Amended Complaint filed
on April 29, 2014
(“FAC”), Dkt. 95, 96

Undisputed.

P2.

Attached to the Joint
• App’x, Ex. 2
Evidentiary Appendix is a
true, correct and admissible
copy of Defendants’
Answer to Plaintiffs’ FAC
filed on May 6, 2014
(“Defs. Ans.”)

Admissible Evidence Supporting
Response

Undisputed.

P3.

At some point prior to
• App’x, Ex. 1 (FAC) at 8, ¶ 16; App’x, Ex. Undisputed.
1893, Mildred Hill and
2 (Defs. Ans.) at 49-50, ¶ 16
Patty Hill (together, the
“Hill Sisters”) wrote a
manuscript containing
sheet music for numerous
songs. The music was
composed by Mildred
25184237.2 *As directed in the Court’s March 24, 2014 Order Re: Summary Judgment, Dkt. 93, ¶ 9
JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

(with Patty’s help) and the
lyrics were written by
Patty.
P4.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Amended Answer filed by
Summy Co. (Delaware) on
December 29, 1942, in the
Southern District of New
York in the case captioned
The Hill Foundation, Inc.
v. Clayton F. Summy Co.,
Civil No. 19-377.

• App’x, Ex. 51 at 677-689.

Undisputed.

P5.

Good Morning to All
• App’x, Ex. 51 at 680-681
(“Good Morning”) was one
of the songs the Hill Sisters
included in their
manuscript.

Undisputed.

P6.

Good Morning was

Undisputed.

• App’x, Ex. 51 at 678-679, ¶ 2

25184237.2

-2JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

composed by Mildred, with
Patty’s help, and the lyrics
were written by Patty.
P7.

On February 1, 1893, the
Hill Sisters sold and
assigned all their right,
title, and interest in the
written manuscript to
Clayton F. Summy
(hereafter, “Summy”).

• App’x, Ex. 51 at 678-679

Undisputed.

P8.

There is no copy of any
written agreement setting
forth the terms of the Hill
Sisters’ February 1, 1893,
assignment to Summy.

• App’x, Ex. 3 [Declaration of Mark C.
Rifkin (“Rifkin Decl.”)] at 78, ¶¶ 2-4]

Undisputed.

P9.

Mildred Hill and Patty Hill
were never employed by
Summy or by any of
Summy’s businesses.

• App’x, Ex. 27 at 554 (New Song
Information Sheet), App’x, Ex. 3 [Rifkin
Decl.] at 78, ¶ 5

Undisputed.

P10.

In 1893, Summy published

• App’x, Ex. 1 (FAC) at 8, ¶ 19; App’x, Ex.

Undisputed.

25184237.2

-3JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
the Hill Sisters’ written
manuscript in a songbook
titled Song Stories for the
Kindergarten, with a
foreword by Anna E.
Bryan.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

2 (Defs. Ans.) at 50, ¶ 19

P11.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
excerpt of Song Stories for
the Kindergarten.

• App’x, Ex. 5 at 87-93

Undisputed.

P12.

Song Stories for the
Kindergarten included the
song Good Morning.

• App’x, Ex. 5 at 93

Undisputed.

P13.

On or about October 13,
• App’x, Ex. 1 (FAC) at 8, ¶ 20; App’x, Ex.
1893, Summy filed a
2 (Defs. Ans.) at 50, ¶ 20
copyright application (Reg.
No. 45997) with the
Copyright Office for Song
Stories for the

Undisputed.

25184237.2

-4JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Kindergarten for a term of
28 years.
P14.

Song Stories for the
Kindergarten bears a
copyright notice reading
“Copyright 1893, by
Clayton F. Summy.”

• App’x, Ex. 5 at 90

Undisputed.

P15.

The lyrics to Good
Morning are:

• App’x, Ex. 1 (FAC) 9, ¶ 24; App’x, Ex. 2
(Defs. Ans.) at 50, ¶ 24

Undisputed.

• App’x Ex. 1 (FAC) at 9, ¶ 25; App’x, Ex.
2 (Defs. Ans.) at 50-51, ¶ 25.

Undisputed.

Good morning to you
God morning to you
Good morning dear
children
Good morning to all.
P16.

The familiar lyrics to the
song Happy Birthday to
You (“Happy Birthday” or
the “Song”), are:
Happy birthday to you
Happy birthday to you

25184237.2

-5JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

App’x, Ex. 1 (FAC) at ¶ 25; App’x Ex.
2 (Ans) at ¶ 26.

Happy birthday dear
[NAME]
Happy birthday to you.
P17.

Happy Birthday is the
• App’x Ex. 1 (FAC) at 9, ¶ 25; App’x, Ex.
combination of the familiar
2 (Defs. Ans.) at 50-51, ¶ 25.
Happy Birthday lyrics set
to the melody of Good
Morning.

Undisputed that the lyrics identified in P16
frequently are performed in conjunction
with the melody to Good Morning to All.

P18.

No lyrics to Happy
Birthday were published in
Song Stories for the
Kindergarten.

Undisputed.

P19.

Attached to the Joint
• App’x, Ex. 6 at 95-109
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Articles of Incorporation
for the Clayton F. Summy
Company filed with the
State of Illinois on or about
January 14, 1895.

• App’x Ex. 1 (FAC) at 9, ¶ 26; App’x, Ex.
2 (Defs. Ans.) at 51, ¶ 26.

Undisputed.

25184237.2

-6JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

P20.

Pursuant to Summy Co’s
Articles of Incorporation,
Summy Co. term of
incorporation was limited
to 25 years.

• App’x, Ex. 6 at 95.

Undisputed.

P21.

On or about January 14,
1895, Summy assigned all
his right, title and interest
in Song Stories for the
Kindergarten to Summy
Co.

• App’x Ex. 1 (FAC) at 9, ¶ 27; App’x, Ex.
2 (Defs. Ans.) at 51, ¶ 27

Undisputed.

P22.

In or about 1896, Summy
Co. published a new,
revised, illustrated, and
enlarged version of Song
Stories for the
Kindergarten, which
contained illustrations by
Margaret Byers.

• App’x Ex. 1 (FAC) at 9, ¶ 28; App’x, Ex.
2 (Defs. Ans.) at 51, ¶ 28

Undisputed.

P23.

Attached to the Joint
Evidentiary Appendix is a

• App’x, Ex. 7 at 111-210

Admissible Evidence Supporting
Response

Undisputed.

25184237.2

-7JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

true, correct, and
admissible copy of the
1896 version of Song
Stories for the
Kindergarten.
P24.

No lyrics to Happy
Birthday were published in
the 1896 version of Song
Stories for the
Kindergarten.

• App’x, Ex. 7 at 127

Undisputed.

P25.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
article entitled First Grade
Opening Exercises printed
in the January 1901 edition
of Inland Educator and
Indiana School Journal.

• App’x, Ex. 8 at 212-213

Undisputed.

P26.

The article entitled First
Grade Opening Exercises

• App’x, Ex. 8 at 212-213

Undisputed that the article entitled First
Grade Opening Exercises contains the

25184237.2

-8JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

quote recited.

states, in relevant part:
“A birthday among the
little people is always a
special occasion. The one
who is celebrated is
decorated with a bright
flower or badge and stands
in the center of the circle
while the children sing
“Happy birthday to you.”
P27.

The lyrics and melody of
Happy Birthday to You
were not printed in the
article entitled First Grade
Opening Exercises.

• App’x, Ex. 8 at 213

Undisputed.

P28.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
excerpt from the book Tell
Me a True Story.

• App’x, Ex. 9 at 215-218

Undisputed.

25184237.2

-9JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response
App’x, Ex. 9 (P0003729-3732)

P29.

Fleming H. Revell Co.
(“Revell”) published the
book Tell Me a True Story,
and it was arranged by
Mary Stewart.

• App’x, Ex. 9 at 215

Undisputed.

P30.

Tell Me a True Story
instructed readers to:

• App’x, Ex. 9 at 217-218

Undisputed that Tell Me a True Story
contains the quote recited.

• App’x, Ex. 10 at 220

Undisputed.

Sing: “Good-bye to
you, good-bye to you,
good-bye dear children,
goodbye to you.” Also:
“Good-bye dear
teacher.” (From “Song
Stories for the SundaySchool,” published by
Summy & Co.)
Sing: “Happy Birthday to
You.” (Music same as
“Good-bye to You.”)
P31.

Attached to the Joint
Evidentiary Appendix is a

25184237.2

- 10 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

true, correct, and
admissible copy of the
entry for Reg. No.
A239690 (Tell Me a True
Story) in the 1909 Catalog
of Copyright Entries for
Books
P32.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of The
Elementary Worker and
His Work.

• App’x, Ex. 11 at 222-486

Undisputed.

P33.

The Elementary Worker
and His Work was
published in 1911 by the
Board of Sunday Schools
of the Methodist Episcopal
Church (“Board of Sunday
Schools”) and was written
by Alice Jacobs and
Ermina Chester Lincoln.

• App’x, Ex. 11 at 228-229

Undisputed.

25184237.2

- 11 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
P34.

Admissible Evidence Supporting Fact

The complete, familiar
• App’x, Ex. 11 at 290
lyrics to Happy Birthday to
You (without the sheet
music for the melody)
appeared on page 63 of The
Elementary Worker and
His Work, as follows:

Opposing Party’s Response

Admissible Evidence Supporting
Response

Undisputed.

Happy birthday to you,
Happy birthday to you,
Happy birthday, dear
John, Happy birthday to
you. (Sung to the same
tune as the “Good
Morning”)
P35.

Page 67 of The Elementary
Worker and His Work
states:

• App’x, Ex. 11 at 294

Undisputed.

[NOTE: The songs and
exercises referred to in this
program may be found in
these books:... “Song
Stories for the Sunday
25184237.2

- 12 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

• App’x, Ex. 12 at 488-490

Disputed. The document referenced is an
application for copyright.

App’x, Ex. 12 (P006331-6333)

School,” by Patty Hill.]
P36.

Attached to the Joint
Evidentiary Appendix is a
certified copy of the
Certificate of Copyright
Registration for The
Elementary Worker and
His Work.

• App’x, Ex. 4 at 83, ¶ 3(e)

P37.

Attached to the Joint
• App’x, Ex. 13 at 492-493
Evidentiary Appendix is a
true, correct, and
admissible copy of an
excerpt of the Happy
Birthday sheet music
published by the Cable
Company Chicago in 1912.

Undisputed.

P38.

By 1912, the Cable
Company Chicago had
begun publishing sheet
music with the following
title:

Undisputed that the document cited
contains sheet music with the title recited.

• App’x, Ex. 13 at 492-493
• App’x Ex. 3 [Rifkin Decl.] at 79, ¶ 6]

App’x, Ex. 13 (P003423-3424)

25184237.2

- 13 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

“Good-Morning to You.
GOOD-BYE TO YOU HAPPY BIRTHDAY TO
YOU”
P39.

Cable Company Chicago
never asserted copyright
ownership in Happy
Birthday.

• App’x, Ex. 3 [Rifkin Decl.] at 79, ¶ 7

Undisputed.

P40.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
excerpt of the sheet music
published in The Golden
Book of Favorite Songs.

• App’x, Ex. 14 at 495-497

Undisputed.

P41.

In 1915, Hall & McCreary • App’x, Ex. 14 at 496-497
Company published The
Golden Book of Favorite
Songs which included sheet
music with the following

Undisputed that the document cited
contains sheet music with the title recited.

App’x, Ex. 14 (P003425-3427)

25184237.2

- 14 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

App’x, Ex. 15 (P003572).

title:
“GOOD-MORNING TO
YOU.
GOOD-BYE TO YOU HAPPY BIRTHDAY TO
YOU”
P42.

On January 14, 1920,
Summy Co.’s 25-year term
of incorporation expired.

• App’x, Ex. 6 at 95

Undisputed that January 14, 1920 is 25
years after January 14, 1895.

P43.

Copyright to the original
(1893) version Song
Stories for the
Kindergarten (Reg. No.
45997) was never extended
or renewed by Summy Co.

• App’x, Ex. 3 [Rifkin Decl.] at 79, ¶ 8

Undisputed.

P44.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of a
renewal application Jessica
Hill filed for Song Stories

• App’x, Ex. 16 at 500-501

Undisputed.

25184237.2

- 15 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

for the Kindergarten (Reg.
No. 45997) on September
3, 1921.
P45.

Attached to the Joint
• App’x, Ex. 17 at 503-507
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Certificate of Incorporation
for Educational Music
Bureau (“EMB”) filed with
the Illinois Secretary of
State on or about August
11, 1923.

Undisputed.

P46.

At the time of its
incorporation EMB issued
200 shares of capital stock
to nine (9) different
shareholders.

• App’x, Ex. 17 at 505

Undisputed.

P47.

John F. Sengstack was not
one of the nine (9)
shareholders who received

• App’x, Ex. 17 at 505

Undisputed that the name John F.
Sengstack does not appear on App’x, Ex.
17

App’x, Ex. 17

25184237.2

- 16 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 18 at 509-512

Admissible Evidence Supporting
Response

Undisputed.

shares of capital stock in
EMB at the time of its
incorporation.
P48.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of
An excerpt from the
songbook Harvest Hymns.

P49.

Harvest Hymns, published • App’x, Ex. 18 at 512
in or around March, 1924
contained sheet music
(with accompanying lyrics)
to Happy Birthday.

Undisputed that Harvest Hymns contains
sheet music (with accompanying lyrics) to
Happy Birthday.

P50.

Harvest Hymns, was
published, compiled, and
edited by Robert H.
Coleman (“Coleman”).

• App’x, Ex. 19 at 514-516

Undisputed.

P51.

Attached to the Joint
Evidentiary Appendix is a
certified and admissible

• App’x, Ex. 19 at 514-516

Disputed. The document referenced is an
application for copyright.

• App’x, Ex. 4 [Landes Decl.] at 83, ¶ 3(f)]

App’x, Ex. 18 at 512

App’x, Ex. 19 (P006325-6327)

25184237.2

- 17 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

copy of the Certificate of
Copyright Registration for
Harvest Hymns.
P52.

Attached to the Joint
• App’x, Ex. 20 at 518-523
Appendix is a true, correct,
and admissible copy of the
Articles of Incorporation of
Clayton F. Summy Co.
filed with the Illinois
Secretary of State on or
about April 15, 1925
(“Summy Co. II”).

Undisputed.

P53.

Attached to the Joint
Evidentiary Appendix is a
true is a true, correct, and
admissible copy of an
excerpt from the book
Children’s Praise and
Worship.

• App’x, Ex. 21 at 525-528

Undisputed.

P54.

The sheet music (with
accompanying lyrics) to

• App’x, Ex. 21 at 528

Undisputed that Children’s Praise and
Worship contains the sheet music and

App’x, Ex. 21 (P003434)

25184237.2

- 18 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Happy Birthday to You was
published in 1928 in
Children’s Praise and
Worship.

Opposing Party’s Response

Admissible Evidence Supporting
Response

lyrics to Happy Birthday to You.

P55.

In Children’s Praise and
Worship, the Happy
Birthday song was
published under the title
Happy Birthday to You.

• App’x, Ex. 21 at 528

Undisputed that Children’s Praise and
Worship contain the lyrics to Happy
Birthday to You and that those lyrics
appear under the title “Happy Birthday to
You.”

App’x, Ex. 21 (P003434)

P56.

Attached to the Joint
Evidentiary Appendix is a
certified and admissible
copy of the Certificate of
Copyright Registration for
Children’s Praise and
Worship.

• App’x, Ex. 22 at 530-532

Disputed. The document referenced is an
application for copyright.

App’x, Ex. 22 (P006328-6330)

Children’s Praise and
Worship did not provide
any copyright notice for
the combination of Good
Morning to All with the

• App’x, Ex. 21 at 528

P57.

• App’x, Ex. 4, [Landes Decl.] at 83, ¶ 3(g)]

Undisputed.

25184237.2

- 19 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

lyrics to Happy Birthday to
You, nor did it include the
names of Mildred Hill or
Patty Hill and did not
attribute any authorship or
ownership to the Hill
Sisters.
P58.

Attached to the Joint
• App’x, Ex. 92 at 1059-1068
Evidentiary Appendix is a
true , correct, and
admissible copy of an
Agreement dated August 7,
1931, between Clayton F.
Summy and John F.
Sengstack. (“John
Sengstack”).

Undisputed.

P59.

Pursuant to Paragraph (b)
• App’x, Ex. 92 at 1060-1061
of the “WHEREAS” clause
in the August 7, 1931
Agreement, after the
incorporation of Summy
Co. (Delaware), it was

Disputed. Summy-Birchard Company has
• App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (WC0001137,
Company’s successor company, Birch Tree
WC0001142-43).
Group Lt., was 100% owned by its then
• App’x Ex. 100 (Declaration of Adam

25184237.2

- 20 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response
I. Kaplan (“Kaplan Decl.”) at ¶ 17)

agreed that Clayton F.
Summy would own 1,500
shares of Preferred Stock
in Summy Co. (Delaware)
with a par value of $100
per share.

chairman David K. Sengstack.

P60.

Pursuant to Paragraph 3 of • App’x, Ex. 92 at 1063
the August 7, 1931
Agreement, after the
incorporation of Summy
Co. (Delaware), it was
agreed that John Sengstack
would own 1,500 shares of
Common Stock in Summy
Co. (Delaware) with no par
value.

Disputed. Summy-Birchard Company has
• App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (WC0001137,
Company’s successor company, Birch Tree
WC0001142-43).
Group Lt., was 100% owned by its then
• App’x Ex. 100 (Declaration of Adam
chairman David K. Sengstack.
I. Kaplan (“Kaplan Decl.”) at ¶ 17)

P61.

Pursuant to Paragraph (b)
• App’x, Ex. 92 at 1060-1061
of the “WHEREAS” clause
in the August 7, 1931
Agreement, it was agreed
that the Preferred Stock
owned by Clayton F.

Disputed. Summy-Birchard Company has
• App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (WC0001137,
Company’s successor company, Birch Tree
WC0001142-43).
Group Lt., was 100% owned by its then
• App’x Ex. 100 (Declaration of Adam

25184237.2

- 21 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response
I. Kaplan (“Kaplan Decl.”) at ¶ 17)

Summy could be redeemed
at any time at the option of
Summy Co. (Delaware), at
par and accrued dividends.

chairman David K. Sengstack.

P62.

Pursuant to Paragraph (b)
• App’x, Ex. 92 at 1060-1061
of the “WHEREAS” clause
in the August 7, 1931
Agreement, it was agreed
that the 1,500 shares of
Preferred Stock owned by
Clayton F. Summy had a
total par value of $150,000.

Disputed. Summy-Birchard Company has
• App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (WC0001137,
Company’s successor company, Birch Tree
WC0001142-43).
Group Lt., was 100% owned by its then
• App’x Ex. 100 (Declaration of Adam
chairman David K. Sengstack.
I. Kaplan (“Kaplan Decl.”) at ¶ 17)

P63.

On or about August 31,
1931 Clayton F. Summy
Co. (“Summy Co.
(Delaware)”) was
incorporated under the
laws of the State of
Delaware.

• App’x Ex. 1 (FAC) at 14, ¶ 68; App’x,
Ex. 2 (Defs. Ans.) at 56, ¶ 68.

Undisputed.

P64.

The song Happy Birthday

• App’x, Ex. 35 (parts 1, 5, 6 of

Undisputed that the YouTube posting that

25184237.2

- 22 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
to You, including lyrics is
performed in the motion
picture Girls About Town.
P65.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from The Catalog of
Copyright Entries
(Cumulative Series) for
Motion Pictures from 1912
to 1939 that contains the
following entry:

Admissible Evidence Supporting Fact
http://www.youtube.com/watch?v=zbeni6
pmJHk&feature=share&list=PL8DEBB57
2FF5195FB&index=4)
• App’x, Ex. 24 at 547

Opposing Party’s Response

Admissible Evidence Supporting
Response

plaintiffs cite includes a performance of the
song Happy Birthday to You, including
lyrics.
Undisputed.

GIRLS ABOUT TOWN.
1931. 9 reels, sd. Credits:
Director, George Cukor;
story. Zoe Akins;
screenplay. Raymond
Griffith, Brian Marlow.
© Paramount Publix Corp.;
3Nov31;
LP2612.
25184237.2

- 23 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

P66.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the online
Illinois Statewide Death
Index maintained by the
Illinois Secretary of State.

• App’x, Ex. 93 at 1070

Undisputed.

P67.

Clayton F. Summy died on
February 10, 1932 in Du
Page County, Illinois.

• App’x, Ex. 93 at 1070

Undisputed.

P68.

There is no documentation
in the record to prove that
Clayton F. Summy Co.
(Delaware) paid Clayton F.
Summy $150,000 plus
accrued dividends to
redeem his 1,500 Preferred
shares in Clayton F.
Summy Co. (Delaware)
prior to his death.

• App’x Ex. 23 [Newman Decl.] at 540, ¶
50

Disputed. Summy-Birchard Company has
• App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (WC0001137,
Company’s successor company, Birch Tree
WC0001142-43).
Group Lt., was 100% owned by its then
• App’x Ex. 100 (Declaration of Adam
chairman David K. Sengstack.
I. Kaplan (“Kaplan Decl.”) at ¶ 17)

25184237.2

- 24 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

P69.

The song Happy Birthday
is played in the motion
picture Bosko’s Party.

• “Bosko’s Party” – lodged with Court as
Ex 25

Undisputed.

P70.

The beginning of Bosko’s
Party states:

• “Bosko’s Party” – lodged with Court as
Ex. 25

Undisputed.

• Strange Interlude – lodged with Court as
App’x, Ex. 26.

Admissible Evidence Supporting
Response

Undisputed.

“Copyright MSMXXXII
by
SUNSET
PRODUCTIONS, Inc.”
P71.

The song Happy Birthday
is performed in the motion
picture Strange Interlude.

P72.

Attached to the Joint
• App’x, Ex. 89 at 1043
Appendix is a true, correct,
and admissible copy of the
Dialogue Cutting
Continuity from Reel 8,
Scene No. 15 for the movie
“Strange Interlude” dated
June 9, 1932.

Undisputed.

25184237.2

- 25 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
P73.

P74.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Attached to the Joint
• App’x, Ex. 90 at 1045
Appendix is a true, correct,
and admissible copy of
Metro-Goldwyn-Mayer’s
Notice of Intent to Use
Musical Compositions in
connect with the
“photoplay” entitled
“STRANGE
INTERLUDE” dated July
14, 1932 (Production #608)
identifying Happy Birthday
as being in the public
domain.

Undisputed that App’x, Ex. 90 (WB042)
has the date and production number recited
and that it states:

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from The Catalog of
Copyright Entries
(Cumulative Series) for
Motion Pictures from 1912
to 1939 that contains the

Undisputed.

• App’x, Ex. 24 at 548

Notification is hereby given of our
intention to use the following musical
compositions in connection with photoplay
entitled “STRANGE INTERLUDE.”
Also undisputed that App’x, Ex. 90
(WB042) states “Composer: Unknown”
and “Publisher: Public Domain” under the
title HAPPY BIRTHDAY TO YOU.

25184237.2

- 26 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x., Ex. 28 at 557

Admissible Evidence Supporting
Response

Undisputed.

following entry:
STRANGE
INTERLUDE. 1932. 12
reels, sd., b&w. From the
play by Eugene O'Neill.
Credits: Producer, Robert
Z. Leonard; dialogue
continuity, Bess
Meredyth, C. Gardner
Sullivan; film editor,
Margaret Booth. ©
Metro Goldwyn Mayer
Distributing Corp.;
11Oct32; LP3314.
P75.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
document that shows that
C.F.S. Musical Co. was
dissolved by a decree
entered by the Superior
Court of Cook County,
Illinois on or about May

25184237.2

- 27 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

17, 1933.
P76.

Attached to Joint Appendix • App’x, Ex. 29 at 559-574
is a true, correct, and
admissible copy of
Interrogatory Responses
dated March 25, 1935,
filed by Sam Harris in the
Southern District of New
York in the matter
captioned Jessica M. Hill
v. Sam H. Harris, Eq. No.
78-350.

Undisputed.

P77.

On September 9, 1933, the
play As Thousands Cheer
began singing Happy
Birthday in public
performances.

• App’x, Ex. 29 at 561, 573

Disputed. Unsupported by the evidence
cited.

P78.

The song Happy Birthday
is performed in the motion
picture Baby Take a Bow.

• Baby Take a Bow, lodged with Court as
Ex. 30.

Undisputed.

App’x, Ex. 29 at (P003118)

25184237.2

- 28 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
P79.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from The Catalog of
Copyright Entries
(Cumulative Series) for
Motion Pictures from 1912
to 1939 that contains the
following entry:

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 24 at 546

Undisputed.

• App’x, Ex. 32 at 580-587

Admissible Evidence Supporting
Response

Undisputed.

BABY TAKE A BOW.
1934. 6,600 ft., sd. Based
on a play by James P.
Judge. Credits: Director,
Harry Lachman;
screenplay, Philip Klein,
E. E. Paramore, Jr.; music
director, Samuel Kaylin.
© Fox Film Corp.;
20Jun34; LP4777.
P80.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of the

25184237.2

- 29 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

• App’x, Ex. 32 at 584

Undisputed that in Paragraph 17 of the
Complaint in Hill v. Harris, Jessica Hill
alleged:

App’x, Ex. 32 (P002800-2807)

Complaint filed by Jessica
M. Hill on August 14,
1934, in the Southern
District of New York,
captioned Jessica M. Hill
v. Sam H. Harris, Eq. No.
78-350.
P81.

In Paragraph 17 of the
Complaint in Hill v.
Harris, Jessica Hill
alleged:
That the continuation of
such infringing
performances [of Happy
Birthday] will destroy the
value of plaintiff’s
copyright and her rights
thereunder will lead and
induce others to perform
publicly for profit, and
for the purpose of profit,
public performances of
said musical composition

That the continuation of such infringing
performances will destroy the value of
plaintiff’s copyright and her rights
thereunder will lead and induce others to
perform publicly for profit, and for the
purpose of profit, public performances of
said musical composition “Good Morning
to All; ....”

25184237.2

- 30 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

“Good Morning to All.”
(emphasis added).
P82.

Jessica Hill did not allege
in the Complaint in Hill v.
Harris that the public
performance of Happy
Birthday in As Thousands
Cheer infringed on any
common law or statutory
copyright to Happy
Birthday.

• App’x, Ex. 32 at 580-587

Undisputed that there is no allegation in the App’x, Ex. 32 (P002800-2807)
Complaint in Hill v. Harris that Happy
Birthday to You was performed in As
Thousands Cheer.

P83.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the 1934
Catalog of Copyright
Entries for Musical
Compositions that contains
the following entry:

• App’x, Ex. 33 at 589

Undisputed.

Promise (The); w Olive
Hyde Foster, m Mary
Turner Salter; high
25184237.2

- 31 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

voice;organ acc. © Dec.
21, 1934; E pub. 45488;
Clayton F. Summy co.,
Chicago. 27171
P84.

Attached to the Joint
• App’x, Ex. 34 at 591
Appendix is a true, correct,
and admissible copy of a
newspaper article titled Shy
Women Teachers Who
Wrote Child’s Ditty Figure
in Plagarism Suit Over
Broadway Hit that
appeared in the New York
Times on August 15, 1934.

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x, Ex. 34 under
Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

P85.

In that article, Patty Hill
was quoted as saying “My
song,” is sung the world
over.”

• App’x, Ex. 34 at 591

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x, Ex. 34 under
Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

P86.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of an

• App’x, Ex. 90 at 1047

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x, Ex. 90 under

25184237.2

- 32 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

article titled Music: Good
Morning that appeared in
TIME magazine on August
27, 1934.
P87.

That article stated, in
relevant part, that:

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Amended Complaint filed
by Jessica M. Hill on
January 28, 1935, against

Admissible Evidence Supporting
Response

Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

• App’x, Ex. 90 at 1047

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x, Ex. 90 under
Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

• App’x, Ex. 36 at 594-601

Undisputed.

“Lyricist Patty Hill, who
will share in the damages,
if any, had no complaint to
make on the use of the
words because she long
ago resided herself the fact
that her ditty had become
common property of the
nation.”
P88.

Opposing Party’s Response

25184237.2

- 33 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

• App’x, Ex. 36 at 598-599

Undisputed that in Paragraph 18 of the
Amended Complaint in Hill v. Harris,
Jessica Hill alleged:

• App’x, Ex. 36 (P002829)

Sam H. Harris, Sam H.
Harris Theatrical
Enterprises, Inc., Irving
Berlin and Moss Hart in
the Southern District of
New York in the case
originally captioned
Jessica M. Hill v. Sam H.
Harris, Equity No. 78-350.
P89.

In Paragraph 18 of the
Amended Complaint,
Jessica Hill alleged:
That the continuation of
such infringing
performances [of Happy
Birthday] will destroy the
value of plaintiff’s
copyright and her rights
thereunder and will lead
and induce others to
perform publicly for
profit, and for the
purposes of profit, public

That the continuation of such infringing
performances will destroy the value of
plaintiff’s copyright and her rights
thereunder will lead and induce others to
perform publicly for profit, and for the
purpose of profit, public performances of
said musical composition “Good Morning
to All; ....”

25184237.2

- 34 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

performances of said
musical composition
“Good Morning to All.”
P90.

Jessica Hill did not allege
• App’x, Ex. 36 at 594-601
in the Amended Complaint
that the public performance
of Happy Birthday in As
Thousands Cheer infringed
on any common law or
statutory copyright to
Happy Birthday.

Undisputed that there is no allegation in the App’x, Ex. 36 (P002825-2832)
Amended Complaint in Hill v. Harris that
Happy Birthday to You was performed in
As Thousands Cheer.

P91.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
newspaper article titled
Sam H. Harris is Sued
Over Melody of Song that
appeared in the New York
Herald on August 15,
1934.

• App’x, Ex. 37 at 603

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x, Ex. 37 under
Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

P92.

The article stated, in

• App’x, Ex. 37 at 603

Disputed. Plaintiffs’ fact is unsupported by

25184237.2

- 35 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

The scene in “As
Thousands Cheer,”
wherein Miss Hill alleged
her tune was plagiarized,
depicts John D.
Rockefeller Jr., with
members of the
Rockefeller family ranged
around, presenting to his
aged father a miniature of
Radio City and a birthday
cake. The Rockefellers
are singing “Happy
Birthday to You.” Using
the music, but not the
words, of the song the
Hill Sisters claim is
theirs. (emphasis added).
Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the 1935

Admissible Evidence Supporting
Response

admissible evidence. Defendants object to
the admissibility of App’x, Ex. 37 under
Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

relevant part, that:

P93.

Opposing Party’s Response

• App’x, Ex. 38 at 605

Undisputed.

25184237.2

- 36 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Catalog of Copyright
Entries for Musical
Compositions that contains
the following entry:
Great is the Lord; w from
the Bible, m Harold L.
Thomas; mixed cho. ©
May 17, 1935; E pub.
48270; Clayton F.
Summy co., Chicago.
10935
P94.

The song Happy Birthday
is performed in the motion
picture The Old
Homestead.

• The Old Homestead, lodged with Court as
Ex. 39.

Undisputed that a short segment of Happy
Birthday is performed, fleetingly, in The
Old Homestead.

P95.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the Catalog of
Copyright Entries
(Cumulative Series) for
Motion Pictures from 1912

• App’x, Ex. 24 at 550

Undisputed.

25184237.2

- 37 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x Ex. 87 at 1000-1041

Admissible Evidence Supporting
Response

Undisputed

to 1939 that contains the
following entry:
THE OLD
HOMESTEAD.
Presented by M. H.
Hoffman. 1935. 8 reels,
sd. Based on John Russell
Coryell's novelized
version of the play by
Denman Thompson.
Credits: Director,
William Nigh; story,
continuity, and dialogue,
W. Scott Darling; musical
arrangements, Howard
Jackson. © Liberty
Pictures Corp.; 17Jun35;
LP5623.
P96.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of
Depositions Transcripts de
benne esse of Patty S. Hill

25184237.2

- 38 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 38 at 606

Undisputed.

• App’x, Ex. 38 at 607

Admissible Evidence Supporting
Response

Undisputed.

and Jessica Hill taken July
1, 1935, filed in Hill v.
Harris, Eq. No. 78-350.
P97.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the 1935
Catalog of Copyright
Entries for Musical
Compositions that contains
the following entry:
Heather (The) bells of
Clare; w Liam P. Clancy,
m Josephine M. Rice; ten.
or sop., in E flat. © July
2, 1935; E pub. 49129;
Clayton F. Summy co.,
Chicago. 15501.

P98.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the 1935

25184237.2

- 39 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 38 at 608

Admissible Evidence Supporting
Response

Undisputed.

Catalog of Copyright
Entries for Musical
Compositions that contains
the following entry:
Hi! Ho! on tiptoe; w and
m Garnet Parker Erwin;
pf. © July 12,1935; E
pub. 49261; Clayton F.
Summy co., Chicago.
15518
P99.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the 1935
Catalog of Copyright
Entries for Musical
Compositions that contains
the following entry:
Whip-poor-will; w and m
Garnet Parker Erwin; pf.
© July 12, 1935; E pub.
49262; Clayton F.

25184237.2

- 40 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 38 at 609

Undisputed.

• App’x, Ex. 38 at 610

Admissible Evidence Supporting
Response

Undisputed.

Summy co., Chicago.
17258
P100.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the 1935
Catalog of Copyright
Entries for Musical
Compositions that contains
the following entry:
Etude for chorus no. 2;
Latvian spiritual, melody
form a Russian folk song,
English text and choral
arr. I.B. Sergei; mixed
voices. © Aug. 15, 1935;
E pub. 51621; Kalnin,
Mohr & Apsit, Los
Angeles. 25167

P101.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a

25184237.2

- 41 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

page from the 1935
Catalog of Copyright
Entries for Musical
Compositions that contains
the following entry:
Out of the depths;
anthem, w from the Bible,
m Alfred Wooler; mixed
voices with sop. or ten.
solo. © Oct. 11, 1935; E
pub. 50828; Clayton F.
Summy co., Chicago.
23763
P102.

The song Happy Birthday
is performed in the motion
picture ‘Way Down East.

• The motion picture, ‘Way Down East,
Lodged with Court as Ex. 41

Undisputed.

P103.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the Catalog of
Copyright Entries
(Cumulative Series) for

• App’x, Ex. 24 at 549

Undisputed.

25184237.2

- 42 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 38 at 611

Admissible Evidence Supporting
Response

Undisputed.

Motion Pictures from 1912
to 1939 that contains the
following entry:
'WAY DOWN EAST.
Presented by Fox Film.
1935. 7,661 ft., sd. From
the play by Lottie Blair
Parker. Credits: Director,
Henry King; screenplay,
Howard Estabrook,
William Hurlbut; music
director, Oscar Bradley.
© Twentieth Century-Fox
Film Corp.; 25Oct35;
LP5992.
P104.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the 1935
Catalog of Copyright
Entries for Musical
Compositions that contains

25184237.2

- 43 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 38 at 612

Admissible Evidence Supporting
Response

Undisputed.

the following entry:
Autumn (An) sunset; w
Janet Donaldson, m
Cuthbert Harris, arr.
Preston Ware Orem;
mixed cho. © Nov. 20,
1935; E pub. 51686;
Clayton F. Summy co.,
Chicago. 24788

P105.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of a
page from the 1935
Catalog of Copyright
Entries for Musical
Compositions that contains
the following entry:
Little songs to play and
sing; w and m Berenice
Benson Bentley; pf. ©
Nov. 25, 1935; E pub.

25184237.2

- 44 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

51782; Clayton F.
Summy Clayton F.
Summy co., Chicago.
25902
P106.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of an
Application for Copyright
for Republished Musical
Composition with new
Copyright Matter (Reg.
No. E51988) dated
December 6, 1935 that
Clayton F. Summy Co.
filed with the Copyright
Office for the song Happy
Birthday to You on or
about December 9, 1935.

• App’x, Ex. 31 at 577-578

Undisputed.

P107.

Attached to the Joint
Appendix is a true, correct,
and admissible copy of the
deposit copy of the work

• App’x, Ex. 43 at 623-624

Undisputed.

25184237.2

- 45 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Attached to the Joint
Appendix is a certified and
admissible copy of the
Certificate of Copyright
Registration for Reg. No.
E51988 issued by the
Copyright Office.

• App’x, Ex. 44 at 626-627

Disputed. The evidence cited is the
application for Reg. No. E51988.

P109.

Mrs. R.R. Forman did not
write the familiar lyrics to
Happy Birthday.

• App’x, Ex. 1 (FAC) at 17-18, ¶ 92; App’x, Undisputed that Mrs. R.R. Forman did not
write the familiar lyrics to Happy Birthday
Ex. 2 (Defs. Ans.) at 60, ¶ 92.
to You as stated in P16.

P110.

Attached to the Joint
• App’x, Ex. 45 at 629-631
Evidentiary Appendix is a
true, correct and admissible
copy of a letter from
Defendants’ Counsel,
Adam Kaplan, to
Plaintiffs’ Counsel dated
November 6, 2014.

filed with the Application
for Copyright for Reg. No.
E51988.
P108.

• App’x, Ex. 4 [Landes Decl.] at 82, ¶ 3(b)

Undisputed.

25184237.2

- 46 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

P111.

The Defendants do not
have a copy of any written
authorization from the Hill
Sisters to prove that
Summy Co. (Delaware)
had authorization from the
Hill Sisters to publish the
work registered as E51988
prior to the date it was
registered.

• App’x, Ex. 45 at 630

Undisputed.

P112.

The Defendants do not
have a copy of the license
agreement referred to in
D15.

• App’x, Ex. 45 at 630

Undisputed that Warner/Chappell is unable
to locate copies of the 1934 and 1935
licenses from Jessica Hill to Clayton F.
Summy Co.

P113.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
Application for Copyright
for Republished Musical
Composition with new
Copyright Matter (Reg.

• App’x, Ex. 40 at 615-616

Undisputed.

25184237.2

- 47 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

No. E51990) dated
December 6, 1935 that
Clayton F. Summy Co.
filed with the Copyright
Office for Happy Birthday
on or about December 9,
1935.
P114.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of a letter
from the Copyright Office
dated January 23, 1961.

• App’x, Ex. 46 at 633

Undisputed.

P115.

There is no known copy of
the work that was
deposited with the
Copyright Office as Reg.
No. E51990 that was
stamped E51990 by the
Copyright Office.

• App’x, Ex. 46 at 633

Disputed. The undisputed evidence
actually demonstrates conclusively that the
copy deposited with E51990 contained the
written lyrics at issue in this litigation.

• App’x, Ex. 47 at 635, 648-650 (Tr.
Marcotullio Depo. 141:22-142:4; 157:3159:12)

• App’x, Ex. 106 (1935 publication of
sheet music for Happy Birthday to
You! (1220-1223)
• App’x, Ex. 43 (1935 publication of
sheet music for Happy Birthday to
You! Unison Song; also a copy of the
deposit copy submitted in connection
with Registration Certificate E51988
(WC000413-14))

25184237.2

- 48 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response
• App’x, Ex. 40 (application for E51990
(P003295-3296))
• App’x, Ex. 101 (E51990 registration
certificate (1204-1207), marked as
Marcotullio Ex. 9))
• App’x, Ex. 109 (Dep. Tr. of Jeremy
Blietz at 111:10-20): Marcotullio Ex.
9 (1546-1565) was provided to
Warner/Chappell by the Copyright
Office
• App’x, Ex. 105 (Record of the Filing
of Copyright Deposits under the Act of
March 4, 1909 (1218-1219)
• App’x, Ex. 64 (Dep. Tr. of Joel Sachs
at 165:13-168:17, 174:7-17)
• App’x, Ex. 111 (Sachs Exhibit 47, ¶¶
28, 30 & Exs. J, L (Expert Report of
Joel Sachs))
• App’x, Ex. 100 (Kaplan Decl. ¶¶ 2, 6,
7, 9, 11)

25184237.2

- 49 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

P116.

P117.

P118.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

The Defendants do not
possess a copy of the work
that was deposited with the
Copyright Office as Reg.
No. E51990 that was
stamped E51990 by the
Copyright Office.

• App’x, Ex. 46 at 633

Disputed. Defendants do possess copies of
Happy Birthday to You that were published
in 1935 as a “Piano Solo with words.”
Defendants do not possess a copy of the
specific copy deposited with the Copyright
Office.

App’x, Ex. 106 (1935 publication of
sheet music for Happy Birthday to You!
(1220-1223)

The Copyright Offices
does not possess a copy of
the work that was
deposited with the
Copyright Office as Reg.
No. E51990 that was
stamped E51990 by the
Copyright Office.

• App’x, Ex. 46 at 633

Attached to the Joint
Evidentiary Appendix is a
certified copy of the
Certificate of Copyright
Registration issued by the

• App’x, Ex.48 at 653-654

• App’x, Ex. 47 at 635, 648-650 (Tr.
Marcotullio Depo. 141:22-142:4; 157:3159:12).

• App’x, Ex. 47 at 635, 648-650 (Tr.
Marcotullio Depo. 141:22-142:4; 157:3159:12)

• App’x, Ex. 4 [Landes Decl.] at 82, ¶ 3(b)

App’x, Ex. 100 (Kaplan Decl. ¶ 7)

Undisputed that the Copyright Office has
been unable to locate a copy of the work
that was deposited with the Copyright
Office as Reg. No. E51990.

Disputed. The evidence cited is the
application for Reg. No. E51990.

25184237.2

- 50 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex.46 at 630

Admissible Evidence Supporting
Response

Undisputed.

Copyright Office for Reg.
No. E51990.

P119.

The Defendants do not
have a copy of any written
authorization from the Hill
Sisters to prove that
Summy Co. (Delaware)
had authorization from the
Hill Sisters to publish the
work registered as E51990
prior to the date it was
registered.

P120.

Preston Ware Orem did not • App’x Ex. 1 (FAC) at 18-19, ¶ 97; App’x,
write the familiar lyrics to
Ex. 2 (Defs. Ans.) at 18-19, ¶ 97.
Happy Birthday.

Undisputed that Preston Ware Orem did
not write the familiar lyrics to Happy
Birthday to You as stated in P16.

P121.

Sheet music for “Happy
Birthday to You!” (3076)
and “Happy Birthday to
You!” (3075) have

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.
26(a)(2), this Court’s Orders (Dkt. Nos. 92,

• App’x, Ex. 86 at 965-966, ¶¶ 13-23 [Decl.
of Joel Sachs in Support of Plaintiffs’
Cross-Motion (“Sachs Decl.”), comparing
Ex. 86-A at 970 and Ex. 86-B at 972-973

25184237.2

- 51 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

different printed typefaces.

Opposing Party’s Response

Admissible Evidence Supporting
Response

152), and Ninth Circuit law.

P122.

Sheet music for “Happy
Birthday to You!” (3075)
uses an asterisk (*) in the
place of the celebrant’s
name.

• App’x, Ex. 86 [Sachs Decl.], Ex. 86-A at
970

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.
26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

P123.

Sheet music for “Happy
Birthday to You!” (3076)
Ì
uses a star ( ) in the

• App’x, Ex. 86 [Sachs Decl.], Ex. 86-B at
972-973

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.
26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

place of the celebrant’s
name.
P124.

The rest signs in the sheet
music for “Happy Birthday
to You!” (3076) and
“Happy Birthday to You!”
(3075) are stylistically
different.

• App’x, Ex. 86 [Sachs Decl.],Ex. 86-A at
970& Ex. 86-B at 972-973

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.
26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

P125.

Sheet music for “Happy
Birthday to You!” (3076)
identifies “Mrs. R.R.

• App’x, Ex. 86 [Sachs Decl.], at Ex. 86-B
at 972-973

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.

25184237.2

- 52 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Forman” as the arranger.

Opposing Party’s Response

Admissible Evidence Supporting
Response

26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

P126.

Sheet music for “Happy
Birthday to You!” (3075)
does not identify an
arranger.

• App’x, Ex. 86 [Sachs Decl.],Ex. 86-A at
970

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.
26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

P127.

Sheet music for “Happy
Birthday to You!” (3076)
has parentheses around the
sub-title (Vocal or
Instrumental).

• App’x, Ex. 86 [Sachs Decl.],Ex. 86-A at
970

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.
26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

P128.

Sheet music for “Happy
• App’x, Ex. 86 [Sachs Decl.] at Ex. 86-B
Birthday to You!” (3075)
at 972-973
does not have parentheses
around the subtitle “Unison
Song”.

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.
26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

P129.

Sheet music for “Happy
Birthday to You!” (3075)
uses finger notations

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.

• App’x, Ex. 86 [Sachs Decl.],Ex. 86-A at
970

25184237.2

- 53 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

(numbering next to notes).

Opposing Party’s Response

Admissible Evidence Supporting
Response

26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

P130.

Sheet music for “Happy
Birthday to You!” (3076)
does not contain finger
notations.

P131.

Attached to the Joint
• App’x, Ex. 49 at 656-659
Evidentiary Appendix is a
true, correct, and
admissible copy of an
agreement between Patty
S. Hill, Jessica M. Hill, and
Summy Co. (Delaware)
dated September 2, 1939.

Undisputed.

P132.

Attached to the Joint • App’x, Ex. 42 at 619-621
Evidentiary Appendix is a
true,
correct,
and
admissible copy of an
agreement between Patty
S. Hill, Jessica M. Hill, and

Undisputed.

• App’x, Ex. 86 [Sachs Decl.], Ex. 86-B at
972-973

Disputed. Defendants object to the
admissibility of App’x Ex. 86 on that
ground that it violates Fed. R. Civ. P.
26(a)(2), this Court’s Orders (Dkt. Nos. 92,
152), and Ninth Circuit law.

25184237.2

- 54 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

the Hill Foundation dated
June 8, 1942.

P133.

Attached to the Joint
• App’x, Ex. 50 at 661-675
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Amended Complaint filed
by the Hill Foundation
against Summy Co.
(Delaware) on December
16, 1942, in the Southern
District of New York,
captioned The Hill
Foundation, Inc. v. Clayton
F. Summy Co., Civil No.
19-377.

Undisputed.

P134.

In Paragraph 18 of the
Amended Answer
Attached to the Joint
Appendix, Clayton F.

Undisputed.

• App’x, Ex. 51 at 684-685

25184237.2

- 55 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 52 at 691-696

Admissible Evidence Supporting
Response

Undisputed.

Summy Co. (Delaware)
stated, in part that it
“admits and avers that
during the calendar years
1934 and 1935 the said
Jessica M. Hill and this
defendant entered into
several so-called royalty
contracts wherein and
whereby it was provided
that the said Jessica J. Hill
sold, assigned and
transferred to this
defendant various piano
arrangement to the said
musical composition
“Good Morning to All.”
P135.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Complaint filed by the Hill
Foundation on March 2,

25184237.2

- 56 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

1943 in the Southern
District of New York,
captioned The Hill
Foundation, Inc. v. Postal
Telegraph-Cable Co., Civil
No. 20-439.
P136.

In the Complaint in The
• App’x, Ex. 52 at 695
Hill Foundation, Inc. v.
Postal Telegraph-Cable
Co., the Hill Foundation
alleged that PostalTelegraph-Cable Co. used
the song Happy Birthday to
You without the consent of
Patty Hill or Jessica Hill.

Undisputed.

P137.

In the Complaint against
Postal Telegraph-Cable
Co., the Hill Foundation
only asserted that Postal
Telegraph-Cable Co.’s use
of Happy Birthday
infringed on their

Disputed. Unsupported by the evidence
cited.

• App’x, Ex. 52 691-696

• App’x, Ex. 52 691-696

25184237.2

- 57 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

copyrights to Good
Morning to All .
P138.

In the Complaint in The
• App’x, Ex. 52 at 691-696
Hill Foundation, Inc. v.
Postal Telegraph-Cable
Co, the Hill Foundation did
not allege that Postal
Telegraph-Cable Co.
infringed on Copyright
Reg. Nos. E51988 or
E51990.

Undisputed.

P139.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Answer filed by Postal
Telegraph-Cable Co. on
April 12, 1943 in the
Southern District of New
York, in the case captioned
The Hill Foundation, Inc.
v. Postal Telegraph-Cable

Undisputed.

• App’x Ex. 91 at 1049-1057

25184237.2

- 58 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Co., Civil No. 20-439.
P140.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
assignment from Patty S
Hill and Jessica M. Hill to
the Hill Foundation, Inc.
dated October 16, 1944.

• App’x, Ex. 53 at 698-699

Undisputed.

P141.

Attached to the Joint
• App’x, Ex. 54 at 701-706
Evidentiary Appendix is a
true, correct, and
admissible copy of an
assignment from the Hill
Foundation, Inc. to Clayton
F. Summy Co., a Delaware
corporation dated October
16, 1944.

Undisputed.

P142.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and

Undisputed.

• App’x, Ex. 55 at 708-718

25184237.2

- 59 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 55 at 713

Admissible Evidence Supporting
Response

Undisputed.

admissible copy of the
Complaint filed by Clayton
F. Summy Co., a Delaware
corporation, on March 28,
1945, in the Southern
District of New York, ,
captioned Clayton F.
Summy Co. v. McLoughlin
Brothers, Inc., Civil No.
30-284.
P143.

In Paragraph 16 of the
Complaint in Clayton F.
Summy Co. v. McLoughlin
Brothers, Inc., Summy Co.
alleged that:
In 1939 and thereafter
defendant infringed the
copyright by
manufacturing,
publishing and selling in
the United States copies
of “Sing-a-Song Player
Book”, a toy piano-

25184237.2

- 60 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 55 at 708-718

Admissible Evidence Supporting
Response

Undisputed.

xylophone to which was
physically attached a
sheet carrying the song
“Happy Birthday To
You.”
P144.

In the Complaint in
Clayton F. Summy Co. v.
McLoughlin Brothers, Inc.,
the only copyright Summy
Co. alleged McLoughlin
Brothers, Inc. infringed
upon was the 1893
copyright to Song Stories
for the Kindergarten (Reg.
No. 45997Y) and its
renewal (R19043).

P145.

In the Complaint in
• App’x, Ex. 55 at 708-718
Clayton F. Summy Co. v.
McLoughlin Brothers, Inc.,
Summy Co. did not allege
that McLoughlin Brothers,
Inc. infringed on Copyright

Undisputed that the Complaint in Clayton
F. Summy Co. v. McLoughlin Brothers,
Inc. alleged that “In 1939 and thereafter
defendant infringed the copyright by
manufacturing, publishing and selling in
the United States copies of ‘Sing-a-Song

25184237.2

- 61 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Reg. Nos. E51988 or
E51990 when it used
Happy Birthday to You in
the Sing-a-Song Player
Book.

Player Book’, a toy piano-xylophone to
which was physically attached a sheet
carrying the song ‘Happy Birthday To
You’....” and that this Complaint did not
allege that McLoughlin Brothers, Inc.
infringed on Copyright Reg. Nos. E51988
or E51990.

P146.

Attached to the Joint
• App’x, Ex. 56 at 720-730
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Complaint filed by Clayton
F. Summy Co., a Delaware
corporation, on March 28,
1945, in the Southern
District of New York, ,
captioned Clayton F.
Summy Co. v. Louis Marx
& Company, Inc., Civil
No. 30-285.

Undisputed.

P147.

In Paragraph 16 of the
Complaint in Clayton F.

Undisputed.

• App’x, Ex. 56 at 725

25184237.2

- 62 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 56 at 720-730

Admissible Evidence Supporting
Response

Undisputed.

Summy Co. v. Louis Marx
& Company, Inc, Summy
Co. alleged that:
In 1939 and thereafter
defendant infringed the
copyright by
manufacturing,
publishing and selling in
the United States copies
of “Play-A-Way Piano
Book”, a toy pianoxylophone to which was
physically attached a
sheet carrying the song
“Happy Birthday to
You.”
P148.

In the Complaint in
Clayton F. Summy Co. v.
Louis Marx & Company,
Inc, the only copyright Summy Co. alleged Louis
Marx & Company, Inc.
infringed upon was the

25184237.2

- 63 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

1893 copyright to Song
Stories for the
Kindergarten (Reg. No.
45997Y) and its renewal
(R19043).
P149.

In the Complaint in
Clayton F. Summy Co. v.
Louis Marx & Company,
Inc, Summy Co. did not
allege that Louis Marx &
Company, Inc. infringed
upon Copyright Reg. Nos.
E51988 or E51990 when it
used Happy Birthday to
You in the Sing-a-Song
Player Book.

• App’x, Ex. 56 at 720-730

Undisputed that the Complaint in Clayton
F. Summy Co. v. Louis Marx & Company,
Inc. alleged that “In 1939 and thereafter
defendant infringed the copyright by
manufacturing, publishing and selling in
the United States copies of ‘Play-A-Way
Piano Book’, a toy piano-xylophone to
which was physically attached a sheet
carrying the song ‘Happy Birthday to
You’...”and that this Complaint did not
allege that Louis Marx & Company, Inc.
infringed on Copyright Reg. Nos. E51988
or E51990.

P150.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of the

• App’x, Ex. 57 at 732-740

Undisputed.

25184237.2

- 64 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 57 at 737

Admissible Evidence Supporting
Response

Undisputed.

Complaint filed by Clayton
F. Summy Co., a Delaware
corporation, on January 11,
1946, in the Southern
District of New York,
captioned Clayton F.
Summy Co. v. Paul Feigay
and Oliver Smith, Civil No.
34-481.
P151.

In Paragraph 17 of the
Complaint, Summy Co.
alleged that:
Upon information and
belief, on or about the
13th day of April, 1945
and at other times prior
and subsequent thereto,
the defendants as part of
and by means of said
dramatic musical
production entitled “On
The Town” gave and
caused to be given public

25184237.2

- 65 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

performances and
renditions of said
composition “Happy
Birthday to You.”
P152.

In the Complaint in
Clayton F. Summy Co. v.
Paul Feigay and Oliver
Smith, the only copyright
Summy Co. alleged Paul
Feigay and Oliver Smith
infringed upon was the
1893 copyright to Song
Stories for the
Kindergarten (Reg. No.
45997Y) and its renewal
(R19043).

• App’x, Ex. 57 at 732-740

Undisputed.

P153.

In the Complaint in
Clayton F. Summy Co. v.
Paul Feigay and Oliver
Smith, Summy Co. did not
allege that Paul Feigay and
Oliver Smith infringed

• App’x, Ex. 57 at 732-740

Undisputed that the Complaint in Clayton
F. Summy Co. v. Paul Feigay and Oliver
Smith alleged that “Upon information and
belief, on or about the 13th day of April,
1945 and at other times prior and
subsequent thereto, the defendants as part

25184237.2

- 66 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

upon Copyright Reg. Nos.
E51988 or E51990 when
Happy Birthday was
performed in the musical
On The Town.

Opposing Party’s Response

Admissible Evidence Supporting
Response

of and by means of said dramatic musical
production entitled ‘On The Town’ gave
and caused to be given public
performances and renditions of said
composition ‘Happy Birthday to You’....”
and that this Complaint did not allege that
Paul Feigay and Oliver Smith infringed
upon Copyright Reg. Nos. E51988 or
E51990.

P154.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of the
Answer filed by Louis
Marx & Company, Inc., on
April 18, 1945, in the
Southern District of New
York, in the case captioned
Clayton F. Summy Co. v.
Louis Marx & Company,
Inc., Civil No. 30-285.

• App’x, Ex. 73 at 838-846

Undisputed.

P155.

Attached to the Joint

• App’x, Ex. 58 at 742

Disputed. Plaintiffs’ fact is unsupported by

25184237.2

- 67 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Evidentiary Appendix is a
true, correct, and
admissible copy of a
newspaper article titled
Happy Birthday Trouble
that appeared in the New
York Herald Tribune on
December 16, 1947.
P156.

The article stated, in
relevant part, that:
“The Hill Sisters had their
song copyrighted in 1893
and renewed it in 1921. It
will expire in 1949, but
subsequent copyrights on
certain arrangements will
extend until 1965. Jessica
Hill, the only surviving
sister, is today a resident of
New York City. Her
attorney, Samuel Mann,
who provided much of the
above information . . .”

Opposing Party’s Response

Admissible Evidence Supporting
Response

admissible evidence. Defendants object to
the admissibility of App’x, Ex. 58
(P004319) under Fed. R. Evid. 801 because
the evidence cited is inadmissible hearsay.

• App’x, Ex. 58 at 742

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x, Ex. 58
(P004319) under Fed. R. Evid. 801 because
the evidence cited is inadmissible hearsay.

25184237.2

- 68 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

(emphasis added).
P157.

Attached to the Joint
• App’x, Ex. 59 at 744-748
Evidentiary Appendix is a
true, correct, and
admissible copy of Articles
of Amendment to EMB
that were filed with the
Illinois Secretary of State
on or about June 2, 1948.

Undisputed.

P158.

At the time of the June 2,
• App’x, Ex. 59 at 746
1948 amendment to the
Articles of Incorporation of
EMB, 400 shares of
common stock in EMB
were outstanding.

Undisputed.

P159.

There is no documentation
in the record to prove who
owned the 400 shares of
EMB’s common stock as
of June 2, 1948.

Disputed. Unsupported by the evidence.

• App’x, Ex. 23 [Newman Decl.] at 537, ¶
26]

App’x, Ex. 59

25184237.2

- 69 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response
App’x, Ex. 59

P160.

The is no documentation in • App’x, Ex. 23 [Newman Decl. at 537, ¶
the record to prove when or
24]
to whom 200 additional
shares of EMB common
stock were issued from the
time of EMB’s
incorporation until June 2,
1948.

Disputed. Unsupported by the evidence.

P161.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
article titled The Birthday
Song that appeared in the
magazine The American
Family in January, 1950.

• App’x, Ex. 60 at 750-755

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x Ex. 60
(WC0000093-98) under Fed. R. Evid. 801
because the evidence cited is inadmissible
hearsay.

P162.

The article stated, in
relevant part, that:

• App’x, Ex. 60 at 753

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x Ex. 60 under
Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

The first time Happy
Birthday was sung
anywhere was on a winter
25184237.2

- 70 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

evening in 1892 at the
Hill residence.” Miss
Jessica, the youngest of
the Hills, was at that time
a brightfaced girl of
eighteen with a clear and
pleasing voice. In
accordance with their
usual custom, she had
called the family into the
parlor for an after dinner
concert.
Their mother had reared
her six children in an
atmosphere of good
music, and they all
enjoyed their nightly
gathering about the piano.
That chilly evening they
all stood around the piano
waiting for Patty. She
was doing the dinner
dishes with faithful
25184237.2

- 71 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Minnie who had been a
slave.
“Come on, Patty!” called
Jessica. “We’re ready to
sing the new song.”
Patty came into the parlor
with its lace curtains and
worn red plush sofa. She
was untying a blue apron,
the same color as her
remarkably blue eyes.
“If you mean the ‘Good
Morning Song,’ don’t
play it too fast, Mildred,”
she said to her sister
seated at the piano of
dark gleaming wood....
Mildred ran through the
simple tune that is now
familiar to everyone.
Then she played it more
slowly as Jessica sang for
25184237.2

- 72 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

• App’x, Ex. 60 at 754

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x Ex. 60 under
Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

• App’x, Ex. 61 at 757-758

Disputed. App’x, Ex. 61 (P006344-6345)
is an approved application for Reg. No.
R90447.

the first time what is now
sung everywhere as
“Happy Birthday to
You.””
P163.

The article stated, in
relevant part, that:
Patty realized that it
probably had commercial
value after sound movies
and radio became
important, but she
continued to regard the
little classic as a trifle,
and often said she
considered it common
property with the public.

P164.

Attached to the Joint
Evidentiary Appendix is a
certified copy of the
Renewal Certificate for
Harvest Hymns (Reg. No.

• App’x, Ex. 4 [Landes Decl.] at 83, ¶ 3h

App’x, Ex. 61 (P006344-6345)

25184237.2

- 73 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

R90447).
P165.

Attached to the Joint
• App’x, Ex. 62 at 760-762
Evidentiary Appendix is a
true, correct, and
admissible copy of a
Certificate of Amendment
filed on or about January
23, 1956 with the Delaware
Secretary of State.

Undisputed.

P166.

Pursuant to the Certificate • App’x, Ex. 62 at 760
of Amendment the name of
Clayton F. Summy Co. was
changed to Summy
Publishing Company.

Undisputed.

P167.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
excerpt from a songbook
entitled Twice 55
Community Songs, The

Undisputed.

• App’x, Ex. 63 at 764-765

25184237.2

- 74 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Brown Book.
P168.

Twice 55 Community
Songs, The Brown Book,
was published in 1957 by
C.C. Birchard Co., agent
for Summy Publishing
Company.

• App’x, Ex. 63 at 764

Undisputed that Twice 55 Community
Songs, The Brown Book, was published in
1957 by C.C. Birchard Co. and that this
publication states that C.C. Birchard Co.
was a selling agent for Summy Publishing
Company.

P169.

A version of Happy
Birthday to You! was
included in Twice 55
Community Songs, The
Brown Book.

• App’x, Ex. 63 at 765

Undisputed.

P170.

In the version of Happy
Birthday to You! included
in Twice 55 Community
Songs, The Brown Book,
Mildred Hill’s name
appears in the upper right
corner, where the
composer’s name usually
appears.

• App’x, Ex. 64 (Tr. Sachs, 218:12-21)_

Disputed. Unsupported by the evidence.

• App’x, Ex. 63 at 765

25184237.2

- 75 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

In the version of Happy
Birthday to You! included
in Twice 55 Community
Songs, The Brown Book,
the word “Traditional”
appears in the upper left
corner, where the author of
the lyrics usually is
identified.

• App’x, Ex. 64 (Tr. Sachs, 218:12-21)

Disputed. Unsupported by the evidence.

P172.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of a
Certificate of Amendment
filed on or about
September 27, 1957 with
the Delaware Secretary of
State.

• App’x, Ex. 65 at 800-802

Undisputed.

P173.

Pursuant to the Certificate
of Amendment, the name
of Summy Publishing
Company was changed to

• App’x, Ex. 65 at 800

Undisputed.

P171.

Admissible Evidence Supporting
Response

• App’x, Ex. 63 at 765

25184237.2

- 76 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Summy-Birchard
Publishing Company.
P174.

Attached to the Joint
• App’x, Ex. 66 at 804-806
Evidentiary Appendix is a
true, correct, and
admissible copy of a
Certificate of Amendment
filed on or about December
22, 1961 with the Delaware
Secretary of State.

Undisputed.

P175.

Pursuant to the Certificate
of Amendment, the name
of Summy-Birchard
Publishing Company was
changed to SummyBirchard Company.

Undisputed.

P176.

Attached to the Joint • App’x, Ex. 67 at 808-810
Evidentiary Appendix is a
certified
copy of a • App’x, Ex. 4 [Landes Decl.] at 82, ¶ 3c
Certificate of Registration
of a Claim to Renewal

• App’x, Ex. 66 at 804

Disputed. App’x, Ex. 67 (P006338-6340)
is an approved application for Reg. No.
R306185.

App’x, Ex. 67 (P006338-6340)

25184237.2

- 77 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Attached to the Joint
Evidentiary Appendix is a
certified copy of a
Certificate of Registration
of a Claim to Renewal
Copyright Reg. No.
R306186.

• App’x, Ex. 68 at 812-814

Disputed. App’x, Ex. 68 (P006341-6343)
is an approved application for Reg. No.
R306186.

App’x, Ex. 68 (P006341-6343)

P178.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of an
article that appeared in the
New York Times on
October 13, 1970.

• App’x, Ex. 69 at 816

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x, Ex. 69 under
Fed. R. Evid. 801 because the evidence
cited is inadmissible hearsay.

P179.

John F. Sengstack died on
October 11, 1970.

• App’x, Ex. 69 at 816

Disputed. Plaintiffs’ fact is unsupported by
admissible evidence. Defendants object to
the admissibility of App’x, Ex. 69
(P006354) under Fed. R. Evid. 801 because
the evidence cited is inadmissible hearsay.

Copyright
R306185.
P177.

Reg.

No.

• App’x, Ex. 4 [Landes Decl.] at 83, ¶ 3(d)

25184237.2

- 78 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 23 [Newman Decl.] at 537, ¶
19

Undisputed that a will of John F. Sengstack
is not in the record.

P180.

There is no documentation
in the record to prove who
inherited John F.
Sengstack’s property after
his death.

P181.

Attached to the Joint
• App’x, Ex. 70 at 818-820
Evidentiary Appendix is a
true, correct, and
admissible copy of Articles
of Amendment to EMB
that were filed with the
Illinois Secretary of State
on or about July 31, 1973.

Undisputed.

P182.

The Articles of
Amendment to EMB made
EMB a perpetual
corporation.

• App’x, Ex. 70 at 819

Undisputed.

P183.

Prior to July 31, 1973, 33
shares of EMB common
stock were reacquired by

• App’x, Ex. 70 at 820

Admissible Evidence Supporting
Response

Undisputed.

25184237.2

- 79 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

EMB.
P184.

Prior to July 31, 1973, the
33 shares of EMB
Common stock reacquired
by EMB were retired.

• App’x, Ex. 70 at 820

Undisputed.

P185.

At the time of the July 31, • App’x, Ex. 70 at 820
1973 amendment to the
Articles of Incorporation of
EMB, there were 367
shares of EMB common
stock outstanding.

Undisputed.

P186.

There is no documentation • App’x, Ex. 23 [Newman Decl.] at 538in the record to prove who
539, ¶¶ 35-39.
owned the 367 shares of
EMB’s common stock that
were outstanding as of July
31, 1973.

Undisputed.

P187.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and

Undisputed.

• App’x, Ex. 71 at 824-828

25184237.2

- 80 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

admissible copy of Articles
of Merger that were filed
with the Illinois Secretary
of State on or about
December 28, 1973.
P188.

Pursuant to the Articles of
Merger, Summy-Birchard
Company, a Delaware
corporation was merged
into EMB, an Illinois
corporation.

• App’x, Ex. 71 at 825

Undisputed.

P189.

At the time of the
December 28, 1973
merger, there were 367
shares of EMB common
stock outstanding.

• App’x, Ex. 71 at 826

Undisputed.

P190.

There is no evidence in the • App’x, Ex. 23 [Newman Decl.] at 538record to prove who owned
539, ¶¶ 35-39.
the 367 shares of EMB’s
common stock that were
outstanding at the time of

Undisputed.

25184237.2

- 81 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

the December 28, 1973
merger.
P191.

Article FIVE of the
• App’x, Ex. 71 at 826
Certificate of Merger states
that 1,500 shares of
Summy-Birchard Company
(Delaware) were
outstanding at the time of
the merger.

Undisputed.

P192.

There is no evidence in the • App’x, Ex. 23 [Newman Decl.] at 540, ¶
record to prove that the
48
1,500 shares of Preferred
Stock owned by Clayton F.
Summy were redeemed by
Summy-Birchard Company
(fka Clayton F. Summy
Co.) (Delaware) prior to
the merger.

Disputed. Summy-Birchard Company has
• App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Declaration of Adam
Group Lt., was 100% owned by its then
I. Kaplan (“Kaplan Decl.”) at ¶ 17)
chairman David K. Sengstack.

P193.

There is no evidence in the • App’x, Ex. 23 [Newman Decl.] at 540, ¶¶
record to prove who owned
48-51.
the 1,500 shares of

Disputed. Summy-Birchard Company has
been operated continuously by the
Sengstack family since 1931. As of

• App’x, Ex. 119 (Excerpt of October
1988 “Confidential Information
Memorandum” regarding Birch Tree

25184237.2

- 82 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Summy-Birchard
Company’s (Delaware)
common stock that were
outstanding at the time of
the December 28, 1973
merger.

Opposing Party’s Response

Admissible Evidence Supporting
Response

October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

P194.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of a Plan
and Agreement of Merger
entered into on or about
December 21, 1973
between Summy-Birchard
Company (Delaware) and
EMB

• App’x, Ex. 72 at 830-836

Undisputed.

P195.

Paragraph 6(a) of the Plan
and Agreement of Merger
stated that:

• App’x, Ex. 72 at 831

Undisputed.

“on the effective date of
the merger and without
further act on the part of
25184237.2

- 83 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

either the corporation or its
stockholders, 2.712 shares
of the common stock,
without par value, of
SUMMY issued and
outstanding on the
effective date of the merger
shall be converted into one
share [illegible] of EMB”.
P196.

Pursuant to Paragraph 6(a) • App’x, Ex. 72 at 831
of the Plan and Agreement
of Merger, after the
effective date of the
merger, the 1,500 shares of
common stock of
Summmy-Birchard
Company (Delaware) that
were purportedly
outstanding were converted
into 553 shares of EMB.

Disputed. Summy-Birchard Company has
• App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

P197.

There is no documentation
in the record to prove who

Disputed. Summy-Birchard Company has
been operated continuously by the

• App’x, Ex. 23 [Newman Decl.] at 540, ¶¶
52-53.

• App’x, Ex. 119 (Excerpt of October
1988 “Confidential Information

25184237.2

- 84 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

owned the 553 shares of
common stock in EMB
after the owner(s) of
Summy-Birchard Company
(Delaware) surrendered
their 1,500 shares of
common stock in exchange
for the 553 shares of EMB.

Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

P198.

There is no documentation • App’x, Ex. 23 [Newman Decl.] at 540in the record to prove who
541, ¶¶ 53-54.
owned the 367 shares of
common stock in EMB that
were retained by the
owners of EMB after the
merger.

Disputed. Summy-Birchard Company has • App’x, Ex.119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

P199.

Pursuant to the Articles of
Merger filed with the
Illinois Secretary of State,
the name of EMB was
changed to SummyBirchard Company.

Undisputed that the surviving corporation
following the merger of Summy-Birchard
Company (Delaware) and EMB was
Summy-Birchard Company (Illinois).

• App’x, Ex. 71 at 825

App’x, Ex. 71 (WC00002065)

25184237.2

- 85 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

P200.

Attached to the Joint
• App’x, Ex. 74 at 848-852
Evidentiary Appendix is a
true, correct, and
admissible copy of Articles
of Merger filed with the
Wyoming Secretary of
State on or about January
8, 2010.

Undisputed.

P201.

New Summy-Birchard
• App’x, Ex. 74 at 848
Company was incorporated
in the State of Wyoming on • App’x, Ex. 75 at 855
March 8, 1976.
• App’x, Ex. 76 at 859

Undisputed.

P202.

There is no documentation
in the record to prove who
owned the shares of New
Summy-Birchard
Company.

• App’x, Ex. 23 [Newman Decl.] at 540544, ¶¶ 51-92.

Disputed. Summy-Birchard Company has • App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

P203.

Attached to the Joint
Evidentiary Appendix is a

• App’x, Ex. 75 at 854-857

Undisputed.

25184237.2

- 86 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 75 at 855

Admissible Evidence Supporting
Response

Undisputed.

true, correct, and
admissible copy of Articles
of Merger filed with the
Wyoming Secretary of
State on or about March
19, 1976.
P204.

Pursuant to the Articles of
Merger, Summy-Birchard
Company, an Illinois
corporation, was merged
into New Summy Birchard
Company, a Wyoming
corporation.

P205.

Pursuant to the Articles of • App’x, Ex. 75 at 855
Merger, the name of New
Summy Birchard
Company, a Wyoming
corporation was changed to
Summy-Birchard
Company.

Undisputed that the surviving corporation
following the merger of Summy-Birchard
Company (Illinois) and New SummyBirchard Company (Wyoming) was
Summy-Birchard Company (Wyoming).

P206.

Attached to the Joint

Undisputed.

• App’x, Ex. 76 at 859-865

App’x, Ex. 75 (WC0002049-2053)

25184237.2

- 87 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Evidentiary Appendix is a
true, correct and admissible
copy of a Plan of Merger
between Summy-Birchard
Company, an Illinois
corporation and New
Summy-Birchard
Company, a Wyoming
corporation.
P207.

Pursuant to the Plan of
• App’x, Ex. 76 at 861
Merger, the owners of the
common stock of SummyBirchard Company
(Illinois) received 1 share
of common stock in New
Summy-Birchard Company
(renamed Summy-Birchard
Company) (Wyoming).

Undisputed.

P208.

There is no documentation • App’x, Ex. 23 [Newman Decl.] at 540in the record to prove who
541, ¶¶ 54-56
owned the 367 shares of
Summy-Birchard Company

Disputed. Summy-Birchard Company has
been operated continuously by the
Sengstack family since 1931. As of
October 1988, Summy-Birchard

• App’x, Ex. 119 (Excerpt of October
1988 “Confidential Information
Memorandum” regarding Birch Tree
Group Ltd. (1760-1763).

25184237.2

- 88 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

(Illinois) that were
converted into 367 shares
of New Summy-Birchard
Company (renamed
Summy-Birchard
Company) (Wyoming).
P209.

P210.

Company’s successor company, Birch Tree • App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

There is no evidence in the • App’x, Ex. 23 [Newman Decl.] at 540record to prove who owned
541, ¶¶ 53-57.
the 553 shares of SummyBirchard Company
(Illinois) that were
converted into 553 shares
of New Summy-Birchard
Company (renamed
Summy-Birchard
Company) (Wyoming).

Disputed. Unsupported by the evidence.
Summy-Birchard Company has been
operated continuously by the Sengstack
family since 1931. As of October 1988,
Summy-Birchard Company’s successor
company, Birch Tree Group Lt., was100%
owned by its then chairman David K.
Sengstack.

Attached to the Joint
• App’x, Ex. 77 at 867-869
Evidentiary Appendix is a
true, correct and admissible
copy Articles of
Amendment filed with the
Wyoming Secretary of

Undisputed.

• App’x, Ex. 76 (WC0002054-2061)
• App’x, Ex. 119 (Excerpt of October
1988 “Confidential Information
Memorandum” regarding Birch Tree
Group Ltd. (1760-1763).
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)

25184237.2

- 89 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

State on or about
November 9, 1978.
P211.

Pursuant to the Articles of • App’x, Ex. 77 at 867
Amendment, the name of
Summy-Birchard Company
was changed to SUMCO
Corporation.

Undisputed.

P212.

Attached to the Joint
• App’x, Ex. 78 at 871-872
Evidentiary Appendix is a
true, correct and admissible
copy of Articles of
Amendment dated May 1,
1979 that were filed with
the Wyoming Secretary of
State on an unknown date
in 1979.

Undisputed.

P213.

Pursuant to the Articles of
Amendment, the name of
SUMCO Corporation was
changed to SummyBirchard Company.

Undisputed.

• App’x, Ex. 78 at 871

25184237.2

- 90 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

P214.

Attached to the Joint
• App’x, Ex. 79 at 874-875
Evidentiary Appendix is a
true, correct and admissible
copy of Articles of
Amendment filed with the
Wyoming Secretary of
State on or about August 3,
1979.

Undisputed.

P215.

Pursuant to the Articles of
Amendment,, SummyBirchard Company was
renamed The Birch Tree
Group Ltd.

Undisputed.

P216.

Attached to the Joint
• App’x, Ex. 80 at 877-878
Evidentiary Appendix is a
true, correct and admissible
copy of Articles of
Amendment filed with the
Wyoming Secretary of
State on or about October
12, 1979.

Admissible Evidence Supporting
Response

• App’x, Ex. 79 at 874

Undisputed.

25184237.2

- 91 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

P217.

Pursuant to the Articles of
Amendment, The Birch
Tree Group Ltd. was
renamed Birch Tree Group
Ltd.

• App’x, Ex. 80 at 877

Undisputed.

P218.

Attached to the Joint
Evidentiary Appendix is a
true, correct, and
admissible copy of a Stock
Purchase Agreement
between Warner/Chappell
Music, Inc. and David K.
Sengstack dated December
1, 1988.

• App’x, Ex. 81 at 880-947

Undisputed.

P219.

Attached to the Joint
• App’x, Ex. 82 at 949-951
Evidentiary Appendix is a
true, correct, and
admissible copy of Articles
of Amendment filed with
the Wyoming Secretary of
State on or about

Admissible Evidence Supporting
Response

Undisputed.

25184237.2

- 92 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

December 27, 1988.
P220.

Pursuant to the Articles of
Amendment, Birch Tree
Group Ltd., was renamed
Summy-Birchard, Inc.

• App’x, Ex. 82 at 949

Undisputed.

P221.

Attached to the Joint
• App’x, Ex. 83 at 953
Evidentiary Appendix is a
true, correct and admissible
copy of a Stock Certificate
for Birch Tree Group
Limited dated February 12,
1986.

Undisputed.

P222.

Attached to the Joint
• App’x, Ex. 84 at 955
Evidentiary Appendix is a
true, correct and admissible
copy of a Stock Power
dated January 3, 1989.

Undisputed.

P223.

Pursuant to the Stock
Certificate and Stock
Power, David Sengstack

Undisputed that David Sengstack
transferred to Warner/Chappell Music, Inc.
953 shares of the common capital stock of

• App’x, Ex. 84 at 955
• App’x, Ex. 83 at 953

25184237.2

- 93 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

purported to transfer 953
shares of common stock of
Summy-Birchard,
Inc.(formerly Birch Tree
Group Ltd.), a Wyoming
corporation to
Warner/Chappell Music,
Inc.

Summy-Birchard, Inc.(formerly Birch Tree
Group, Ltd.) a Wyoming corporation.

P224.

There is no documentation • App’x, Ex. 23 [Newman Decl.] at 540, ¶
in the record to prove that
50.
David Sengstack owned
1,500 shares of SummyBirchard Company (fka
Clayton F. Summy Co.)
(Delaware) common stock
that were outstanding at the
time of the December 28,
1973 merger with SummyBirchard Company (fka
Educational Music Bureau)
Illinois.

Disputed. Summy-Birchard Company has • App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

P225.

There is no documentation

Disputed. Summy-Birchard Company has

• App’x, Ex. 23 [Newman Decl.] at 540, ¶

• App’x, Ex. 119 (Excerpt of October

25184237.2

- 94 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
in the record to prove that
the 1,500 shares of
Preferred Stock that were
issued to Clayton F.
Summy as part of the
August 7, 1931 agreement
with John Sengstack were
ever redeemed by SummyBirchard Company (fka
Clayton F. Summy Co.)
(Delaware).
P226.

Admissible Evidence Supporting Fact
48

There is no documentation • App’x, Ex. 23 [Newman Decl.] at 538in the record to prove that
539, ¶¶ 35-39
David Sengstack owned
367 shares of common
stock in Summy-Birchard
Company (fka Educational
Music Bureau) Illinois at
the time of the December
28, 1973 nerger with
Summy-Birchard Company
(fka Clayton F. Summy
Co.) (Delaware).

Opposing Party’s Response

Admissible Evidence Supporting
Response

been operated continuously by the
Sengstack family since 1931. As of
October 1988, Summy-Birchard
Company’s successor company, Birch Tree
•
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

1988 “Confidential Information
Memorandum” regarding Birch Tree
Group Ltd. (1760-1763).
App’x Ex. 100 (Kaplan Decl. at ¶ 17)

Disputed. Summy-Birchard Company has • App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

25184237.2

- 95 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

P227.

There is no documentation • App’x, Ex. 23 [Newman Decl.] at 541, ¶¶
in the record to prove that
55-56.
David Sengstack acquired
553 shares of New Summy
Birchard Company
(renamed Summy-Birchard
Company), a Wyoming
corporation in the 1976
merger or at any time
thereafter.

Disputed. Summy-Birchard Company has • App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

P228.

There is no documentation • App’x, Ex. 23 [Newman Decl.] at 541, ¶¶
in the record to prove that
55-56
David Sengstack obtained
367 shares of New Summy
Birchard Company
(renamed Summy-Birchard
Company), a Wyoming
corporation in the 1976
merger or at any time
thereafter.

Disputed. Summy-Birchard Company has • App’x, Ex. 119 (Excerpt of October
been operated continuously by the
1988 “Confidential Information
Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

P229.

There is no documentation
in the record to prove that

Disputed. Summy-Birchard Company has
been operated continuously by the

• App’x, Ex. 23 [Newman Decl.] at 541, ¶

• App’x, Ex. 119 (Excerpt of October
1988 “Confidential Information

25184237.2

- 96 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
New Summy Birchard
Company (renamed Summy-Birchard
Company) issued 33 shares
of common stock to David
Sengstack from the time of
its incorporation until
January 3, 1989
P230.

There is no documentation
in the record to prove that
David K. Sengstack owned
the 953 shares of common
stock of Summy-Birchard,
Inc. (formerly Birch Tree
Group Ltd.), a Wyoming
corporation that were
purportedly transferred to
Warner/Chappell Music,
Inc.

Admissible Evidence Supporting Fact
62.

• App’x, Ex. 23 [Newman Decl.] at 540544, ¶¶ 55-92.

Opposing Party’s Response

Admissible Evidence Supporting
Response

Sengstack family since 1931. As of
Memorandum” regarding Birch Tree
October 1988, Summy-Birchard
Group Ltd. (1760-1763).
Company’s successor company, Birch Tree
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
Group Lt., was 100% owned by its then
chairman David K. Sengstack.

Disputed. Unsupported by the evidence.
• App’x, Ex. 84 (Stock Power dated
Summy-Birchard Company has been
January 3, 1989 (WC0000573))
operated continuously by the Sengstack
• App’x, Ex. 118 (stock certificate that
family since 1931. As of October 1988,
was transferred to Warner/Chappell
Summy-Birchard Company’s successor
and then cancelled (1755-1759)
company, Birch Tree Group Lt., was 100%
owned by its then chairman David K.
• App’x, Ex. 119 (Excerpt of October
Sengstack.
1988 “Confidential Information
Memorandum” regarding Birch Tree
Group Ltd. (1760-1763).
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 1617)

25184237.2

- 97 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

P231.

On May 31, 2006, Summy- • App’x, Ex. 85 at 857
Birchard, Inc., a Wyoming
corporation was
administratively dissolved
by the State of Wyoming.

Undisputed.

P232.

On September 14, 2009, a
new Summy-Birchard, Inc.
was incorporated in the
State of Wyoming.

• App’x, Ex. 85 at 957

Undisputed.

P233.

Pursuant to the Articles of
Merger filed with the
Wyoming Secretary of
State on January 8, 2010,
Summy-Birchard, Inc.
(dissolved on May 31,
2006) was merged into
Summy-Birchard, Inc.,
incorporated on September

• App’x, Ex. 85 at 957-961

Admissible Evidence Supporting
Response

Undisputed.

25184237.2

- 98 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 1 (FAC) at ¶ 15; Ex. 2 (Defs.
Ans.) at ¶ 15

Admissible Evidence Supporting
Response

Undisputed.

14, 2009.
P234.

Summy-Birchard, Inc.,
incorporated on September
14, 2009 in the State of
Wyoming is a Defendant is
this action.

D1.

At some point before 1893, • App’x, Ex. 1 (FAC) at ¶ 16
Mildred J. Hill and Patty S.
Hill (collectively, the “Hill
Sisters”) authored a written
manuscript containing
sheet music.

Undisputed.

D2.

This manuscript included
the song Good Morning to
All.

• App’x, Ex. 1 (FAC) at ¶ 17

Undisputed.

D3.

The lyrics to Good
Morning to All are:

• App’x, Ex. 1 (FAC) at ¶ 24

Undisputed.

Good morning to you
Good morning to you
Good morning dear
25184237.2

- 99 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

children
Good morning to all.
D4.

In 1893, the Hill Sisters
sold and assigned their
right, title, and interest in
the manuscript, including
Good Morning to All, to
Clayton F. Summy.

• App’x, Ex. 1 (FAC) at ¶¶ 16-18

Undisputed.

D5.

In 1893, Clayton F.
Summy published the Hill
Sisters’ written manuscript
in a songbook titled Song
Stories for the
Kindergarten.

• App’x, Ex. 1 (FAC) at ¶ 19

Undisputed.

D6.

• App’x, Ex. 1 (FAC) at ¶ 19
Song Stories for the
Kindergarten contained the
song Good Morning to All.

Undisputed.

D7.

In 1893, Clayton F.
Summy obtained a
copyright for Song Stories

• App’x, Ex. 1 (FAC) at ¶ 20

Undisputed.

25184237.2

- 100 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

for the Kindergarten.
D8.

The Hill Sisters wrote a
number of songs that used
the same melody as Good
Morning to All but had
different titles and lyrics.

• App’x, Ex. 87 (deposition testimony of
Patty S. Hill (P002763-64)): “Q. Did you
also use the words ‘Happy Birthday to
You.’ A. We certainly did with every
birthday celebration in school. Q. Did
you write the words for this particular tune
of ‘Good Morning To All’, Miss Hill? A.
I did. Q. Had you at that time also
written many other verses in conjunction
with the words which appear in the edition
of ‘Song Stories for the Kindergarten’,
published in 1893. A. Yes, we were
writing them practically every day.”

Disputed. Conflicting evidence presented
shows that Patty S. Hill testified at her
deposition on July 1, 1935 that Mildred
composed all the music and Patty was the
“poetess.”

• App’x, Ex. 87 at 1013 (Depo. Tr. of
Patty S. Hill).

D9.

The Hill Sisters wrote the
song Happy Birthday to
You.

• App’x, Ex. 103 (E51988 registration
certificate which states, “By Mildred J.
Hill” (1211-1214, marked as Marcotullio
Ex. 4))
• App’x, Ex. 101 (E51990 registration
certificate which states, “By Mildred J.
Hill” (1204-1207, marked as Marcotullio
Ex. 9))

Disputed. The Defendants’ fact is
supported, in part by inadmissible
evidence.

• App’x, Ex. 44 at 626-627 (Certified
E51988)); App’x, Ex. 4 [Landes Decl.]
at 83, ¶ 3(a)]

Plaintiffs object to the admissibility of
WC000385-87, WC0000137 and
WC0000388-90 and WC0000139 because
they are not registration certificates for
E51988 or E51990 and are not

• App’x, Ex. 48 at 653-654 (Certified
E51990); App’x, Ex. 4 [Landes Decl.]
at 83, ¶ 3(a)]
• App’x, Ex. 56 at 721-730 (Complaint
in Clayton F. Summy v. Louis Marx &

25184237.2

- 101 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 90:23-91:9, 111:10-20): 1546-1565
were provided to Warner/Chappell by the
Copyright Office
• App’x, Ex. 43 (copy of deposit copy for
the work registered as E51988, which
states “Mildred J. Hill” on the cover page
and at the top of the sheet music
(WC000413-14))
• App’x, Ex. 106 (1935 publication of
“Happy Birthday to You!,” which states
“By Mildred J. Hill on the cover and
“Mildred J. Hill” at the top of the sheet
music (1220-1223))
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 2,4,7,
9)
• App’x, Ex. 87 (deposition testimony of
Patty S. Hill that she wrote the words to
Happy Birthday to You and that Mildred
Hill wrote the melody used with the song,
with Patty’s assistance (P0027660,
P002762-64, P002768-69))

authenticated as such. Certified copies of
the Registration Certificates for Reg. Nos.
E51988 and E51990 are P006334-6337.

• App’x, Ex. 50 (amended complaint in The

Admissible Evidence Supporting
Response
Co., Civil No. 30-285).
• App’x, Ex. 51 at 677-689 (Amended
Answer in Hill Foundation v. Summy
Co., Eq. No. 78-350).

Plaintiffs object to the admissibility of
WC000977-979 pursuant to FRE 602, FRE
• App’x, Ex. 52 at 692-696 (The Hill
801and FRE 901 because Defendants lack
Foundation, Inc. v. Postal Telegraphpersonal knowledge that the work
Cable Co., Civil No. 20-439)
identified was actually published in 1935
and no witness can authenticate that work. • App’x, Ex. 55 at 709-717(Complaint
in Clayton F. Summy Co. v.
Conflicting evidence presented shows that
McLoughlin Brothers, Inc., Civil No.
Patty S. Hill testified at her deposition on
30-284)
July 1, 1935 that Mildred composed all the
music the sisters wrote together and Patty
wrote the lyrics for the songs as the
“poetess.” Patty Hill also testified that she
created the lyrics for Happy Birthday to
You in her classroom as a variation on the
song Good Morning to All.
Conflicting evidence presented shows that
in the Amended Answer in The Hill
Foundation, Inc. v. Clayton F. Summy Co,
filed December 29, 1942, Clayton F.
Summy Co. stated that it was “without

• App’x, Ex. 57 at 732-739 (Complaint
in Clayton F. Summy Co. v. Paul
Feigay and Oliver Smith, Civil No. 34481)
• App’x, Ex. 87 at 1004, 1007-08, 1013
(Deposition de bene esse of Patty S.
Hill in Jessica M. Hill v. Sam H.
Harris, Eq. No. 78-350, pp. 4, 7-8, 13.
• Facts P36-P53; P60-P62; P66-P69
(numerous prior publications,

25184237.2

- 102 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Hill Foundation, Inc. v. Clayton F. Summy
Co., filed Dec. 16, 1942, alleging that
Happy Birthday to You was “written and
composed by the said Patty S. Hill and
Mildred J. Hill” (P002650))
• App’x, Ex. 52 (complaint in The Hill
Foundation, Inc. v. Postal Telegraph
Cable-Company, filed Mar. 2, 1943,
alleging that Happy Birthday to You was
“written and composed by the said Patty
S. Hill and Mildred J. Hill” (P002592))
• App’x, Ex. 56 (complaint in Clayton F.
Summy Co. v. Louis Marx & Company,
Inc., filed Mar. 28, 1945, alleging that
Patty S. Hill and Mildred J. Hill composed
and wrote the music and words for Good
Morning to All, which “later became
popularly known as ‘Happy Birthday to
You,’” the lyrics of which were written by
Patty S. Hill (P006042, P006045-46))
• App’x, Ex. 55 (complaint in Clayton F.
Summy Co. v. McLoughlin Brothers, Inc.,
filed Mar. 28, 1945, alleging that Patty S.

knowledge or information sufficient to
performances, and uses of Happy
form a belief as to the truth of the averment
Birthday to You)
that said new words [Happy Birthday to
• App’x, Exs. 25-26, 30, 39, 41 & 92
You] were written by the aforesaid Patty S.
(videos lodged manually with the
Hill.
Court: animated short “Bosko’s
Conflicting evidence presented shows that
Party;” motion pictures “Strange
in the Answer in The Hill Foundation, Inc.
Interlude;” “Baby Take A Bow;” “The
v. Postal Telegraph-Cable Company, filed
Old Homestead;” “Way Down East;”
March 12, 1943, Postal Telegraph-Cable
and “Girls About Town,” respectively)
Company denied the Hill Foundation,
• App’x, Ex. 3 [Rifkin Decl.] at 80, ¶ 9
Inc.’s allegations that Happy Birthday to
(No evidence that Patty, Mildred or
You was “written and composed by the said
Jessica ever wrote lyrics down).
Patty S. Hill and Mildred J. Hill”.
Conflicting evidence presented shows that
in the Amended Answer in The Hill
Foundation, Inc. v. Clayton F. Summy Co,
filed December 29, 1942, Clayton F.
Summy Co. stated that it was “without
knowledge or information sufficient to
form a belief as to the truth of the averment
that said new words [Happy Birthday to
You] were written by the aforesaid Patty S.
Hill, admits and avers that the said song

25184237.2

- 103 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact
Hill and Mildred J. Hill composed and
wrote the music and words for Good
Morning to All, which “later became
popularly known as ‘Happy Birthday to
You,’” the lyrics of which were written by
Patty S. Hill (P006052, P006054-55))
• App’x, Ex. 57 (complaint in Clayton F.
Summy Co. v. Paul Feigay and Oliver
Smith, filed Jan. 11, 1946, alleging that
Patty S. Hill and Mildred J. Hill composed
and wrote the music and words for Good
Morning to All, which “later became
popularly known as ‘Happy Birthday to
You,’” the lyrics of which were written by
Patty S. Hill (P006034, P006037))

Opposing Party’s Response

Admissible Evidence Supporting
Response

entitled “Good Morning to All” was
included among the songs copyrighted as
aforesaid by the said Clayton F. Summy
and the first corporation respectively; and
except as so admitted and averred the
defendant denies each and every allegation
in said paragraph contained.”
Conflicting evidence presented shows that
in the Answer in Clayton F. Summy Co. v.
Louis Marx & Company, Inc., filed April
18, 1945, Louis Marx & Company, Inc.
denied that the lyrics to Happy Birthday to
You were written by Patty S. Hill.
Conflicting evidence presented shows that
prior to the time Clayton F. Summy Co.
filed the complaints in: 1) Clayton F.
Summy Co. v. Louis Marx & Company,
Inc., filed on March 28, 1945; 2) Clayton
F. Summy Co. v. McLoughlin Brothers,
Inc., filed on March 28, 1945; and 3)
Clayton F. Summy Co. v. Paul Feigay and
Oliver Smith, filed on January 11, 1946,
Clayton F. Summy Co. filed an Amended

25184237.2

- 104 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Answer in The Hill Foundation, Inc. v.
Clayton F. Summy Co, on December 29,
1942, and denied that Patty S. Hill wrote
the lyrics to Happy Birthday to You.
There is no evidence that Mildred Hill
participated in the creation of any variation
of Good Morning to All, and no evidence
that Happy Birthday to You ever was
written down by either of them.
There were many prior publications and
performances of the Song before 1916.
D10. There is no evidence that
Mildred J. Hill copied the
lyrics for Happy Birthday
to You from anyone.

• Upon review of the admissible evidence,
there is no evidence that Mildred J. Hill
copied the lyrics for Happy Birthday to
You from anyone.

Disputed. Compound. The Plaintiffs
dispute that Mildred J. Hill wrote the lyrics
to Happy Birthday to You. See D9.

• See D9.

D11. There is no evidence that
Patty S. Hill copied the
lyrics for Happy Birthday
to You from anyone.

• Upon review of the admissible evidence,
there is no evidence that Patty S. Hill
copied the lyrics for Happy Birthday to
You from anyone.

• See D9.
Disputed. Compound. The Plaintiffs
dispute that Patty S. Hill wrote the lyrics to
Happy Birthday to You. See D9.

D12. The lyrics to Happy

• App’x, Ex. 1 (FAC) at ¶ 25

Undisputed that the familiar lyrics to

25184237.2

- 105 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Birthday to You that
Plaintiffs identify as the
“familiar” lyrics to the
song:

Opposing Party’s Response

Admissible Evidence Supporting
Response

Happy Birthday to You are as written.

Happy Birthday to you
Happy Birthday to you
Happy Birthday dear
[NAME]
Happy Birthday to you.
D13. Mildred J. Hill died
intestate in 1916.

• App’x, Ex. 50 (amended complaint in The Undisputed.
Hill Foundation, Inc. v. Clayton F. Summy
Co., filed Dec. 16, 1942 (P002656))

D14. Jessica M. Hill and Patty S. • App’x, Ex. 50 (amended complaint in The Undisputed.
Hill Foundation, Inc. v. Clayton F. Summy
Hill were among Mildred J.
Co., filed Dec. 16, 1942 (P002656))
Hill’s heirs and next of kin.
D15. In 1934 and 1935, Jessica
Hill licensed to Clayton F.
Summy Co. the right to
publish, copyright, and sell

• App’x, Ex. 50 (amended complaint in The
Hill Foundation, Inc. v. Clayton F. Summy
Co., filed Dec. 16, 1942 (P002654-55))
• App’x, Ex. 3 (answer to amended

Disputed. The Defendants’ purported
statement of “fact” is a legal conclusion.
Conflicting evidence presented shows that
Clayton F. Summy Co. (Delaware), the

• App’x, Ex. 51 at 677-689 (Amended
Answer in Hill Foundation v. Summy
Co., Eq. No. 78-350).

25184237.2

- 106 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
Happy Birthday to You.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

complaint in The Hill Foundation, Inc. v.
Clayton F. Summy Co., filed Dec. 29,
1942 (WC0000369-70))
• App’x, Ex. 1 (FAC) at ¶ 74

Defendants’ alleged predecessor, disputed
the Defendants’ purported statement of
“fact” in Paragraph 18 of the Amended
Answer relied upon by the Defendants by
stating that it “admits and avers that during
the calendar years 1934 and 1935 the said
Jessica M. Hill and this defendant entered
into several so-called royalty contracts
wherein and whereby it was provided that
the said Jessica J. Hill sold, assigned and
transferred to this defendant various piano
arrangement to the said musical
composition “Good Morning to All.”
(emphasis added).

• App’x, Ex. 1 (FAC) at 15, ¶ 74
• App’x, Ex. 2 (Defs. Ansat49, ¶ 74
• App’x, Ex. 45 at 630, ¶ 3 (Adam
Kaplan letter 11/6/14)

Conflicting evidence presented also shows
that the Defendants do not have a copy of
the purported license agreement referenced
and have no personal knowledge of its
terms and conditions.
D16. On or about December 9,
1935, Clayton F. Summy
Co. obtained copyright
Registration Certificate

• App’x, Ex. 101 (E51990 registration
certificate (1204-1207, marked as
Marcotullio Ex. 9))
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz

Disputed in part. It is undisputed that on or
about December 9, 1935, Clayton F.
Summy Co. (Delaware) obtained copyright

• App’x, Ex. 1 (FAC) at 18, ¶ 96
• App’x, Ex. 2 (Defs. Ans.) at 62, ¶ 96
• App’x, Ex. 48 at 653-654 (Certificate

25184237.2

- 107 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
E51990.

Admissible Evidence Supporting Fact

Opposing Party’s Response

at 111:10-20): Marcotullio Ex. 9 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x, Ex. 1 (FAC) ¶ 96
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 2,9)

Admissible Evidence Supporting
Response

Registration Certificate E51990.

of Registration for E51990))

However, the Defendants offer
inadmissible evidence in support of this
fact. The Plaintiffs object to the
admissibility of WC0000388-90 pursuant
to FRE 602, FRE 801 and FRE 901
because the evidence cited is not a
Registration Certificate, it lacks
foundation, authentication, and is hearsay.

• App’x, Ex. 4 [Landes Decl.] at 83, ¶
3b]

A certified copy of the Registration
Certificate for Reg. No. E51990 is App’x
Ex. 48 at.
D17. There is no evidence that
Clayton F. Summy Co.
included any inaccurate
information on the
application for E51990
with the intent to defraud
the Copyright Office.

• Upon review of the admissible evidence,
there is no evidence that Clayton F.
Summy Co. included any inaccurate
information on the application for E51990
with the intent to defraud the Copyright
Office.

Disputed. The Defendants purported
“fact” is a legal conclusion because intent
to defraud is a legal conclusion.

D18. Registration Certificate
51990 states that it applies

• App’x, Ex. 101 (E51990 registration
certificate (1204-1207, marked as

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The

• App’x, Ex. 1 (FAC) at 18, ¶ 96

25184237.2

- 108 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
to a “published musical
composition” entitled
“Happy birthday to you.”

Admissible Evidence Supporting Fact

Opposing Party’s Response

Marcotullio Ex. 9))
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 111:10-20): Marcotullio Ex. 9 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 2,9)

Plaintiffs object to the admissibility of
• App’x, Ex. 2 (Defs. Ans.) at 62, ¶ 96
WC0000388-90 pursuant to FRE 602, FRE
• App’x, Ex. 48 at 653-654 (Certificate
801 and FRE 901 because the evidence
of Registration for E51990))
cited is not a Registration Certificate, it
lacks foundation, authentication and is
• App’x, Ex. 4 [Landes Decl.] at 83, ¶
hearsay.
3b]

D19. The listing under the byline • App’x, Ex. 101 (E51990 registration
certificate (1204-1207, marked as
in Registration Certificate
Marcotullio Ex. 9))
E51990 states: “By
Mildred J. Hill, arr. by
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
Preston Ware Orem;* pf.,
at 111:10-20): Marcotullio Ex. 9 (1546with words.”
1565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 2,9)

Admissible Evidence Supporting
Response

A certified copy of the Registration
Certificate for Reg. No. E51990 is App’x
Ex. 48 at 653-654.
Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC0000388-90 pursuant to FRE 602, FRE
801 and FRE 901 because the evidence
cited is not a Registration Certificate, it
lacks foundation, authentication and is
hearsay.

• App’x, Ex. 1 (FAC) at 18, ¶ 96
• App’x, Ex. 2 (Defs. Ans.) at 62, ¶ 96
• App’x, Ex. 48 at 653-654 (Certificate
of Registration for E51990))
• App’x, Ex. 4 [Landes Decl.] at 83, ¶
3b]

A certified copy of the Registration
Certificate for Reg. No. E51990 is P63366337App’x Ex. 48 at 653-654.
D20. Registration Certificate

• App’x, Ex. 101 (E51990 registration
certificate (1204-1207, marked as

Disputed. The Defendants’ fact is

• App’x, Ex. 1 (FAC) at 18, ¶ 96

25184237.2

- 109 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Marcotullio Ex. 9))
E51990 also states: “(© is
claimed on arrangement as • App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
easy piano solo with text).”
at 111:10-20): Marcotullio Ex. 9 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 2,9)

Opposing Party’s Response

Admissible Evidence Supporting
Response

unsupported by admissible evidence. The • App’x, Ex. 2 (Defs. Ans.) at 62, ¶ 96
Plaintiffs object to the admissibility of
• App’x, Ex. 48 at 653-654 (Certificate
WC0000388-90 pursuant to FRE 602, FRE
of Registration for E51990))
801 and FRE 901 because the evidence
cited is not a Registration Certificate, it
• App’x, Ex. 4 [Landes Decl.] at 83, ¶
lacks foundation, authentication and is
3b]
hearsay.
A certified copy of the Registration
Certificate for Reg. No. E51990 is App’x
Ex. 48 at 653-654.

• App’x, Ex. 101 (E51990 registration
D21. Registration Certificate
certificate (1204-1207, marked as
E51990 lists the date of
Marcotullio Ex. 9))
publication as December 6,
1935.
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 111:10-20): Marcotullio Ex. 9 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 2,9)

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC0000388-90 pursuant to FRE 602, FRE
801 and FRE 901 because the evidence
cited is not a Registration Certificate, it
lacks foundation, authentication and is
hearsay.

• App’x, Ex. 1 (FAC) at 18, ¶ 96
• App’x, Ex. 2 (Defs. Ans.) at 62, ¶ 96
• App’x, Ex. 48 at 653-654 (Certificate
of Registration for E51990))
• App’x, Ex. 4 [Landes Decl.] at 83, ¶
3b]

A certified copy of the Registration
Certificate for Reg. No. E51990 is Ex. 48
at 653-654.
25184237.2

- 110 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

D22. Registration Certificate
E51990 states that two
copies of the published
musical composition were
received and registered in
the Copyright Office on
December 9, 1935.

• App’x, Ex. 101 (E51990 registration
certificate (1204-1207, marked as
Marcotullio Ex. 9))
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 111:10-20): Marcotullio Ex. 9 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 2,9)

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC0000388-90 pursuant to FRE 602, FRE
801 and FRE 901 because the evidence
cited is not a Registration Certificate, it
lacks foundation, authentication and is
hearsay.

• App’x, Ex. 1 (FAC) at 18, ¶ 96
• App’x, Ex. 2 (Defs. Ans.) at 62, ¶ 96
• App’x, Ex. 48 at 653-654 (Certificate
of Registration for E51990))
• App’x, Ex. 4 [Landes Decl.] at 83, ¶
3b]

A certified copy of the Registration
Certificate for Reg. No. E51990 is App.’x
Ex. 48 at 653-654..
D23. There are only two known • App’x, Ex. 106 (1935 publication of sheet
music for Happy Birthday to You! (1220versions of Happy Birthday
1223))
to You that contain lyrics
and were published by
• App’x Ex. 100 (Kaplan Decl. at ¶ 7)
Clayton F. Summy Co. in
• App’x, Ex. 43 (1935 publication of sheet
1935.
music for Happy Birthday to You! Unison
Song; also a copy of the deposit copy
submitted in connection with Registration
Certificate E51988 (WC000413-14))
• Upon review of the admissible evidence,
there is no evidence of any other 1935

Compound. Disputed, in part. The
Defendants’ fact is unsupported by
admissible evidence. The Plaintiffs object
to the admissibility of WC0001112-15
pursuant to FRE 602, FRE 801 and FRE
901 because the Defendants have no
knowledge that the sheet music was ever
published by Clayton F. Summy Co.; the
Defendants cannot authenticate that sheet
music; and the sheet music is hearsay.
It is undisputed that WC000413-14 is a

25184237.2

- 111 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact
publications of Happy Birthday to You by
Clayton F. Summy Co. that contain lyrics.

D24. One of the known versions • App’x, Ex. 43 (copy of deposit copy
submitted in connection with Registration
of Happy Birthday to You
Certificate E51988 (WC000413-14))
that contains lyrics and was
published by Clayton F.
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
Summy Co. in 1935 was
at 100:3-101:15): the Copyright Office
submitted to the Copyright
provided 1546-1565 in response to a
Office in connection with
request for the deposit copy submitted in
registration E51988 and
connection with E51988
has the publication number • App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
3076.
165:13-168:17, 174:7-17)
• App’x, Ex. 111 (Sachs Exhibit 47, ¶¶ 28,
30 & Exs. J, L (Expert Report of Joel
Sachs))
• App’x, Ex. 100 (Kaplan Decl. ¶¶ 9-11)

Opposing Party’s Response

Admissible Evidence Supporting
Response

deposit copy of the work submitted in
connection with Reg. No. E51988.
Compound. Disputed, in part. The
Plaintiffs dispute that there are two known
versions of Happy Birthday to You, that
contain lyrics and were published by
Clayton F. Summy Co. in 1935. [See
D23].

• App’x, Ex. 86 [Sachs Decl.] at 965-66,
¶ 14.

It is undisputed that WC000413-14 is a
deposit copy of the work submitted in
connection with Reg. No. E51988.
It is undisputed that the number “3076” is
printed on the lower left hand corner of
WC000414.
The Plaintiffs object to the admissibility of
Prof. Sachs’s testimony pursuant to FRE
602 and FRE 901 to support the
Defendants’ fact because he has no firsthand knowledge of the submission with
registration E51988 and cannot
authenticate the document submitted with

25184237.2

- 112 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

the number “3076” on it.
D25. The only other known
version of Happy Birthday
to You that contains lyrics
and was published by
Clayton F. Summy Co. in
1935, aside from the
version with publication
number 3076, has the title
“Happy Birthday to You!”
above the sheet music and
has the publication number
3075.

• App’x, Ex.106 (1935 publication of sheet
music for Happy Birthday to You! (12201223))
•
• App’x, Ex. 43 (1935 publication of sheet
music for Happy Birthday to You! Unison
Song; also a copy of the deposit copy
submitted in connection with Registration
Certificate E51988 (WC000413-14))
• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
165:13-168:17, 174:7-17)
• App’x, Ex. 111 (Sachs Exhibit 47, ¶¶ 28,
30 & Exs. J, L (Expert Report of Joel
Sachs))
• App’x, Ex. 100 (Kaplan Decl. ¶¶ 7, 10-11)

• App’x, Ex. 86 [Sachs Affid.]
Compound. Disputed. The Plaintiffs
object to the admissibility of WC000111215 pursuant to FRE 602, FRE 801 and
FRE 901 because the Defendants have no
personal knowledge that the sheet music
was ever published by Clayton F. Summy
Co.; the Defendants cannot authenticate
that sheet music; and the sheet music is
hearsay.
The Plaintiffs dispute that there are two
known versions of Happy Birthday to You,
that contain lyrics and were published by
Clayton F. Summy Co. in 1935. [See
D23].
It is undisputed that WC000413-14 is a
deposit copy of the work submitted in
connection with Reg. No. E51988.
It is undisputed that the number “3076” is
printed on the lower left hand corner of
WC000414.

25184237.2

- 113 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

The Plaintiffs object to the admissibility of
Prof. Sachs’s testimony pursuant to FRE
602 and FRE 901 to support the
Defendants’ fact because, although he has
seen other copies of sheet music for Happy
Birthday, he has no personal knowledge of
when, how, or by whom the sheet music
was prepared and he cannot authenticate
any of them.
D26. Clayton F. Summy Co.
published the version of
Happy Birthday to You
with publication numbers
3075 before it published
the version of Happy
Birthday to You with
publication number 3076
(which was submitted to
the Copyright Office in
connection with
registration E51988).

• App’x, Ex. 106 (1935 publication of sheet
music for Happy Birthday to You! (12201223))
•
• App’x, Ex. 43 (1935 publication of sheet
music for Happy Birthday to You! Unison
Song; also a copy of the deposit copy
submitted in connection with Registration
Certificate E51988 (WC000413-14))

• App’x, Ex. 86 [Sachs Affid.] at 965Compound. Disputed. The Plaintiffs
966, ¶¶ 13, 15-21.
object to the admissibility of WC000111215 pursuant to FRE 602, FRE 801 and
FRE 901 because the Defendants have no
personal knowledge that the sheet music
was ever published by Clayton F. Summy
Co.; the Defendants cannot authenticate
that sheet music; and the sheet music is
hearsay.

• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
165:13-166:22, 174:7-17)
• App’x, Ex. 100 (Kaplan Decl. ¶¶ 7,10)

The Plaintiffs dispute that there are two
known versions of Happy Birthday to You,
that contain lyrics and were published by
Clayton F. Summy Co. in 1935. [See

25184237.2

- 114 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

D23].
It is undisputed that WC000413-14 is a
deposit copy of the work submitted in
connection with Reg. No. E51988.
It is undisputed that the number “3076” is
printed on the lower left hand corner of
WC000414.
The Plaintiffs object to the admissibility of
Prof. Sachs’s testimony pursuant to FRE
602 and FRE 901 to support the
Defendants’ fact because Prof. Sachs has
no first-hand knowledge of the submission
with registration E51988 and cannot
authenticate the document submitted with
the number “3075” on it. Prof. Sachs also
has no first-hand knowledge regarding
whether when, and if “3075” and “3076”
were ever published.
D27. The Copyright Office’s
record of deposit copies
states that on December 9,
1935, the Copyright Office

• App’x, 105 (Record of the Filing of
Copyright Deposits under the Act of
March 4, 1909 (1218-1219))
• App’x, Ex. 100 (Kaplan Decl. ¶ 6)

Undisputed.

25184237.2

- 115 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

• App’x, Ex. 106 (1935 publication of sheet
music for Happy Birthday to You!
(WC000977-979))
• App’x Ex. 100 (Kaplan Decl. at ¶ 7)

Compound. Disputed. The Plaintiffs
object to the admissibility of WC000111215 pursuant to FRE 602, FRE 801 and
FRE 901 because the Defendants have no
personal knowledge that the sheet music
was ever published by Clayton F. Summy
Co.; the Defendants cannot authenticate
that sheet music; and the sheet music is
hearsay.

received two deposit copies
of a work entitled Happy
Birthday to You! in
connection with E51990.
D28. The version of Happy
Birthday to You with
publication number 3075
identifies the title of the
composition, on the sheet
music, as “Happy Birthday
to You!”

D29. The application for E51990 • App’x, Ex. 40 (application for E51990
(P003295-3296))
states, in the upper-left
portion of the application
for use by the Copyright
Office:

Undisputed.

Summy (Clayton F.) co.
Happy birthday to you; pf.,
with words.
25184237.2

- 116 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

D30. Paragraph 6 of the
application for E51990
states: “Title of musical
composition,” after which
the following is written in
handwriting: “Happy
Birthday to You”

• App’x, Ex. 40 (application for E51990
(P003295-3296))

Undisputed.

D31. The title “Happy Birthday • Upon review of the admissible evidence,
there is no evidence of a document from
to You!” on the record of
which the title “Happy Birthday to You!”
deposits for E51990
could have been copied other than the
indicates that the examiner
version of Happy Birthday to You with
was copying from the sheet
publication number 3075
music of Happy Birthday
to You with publication
• App’x, Ex. 106 (1935 publication of sheet
number 3075.
music for Happy Birthday to You! (12201223))
•
• App’x, Ex. 105 (Record of the Filing of
Copyright Deposits under the Act of
March 4, 1909 (1218-1219))
• App’x, Ex. 100 (Kaplan Decl. ¶¶ 6-7)

Admissible Evidence Supporting
Response

Compound. Disputed. The Plaintiffs
object to the admissibility of WC000111215 pursuant to FRE 602, FRE 801 and
FRE 901 because the Defendants have no
personal knowledge that the sheet music
was ever published by Clayton F. Summy
Co.; the Defendants cannot authenticate
that sheet music; and the sheet music is
hearsay.
The Plaintiffs object to the admissibility of
P003299 pursuant to FRE 602 as evidence
of what the examiner was copying from
because that document does not indicate
what, if anything, the examiner was
copying from when the entry was prepared

25184237.2

- 117 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

• App’x, Ex. 40 (application for E51990
(P003295-3296))

and the Defendants have no personal
knowledge regarding what the examiner
was copying from when preparing
P003299.
Conflicting evidence presented shows that
WC0000862 (application for E51990)
stated that the title of composition is:
“Happy birthday to you; pf., with words.”

D32. The record of deposits for
E51990 identifies the work
deposited in connection
with E51990 as a “Piano
Solo with words.”

• App’x, Ex. 105 (Record of the Filing of
Copyright Deposits under the Act of
March 4, 1909 (P003299))
• App’x, Ex. 100 (Kaplan Decl. ¶ 6)

Disputed. The evidence cited by the
Defendants contains handwriting under the
column “TITLE” that states:

• App’x, Ex. 105 at 1218 (Record of the
Filing of Copyright Deposits under the
Act of March 4, 1909 (P003299))

Happy Birthday to You! By Mildred J.
Hill Preston Ware Orem (employed for
hire by Clayton F. Summy Co.), of U.S.,
Copyright is claimed on arr. as easy piano
solo, with text.
Above the words “U.S. Copyright is
Claimed” appears handwriting that states:
“Piano Solo with words.”

D33. The version of Happy
Birthday to You with

• App’x, Ex. 106 (1935 publication of sheet Disputed. The Plaintiffs object to the
music for Happy Birthday to You! (1220- admissibility of WC0001112-15 pursuant

25184237.2

- 118 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
publication number 3075
identifies the composition,
on the cover page, as
“Piano Solo with words.”

Admissible Evidence Supporting Fact
1223))
•
• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
167:8-168:17)
• App’x, Ex. 111 (Sachs Exhibit 47, Ex. J
(Expert Report of Joel Sachs))
• App’x, Ex. 100 (Kaplan Decl. ¶¶ 7, 10-11)

Opposing Party’s Response

Admissible Evidence Supporting
Response

to FRE 602, FRE 801 and FRE 901
because the Defendants have no personal
knowledge that the sheet music was ever
published by Clayton F. Summy Co.; the
Defendants cannot authenticate that sheet
music; and the sheet music is hearsay

• App’x, Ex. 40 (application for E51990
D34. Paragraph 7 of the
(P003295-3296))
application for E51990
states: “State exactly on
what new copy-right is
claimed (see Sec. 6 of Act
of 1909),” after which the
following is written in
handwriting: “Arrangement
as easy piano solo, with
text”

Undisputed.

D35. The application for E51990 • App’x, Ex. 40 (application for E51990
(P003295-3296))
does not contain the phrase
“Piano Solo with Words.”

Undisputed.

25184237.2

- 119 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

D36. The phrase “Piano Solo
with words” on the record
of deposits for E51990
indicates that the examiner
was copying from the
cover page of the version
of Happy Birthday to You
with publication number
3075.

• Upon review of the admissible evidence,
there is no evidence of a document from
which the phrase “Piano Solo with words”
could have been copied other than the
version of Happy Birthday to You with
publication number 3075
• App’x, Ex. 106 (1935 publication of sheet
music for Happy Birthday to You! (12201223))
•
• App’x, Ex. 105 (Record of the Filing of
Copyright Deposits under the Act of
March 4, 1909 (1218-1219))
• App’x, Ex. 100 (Kaplan Decl. ¶¶ 6-7)
• App’x, Ex. 40 (application for E51990
(P003295-3296))

Compound. Disputed. The Plaintiffs
object to the admissibility of WC000111215 pursuant to FRE 602, FRE 801 and
FRE 901 because the Defendants have no
personal knowledge that the sheet music
was ever published by Clayton F. Summy
Co.; the Defendants cannot authenticate
that sheet music; and the sheet music is
hearsay.

• App’x, Ex. 107 (Dep. Tr. Of Thomas
Marcotullio145:6-146:13)
• App’x, Ex. 114 (recorded assignment of

Disputed. The evidence cited does not
support the Defendants’ fact. Conflicting
evidence shows that after

D37. Warner/Chappell’s
predecessors-in-interest
have claimed ownership in

Admissible Evidence Supporting
Response

The Plaintiffs object to the admissibility of
P003299 pursuant to FRE 602 as evidence
of what the examiner was copying from
because that document does not indicate
what, if anything, the examiner was
copying from when the entry was prepared
and the Defendants have no personal
knowledge regarding what the examiner
was copying from when preparing
P003299.
• App’x, Ex. 55 at 709-717(Complaint
in Clayton F. Summy Co. v.
McLoughlin Brothers, Inc., Civil No.

25184237.2

- 120 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

copyright (1654-1661))
the familiar lyrics to Happy
Birthday to You for
• App’x, Ex. 115 (legible copy of the same
decades.
(1662-1670))
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 8,13)

Opposing Party’s Response

Admissible Evidence Supporting
Response

Warner/Chappell’s predecessors-in-interest
30-284)
purported to obtain ownership of E51988
• App’x, Ex. 57 at 732-739 (Complaint
and E51990 that they filed three
in Clayton F. Summy Co. v. Paul
infringement actions in 1945 and 1946
Feigay and Oliver Smith, Civil No. 34over the use of the Happy Birthday lyrics
481)
and only claimed that the use of the Happy
Birthday lyrics infringed upon the
• App’x, Ex. 56 at 721-730 (Complaint
in Clayton F. Summy v. Louis Marx &
copyright to Good Morning to All.
Co., Civil No. 30-285).
•

• App’x, Ex. 107 (Dep. Tr. Of Thomas
D38. Warner/Chappell’s
Marcotullio145:6-146:13)
predecessors-in-interest
have licensed the familiar
• App’x, Ex. 114 (recorded assignment of
lyrics to Happy Birthday to
copyright (1654-1661))
You for decades.
• App’x, Ex. 115 (legible copy of the same
(1662-1670))
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 8,13)
D39. Warner/Chappell has
claimed ownership in the
familiar lyrics to Happy
Birthday to You for

• App’x, Ex. 107 (Dep. Tr. Of Thomas
Marcotullio145:6-146:13)
• App’x, Ex. 81 (Stock Purchase Agreement
between Warner/Chappell Music, Inc.,

It is undisputed that Warner/Chappell’s
predecessors-in-interest unlawfully
licensed the familiar lyrics to Happy
Birthday to You for decades. However, no
infringement action has ever been brought
against anyone for using the familiar lyrics
to Happy Birthday to You if those lyrics
were used without a license.
It is undisputed that Warner/Chappell has
unlawfully claimed ownership in the
familiar lyrics to Happy Birthday to You
since the time it purportedly acquired the

25184237.2

- 121 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
decades.

D40. Warner/Chappell has
licensed the familiar lyrics
to Happy Birthday to You
for decades.

Admissible Evidence Supporting Fact

Opposing Party’s Response

and David K. Sengstack, dated December
1, 1988 (WC0000760-827))
• App’x, Ex. 100 (Kaplan Decl. ¶ 8)

copyrights to E51988 and E519990 in
1989.

• App’x, Ex. 107 (Dep. Tr. Of Thomas
Marcotullio145:6-146:13)
• App’x, Ex. 100 (Kaplan Decl. ¶ 8)
• App’x, Ex. 81 (Stock Purchase Agreement
between Warner/Chappell Music, Inc.,
and David K. Sengstack, dated December
1, 1988 (WC0000760-827))

It is undisputed that Warner/Chappell has
unlawfully licensed the familiar lyrics to
Happy Birthday to You since the time it
purportedly acquired the copyrights to
E51988 and E519990 in 1989. However,
no infringement action has ever been
brought by Warner/Chappell against
anyone for using the familiar lyrics to
Happy Birthday to You if those lyrics were
used without a license.

D41. The deposit copy submitted • App’x, Ex. 106 (1935 publication of sheet
music for Happy Birthday to You! (1220to the Copyright Office in
1223))
connection with the
E51990 contained the
•
lyrics:
• App’x, Ex. 105 (Record of the Filing of
Copyright Deposits under the Act of
Happy Birthday to you,
March 4, 1909 (1218-1219))
Happy Birthday to you,
Happy Birthday
• App’x, Ex. 40 (application for E51990
dear _____

Admissible Evidence Supporting
Response

Disputed. The Defendants facts are
• App’x, Ex. 47 at 641, 645
unsupported by admissible evidence. The
(Marcotullio Depo. Tr. at 167:5-10;
Plaintiffs object to the admissibility of the
170:4-25)
evidence cited by Defendants pursuant to
• App’x, Ex. 46 at 633 (Copyright
FRE 602 and FRE 901 because: 1) no
Office letter dated January 23, 1961)
witness has personal knowledge regarding
what deposit copy was submitted to the
Copyright Office in connection with
E51990; and 2) no witness can authenticate

25184237.2

- 122 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Happy Birthday to you!
•

•

•

•

(P003295-3296))
App’x, Ex. 43 (1935 publication of sheet
music for Happy Birthday to You! Unison
Song; also a copy of the deposit copy
submitted in connection with Registration
Certificate E51988 (WC000413-14))
App’x, Ex. 103 (E51988 registration
certificate (1211-1214, marked as
Marcotullio Ex. 4))
App’x, Ex. 101 (E51990 registration
certificate (1204-1207, marked as
Marcotullio Ex. 9))
App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 90:23-91:9, 111:10-20): 1546-1565
were provided to Warner/Chappell by the
Copyright Office

Opposing Party’s Response

Admissible Evidence Supporting
Response

what work was deposited in connection
with E51990.
Conflicting evidence presented also shows
that it is undisputed that: 1) the Defendants
do not possess a copy of the work
deposited with the Copyright Office
stamped “E51990”; 2) the Copyright
Office cannot locate a copy of the work
deposited with the Copyright Office as
E51990; and 3) no known copy of the work
deposited with the Copyright Office
stamped “E51990” is known to exist.

•
• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
165:13-168:17, 174:7-17)
• App’x, Ex. 111 (Sachs Exhibit 47, ¶¶ 28,
30 & Exs. J, L (Expert Report of Joel
Sachs))
25184237.2

- 123 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Disputed in part. It is undisputed that on or
about December 9, 1935, Clayton F.
Summy Co. (Delaware) obtained copyright
Registration Certificate E51988.

• App’x, Ex. 1 (FAC) at 17, ¶ 91

However, the Defendants’ fact is
supported, in part, by inadmissible
evidence. The Plaintiffs object to the
admissibility of WC0000385-87 pursuant
to FRE 602, FRE 801 and FRE 901

• App’x, Ex. 4 [Landes Decl.] at 82, ¶
3a

• App’x, Ex. 107 (Dep. Tr. Of Thomas
Marcotullio145:6-146:13)
• App’x, Ex. 1 (FAC) at ¶ 98
• App’x, Ex. 123 (Third Amended
Consolidated Complaint ¶ 98)
• App’x, Ex. 122 (Second Amended
Consolidated Complaint ¶ 98)
• App’x, Ex. 121 (Consolidated First
Amended Complaint ¶ 94)
• App’x, Ex. 120 (Complaint ¶ 91)
• App’x, Ex. 100 (Kaplan Decl. ¶¶ 2,4,611,18-21)
D42. On or about December 9,
1935, Clayton F. Summy
Co. obtained copyright
Registration Certificate
E51988.

• App’x, Ex. 103 (E51988 registration
certificate (1211-1214, marked as
Marcotullio Ex. 4))
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 90:23-91:9): Marcotullio Ex. 4 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x, Ex. 121 (FAC ¶ 91)
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 4,9,19)

• App’x, Ex. 2 (Defs. Ans.) at 60, ¶ 91
• App’x, Ex. 44 at 626-627 (E51988)

25184237.2

- 124 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

because the evidence cited is not a
Registration Certificate, it lacks
foundation, authentication and is hearsay.
A certified copy of the Registration
Certificate for Reg. No. E51988 is P63346335.
D43. There is no evidence that
Clayton F. Summy Co.
included any inaccurate
information on the
application for E51988
with the intent to defraud
the Copyright Office.

• Upon review of the admissible evidence,
there is no evidence that Clayton F.
Summy Co. included any inaccurate
information on the application for E51988
with the intent to defraud the Copyright
Office.

Disputed. The Defendants purported
“fact” is a legal conclusion because intent
to defraud is a legal conclusion.

D44. Registration Certificate
E51988 applies to a
“published musical
composition” entitled
“Happy birthday to you;
unison song.”

• App’x, Ex. 103 (E51988 registration
certificate (1211-1214, marked as
Marcotullio Ex. 4))
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 90:23-91:9): Marcotullio Ex. 4 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 4,9)

Disputed. Defendants’ fact is unsupported, • App’x, Ex. 44 at 626-627 (E51988)
by admissible evidence. The Plaintiffs
object to the admissibility of WC0000385- • App’x, Ex. 4 [Landes Decl.] at 82, ¶
3a
87 pursuant to FRE 602, FRE 801 and FRE
901 because the evidence cited is not a
Registration Certificate, it lacks
foundation, authentication and is hearsay.
A certified copy of the Registration

25184237.2

- 125 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Certificate for Reg. No. E51988 is P63346335.
D45. The listing under the byline • App’x, Ex. 103 (E51988 registration
certificate (1211-1214, marked as
in Registration Certificate
Marcotullio Ex. 4))
E51988 states: “By
Mildred J. Hill, rev. text
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
and arr. of music by Mrs.
at 90:23-91:9): Marcotullio Ex. 4 (1546R. R. Forman* 4to.”
1565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 4,9))

Disputed. Defendants’ fact is unsupported, • App’x, Ex. 44 at 626-627 (E51988)
by admissible evidence. The Plaintiffs
• App’x, Ex. 4 [Landes Decl.] at 82, ¶
object to the admissibility of WC00003853a
87 pursuant to FRE 602, FRE 801 and FRE
901 because the evidence cited is not a
Registration Certificate, it lacks
foundation, authentication and is hearsay.

• App’x, Ex. 103 (E51988 registration
D46. Registration Certificate
certificate (1211-1214, marked as
E51988 also states: “(© is
Marcotullio Ex. 4))
claimed on arrangement for
unison chorus and revised
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
text).”
at 90:23-91:9): Marcotullio Ex. 4 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 4,9))

Disputed. Defendants’ fact is unsupported, • App’x, Ex. 44 at 626-627 (E51988)
by admissible evidence. The Plaintiffs
object to the admissibility of WC0000385- • App’x, Ex. 4 [Landes Decl.] at 82, ¶
3a
87 pursuant to FRE 602, FRE 801 and FRE
901 because the evidence cited is not a
Registration Certificate, it lacks
foundation, authentication and is hearsay.

A certified copy of the Registration
Certificate for Reg. No. E51988 is P63346335.

A certified copy of the Registration
Certificate for Reg. No. E51988 is P6334-

25184237.2

- 126 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

6335.
• App’x, Ex. 103 (E51988 registration
D47. Registration Certificate
certificate (1211-1214, marked as
E51988 lists the date of
Marcotullio Ex. 4))
publication as December 6,
1935.
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 90:23-91:9): Marcotullio Ex. 4 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 4,9))

Disputed. Defendants’ fact is unsupported, • App’x, Ex. 44 at 626-627 (E51988)
by admissible evidence. The Plaintiffs
• App’x, Ex. 4 [Landes Decl.] at 82, ¶
object to the admissibility of WC00003853a
87 pursuant to FRE 602, FRE 801 and FRE
901 because the evidence cited is not a
Registration Certificate, it lacks
foundation, authentication and is hearsay.

• App’x, Ex. 103 (E51988 registration
certificate (1211-1214, marked as
Marcotullio Ex. 4))
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 90:23-91:9): Marcotullio Ex. 4 (15461565) was provided to Warner/Chappell
by the Copyright Office
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 4,9))

Disputed. Defendants’ fact is unsupported, • App’x, Ex. 44 at 626-627 (E51988)
by admissible evidence. The Plaintiffs
object to the admissibility of WC0000385- • App’x, Ex. 4 [Landes Decl.] at 82, ¶
3a
87 pursuant to FRE 602, FRE 801 and FRE
901 because the evidence cited is not a
Registration Certificate, it lacks
foundation, authentication and is hearsay.

D48. Registration Certificate
E51988 states that two
copies of the published
musical composition were
received and registered in
the Copyright Office on
December 9, 1935.

A certified copy of the Registration
Certificate for Reg. No. E51988 is P63346335.

A certified copy of the Registration
Certificate for Reg. No. E51988 is P63346335.

25184237.2

- 127 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

D49. The deposit copy submitted • App’x, Ex. 43 (copy of the deposit copy
submitted in connection with Registration
to the Copyright Office in
Certificate E51988 (WC000413-14))
connection with E51988
contained the lyrics:
• App’x, Ex. 109 (Dep. Tr. of Jeremy Blietz
at 100:3-101:15): the Copyright Office
Happy birthday to you,
provided 1546-1565 in response to a
Happy birthday to you,
request for the deposit copy submitted in
Happy birthday
connection with E51988
dear_______
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 9-10)
Happy Birthday to you;
• App’x, Ex. 1 (FAC) at ¶ 93
May your birthday be
bright,
Full of cheer and delight,
Happy birthday dear_____
Happy Birthday to you.
D50. There is no evidence that
Mildred J. Hill was ever
aware of any “publication”
(for purposes of the
Copyright Act of 1909) of
the lyrics of Happy
Birthday to You.

• Upon review of the admissible evidence,
there is no evidence that Mildred J. Hill
was ever aware of any publication of the
lyrics of Happy Birthday to You.
• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
80:23-82:9, 89:6-92:13, 105:23-107:11,
122:19-123:7, 126:9-128:5, 131:13132:13, 136:24-137:19, 138:16-23,

Opposing Party’s Response

Admissible Evidence Supporting
Response

Undisputed.

Disputed. The Defendants purported
“fact” is a legal conclusion because the
Defendants use the phrase “any
publication” (for purposes of the Copyright
Act of 1909)” and whether a work was
“published” pursuant to the Copyright Act
of 1909 is not a fact.

25184237.2

- 128 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

145:14-146:14)
• App’x, Ex. 100 (Kaplan Decl. ¶ 10)
• Upon review of the admissible evidence,
D51. There is no evidence that
there is no evidence that Mildred J. Hill
Mildred J. Hill ever
ever authorized any publication of the
authorized any
lyrics of Happy Birthday to You.
“publication” (for purposes
of the Copyright Act of
• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
1909) of Happy Birthday
80:23-82:9, 89:6-92:13, 105:23-107:11,
to You.
122:19-123:7, 126:9-128:5, 131:13132:13, 136:24-137:19, 138:16-23,
145:14-146:14)
• App’x, Ex. 100 (Kaplan Decl. ¶ 10)

Disputed. The Defendants purported
“fact” is a legal conclusion because the
Defendants use the phrase “any
publication” (for purposes of the Copyright
Act of 1909)” and whether a work was
“published” pursuant to the Copyright Act
of 1909 is not a fact.

• App’x, Ex. 87 (deposition testimony of
D52. There is no evidence that
Patty S. Hill that she was not aware of any
Patty S. Hill was ever
publication, other than by Clayton F.
aware, prior to 1936, of
Summy, that contained Good Morning to
any publication of the
All “with [her] permission.”
lyrics of Happy Birthday to
(WC0001077-76))
You aside from the 1935
“publication” (for purposes • Upon review of the admissible evidence,
of the Copyright Act of
there is no evidence that Patty S. Hill was
1909) by Clayton F.
ever aware, prior to 1936, of any
Summy Co. of the lyrics of
publication of the lyrics of Happy

Disputed. The Defendants purported
“fact” is a legal conclusion because the
Defendants use the phrase “any
publication” (for purposes of the Copyright
Act of 1909)” and whether a work was
“published” pursuant to the Copyright Act
of 1909 is not a fact.

25184237.2

- 129 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
Happy Birthday to You.

D53. There is no evidence that
Patty S. Hill ever
authorized, prior to 1936,
any “publication” (for
purposes of the Copyright
Act of 1909) of the lyrics
of Happy Birthday to You
other than the 1935
publication by Clayton F.
Summy Co. of the lyrics of
Happy Birthday to You.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Birthday to You aside from the 1935
publication by Clayton F. Summy Co. of
the lyrics of Happy Birthday to You
• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
80:23-82:9, 89:6-92:13, 105:23-107:11,
122:19-123:7, 126:9-128:5, 131:13132:13, 136:24-137:19, 138:16-23,
145:14-146:14)
• App’x, Ex. 100 (Kaplan Decl. ¶ 10)
• App’x, Ex. 87 (deposition testimony of
Patty S. Hill that she was not aware of any
publication, other than by Clayton F.
Summy, that contained Good Morning to
All “with [her] permission.”
(WC0001077-76))
• Upon review of the admissible evidence,
there is no evidence that Patty S. Hill ever
authorized, prior to 1936, any publication
of the lyrics of Happy Birthday to You
other than the 1935 publication by Clayton
F. Summy Co. of the lyrics of Happy
Birthday to You.

Disputed. The Defendants purported
“fact” is a legal conclusion because the
Defendants use the phrase “any
publication” (for purposes of the Copyright
Act of 1909)” and whether a work was
“published” pursuant to the Copyright Act
of 1909 is a legal conclusion, not a fact.

25184237.2

- 130 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
80:23-82:9, 89:6-92:13, 105:23-107:11,
122:19-123:7, 126:9-128:5, 131:13132:13, 136:24-137:19, 138:16-23,
145:14-146:14)
• App’x, Ex. 100 (Kaplan Decl. ¶ 10)
• Upon review of the admissible evidence,
D54. There is no evidence that
there is no evidence that Jessica Hill was
Jessica Hill was ever
ever aware, prior to 1936, of any
aware, prior to 1936 of any
publication of the lyrics of Happy
“publication” (for purposes
Birthday to You aside from the 1935
of the Copyright Act of
publication by Clayton F. Summy Co. of
1909) of the lyrics of
the lyrics of Happy Birthday to You.
Happy Birthday to You
aside from the 1935
publication by Clayton F.
Summy Co. of the lyrics of
Happy Birthday to You.
D55. There is no evidence that
Jessica Hill ever
authorized, prior to 1936,
any “publication” (for
purposes of the Copyright

• Upon review of the admissible evidence,
there is no evidence that Jessica Hill ever
authorized, prior to 1936, any publication
of the lyrics of Happy Birthday to You
other than the 1935 publication by Clayton

Disputed. The Defendants’ purported
“fact” is a legal conclusion because the
Defendants use the phrase “any
publication” (for purposes of the Copyright
Act of 1909)” and whether a work was
“published” pursuant to the Copyright Act
of 1909 is a legal conclusion, not a fact.

Disputed. The Defendants purported
“fact” is a legal conclusion because the
Defendants use the phrase “any
publication” (for purposes of the Copyright
Act of 1909)” and whether a work was

25184237.2

- 131 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
Act of 1909) of the lyrics
of Happy Birthday to You
other than the 1935
publication by Clayton F.
Summy Co. of the lyrics of
Happy Birthday to You.

Admissible Evidence Supporting Fact
F. Summy Co. of the lyrics of Happy
Birthday to You.

• Based upon a review of the admissible
D56. There is no evidence that
evidence, there is no evidence that
Clayton F. Summy Co. was
Clayton F. Summy Co. was ever aware,
ever aware, prior to 1936,
prior to 1936, of any publication of the
of any “publication” (for
lyrics of Happy Birthday to You by a
purposes of the Copyright
different person or entity.
Act of 1909) of the lyrics
of Happy Birthday to You
• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
by a different person or
80:23-82:9, 89:6-92:13, 105:23-107:11,
entity.
122:19-123:7, 126:9-128:5, 131:13132:13, 136:24-137:19, 138:16-23,
145:14-146:14)
• App’x, Ex. 100 (Kaplan Decl. ¶ 10)
D57. There is no evidence that
Clayton F. Summy Co.
ever authorized, prior to
1936, any “publication”

• Based upon a review of the admissible
evidence, there is no evidence that
Clayton F. Summy Co. ever authorized,
prior to 1936, any publication of the lyrics

Opposing Party’s Response

Admissible Evidence Supporting
Response

“published” pursuant to the Copyright Act
of 1909 is a legal conclusion, not a fact.

Disputed. The Defendants purported
“fact” is a legal conclusion because the
Defendants use the phrase “any
publication” (for purposes of the Copyright
Act of 1909)” and whether a work was
“published” pursuant to the Copyright Act
of 1909 is a legal conclusion, not a fact.

Disputed. The Defendants purported
“fact” is a legal conclusion because the
Defendants use the phrase “any
publication” (for purposes of the Copyright

25184237.2

- 132 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

of Happy Birthday to You by a different
person or entity.
• App’x, Ex. 110 (Dep. Tr. of Joel Sachs at
80:23-82:9, 89:6-92:13, 105:23-107:11,
122:19-123:7, 126:9-128:5, 131:13132:13, 136:24-137:19, 138:16-23,
145:14-146:14)
• App’x, Ex. 100 (Kaplan Decl. ¶ 10)

Act of 1909)” and whether a work was
“published” pursuant to the Copyright Act
of 1909 is a legal conclusion, not a fact.

D58. On November 10, 1944, an
assignment of copyright
from Patty S. Hill and
Jessica M. Hill to The Hill
Foundation, Inc., was
recorded in the Copyright
Office.

• App’x, Ex. 112 (recorded assignment of
copyright (1647-1650))
• App’x, Ex. 113 (legible copy of the same
(1651-1653))
• App’x Ex. 100 (Kaplan Decl. at ¶ 12)

Undisputed.

D59. This assignment,
transferred all of Patty S.
Hill’s and Jessica M. Hill’s
right, title and interest in
Registrations E51988 and
E51990 to The Hill

• App’x, Ex. 112 (recorded assignment of
copyright (1647-1650))
• App’x, Ex. 113 (legible copy of the same
(1651-1653))
• App’x Ex. 100 (Kaplan Decl. at ¶ 12)

Disputed. Defendants’ purported statement • App’x, Ex. 112 at 1649-50 (recorded
of “fact” is a legal conclusion. The best
assignment of copyright)
evidence of the terms of the assignment
cited by Defendants is the language of the • App’x, Ex. 113 at 1652-53 (legible
copy of the same))
assignment.

(for purposes of the
Copyright Act of 1909) of
the lyrics of Happy
Birthday to You by a
different person or entity.

Admissible Evidence Supporting
Response

• App’x, Ex. 112 at 1649-50 (recorded
assignment of copyright)
• App’x, Ex. 113 at 1652-53 (legible
copy of the same))

25184237.2

- 133 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

D60. On November 10, 1944, an
assignment of copyright
from The Hill Foundation,
Inc., to Clayton F. Summy
Co. was recorded in the
Copyright Office.

• App’x, Ex. 114 (recorded assignment of
copyright (1654-1661))
• App’x, Ex. 115 (legible copy of the same
(1662-1670))
• App’x Ex. 100 (Kaplan Decl. at ¶ 13)

Undisputed.

• Ex. 114 at 1656-1661 (recorded
assignment of copyright)

D61. This assignment,
transferred all of The Hill
Foundation, Inc.’s right,
title and interest in
Registrations E51988 and
E51990 to Clayton F.
Summy Co.

• App’x, Ex. 114 (recorded assignment of
copyright (1654-1661))
• App’x, Ex. 115 (legible copy of the same
(1662-1670))
• App’x Ex. 100 (Kaplan Decl. at ¶ 13)

Disputed. Defendants’ purported statement • App’x, Ex. 112 at 1649-50 (recorded
of “fact” is a legal conclusion. The best
assignment of copyright)
evidence of the terms of the assignment
cited by Defendants is the language of the • App’x, Ex. 113 at 1652-53 (legible
copy of the same))
assignment.

Foundation, Inc.

D62. In August 1931, Clayton F. • App’x, Ex. 117 (minutes of a September
29, 1931, meeting of the Board of
Summy Co., an Illinois
Directors of C.F.S. Musical Co. (1751corporation, reorganized
1754))
and sold its assets to
Clayton F. Summy Co.
• App’x Ex. 108 (Declaration of Thomas B.
(Delaware).
Marcotullio (“Marcotullio Decl.”) at ¶ 5.)
• App’x, Ex. 100 (Kaplan Decl. ¶15)

• Ex. 115 at 1663-1668 (WC000083843) (legible copy of the same)

Disputed. Conflicting evidence presented
shows that Clayton F. Summy and John F.
Sengstack entered into an agreement dated
August 7, 1931 whereby Clayton F.
Summy agreed to transfer certain assets of
Clayton F. Summy Co., an Illinois
corporation to a newly formed Delaware

• App’x Ex. 92

25184237.2

- 134 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

corporation in exchange for 1,500 shares of
Preferred Stock in the Delaware
corporation and John Sengstack agreed to
purchase 1,500 shares of common stock in
the newly formed Delaware corporation.
• App’x, Ex. 92 (agreement between
D63. This August 1931
Clayton F. Summy and John F. Sengstack,
reorganization and sale was
dated August 7, 1931 (WC0002081-90))
pursuant to an agreement
between Clayton F.
• App’x, Ex. 117 (minutes of a September
Summy and John F.
29, 1931, meeting of the Board of
Sengstack.
Directors of C.F.S. Musical Co. (17511754))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 5.)
• App’x, Ex. 100 (Kaplan Decl. 15)

D64. In 1956, Clayton F.
Summy Co., (Delaware),
changed its name to
Summy Publishing Co.
(Delaware).

• App’x, Ex. 116 (corporate records
attached to the declaration of David K.
Sengstack, dated January 20, 1981, which
was recorded in the Copyright Office on
February 2, 1981 (1674-1676))

Disputed. Conflicting evidence presented • App’x Ex. 92
shows that Clayton F. Summy and John F.
Sengstack entered into an agreement dated
August 7, 1931 whereby Clayton F.
Summy agreed to transfer certain assets of
Clayton F. Summy Co., an Illinois
corporation to a newly formed Delaware
corporation in exchange for 1,500 shares of
Preferred Stock in the Delaware
corporation and John Sengstack agreed to
purchase 1,500 shares of common stock in
the newly formed Delaware corporation.
Disputed. Conflicting evidence presented
shows that Clayton F. Summy Co., a
Delaware corporation, was renamed
Summy Publishing Company on January.
23, 1956.

• App’x, Ex. 116 at 1674-75

25184237.2

- 135 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

Disputed. Conflicting evidence presented
shows that Summy Publishing Company, a
Delaware corporation changed its name to
Summy-Birchard Publishing Company on
September 27, 1957.

• App’x, Ex 116 1676-78

• App’x Ex. 108 (Marcotullio Decl. at ¶ 6.)
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)
• App’x, Ex. 116 (corporate records
D65. In 1957, Summy
attached to the declaration of David K.
Publishing Co. (Delaware)
Sengstack, dated January 20, 1981, which
changed its name to
was recorded in the Copyright Office on
Summy-Birchard
February 2, 1981 (1677-1679))
Publishing Co. (Delaware).
• App’x Ex. 108 (Marcotullio Decl. at ¶ 6.)
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)
D66. In 1961, Summy-Birchard
Publishing Co. (Delaware)
changed its name to
Summy-Birchard Co.
(Delaware)

• App’x, Ex. 116 (corporate records
attached to the declaration of David K.
Sengstack, dated January 20, 1981, which
was recorded in the Copyright Office on
February 2, 1981 (1680-1682))
• App’x Ex.108 (Marcotullio Decl. at ¶ 6.)
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)

• App’x, Ex. 68 (approved application for
D67. On or about December 6,
registration of a claim to renewal
1962, Summy-Birchard
copyright, 306186 (P006341-43))
Co. obtained Registration
Certificate R306186, which • App’x, Ex. 102 (certificate of registration
was a renewal of
of a claim to renewal copyright, 306186

Disputed. Conflicting evidence presented • App’x, Ex. 116 at 1680-82
shows that Summy-Birchard Publishing
Company, a Delaware corporation changed
its name to Summy-Birchard Company on
December 22, 1961.

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC0000103-104 pursuant to FRE 602,
FRE 801 and FRE 901 because the

• App’x, Ex. 102 at 1209-1210
• App’x, Ex. 68 at 812-814

25184237.2

- 136 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
Registration E51990.

Admissible Evidence Supporting Fact

Opposing Party’s Response

(1208-1210))
• App’x Ex. 100 (Kaplan Decl. at ¶ 3)

Admissible Evidence Supporting
Response

evidence cited is not a registration
certificate, it lacks foundation,
authentication, and is hearsay.
A certified copy of the Registration
Certificate for Reg. No. R306186 is
P006341-6343.

D68. Registration Certificate
R306186 applies to
“HAPPY BIRTHDAY TO
YOU! – easy piano solo
with text.”

• App’x, Ex. 68 (approved application for
registration of a claim to renewal
copyright, 306186 (P006341-43))
• App’x, Ex. 102 (certificate of registration
of a claim to renewal copyright, 306186
(1208-1210))
• App’x Ex. 100 (Kaplan Decl. at ¶ 3)

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC0000103-104 pursuant to FRE 602,
FRE 801 and FRE 901 because the
evidence cited is not a registration
certificate, it lacks foundation,
authentication, and is hearsay.

• App’x, Ex. 102 at 1209-1210
• App’x, Ex. 68 at 812-814
•

A certified copy of the Registration
Certificate for Reg. No. R306186 is
P006341-6343.
D69. Registration Certificate
R306186 states that the
“Renewable Matter” is
“Arrangement as easy

• App’x, Ex. 68 (approved application for
registration of a claim to renewal
copyright, 306186 (P006341-43))
• App’x, Ex. 102 (certificate of registration

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC0000103-104 pursuant to FRE 602,

• App’x, Ex. 102 at 1209-1210
• App’x, Ex. 68 at 812-814

25184237.2

- 137 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
piano solo with text.”

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

of a claim to renewal copyright, 306186
(1208-1210))
• App’x Ex. 100 (Kaplan Decl. at ¶ 3)

FRE 801 and FRE 901 because the
evidence cited is not a registration
certificate, it lacks foundation,
authentication, and is hearsay.
A certified copy of the Registration
Certificate for Reg. No. R306186 is
P006341-6343.

D70. Registration Certificate
R306186 states “By
Mildred J. Hill” in the area
designated for Copyright
Office notations.

• App’x, Ex. 68 (approved application for
registration of a claim to renewal
copyright, 306186 (P006341-43))
• App’x, Ex. 102 (certificate of registration
of a claim to renewal copyright, 306186
(1208-1210))
• App’x Ex. 100 (Kaplan Decl. at ¶ 3)

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC0000103-104 pursuant to FRE 602,
FRE 801 and FRE 901 because the
evidence cited is not a registration
certificate, it lacks foundation,
authentication, and is hearsay.

• App’x, Ex. 102 at 1209-1210
• App’x, Ex. 68 at 812-814

A certified copy of the Registration
Certificate for Reg. No. R306186 is
P006341-6343.
D71. On or about December 6,
1962, Summy-Birchard
Company obtained

• App’x, Ex. 67 (approved application for
registration of a claim to renewal
copyright, 306185 (P006338-40))

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of

• App’x, Ex. 104 at 1215
• App’x, Ex. 67 at 808-810

25184237.2

- 138 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
Registration Certificate
R306185, which was a
renewal of Registration
E51988.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

• App’x, Ex. 104 (certificate of registration
of a claim to renewal copyright, 306185
(1215-1217))
• App’x Ex. 100 (Kaplan Decl. at ¶ 5)

WC000953-54 pursuant to FRE 602, FRE
801 and FRE 901 because the evidence
cited is not a registration certificate, it
lacks foundation, authentication, and is
hearsay.
A certified copy of the registration
certificate for Reg. No. R306185 is
P006338-6340.

D72. Registration Certificate
R306185 applies to
“HAPPY BIRTHDAY TO
YOU! – Unison Song.”

• App’x, Ex. 67 (approved application for
registration of a claim to renewal
copyright, 306185 (P006338-40))
• App’x, Ex. 104 (certificate of registration
of a claim to renewal copyright, 306185
(1215-1217))
• App’x Ex. 100 (Kaplan Decl. at ¶ 5)

Disputed. The Defendants’ fact is
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC000953-54 pursuant to FRE 602, FRE
801 and FRE 901 because the evidence
cited is not a registration certificate, it
lacks foundation, authentication, and is
hearsay.

• App’x, Ex. 104 at 1215
• App’x, Ex. 67 at 808-810

A certified copy of the registration
certificate for Reg. No. R306185 is
P006338-6340.
D73. In 1973, Summy-Birchard
Co. (Delaware) merged

• App’x, Ex. 116 (corporate records
attached to the declaration of David K.
Sengstack, dated January 20, 1981, which

Compound. Disputed. Conflicting
evidence presented shows that on

• App’x, Ex. 71-72

25184237.2

- 139 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
with Educational Music
Bureau, an Illinois
corporation, and the
surviving company was
Summy-Birchard Co., an
Illinois corporation.

Admissible Evidence Supporting Fact

Opposing Party’s Response

was recorded in the Copyright Office on
February 2, 1981 (1707-1723, 17371750))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 6.)
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)

December 28, 1973, Summy-Birchard
Company, a Delaware corporation was
merged into Educational Music Bureau, an
Illinois corporation and the name of
Educational Music Bureau was changed to
Summy-Birchard Company.

D74. In 1976, Summy-Birchard • App’x, Ex. 116 (corporate records
attached to the declaration of David K.
Co. (Illinois) merged with
Sengstack, dated January 20, 1981, which
New Summy-Birchard Co.,
was recorded in the Copyright Office on
a company that had been
February 2, 1981 (1692-1706, 1724incorporated in Wyoming
1736))
earlier that year, and the
surviving corporation was • App’x Ex. 108 (Marcotullio Decl. at ¶ 6.)
Summy-Birchard Co.
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)
(Wyoming).

D75. In 1978, Summy-Birchard
Co. (Wyoming) changed
its name to Sumco Corp.
(Wyoming).

• App’x, Ex. 116 (corporate records
attached to the declaration of David K.
Sengstack, dated January 20, 1981, which
was recorded in the Copyright Office on

Admissible Evidence Supporting
Response

Compound. Disputed. Conflicting
• App’x, Ex. 74
evidence presented shows that on March 8,
• App’x, Ex. 75
1976, New Summy Birchard Company was
incorporated in the State of Wyoming.
Conflicting evidence presented also shows
that on March 19, 1976, Summy-Birchard
Company, an Illinois corporation was
merged into New Summy Birchard
Company, a Wyoming corporation and the
name of New Summy Birchard Company
was changed to Summy-Birchard
Company.
Disputed. Conflicting evidence presented
shows that on November 9, 1978, SummyBirchard Company, a Wyoming
corporation changed its name to SUMCO

• App’x, Ex. 77

25184237.2

- 140 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

February 2, 1981 (1689-1691))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 6.)
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)

Admissible Evidence Supporting
Response

Corporation.

D76. In May 1979, Sumco Corp. • App’x, Ex. 116 (corporate records
attached to the declaration of David K.
(Wyoming) changed its
Sengstack, dated January 20, 1981, which
name to Summy-Birchard
was recorded in the Copyright Office on
Co. (Wyoming).
February 2, 1981 1687-1688))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 6.)
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)

Disputed. Conflicting evidence presented
shows that in May, 1979, SUMCO
Corporation, a Wyoming corporation
changed its name to Summy-Birchard
Company.

• App’x, Ex. 78

D77. In July 1979, SummyBirchard Co. (Wyoming)
changed its name to The
Birch Tree Group Ltd.
(Wyoming).

• App’x, Ex. 116 (corporate records
attached to the declaration of David K.
Sengstack, dated January 20, 1981, which
was recorded in the Copyright Office on
February 2, 1981 (1685-1686))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 6.)
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)

Disputed. Conflicting evidence presented
shows that on August 3, 1979, SummyBirchard Company, a Wyoming
corporation changed its name to The Birch
Tree Group Ltd.

• App’x, Ex. 79

D78. In September 1979, The
Birch Tree Group Ltd.
(Wyoming) changed its
name to Birch Tree Group

• App’x, Ex. 116 (corporate records
attached to the declaration of David K.
Sengstack, dated January 20, 1981, which
was recorded in the Copyright Office on

Disputed. Conflicting evidence presented
shows that on October 12, 1979, The Birch
Tree Group Ltd., a Wyoming corporation

• App’x, Ex. 80

25184237.2

- 141 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
Ltd. (Wyoming).

D79. As of October 1988, Birch
Tree Group Ltd. Was
100% owned by its then
chairman, David K.
Sengstack.

Admissible Evidence Supporting Fact

Opposing Party’s Response

February 2, 1981 (1683-1684))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 6.)
• App’x, Ex. 100 (Kaplan Decl. ¶ 14)

changed its name to Birch Tree Group Ltd.

• App’x, Ex. 119 (Excerpt of October 1988
“Confidential Information Memorandum”
regarding Birch Tree Group Ltd. (17601763).

Disputed. The Defendants’ fact in
unsupported by admissible evidence. The
Plaintiffs object to the admissibility of
WC0001137 and WC0001142-43 pursuant
to FRE 602, FRE 801 and FRE 901
because the evidence cited lacks
foundation, authentication and is hearsay.

• App’x Ex. 100 (Kaplan Decl. at ¶ 17)

Admissible Evidence Supporting
Response

• App’x, Ex. 23 [Newman Decl.] at 538544, ¶¶ 40-92

Conflicting evidence presented shows that
there is no documentation in the record to
prove that David K. Sengstack owned
100% of Birch Tree Group Ltd. as of
October, 1988.
D80. On December 1, 1988,
Warner/Chappell Music,
Inc., entered into a stock
purchase agreement with
David K. Sengstack
regarding the sale of all the

• App’x, Ex. 81 (Stock Purchase Agreement
between Warner/Chappell Music, Inc.,
and David K. Sengstack, dated December
1, 1988 (WC0000760-827))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 7.)

Disputed. Conflicting evidence presented • App’x, Ex. 81 at 880-947
shows that on December 1, 1988,
Warner/Chappell Music, Inc. entered into a
stock purchase agreement with David K.
Sengstack to purchase 953 shares of
common stock that David K. Sengstack

25184237.2

- 142 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

capital stock of Birch Tree
Group Ltd. (Wyoming).

Opposing Party’s Response

Admissible Evidence Supporting
Response

purportedly owned in Birch Tree Group
Ltd., a Wyoming corporation.

D81. On December 27, 1988,
Birch Tree Group Ltd.
(Wyoming) changed its
name to Summy-Birchard,
Inc. (Wyoming).

• App’x, Ex. 82 (Certificate of Amendment
from the Secretary of State of Wyoming,
dated December 27, 1988 (WC000199597))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 8.)

Undisputed that on December 27, 1988,
Birch Tree Group Ltd., a Wyoming
corporation changes its name to SummyBirchard, Inc.

D82. On January 3, 1989, David
K. Sengstack transferred to
Warner/Chappell Music,
Inc., his common capital
stock in Summy-Birchard,
Inc. (Wyoming) (formerly
Birch Tree Group, Ltd.
(Wyoming)).

• App’x, Ex. 118 (stock certificate that was
transferred to Warner/Chappell and then
cancelled (1755-1759))
• App’x Ex. 108 (Marcotullio Decl. at ¶ 10.)

Compound. Disputed in part. It is
undisputed that on January 3, 1989, David
K. Sengstack purported to transfer 953
shares of Summy-Birchard, Inc., a
Wyoming corporation to Warner/Chappell
Music, Inc.

• App’x, Ex. 119 (Excerpt of October 1988
“Confidential Information Memorandum”
regarding Birch Tree Group Ltd. (17601763).
• App’x Ex. 100 (Kaplan Decl. at ¶¶ 16-17)

• App’x, Ex. 17 at 503-507 (EMB
Certificate of Incorporation)
• App’x, Ex. 59 at 744-755(EMB 1948
Amendment)
• App’x, Ex. 69 at 816 (Death of John
Sengstack)

However, Plaintiffs dispute the fact that
David K. Sengstack was the sole
• App’x, Exs. 71 & 72 at 824-836
shareholder of Summy-Birchard Company,
(Merger of Summy (Delaware) into
a Wyoming corporation because that fact is
EMB)
unsupported by admissible evidence that:
1) David K. Sengstack acquired any shares • App’x, Exs. 75 & 76 at 854-865
(Merger of EMB into Wyoming)
of Educational Music Bureau, an Illinois
corporation; David K. Sengstack acquired
• App’x, Ex. 23 [Newman Decl.] at 540any shares of Summy-Birchard Company,

25184237.2

- 143 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

a Delaware corporation (fka Clayton F
Summy Co.); and David K. Sengstack
acquired any shares of Summy-Birchard
Company (fka New Summy Birchard
Company), a Wyoming corporation.

544, ¶¶ 55-92.

Moreover, Plaintiffs dispute that David K.
Sengstack transferred “all of the capital
stock of Summy-Birchard, Inc.”, a
Wyoming corporation because conflicting
evidence shows that as of October 12,
1979, 963 shares of common stock in Birch
Tree Group were outstanding and there is
no documentation in the record to prove
how the outstanding shares of common
stock was reduced from 963 outstanding
shares to the 953 outstanding shares that
David K. Sengstack purportedly transferred
to Warner/Chappell Music, Inc. on January
3, 1989.
D83. Between approximately
September 1931 and
January 1989, the
Sengstack family

• App’x, Ex. 119 (Excerpt of October 1988
“Confidential Information Memorandum”
regarding Birch Tree Group Ltd. (1760-

Compound. Disputed. The Defendants’
fact in unsupported by admissible
evidence. The Plaintiffs object to the
admissibility of WC0001137 and

• App’x, Ex. 23 [Newman Decl.] at 535544 ¶¶ 6-89

25184237.2

- 144 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

continuously operated
1763).
Warner/Chappell’s
• App’x Ex. 100 (Kaplan Decl. at ¶ 17)
predecessors-in-interest (in
chronological order):
Clayton F. Summy Co.
(Delaware), Summy
Publishing Co. (Delaware),
Summy-Birchard
Publishing Co. (Delaware),
Summy-Birchard Co.
(Delaware), SummyBirchard Co. (Illinois),
Summy-Birchard Co.
(Wyoming), Sumco Corp.
(Wyoming), SummyBirchard Co. (Wyoming),
The Birch Tree Group Ltd.
(Wyoming), Birch Tree
Group Ltd. (Wyoming),
Summy-Birchard, Inc.
(Wyoming).
D84. Summy-Birchard, Inc.
(Wyoming) is a defendant

• App’x, Ex. 2 (FAC ¶ 14)

Opposing Party’s Response

Admissible Evidence Supporting
Response

WC0001142-43 pursuant to FRE 602, FRE
801 and FRE 901 because the evidence
cited lacks foundation, authentication and
is hearsay.
Conflicting evidence presented shows that
there is no documentation in the record to
prove that David K. Sengstack owned
100% of Birch Tree Group Ltd. as of
October, 1988.

It is undisputed that Summy-Birchard, Inc.,
a Wyoming corporation is a defendant in

25184237.2

- 145 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

in this lawsuit.

Opposing Party’s Response

Admissible Evidence Supporting
Response

this lawsuit.

D85. Summy-Birchard, Inc.
(Wyoming) is a whollyowned subsidiary of
Warner/Chappell Music,
Inc..

• App’x Ex. 108 (Marcotullio Decl. at ¶ 11.) It is undisputed that Summy-Birchard, Inc.,
a Wyoming corporation is a wholly-owned
subsidiary of Warner/Chappell Music, Inc.

D86. Warner/Chappell Music,
Inc., is a defendant in this
lawsuit.

• App’x, Ex. 2 (FAC ¶ 14)

Undisputed.

D87. Plaintiffs’ Complaint did
not allege any issue with
Warner/Chappell’s chain
of title to E51998 and/or
E51990.

• App’x, Ex. 120 (Complaint, Dkt. 9)
• App’x, Ex. 100 (Kaplan Decl. ¶ 18)

• App’x Ex. 94 at 1019 (Pls. Requests
Undisputed that Plaintiffs’ Complaint did
for Production of Documents to Defs.
not allege any issue with
– Set No. One)
Warner/Chappell’s chain of title to E51988
and/or E51990 because the documentation • App’x Ex. 95 at 1090-1091 (Defs.
regarding chain a title was exclusively in
Objections and Responses to Pls. First
Defendants’ possession. However,
Set of Requests for Production of
Plaintiffs sought discovery of
Documents)
documentation of Defendants’ ownership
of the copyrights on February 12, 2014. In
particular, Plaintiffs requested that
Defendants produce “All documents
constituting, creating, describing, or

25184237.2

- 146 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

relating to Your acquisition of each Right
You claim to Happy Birthday to You,
including documentation of all
assignment(s) or transfer(s) of such
Rights.” Defendants agreed to produce
documentation of their chain of title but
never produced documentation of the chain
of title prior to the end of discovery.
Without that discovery, Plaintiffs had no
basis to know the defects in Defendants’
chain of title.
D88. Plaintiffs’ Consolidated
First Amended Complaint
did not allege any issue
with Warner/Chappell’s
chain of title to E51998
and/or E51990.

• App’x, Ex. 121 (Consolidated First
Amended Complaint ¶ 94, Dkt. 29)
• App’x, Ex. 100 (Kaplan Decl. ¶ 19)

Undisputed that Plaintiffs’ First Amended • App’x Ex. 94 at 1019 (Pls. Requests
for Production of Documents to Defs.
Complaint did not allege any issue with
– Set No. One)
Warner/Chappell’s chain of title to E51988
and/or E51990 because the documentation • App’x Ex. 95 at 1090-1091 (Defs.
regarding chain a title was exclusively in
Objections and Responses to Pls. First
Defendants’ possession. However,
Set of Requests for Production of
Plaintiffs sought discovery of
Documents)
documentation of Defendants’ ownership
of the copyrights on February 12, 2014. In
particular, Plaintiffs requested that
Defendants produce “All documents
constituting, creating, describing, or

25184237.2

- 147 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

relating to Your acquisition of each Right
You claim to Happy Birthday to You,
including documentation of all
assignment(s) or transfer(s) of such
Rights.” Defendants agreed to produce
documentation of their chain of title but
never produced documentation of the chain
of title prior to the end of discovery.
Without that discovery, Plaintiffs had no
basis to know the defects in Defendants’
chain of title.
D89. Plaintiffs’ Second
Amended Consolidated
Complaint did not allege
any issue with
Warner/Chappell’s chain
of title to E51998 and/or
E51990.

• App’x, Ex. 122 (Second Amended
Consolidated Complaint, Dkt. 59)
• App’x, Ex. 100 (Kaplan Decl. ¶ 20)

• App’x Ex. 94 at 1019 (Pls. Requests
Undisputed that Plaintiffs’ Second
for Production of Documents to Defs.
Amended Consolidated Complaint did not
– Set No. One)
allege any issue with Warner/Chappell’s
chain of title to E51988 and/or E51990
• App’x Ex. 95 at 1090-1091 (Defs.
because the documentation regarding chain
Objections and Responses to Pls. First
a title was exclusively in Defendants’
Set of Requests for Production of
possession. However, Plaintiffs sought
Documents)
discovery of documentation of Defendants’
ownership of the copyrights on February
12, 2014. In particular, Plaintiffs requested
that Defendants produce “All documents
constituting, creating, describing, or

25184237.2

- 148 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

relating to Your acquisition of each Right
You claim to Happy Birthday to You,
including documentation of all
assignment(s) or transfer(s) of such
Rights.” Defendants agreed to produce
documentation of their chain of title but
never produced documentation of the chain
of title prior to the end of discovery.
Without that discovery, Plaintiffs had no
basis to know the defects in Defendants’
chain of title.
D90. Plaintiffs’ Third Amended
Consolidated Complaint
did not allege any issue
with Warner/Chappell’s
chain of title to E51998
and/or E51990.

• App’x, Ex. 123 (Third Amended
Consolidated Complaint, Dkt. 72)
• App’x, Ex. 100 (Kaplan Decl. ¶ 21)

Undisputed that Plaintiffs’ Third Amended
Consolidated Complaint did not allege any
issue with Warner/Chappell’s chain of title
to E51988 and/or E51990 because the
documentation regarding chain a title was
exclusively in Defendants’ possession.
However, Plaintiffs sought discovery of
documentation of Defendants’ ownership
of the copyrights on February 12, 2014. In
particular, Plaintiffs requested that
Defendants produce “All documents
constituting, creating, describing, or

• App’x Ex. 94 at 1019 (Pls. Requests
for Production of Documents to Defs.
– Set No. One)
• App’x Ex. 95 at 1090-1091 (Defs.
Objections and Responses to Pls. First
Set of Requests for Production of
Documents)

25184237.2

- 149 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

relating to Your acquisition of each Right
You claim to Happy Birthday to You,
including documentation of all
assignment(s) or transfer(s) of such
Rights.” Defendants agreed to produce
documentation of their chain of title but
never produced documentation of the chain
of title prior to the end of discovery.
Without that discovery, Plaintiffs had no
basis to know the defects in Defendants’
chain of title.
D91. Plaintiffs’ Fourth Amended • App’x, Ex. 2
Consolidated Complaint
did not allege any issue
with Warner/Chappell’s
chain of title to E51998
and/or E51990.

• App’x Ex. 94 at 1019 (Pls. Requests
Undisputed that Plaintiffs’ Fourth
for Production of Documents to Defs.
Amended Consolidated Complaint did not
– Set No. One)
allege any issue with Warner/Chappell’s
chain of title to E51988 and/or E51990
• App’x Ex. 95 at 1090-1091 (Defs.
because the documentation regarding chain
Objections and Responses to Pls. First
a title was exclusively in Defendants’
Set of Requests for Production of
possession. However, Plaintiffs sought
Documents)
discovery of documentation of Defendants’
ownership of the copyrights on February
12, 2014. In particular, Plaintiffs requested
that Defendants produce “All documents
constituting, creating, describing, or

25184237.2

- 150 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Admissible Evidence Supporting
Response

relating to Your acquisition of each Right
You claim to Happy Birthday to You,
including documentation of all
assignment(s) or transfer(s) of such
Rights.” Defendants agreed to produce
documentation of their chain of title but
never produced documentation of the chain
of title prior to the end of discovery.
Without that discovery, Plaintiffs had no
basis to know the defects in Defendants’
chain of title.
D92. In the Joint Report on the
parties’ Rule 26(f)
Planning meeting (filed on
February 10, 2014),
Plaintiffs disclosed the
basis for their copyright
claim (Claim One of their
Fourth Amended
Consolidated Complaint).

• App’x Ex. 124 (Joint Report on Parties
Planning Meeting, Dkt. No. 89)
• App’x, Ex. 100 (Kaplan Decl. ¶ 22)

Undisputed.

D93. In the Joint Report on the
parties’ Rule 26(f)

• App’x Ex. 124 (Joint Report on Parties
Planning Meeting, Dkt. No. 89)

Undisputed that Plaintiffs’ did not assert
any issue with Warner/Chappell’s chain of

• App’x Ex. 94 at 1019 (Pls. Requests
for Production of Documents to Defs.

25184237.2

- 151 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.

Admissible Evidence Supporting Fact

Planning Meeting (filed on • App’x, Ex. 100 (Kaplan Decl. ¶ 22)
February 10, 2014),
Plaintiffs did not assert any
issue with
Warner/Chappell’s chain
of title to E51998 and/or
E51990.

D94. Plaintiffs’ Requests for

Opposing Party’s Response

Admissible Evidence Supporting
Response

– Set No. One)
title to E51988 and/or E51990 in the Joint
Report on the parties’ Rule 26(f) Planning • App’x Ex. 95 at 1090-1091 (Defs.
Meeting because the documentation
Objections and Responses to Pls. First
regarding chain of title was exclusively in
Set of Requests for Production of
Defendants’ possession. However,
Documents)
Plaintiffs sought discovery of
documentation of Defendants’ ownership
of the copyrights on February 12, 2014. In
particular, Plaintiffs requested that
Defendants produce “All documents
constituting, creating, describing, or
relating to Your acquisition of each Right
You claim to Happy Birthday to You,
including documentation of all
assignment(s) or transfer(s) of such
Rights.” Defendants agreed to produce
documentation of their chain of title but
never produced documentation of the chain
of title prior to the end of discovery.
Without that discovery, Plaintiffs had no
basis to know the defects in Defendants’
chain of title.

• App’x Ex. 94 (Plaintiffs’ Requests for

• App’x, Ex. 94 at 1019 (Plaintiffs’

25184237.2

- 152 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

Fact Statement of Fact
No.
Production of Documents
to Defendants—Set No.
One (dated February 12,
2014) did not reveal
Plaintiffs’ intent to
challenge
Warner/Chappell’s chain
of title dating to the 1930s.

Admissible Evidence Supporting Fact

Opposing Party’s Response

Production of Documents to Defendants—
Set No. One (dated February 12, 2014) at
7)

Admissible Evidence Supporting
Response
Requests for Production of Documents
to Defendants—Set No. One (dated
February 12, 2014)

WARNERCHAPPELL:21358.SOF

25184237.2

- 153 JOINT STATEMENT OF UNCONTROVERTED FACTS
CASE NO. CV 13-04460-GHK (MJW)

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Respectfully Submitted,

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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

Dated: November 25, 2014

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By: /s/Betsy C. Manifold
BETSY C. MANIFOLD

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FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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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]
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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-2-

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]
Facsimile 626/796-0107
Facsimile: 212/797-3172

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DONAHUE FITZGERALD 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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-3-

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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: November 25, 2014

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By:

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/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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MUNGER TOLLES & OLSON
LLP
GLENN D. POMERANTZ (112503)
[e-mail]
MELINDA E. LEMOINE
[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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-4-

1
DECLARATION REGARDING CONCURRENCE

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I, Betsy C. Manifold, am the ECF User whose identification and password

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are being used to file this JOINT STATEMENT OF UNCONTROVERTED

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FACTS IN SUPPORT OF PARTIES’ NOTICE OF CROSS-MOTION AND

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CROSS-MOTION FOR SUMMARY JUDGMENT

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. In compliance with Civil Local Rule 5-4.3.4(a)(2), I hereby attest that Kelly M.

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Klaus has concurred in this filing.

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Executed this 25th day of November 2014, in the City of San Diego, State of
California.

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By:

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WARNER/CHAPPELL:21377.CAPTION

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-5-

/s/Betsy C. Manifold
BETSY C. MANIFOLD