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)

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BETSY C. MANIFOLD (182450) 1 manifold@whafh.com WOLF HALDENSTEIN ADLER 2 FREEMAN & HERZ LLP 750 B Street, Suite 2770 3 San Diego, CA 92101 619/239-4599 4 Telephone: 619/234-4599 Facsimile: 5 Interim Lead Counsel for Plaintiffs and the 6 [Proposed] Class 7 GLENN D. POMERANTZ (State Bar No. 112503) glenn.pomerantz@mto.com 8 KELLY M. KLAUS (State Bar No. 161091) kelly.klaus@mto.com 9 MELINDA E. LeMOINE (State Bar No. 235670) melinda.lemoine@mto.com 10 ADAM I. KAPLAN (State Bar No. 268182) adam.kaplan@mto.com 11 MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue 12 Thirty-Fifth Floor Los Angeles, California 90071-1560 13 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 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) 1 Respectfully Submitted, 2 3 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Dated: November 25, 2014 4 5 6 By: /s/Betsy C. Manifold BETSY C. MANIFOLD 7 FRANCIS M. GREGOREK gregorek@whafh.com BETSY C. MANIFOLD manifold@whafh.com RACHELE R. RICKERT rickert@whafh.com MARISA C. LIVESAY livesay@whafh.com 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 8 9 10 11 12 13 14 15 16 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP MARK C. RIFKIN (pro hac vice) rifkin@whafh.com JANINE POLLACK (pro hac vice) pollack@whafh.com BETH A. LANDES (pro hac vice) landes@whafh.com 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 212-545-4753 17 18 19 20 21 22 23 24 25 26 Interim Lead Counsel for Plaintiffs 27 28 -2- RANDALL S. NEWMAN PC RANDALL S. NEWMAN (190547) rsn@randallnewman.net 37 Wall Street, Penthouse D New York, NY 10005 Telephone: 212/797-3737 1 2 3 4 5 HUNT ORTMANN PALFFY NIEVES DARLING & MAH, INC. ALISON C. GIBBS (257526) gibbs@huntortmann.com OMEL A. NIEVES (134444) nieves@huntortmann.com KATHLYNN E. SMITH (234541) smith@ huntortmann.com 301 North Lake Avenue, 7th Floor Pasadena, CA 91101 Telephone 626/440-5200 Facsimile 626/796-0107 Facsimile: 212/797-3172 6 7 8 9 10 11 12 13 14 15 DONAHUE FITZGERALD LLP WILLIAM R. HILL (114954) rock@donahue.com ANDREW S. MACKAY (197074) andrew@donahue.com DANIEL J. SCHACHT (259717) daniel@donahue.com 1999 Harrison Street, 25th Floor Oakland, CA 94612-3520 Telephone: 510/451-0544 Facsimile: 510/832-1486 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 7 GLANCY BINKOW & GOLDBERG LLP LIONEL Z. GLANCY (134180) lglancy@glancylaw.com MARC L. GODINO (188669) mgodino@glancylaw.com 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: 310/201-9150 Facsimile: 310/201-9160 8 Attorneys for Plaintiffs 1 2 3 4 5 6 9 MUNGER TOLLES & OLSON LLP Dated: November 25, 2014 10 11 12 By: 13 /s/Kelly M. Klaus KELLY M. KLAUS KELLY M. KLAUS (161091) kelly.klaus@mto.com ADAM I. KAPLAN (268182) adam.kaplan@mto.com 560 Mission St., 27th Floor San Francisco, CA 94105 Telephone: 415/512-4000 14 15 16 17 18 MUNGER TOLLES & OLSON LLP GLENN D. POMERANTZ (112503) glenn.pomerantz@mto.com MELINDA E. LEMOINE melinda.lemoine@mto.com 355 South Grand Ave., 35th Floor Los Angeles, CA 90071 Telephone: 213/683-9100 19 20 21 22 23 24 25 Attorneys for Defendants 26 27 28 -4- 1 DECLARATION REGARDING CONCURRENCE 2 3 I, Betsy C. Manifold, am the ECF User whose identification and password 4 are being used to file this JOINT STATEMENT OF UNCONTROVERTED 5 FACTS IN SUPPORT OF PARTIES’ NOTICE OF CROSS-MOTION AND 6 CROSS-MOTION FOR SUMMARY JUDGMENT 7 . In compliance with Civil Local Rule 5-4.3.4(a)(2), I hereby attest that Kelly M. 8 Klaus has concurred in this filing. 9 10 Executed this 25th day of November 2014, in the City of San Diego, State of California. 11 By: 12 13 14 WARNER/CHAPPELL:21377.CAPTION 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- /s/Betsy C. Manifold BETSY C. MANIFOLD

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