Rupa Marya v. Warner Chappell Music Inc

Filing 189

AMENDED JOINT EVIDENTIARY APPENDIX IN SUPPORT OF NOTICE OF CROSS-MOTIONS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT FILED PURSUANT TO COURTS DEC. 5, 2014 ORDER [Dkt. 185] (VOLUME 3, EXS. 12-54, PAGES 487-706) re 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. (Attachments: # 1 Appendix (Volume 3, Exs. 12-21), # 2 Appendix (Volume 3, Exs. 22-36), # 3 Appendix (Volume 3, Exs. 37-54))(Manifold, Betsy)

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EXHIBIT 22 [Copy of Original "Unusual" Exhibit (L.R. 5-4.2 & 11-5) Attached] Ex. 22 529 Ex. 22 530 Ex. 22 531 Ex. 22 532 EXHIBIT 23 Ex. 23 533 1 FRANCIS M. GREGOREK (144785) gregorek~whafh.com 2 BETSY C:MANIFOLD (182450) manifold~whafh.com 3 RACHEL'E R. RICKERT (190634) rickert~whath.com 4 MARIS"'A C. LIVESAY (223247) livesay@whath.com 5 WOLFIIALDENSTEIN ADLER FREEMAN & HERZ LLP 6 750 B Stree~ Suite 2770 San Diego, cA 92101 7 Telephone: 619/239-4599 8 FacsImile: 619/234-4599 9 Interim Lead Counsel for Plaintiffs and the [Proposed] Class 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA - 12 WESTERN DIVISION , 13 14 GOOD MORNING TO YOU 15 PRODUCTIONS CORP., et al., 16 Plaintiffs, 17 18 v. 19 WARNERiCHAPPELL MUSIC, 20 INC., et al., 21 22 23 24 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Lead Case No. CV 13-04460-GHK (MRWx) [UNREDACTED] DECLARATION OF RANDALL S. NEWMAN IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Date: Time: Room: Judge: January 26, 2015 9:30 a.m. 650 Hon. George H. King, Chief Judge 2S 1 + - - - - - - - - - - - - ) 26 27 28 Ex. 23 534 1 I, Randall S. Newman, hereby declare as follows: 2 1. I am an attorney duly licensed to practice law in the State of California and I 3 am counsel for Plaintiffs in the above-entitled action. I have personal knowledge of the facts 4 stated herein based upon my review of the documents produced in this action and, if called 5 as a witness, I could and would testify competently thereto. 6 The Incorporation or Educational Music Bureau in Illinois in 1923 7 2. A Certificate of Incorporation for a corporation known as Educational Music 8 Bureau ("EMB") was filed with the Illinois Secretary of State on or about August 11, 1923. 9 Evidentiary Appendix ("App 'x"), Exhibit ("Ex.") 17 at 503-507. 10 11 12 3. Paragraph ("~") 9 of the Certificate of Incorporation of EMB lists 9 shareholders who were issued a total of200 shares of capital stock in EMB. Id. at 505. 4. John F. Sengstack's ("John Sengstack") name does not appear in ~ 9 of the 13 Certificate of Incorporation. Id. at 505. 14 The Incoporation or Clayton F. Summy Co. in Illinois in 1925 15 5. Articles of Incorporation for a corporation known as Clayton F. Summy Co. 16 were filed with the Illinois Secretary of State on or about April 15, 1925. Ex. 20 at 518-523. 17 The 1931 Agreement between Clayton F. Summy and John Sengstack 18 6. Clayton F. Summy ("Clayton Summy") and John Sengstack entered into an 19 agreement dated August 7, 1931. Ex. 92 at 1059-1068. 20 21 7. Paragraph (b) of the "WHEREAS" clause of that Agreement stated that "Summy intends to cause to be incorporated a new company under the laws of the State of 22 Delaware under the name of Clayton F. Summy Company... " Ex. 92 at 1060. 8. Paragraph (b) of the "WHEREAS" clause of that Agreement stated that the 23 24 capitalization of the Delaware company would consist of 1,500 shares of Preferred Stock 25 with a par value of $100 per share ($150,000) and 50 shares of common stock of no par 26 value. Ex. 92 at 1060. 27 9. Paragraph (b) of the "WHEREAS" clause of that Agreement stated that the 28 "Preferred Stock shall be entitled to dividends at the rate of six per cent per annum ... and that - 1- Ex. 23 535 1 said Preferred Stock shall be redeemable at any time at the option of the New Company [the 2 Delaware corporation], at par and accrued dividends upon thirty days' notice." Id. 3 10. Paragraph (c) of the "WHEREAS" clause of that Agreement required Clayton 4 Summy to transfer all of the assets of Summy Co. (Illinois) to the Delaware company. Id. at 5 1061. 6 11. In Paragraph 2 of that Agreement Clayton Summy agreed to sell and John 7 Sengstack agreed to purchase the 50 shares of common stock in the Delaware company. Id. 8 at 1063. 9 12. In Paragraph 3 of that Agreement John Sengstack agreed that immediately after 10 he purchased the 50 shares of the common stock in the Delaware company, he would cause 11 the capitalization of the Delaware company to be increased to 1,500 shares of common stock 12 and John Sengstack agreed to purchase the additional 1,450 shares. Id. 13 13. Therefore, pursuant to the Agreement, after the Delaware corporation was 14 formed the parties agreed that Clayton Summy would own 1,500 shares of Preferred Stock 15 and John Sengstack would own 1,500 shares of common stock in the Delaware corporation. 16 Id. at 1059-1063. 17 14. Pursuant to the terms of the Agreement, the Delaware corporation could 18 redeem Clayton Summy's Preferred Shares at any time by paying Clayton Summy $150,000 19 plus accrued dividends. Id. at 1060. 20 The Incorporation orClarton F. Summy Co. in Delaware in 1931 21 22 23 24 15. It is undisputed that Clayton F. Summy Co. was incorporated in the State of Delaware on or about August 31, 1931. ("Summy (DE)"). Ex. 1 at ~ 68, Ex. 2 at ~ 68. 16. It is undisputed that Summy (DE) is the corporation that filed the Copyright Applications for E51988 and E51990. 1 25 26 27 28 In fact, the Summy (DE) was the only "Summy" corporation in existence in 1935 because the previous two Summy Corporations were dissolved in 1920 and 1933 respectively. - 2- Ex. 23 536 1 17. As discussed above, pursuant to the August 7, 1931 Agreement between 2 Clayton Summy and John Sengstack, the parties agreed that Clayton Summy owned 1,500 3 shares of Preferred Stock and John Sengstack owned 1,500 shares of common stock in 4 Summy (DE). Ex. 92 at 1059-1063. 5 6 7 18. Clayton S~mmy died on February 10, 1932, shortly after the incorporation of Summy (DE). Ex. 93 at 1070. 19. There is no documentation in the record that proves Summy (DE) paid Clayton 8 Summy $150,000 plus accrued dividends to redeem Clayton Summy's Preferred Shares prior 9 to Clayton Summy's death on February 10, 1932 or at any time thereafter. 10 11 12 13 14 15 16 17 The Amendment to EMB in 1948 20. Articles of Amendment to EMB were filed with the Illinois Secretary of State on or about June 2, 1948. Ex. 59 at 744-748. 21. Article Third of the Articles of Amendment states that 400 shares of common in EMB were outstanding at the time of the 1948 Amendment. ld. at 746. 22. However, as discussed in ~ 2 supra, only 200 shares of EMB' s common stock were issued at the time of EMB ' s incorporation. 23. There is no documentation in the record that proves who was issued the 18 additional 200 shares of common stock ·between EMB' s 1923 incorporation and the 1948 19 amendment. 20 24. There is no documentation in the record that proves when the additional 200 21 shares of EMB common stock were issued between EMB' s 1923 incorporation and the 1948 22 amendment. 23 25. There is no documentation in the record that proves that any of the original 24 EMB shareholders transferred any of their shares between EMB' s 1923 incorporation at the 25 1948 amendment. 26 26. There is no documentation in the record that proves who owned the 400 shares 27 ofEMB's common stock outstanding at the time of the 1948 amendment. 28 The Summy (DE) Name Changes -3- Ex. 23 537 1 2 3 4 5 6 7 8 9 10 11 27. On January 23, 1956, Summy (DE) filed a Certificate of Amendment of Certificate of Incorporation with the Delaware Secretary of State. Ex. 62 at 760-762. 28. The Certificate of Amendment changed the name of Summy Co. to Summy Publishing Company ("SPC"). Id. at 760. 29. On September 27, 1957, SPC filed a Certificate of Amendment of Certificate of Incorporation with the Delaware Secretary of State. Ex. 65 at 800-802. 30. The Certificate of Amendment changed the name of SPC to Summy-Birchard Publishing Company (SBPC). Id. at 800. 31. On December 22, 1961, SBPC filed a Certificate of Amendment of Certificate of Incorporation with the Delaware Secretary of State. Ex. 66 at 804-806. 32. The Certificate of Amendment changed the name of SBPC to Summy 12 ("Summy"). Id. at 804. 13 The Death of John Sengstack on October 11.1970 14 33. John F. Sengstack died on October 11, 1970. Ex. 69 at 816. 15 34. There is no documentation in the record that proves who inherited John 16 Sengstack's property, including any shares of stock that he may have owned in any 17 corporation, including Summy, the Delaware corporation originally incorporated in 1931 as 18 the Clayton F. Summy Co. 19 The Amendment to EMB in 1973 20 21 22 23 24 35. On July 31, 1973, EMB filed Articles of Amendment to the Articles of Incorporation ofEMB with Illinois Secretary of State. Ex. 70 at 818-820. 36. Article Third of the Articles of Amendment states that 367 shares of common stock in EMB were outstanding at the time of the amendment. Id. at 820. 37. Article Third of the Articles of Amendment also states that "[p]reviously there 25 were 400 shares issued and outstanding, 33 of which were reacquired by the corporation, 26 held as treasury stock, and subsequently retired." Id. 27 28 38. There is no documentation in the record that proves who owned the 367 outstanding shares of common stock in EMB at the time of the 1973 amendment. -4- Ex. 23 538 1 39. There is no documentation in the record that proves when and which 2 shareholder(s) EMB acquired'the 33 retired shares from. 3 The 1973 Merger between Summy (Delaware) and EMB (Illinois) 4 5 6 40. On December 28, 1973, EMB filed Articles of Merger with the Illinois Secretary of State to merge with Summy, the Delaware corporation. Ex. 71 at 824-828. 41. Article Three of the Articles of Merger stated that "[t]he name of the surviving 7 corporation shall be Summy-Birchard Company and it shall be governed by the laws of the 8 State of Illinois". Id. at 825. 9 10 11 12 42. Article Four of the Articles of Merger stated that "[t]he plan of merger is as follows: See Exhibit A attached hereto and made a part hereof." Ex. 71 at 825. 43. The first sentence of the Plan and Agreement of Merger states that: 15 THIS PLAN and AGREEMENT OF MERGER is made and entered into this 21st day of December, 1973,by and between SUMMY-BIRCHARD COMPANY, a Delaware corporation (hereinafter called "SUMMY") and EDUCATIONAL MUSIC BUREAU, an Illinois Corporation (hereinafter called "EMB"). Ex. 72 at 830. 16 44. 13 14 Paragraph 1 of the Plan and Agreement of Merger states, in relevant part, that 17 "SUMMY shall be merged into EMB as a single corporation which shall be the surviving 18 corporation." Id. 19 45. 20 21 22 23 Article Five of the Articles of Merger states that 367 shares of common stock in EMB were outstanding at the time of the merger. Ex. 71 at 826. 46. Article Five of the Articles of Merger states that 1,500 shares of common stock in Summy were outstanding at the time of the merger. Id. 47. As discussed in Paragraphs 13-14, supra, Summy (fka Clayton F. Summy Co.) 24 was originally capitalized with 1,500 shares of Preferred Stock with a par value of $10 each 25 ($150,000 total) and 1,500 shares of common stock. According to the August 7, 1931 26 Agreement between Clayton F. Summy and John Sengstack, Summy owned the 1,500 shares 27 28 of Preferred Stock and John Sengstack owned the 1,500 shares of common stock. Ex. 23 539 -5- 1 48. There is no documentation in the record to prove that the Delaware corporation 2 paid, $150,000 plus accrued dividends to Clayton Summy to redeem the 1,500 shares of 3 Preferred Stock that were owned by Clayton Summy prior to or after Clayon Summy's death 4 on February 10, 1932, which was just a few months after Clayton F. Summy Co. (Delaware) 5 was incorporated. 6 49. 7 8 There is no documentation in the record to prove who owned the 367 shares of EMB at the time of the merger. 50. Even if the Defendants were able to prove that the Delaware corporation paid 9 Clayton F. Summy (or his estate) the $150,000 plus accrued dividends to redeem his 10 Preferred Shares, there is no documentation in the record to prove who owned the 1,500 11 shares of Summy, the Delaware corporation, at the time of the merger because John 12 Sengstack, who entered into the 1931 agreement with Clayton Summy to purchase the 1,500 13 shares of Clayton F. Summy Co. (Delaware), died in 1970 and there is no documentation in 14 the record to prove who inherited John Sengstack's shares of the Delaware corporation. 15 51. Paragraph 6(a) of the Plan and Agreement of Merger ("Merger Plan") stated 16 that "on the effective date of the merger and without further act on the part of either the 17 corporation or its stockholders, 2.712 shares of the common stock, without par value, of 18 SUMMY issued and outstanding on the effective date of the merger shall be converted into 19 one share [illegible] ofEMB". Ex. 72 at 831. 20 52. Pursuant to Paragraph 6(a) of the Merger Plan, the 1,500 shares of common 21 stock in Summy were converted into 553 shares of EMB common stock on the effective date 22 of the merger (1,500/2.712 = 553). Id. 23 53. Therefore, after the effective date of the merger, 920 shares of common stock 24 in EMB were outstanding: 367 shares of common stock owned by the EMB shareholders 25 prior to the effective date of the merger and 553 shares of common stock in EMB that were 26 issued to the shareholders of Summy after the effective date of the merger. 27 28 54. There is no documentation in the record to prove who owned any of the 920 outstanding shares of common stock in Summy (flk/a EMB) after the merger. - 6- Ex. 23 540 1 2 3 The 1976 Incor oration and Mer er orporatlOn 55. Illinois Cor oration into a W omin 0 New Summy-Birchard Company ("New Summy") was incorporated in the State of Wyoming on March 8, 1976. Ex. 74 at 848, Ex. 75 at 855, Ex. 76 at 859. 4 56. There is no documentation in the record to prove who owned New Summy. 5 57. On March 19, 1976, New Summy filed Articles of Merger with the Wyoming 6 7 8 9 Secretary of State. Ex. 75 at 854-857. 58. Article One of the Articles of Merger states that: The names of the corporations proposing to merge and the names of the States under the law of which such corporations are organized, are as follows: 10 SUMMY Illinois 11 NEW SUMMY Wyoming 12 13 Ex. 75 at 855. 59. Article Three of the Articles of Merger states that "[t]he name of the surviving 14 corporation shall be SUMMY-BIRCHARD COMPANY and it shall be governed by the laws 15 of the State of Wyoming." ld. 16 17 18 19 20 60. Article Five of the Articles of Merger states that 953 shares of common stock in Summy (Illinois) were outstanding prior to the merger. ld. at 856. 61. As discussed in Paragraphs 37-38, supra, after the effective date of the 1973 merger, 920 shares of common stock in Summy (Illinois) were outstanding. 62. There is no documentation in the record that proves Summy (Illinois) issued 33 21 shares of common stock after the effective date of the 1973 merger until the time of the 1976 22 merger or to whom those shares were issued. 23 24 25 63. Article Five of the Articles of Merger states that 10 shares of common stock in New Summy (Wyoming) were outstanding prior to the merger. Ex. 75 at 856. 64. There is no documentation in the record that proves who owned the 10 shares 26 of common stock in New Summy (Wyoming) that were outstanding prior to the merger or 27 what happened to those shares after the merger. 28 -7- Ex. 23 541 1 2 3 4 5 6 7 8 9 10 11 12 65. The Plan of Merger states that " ... the parties hereto agree that SUMMY- BIRCHARD COMPANY, be merged into NEW SUMMY ... " Ex. 76 at 859-860. 66. Paragraph C(l) of the Plan of Merger states that: The shares of Common Stock of the surviving corporation, whether authorized or issued on the effective date of the merger shall not be converted or exchanged as a result of the merger, but upon said date all shares of Common Stock of the surviving corporation theretofore authorized (whether issued or unissued) shall be deemed to be shares of Common Stock of the surviving corporation, and all such shares of the surviving corporation outstanding on the effective date of the merger shall remain outstanding, shall be and be deemed fully-paid and non-assessable and shall retain all rights to accrued and unpaid dividends, if any. [d at 860-861. 67. Pursuant to Paragraph C(l) of the Plan of Merger, the owner(s) of the 10 shares 13 of common stock outstanding in New Summy (Wyoming) prior to the merger owned 10 14 shares of common stock of Summy (Wyoming) after the effective date of the merger. [d. 15 68. 16 Each share of Common Stock of the absorbed corporation issued and outstanding on the effective date of the merger, and all rights in respect thereof, shall, on said date, be converted into and exchanged for one share of the presently authorized and unissued Common Stock of the surviving corporation. 17 18 Paragraph C(2) of the Plan of Merger states that: 19 20 Ex.76at861. 21 shares of common stock outstanding in Summy (Illinois) prior to the merger owned 953 22 shares of common stock of Summy (Wyoming) after the effective date of the merger. Id 23 24 25 69. 70. Pursuant to Paragraph C(2) of the Plan of Merger, the owner(s) of the 953 There is no documentation in the record that proves who owned the 963 shares of common stock in Summy (Wyoming) after the effective date of the merger. 71. Summy (Wyoming) filed Articles of Amendment to Articles of Incorporation 26 27 with the Wyoming Secretary of State on November 9, 1978. Ex. 77 at 867-869 28 SUMCO Corporation. Id. at 867. 72. The Articles of Amendment changed the name of Summy (Wyoming) to Ex. 23 542 -8- 1 2 73. Paragraph Third of the Articles of Amendment state that 963 shares of common stock were outstanding as of the date of the Amendment. Id. at 867. 3 74. SUMCO Corporation (Wyoming) filed Articles of Amendment to Articles of 4 Incorporation dated May 1, 1979, with the Wyoming Secretary of State on an unknown date 5 in 1979. Ex. 78 at 871-872. 6 7 75. (Wyoming) to Summy. Id. at 871. 8 9 76. 77. 78. Pursuant to the Articles of Amendment, Summy changed its name to The Birch Tree Group Ltd. Id. at 874. 14 15 Summy (Wyoming) filed Articles of Amendment to Articles of Incorporation with the Wyoming Secretary of State on August 3, 1979. Ex. 79 at 874-875. 12 13 Paragraph Third of the Articles of Amendment state that 963 shares of common stock were outstanding as of the date of the Amendment. Id. 10 11 The Articles of Amendment changed the name of SUMCO Corporation 79. Paragraph Third of the Articles of Amendment state that 963 shares of common stock were outstanding as of the date of the Amendment. Ex. 79 at 874. 16 80. The Birch Tree Group Ltd. filed Articles of Amendment to Articles of 17 Incorporation with the Wyoming Secretary of State on October 12, 1979. 18 878. 19 20 21 22 23 24 25 26 27 28 81. Ex. 80 at 877- Pursuant to the Articles of Amendment, The Birch Tree Group Ltd. changed its name to Birch Tree Group Ltd. Id. at 877. 82. Paragraph Third of the Articles of Amendment state that 963 shares of common stock were outstanding as of the date of the amendment. Id. 83. Birch Tree Group Ltd. filed Articles of Amendment to Articles of Incorporation with the Wyoming Secretary of State on December 27, 1988. Ex. 82 at 949-951. 84. Pursuant to the Articles of Amendment, Birch Tree Group Ltd. changed its name to Summy-Birchard, Inc. Id. at 949. 85. Paragraph 4 of the Articles of Amendment state that 953 shares of common stock were outstanding as of the date of the amendment. Id. at 949. Ex. 23 543 - 9- 1 86. There is no documentation in the record that proves how the outstanding 2 common stock of the Wyoming corporation was reduced from 963 outstanding shares as of 3 October 12, 1979 to 953 outstanding shares as of December 27, 1988. 4 87. In a Stock Power dated January 3, 1989, David K. Sengstack purported to 5 transfer 953 shares of Summy-Birchard, Inc. (formerly known as Birch Tree Group 6 Limited), a Wyoming corporation to Warner/Chappell Music, Inc. Ex. 84 at 955. 88. 7 The Stock Power was accompanied by a Stock Certificate dated February 12, 8 1986 that shows David K. Sengstack as the owner of 953 shares of common stock in Birch 9 Tree Group Limited. Ex. 83 at 953. 10 11 89. State of Wyoming. Ex. 85 at 957. 12 13 90. 91. On January 8, 2010, Summy-Birchard, Inc. filed Articles of Merger with the Wyoming Secretary of State. Id. at 957-961. 16 17 On September 14,2009, Summy-Birchard, Inc. was incorporated in the State of Wyoming. Ex. 85 at 957. 14 15 On May 31, 2006, Summy-Birchard, Inc. was administratively dissolved by the 92. Pursuant to the Articles of Merger, the Summy-Birchard, Inc. dissolved in 2006 was merged into Summy-Birchard, Inc. that was incorporated on September 14,2009. Id. 18 I hereby declare under the penalty of perjury under the laws of the United States that 19 the foregoing statements are true and correct to the best of my knowledge, information, and 20 belief. 21 Executed this 25st day of Novembel{LI 4, at New York, NT Y ~rk. . BY:~~~·~~ 22 23 RANDALL S. NEWMAN 24 25 26 27 28 WARNERlCHAPPELL:21350v3.RSN.decl. Ex. 23 544 - 10- EXHIBIT 24 Ex. 24 545 Ex. 24 546 Ex. 24 547 Ex. 24 548 Ex. 24 549 Ex. 24 550 EXHIBIT 25 NON-PAPER EXHIBIT [PURUSANT TO L.R. 11-5.1 MANUALLY LODGED AND FILED] Ex. 25 551 EXHIBIT 26 NON-PAPER EXHIBIT [PURUSANT TO L.R. 11-5.1 MANUALLY LODGED AND FILED] Ex. 26 552 EXHIBIT 27 Ex. 27 553 Ex. 27 554 Ex. 27 555 EXHIBIT 28 Ex. 28 556 Ex. 28 557 EXHIBIT 29 Ex. 29 558 Ex. 29 559 Ex. 29 560 Ex. 29 561 Ex. 29 562 Ex. 29 563 Ex. 29 564 Ex. 29 565 Ex. 29 566 Ex. 29 567 Ex. 29 568 Ex. 29 569 Ex. 29 570 Ex. 29 571 Ex. 29 572 Ex. 29 573 Ex. 29 574 EXHIBIT 30 NON-PAPER EXHIBIT [PURUSANT TO L.R. 11-5.1 MANUALLY LODGED AND FILED] Ex. 30 575 EXHIBIT 31 Ex. 31 576 Ex. 31 577 Ex. 31 578 EXHIBIT 32 Ex. 32 579 , ,~ . , ~. .... ;,. ".~ ~ . .. -~:~:~:.....:" ,:...;-. ,, -. ... . . . . .... ~ ;.~ .: ;;: ," , '- .., . ~ . ':" "~ '~ DIm STA.'rmS 'DI8.'l'lltC'l' ··toUR'l SOUTHERN DI STRICT OF ~ YORK -x JESSICA U. HILL, PlaiAt1ff, - again9t - soUr H. HARRIS, ~. Dere~~t. - - - - - - - - - x TI1<:! :91 2inarr herein, by llcKercher solicito rs , co m,lainlng I! 3.n6. 8 ~lt i zen d;:lU :; :~~'!:'1. t of t)c o~ l~1 1 tQd '= Li nk, her tbe defendent , a lleS8s; S ~ete3 ~ni re s i des in t he str te 0:£ the ::lUol lc 2:en er 311;r Fon'l tc :::, ro r.'.0tc :.n6. .:' e:1.i2!1 t _ ve , omd C::'U'3 es to be ;<3. ~'1 ve n . d:J iI/ J 9 r :.Por!l1 . !!c ea a nd :profi t. Ex. 32 580 P002800 r8e~lv' ~ • • .;. - . That aD or about or prtor to Qctober 13, ~. !~lldred J. • '. , '1 tneretrom. incom~ lUll and PattyS. Yill origlnatecl, :c!evfhl1. ' er8ated, and wrote, oomvosed, and arranged the ana IDusic ot a. n~ wo~ds, lyrics and original IJJU.slcal OOlDpO'6i:ti'on entitled ,nGood. :!orning to .Ul". 6. That upon IntorltLa tlon and beliet Ott ' o!:' . about the 13th d.Ry ot Ootober, 18-93, Clayton ".P.:-'Swnruy [u.1y (lo:IJy righted 'CIald OOIDl)oi!li tiOD 'by :JIu.bl1shing the lIame anil. of :.':' ~ri n:! nsc~ s ti~ t:le Sar,le to tor ~ t) ri~s t~le t h ~ ~in~erlart en rt ~~n~ r ~ l J~blla 'I. ~:lSt a~d ~~e fol 10~lng '11th [,:1 :: '~ itl e C:0.. t :1e l'ir3t generG1 llu;,l ia in ,;) ,',:.'e of '.1)on b E iC. v01U1!le entitle1 offari n! same to not ieo of "7oLu': e Llfor~2tio:'. at ~l:1d ', 3 co~yri 3 ht ::'"011 0':15: o,"lie:r 3fter :;nlllU::.t l on ot such voLme ','lith suoh !'lotices of cOllyr1.""lt s :? i d C'hyton "l' . Surmy on or abo'lt tile 15t h. day of October, 1:393, ieposited in the of:1 ce at the 3.e 151ster of ~/~shin ~ ton, t:le r eo~ D. C., two cOfl~,19te Ca ll ies 'of th.e best edition th en 1,jl tb1 i ::1i1&6. :, cco m!l'l:'\ l ed and :)?iI! to t ol e law for tile was dul:r th9reU!,lon :le ~1!l ter re ~i 9tr a tlon re~istered is~ued of Co~:rr1 :1'h t :J, o:r Co:p~Tri~ht9 3le11, of '! cO~'rrl zh t the fee required by of the said worl:: and, the said work by the said. Re «,:if'ter his certific ate ot ot C09yri€hts who co~yright registration ~~er~un ~er #4599'1. 8. That D,pon inf'o!'t!e.tion a nd be lief on 01' alJout the Bt.1. day of J une, 1896, Cls!,ton cO:;Jyrl :;h ted s a id enl a~ ge~, Co ~,\110 si ~, Swnrny Co . ti on by ,ublishln.g eo new revised, and 111uatrate u e dition of "Song Btories for the ,~1:ndersart6n" anil. offerin .'7 1;he same to the general pu b1!c - 2 - Ex. 32 581 P002801 with the following notlao ~oopyr1§h'G on the 'first Ill1d 't1tle :p8.~e thsreot "OopYright, 1896, by alayton :F •. ~" .. ~. Tha,t upon h.tol'tllaU:on and beUet a1'ter pub- l14atlon of suoh VQlume w1th suoh n~tloae of 'copyright said Clayton F. Sumrow 00. on or sbout the lB'Gh day of Jnne~ 1896, de~ oslted in t a e offiae of the Register of Copyrights, "'rashlngton, D.C., two oOlllple'5e (lOp les of the beat edl t .1on thereot then published, aooornpanled by a 01a1m ot oo ~yrlght and ~3id to the ' Register ot Co~yrlghta the foo required by law tor the r,glatration at the aald. work and said work '!iSS duly l'e~ lstere d by t h e s a id Re gist e r 0 :;' Copy ri ghts whO thet'eu~)on issued hls . :ertificate of cO::9 yrL,ht re ~ia tration : th ereun~er #34260. 1 0. Th9. t u,on i n!or~letion :l..'1d belief sinoa the a.ate of tlle af ores&. irl. co ::; y!'i ~ ht suoh vo lWll e:; !18 ve been publ1shea. by Cls :rton F . Summy Co,; th s. t U:!l0n Be oll ()0!l Y of BUch vo lur.les eo :9ub11 sh e -i the re ~as b een i!l$()!'i bed OIl the :Irst :mil t1 t1e ll a,?e tile r eof the ()o !JyrI.ght no tIces re ~~J.ired by law in the ',vo r ils o Wrl f1 ~re s set f orth in !,lar f g r 2 Il he mil 8 h erp.of. 11. Th~ t on 0 r about the 31'0. day of se~tElmber , 1921, a renell/ lil 1."e;;1 str a tlon fo r t il e oo ~yri gh t #4599'1 'lias mad.e -!li th t he Rejister of Copyri ghts, -;/aeh.ing1ion, D.C. by Jessio a ::. :.:r1l1 under jfR-19043 and that Jessica !!. ?ill is ow the own er of said 12 . ~hat ()o!lyrl~t. on or about t he 9th day of January, 1924, rene ..nl re g lstration oopyright #34260 was made by the ti Ung thereof wi t o. t he Re gist e r of GO:9yrl gh ta, ':;aah1ngton, D.C. by Jessica M. :'::111 1s nOVI li . ~1l1 un der ,R-25771, an d that Jessi ca the o\-m~r of said. ()o :;> yri~ht. Ex. 32 582 p002802 13. That in ",ol'!. ' e.lIld 8.11 of the voluaea ,,11- l1shed under oo~yr1ght #4~997 and #04260 ~ renewal reg18~ trations thereof /=R.. 19043 and ~-25771 there au.aNd sa! still appears a certain mu~1oal cGmposit1on Qompo •• d and 81'- ran g's d by t!lldred J. HU1, wordll lfrit'tln and. edap'tU: by Patty s. Hill, entitled ~ood 1~orn1ng to Alln. 14., That upon 1ntorm,tion and belie! on or about the lOth dlly of september, '.1 933, and at other times prior and 9ubse1Uent t hereto without t h e previous knowledge. ll) pro v21, p roeuren snt o f consen t of the ,1aintiff or Cla y t on ? SumLY Co. 3.nd w t hou t th e subse Q.u ent l'e tiftQ s tiOr. '1 i kno':lle t.;e of t ,l e ri ",h ts of 9 1 a :!. n t i i' ~ in sllch ,Iork a nd of' su ch co!, yrt ~h t oe 1011]103 to s e id !'Jle intif:'s, the d e f en d ant h e :oei n 'rJy meE'n s of a dr amatic m usi oe1 :9 ro duation entitled n As T;10'lsands Che er" gave. and oause .i to be gi ven, and s t 1ll ~ives ~ n d C ~ U ge9 to be ~1 v en, :9ub11c yerformances and rend i- tions, f or yro !'1t end fo r t h e 911r :l0 $es of :profit, of the r!:usic el C OT:l:l1 09~tio n enti tled "Good !:ol'lling to All" on and. in pren i ses kn o':m as ":,::Usio 30x". a t heatre s1 tu a ted at 2 3 9 -fest 45t ll Street, ~,~ W ~ork C1 t y , a n d otner t h eatr es, e nd t 09 t t:l6 de f end.ant continues E'nd threatens to oontinue suah infr i n~ ing :peri'o~ancee. 15. perfo.~ snce~ T~at U:9 0n in i'ot'!IIatlon and. beltef sald of said oomyosit1on "Good Morning to All" were g i ven on Sn i in said "~~ s10 ~ oxn and other t h eatres by sa1d de!enden t cau sing a::1d ~e,rtl 'J i 1l~, ti ng tl~ere1n and under the dir ~ct ~o n 2nd cont l:'O l of s a I d defe:ld.an t; t hat 9:?l:le WE'S for t he 9:lte:ot a 1nmsnt en d 6mUSel" en t of t:la !ls t r ons ~ tt snding a:ld ~ ~ t rc ni zine s a id ~re ~ i ses ~ni to e t t r ec ~ t r a de and cust - 4 ~ ' ~ !t- . "'..J1:'J.; " Ex. 32 583 P002803 to saId preI~!:iBas i that suoo -renditions and performanoea were yublio an~ tor profit and tor the purposes ot profit; that 9 a ~e was for the purpose of making WAS the dramatic musical produotion presented ....ell and. favorably k.noW.!1 I!-ll.d attre.~U," g enerallY and to encoursge the ~ub11e ~aouBanda by Cheer", th. ietandant, to· the pubUo to attend such per- f ormances of saH. production and to pay for tiLe same 1'or the ~uryose of ultimate p rofit of defendant. 16. That t he said ~/rongfu1 a cts of t he defend- rel:!e o.y c t l ,:, w. o 17. T:l a t the co nti!lua tio n of suc h I n: ring inz dls :, on -:'i nu,6 su c~ JC;"I::03 n ';; o~ roy al t 1e s to said pl e i nt l ff , :;' iV 3 ~ uo l i o c:n r:: to ri ~ht :y er f o rr.'mces for ,rofit, of SU C :1 so to do. ! I~" · Ex. 32 584 P002804 ~ 'i'\i ;J,I •• ,r , o ' 1 18 ..... \ti.eto "' ~med.le'S t'lgslnst tile ,,, " , herein the pla1ntiff prays: (a I That t lle d8'fend;~, n1( ' aDd all { '" pers o n3 80t1t1g " , uniler hi's 'a lreotlon. :p erm1saion, oontrol, or l1cellsj, ",''tte enjolned .and ru,"re.lne~ ~~Q~. :pU.bl1l)l:r :perf,o~i,n.~ ,~D:~d .~?tII.,,: !losi tion " Go'o d :,~ornlrig ' to "li'l " !!J'.'d" trom c8Ullin!r ! or ~eiG1:t,.. tin3 S9ms to be :;m'ol1oly ~ er:t'oJ!tt'd. , in t~le respect!";' p'lacee \ t o ~ 'o11Siness of il.'!fan:ta nt or in !lny ot he,r !lisoo :o'lllled, used, oo ntrol1e 'l , or c) '3ratod. by ;lim e.nd from a iding or abett1ng t ::e :;>',:'o1i o !l er:'oT;:\I;.:10e of sue ll eOJ:'.:Jo91 tion 1n any !>ub1io ~i t~ th~ ~osts of t ~ 1s a ction . ~:o:aRC ~::ER Solici t or s O ffioe ~ .:, LI:1':': ~or plain t1f: I .e. ~ddress 17 Joh n 5tre at 30rouah of ~:a:a.1. a ttan ty ' of :;eu Yor:;C 01 3 T.d.~ ~ ~ _;,~':'-.: : :! :::'H 0 ~ :-'::' ?L )?.!: ,f ~': Cy.: ss : J'ZSSl'JA 1:. Y.! LL. be i ng du l y S',1O m, de :yose s and. , '3 ,O Y3 t:1Et '3 ;1 ~ 1:: th e :p i e intiff 1 n t ,l': ;'11t;~ in :ao tion ; that : s,'l~ :1:3 5 r~ c,(i -:;:, e :' ore 30ing OC f.lY l a int :mi Lno',VS ~;it e oont~nt8 ,t~l~ ~' ~o f ; '"t~' ';; ~, : .o; S3.:'.\ ~ is :r'l ~ to :te l' 03'n icnowledge. ex~ept ~~s :t o t:le Il!8 t ters t ;l e :!'e1n sta tst1 t o 'la 211egM. on i!lf orma ,:I n,} J el i!lf , 8li ,'!. '.;'1S t !l3 to t ~lo se nette r':=! 81e beli e ves 1t to iJe .' ~: rue. i '· ', Ex. 32 585 P002805 STATE OF NEW YORK, CITY OF NEW YORK, COUNTY OF _ _ _ __ _ __ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _, being duly sworn, deposes and says that _ _ _ he is the_ _ _ _ ______ ~of ________________________________ the corporation named in the within entitled action; thai he has read the foregoing _ _ _ __ .... knows the conteots thereof. and tnat the same is lrue to h and own knowledge, exCepl as to lhe matters herein stated to be alleged upon information and belief, and as to those matters be believes il 10 be lrue. . ~ d i ~ e h t ~ ~ Deponent further says that the reason this verificatiOll is made by depotlCllt and DOl by_ _ _ __ ______________________ -Di. _ _ _ _ __________________ . is a corporation and the grounds of deponmt's belief as to all matters in the sajdCL-______________ own knowl~. arc investigations which deponent lias caused to be II1<Ide m ncerning not stated upon h the subject matter of nh_____ ________________aannd informatiOll acquired by deponent in the course of A duties as an officer of the said_______________________________ corporation and from the hooks and papers of said corporation. Sworn to before me, thi."-______ _ __ ~yof ____________19 Ex. 32 586 P002806 r--- o CD N o o P-1 ..... Plaintiff, - aga inst - .HARRIS. Defenda TJ t ,. t I :. , ·CDrTLAIUT i i 17 ~OHN ST • • OiltouGlN cnI'MANHATT .... N ..W 'YCNtK CrT'" '-. ~ '- -. " 'r .• " '1 . I, .9 i. Ex. 32 587 EXHIBIT 33 Ex. 33 588 CATALOG OF COPYRIGHT ENTRIES 27169 pt. III, 11. S., v. Progressive solos for the piano accordion; arr. Al Richards. bk. 2. © Dec. 20, 1934; E for. 37516; W. Paxton & co., ltd., London. 27169 Promenade; w John Galsworthy, ill Robert Braine; high; in G. © Nov. 14, 1934; E pub. 45035; Oliver Dit· son co., inc., Boston. 27170 Promise (The) ; w Olive Hyde Foster, m Mary Turner Salter; high voice; organ acc. © Dec. 21, 1934; E pub. 45488; Chl3"ton F. Summy co., Chicago. 27171 Prosperity; pf. with w. © 1 c. Dec. 15, 1934; E unp. 969:2"2; Genevieve Y. Shaw, Cartersville, Ga. 27172 Pl'o~perity on parade; song, w I,arry E. Goffin. © 1 c. Dec. 3, 1934; E unp. 97046; John Smoke, Crested Butte, Col. 27173 Puppehen; by Bert Kalmar and Harry Rub3'; pf. arr. Wayne Allen. © 1 c. Dec. 8, 1934; E unp. 96608; MetroGoldwyn-l\Iayer corp., New York. 27174 Put on a high hat-and smile ; pf. with w. © 1 c. Dec. 14, 1934; E " UllP; " 96~14; Eugene Bullet Cheatham, Chicago. 27175 Put on your glasses; w Edgar Leslie, m Fred. E. Ahlert; with arr. for guit., etc. © Nov. 30, 1934; E pub. 45121; T. B. Harms co., New York. 27176 Put your heart in a song; from Say when, w Ted Koehler, m Ray Henderson; with arr. for ukulele, etc. © Nov. 30, 1934; E pub. 45126; A. 27177 L. Berman, New York. Queen .of my heart; w William McKenney, melody Carlton Bates. © 1 C. Dec. 12, 19'34; E unp. 96758; 'Villiam Carlton Bates, Cambridge, Mass. 27178 Quest (The) of the Magi; Christmas story cantata, story L. A. Reed, w Haldor Lillenas and Vida Munden Nixon, m .H. Lillenas. © Oct. 1, 1934; E pub. 44706; Nazarene pub. house, Kansas City, Mo. 27179 :W, Rachmaninoff (S.) Prelude; ill C sharp min., op. 3, no. 2, arr. Elik Hansen; pf. © Dec. 5, 1934; E for. 37463; J. R. Lafleur & son, ltd., London. 27182 Radio city; march, by Edwin Franko. Goldman; arch. pts. © Dec. 10,. 1934 ; E pub. 45253; Carl Fischer, inc., New York. 27183. Radio gems; w amI m compiled T. Harris. © Dec. 3, 1934; AA 163116;. Thor Harris, Eureka Springs, Ark. 27184 Radio waves; by J. Sedlon; pf. ac-· cOl·dion. © Dec. 26, 19~4; E pub .. 45490; Rubank, inc., Chicago. 27185. Rainbo\\' eyes; \V and melody. © 1 c. Dec. 5, 1934; E unp. 96444; Leona M. Bogle, ",,'est Chester, Pa. 27186. - - Same. © 1 C. Dec. 13, 1934; E. unp. 96817; Leona M. Bogle, West Chester, Pa. 27187 Rainbow (The) of llawn; trio; women·s. voices. © Sept. 26, 1934; E pub .. 45327; Carrie Baxter Jennings, Howard City, Mich. 27188 RaindropS; by Cecile Coupel'in, op. 2, no. 14; pf.; in F maj. © Nov. 19~ 1934; E pub. 4554&; Bach music co., Boston. 27189 Raise your lips; song. © 1 C. Dec. 6, 1934; E unp'. 96538; Hyman Teach, Montreal. 27190 Ramona is mine; song, marl'. Maude Schartzer. © 1 C. Dec. 15, 1934; ,E <unp.,96925; Dwight Washington. Brannan, Catonsville, Md. 27191 Rays of sunshine; w C. J. Auter, melody an. Juliette Baab. © 1 C. Noy .. 22, 1934; E unp. 959M; Charles LoyacOllO, Vicksburg, Miss. 27192' Real (A) Hawaiian lei; wand melody. © 1 C. Dec. 11, 1934; E unp. 96690; Patrick Henry Brunette, jr." Honolulu. 27193 Quiero verte . . .; paso-doble; orch. ptes., con letra. © Mar. 1, 1934; E for. 37567; R. Santeugini, Madrid. Spain. 27180 Real joy; hymn. © May 15, 1934; E. pub. 45662; Nathaniel Carlson, }Iil-· le1', Kan. 27194 Quintetto; 2 violini, viola. violoncello I' pf. Partitura I' pti. © Sept. 1, 1&34; E for. 37289; Mario Castelnuo\'o-Tedesco, Florence. 27181 Redhead; song, melody James L .. Brown. © 1 c. Dec. 19, 1934; E. unp. 97000; Mable I. Booth, Ann Arbor .. Mich. 27125. Ex. 33 1168 P113096 589 EXHIBIT 34 Ex. 34 590 Ex. 34 591 EXHIBIT 35 NON-PAPER EXHIBIT [PURUSANT TO L.R. 11-5.1 MANUALLY LODGED AND FILED] Ex. 35 592 EXHIBIT 36 Ex. 36 593 Ex. 36 594 Ex. 36 595 Ex. 36 596 Ex. 36 597 Ex. 36 598 Ex. 36 599 Ex. 36 600 Ex. 36 601

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