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)
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.
)
)
)
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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
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,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
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