Rupa Marya v. Warner Chappell Music Inc

Filing 190

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 4, EXS. 55-81, PAGES 707-947) 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 4, Exs. 55-64), # 2 Appendix (Volume 4, Exs. 64-77), # 3 Appendix (Volume 4, Exs. 77-81))(Manifold, Betsy)

JOEL SACHS, Ph.D. -

9/9/2014
Page 127

1

2

order to try to fit them in.
Q.

11:54:32

Do you have any evidence of what

11:54:34

3

you're describing right now that that was what

11:54:35

4

was going on in the minds of the engraver?

11:54:38

5

A.

No,

I don't have evidence of it.

11:54:40

6

But it would have required a major rearrangement

11:54:44

7

of the page.

11:54:46

8

Happy Birthday To You in addition to the words

11:54:48

9

to Good Morning To You.

11:54:48

10
11

12

There is simply no room to fit in

There is no room.

There is no space
Q.

11:54:52

Could that be the reason just as

well that it was widely known?

11:54:55
11:54:57

It could be, but I think the two go

13

A.

14

hand in hand.

If you want people to know what

11:55:00

15

they are singing you either have to figure out

11:55:01

16

a way to layout the page.

11:55:04

17

clear to me.

18

song for the bottom half of the page and be

11:55:10

19

able to space out the staves a little bit so

11:55:12

20

you can fit in Happy Birthday.

11:55:15

21

The solution was

You have to find a shorter part

It seems, again, we don't know what

11:54:59

11:55:06

11:55:18

22

the engraver was thinking, but it seems that

11:55:19

23

the engraver didn't feel it was necessary to

11:55:21

24

put in those words.

25

probably because people knew the words.

Probably,

I have to say

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JOEL SACHS, Ph.D. - 9/9/2014
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Q.

1

But again, the same question, you

11:55:34

2

don't have any evidence that people knew the

11:55:36

3

words at the time other than the documents that

11:55:38

4

you have been provided by Mr. Rifkin?

11:55:39

5

A.

That's right.

11:55:41

6

Q.

We haven't done any independent

11:55:44

7

study about how widely, quote unquote, widely

11:55:47

8

the lyrics to Happy Birthday To You were known

11:55:48

9

at this time, correct?

11:55:49

10

A.

Well as I explained to you before,

I don't see how you could do that.

You!re

11:55:53

11

yes,

12

talking about lyrics that may be associated

11:55:59

13

with hundreds of thousands, millions of people

11:56:03

14

perhaps even who never wrote down yesterday we

11:56:06

15

sang Happy Birthday or who may have written it

11:56:08

16

down but those letters can't be found anywhere

11:56:11

17

or if you went through 500,000 letters you

11:56:13

18

might find two that referred to it.

11:56:16

19

doesn't prove anything because it is not the

11:56:19

20

sort of thing that you bother writing about.

11:56:22

But that

11:55:55

21

Look at it this way, you write Dear

11:56:24

22

Granny we went yesterday or we had yesterday my

11:56:28

23

birthday party and we sang Happy Birthday.

11:56:30

24

you think that letter is going to be preserved

25

somewhere.

Do

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2
3

all singing Happy Birthday.
Q.

11:58:44

But you're not aware of that

sitting here today?

11:58:45
11:58:47

4

A.

No.

11:58:53

5

Q.

Paragraph 21 The Golden Book Of

11:58:53

6

Favorite Songs.

11:58:59
11:59:12

7

A.

Yes

8

Q.

Look at tab F.

9

10

Look at the piece

11:59:16

of music again similar to the one, the previous

11:59:16

one; is that correct

11:59:19

11

A.

Yes,

12

backward base.

13

Q.

the same thing with the

11:59:20
11:59:21

My questions are the same, is there

11:59:23

14

any evidence from this document that this was

11:59:28

15

authorized by the Clayton F. Summy Co., this

11:59:35

16

printing in tab F?

11:59:37

17

No, although as I think about it it

11:59:43

18

is another Chicago company and maybe that would

11:59:45

19

have been a little dangerous.

11:59:48

20
21
22
23
24
25

A.

Q.

When you say a little dangerous,

what do you mean?

A.

To Hall & McCreary.

11:59:57

The publisher

of this excerpt.

Q.

11:59:48

11:59:59
12:00:00

What I'm asking you is do you have

any evidence that it was authorized by the

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point that you're making in paragraph 28, fine.

12:55:34

2

If there are other documents that you feel you

12:55:38

3

need to include in your report, then I want you

12:55:39

4

to have the opportunity to do that.

12:55:39

5

don't take that now.

6

you identify it in the production which ones

12:55:40

7

you think

12:55:42

A.

8

No,

Maybe we

Maybe we take a break and

I could tell you right now.

I

12:55:40

12:55:45

just want to look back at that paragraph to see

12:55:48

10

what I actually referred to, but the various

12:55:57

11

samples start in the big black binder, Exhibit 49,

12:56:06

12

up to tab 38 and continue to tab 50.

12:56:09

9

Look at paragraph 28 where it says

12:56:11

14

"Various samples of this piece differ in their

12:56:15

15

cover information, design, publisher or price.

12:56:21

16

Some say Summy Publishing Company,

12:56:23

17

3075)."

13

Q.

A.

18

(Summy

What does Summy 3075 refer to there?

12:56:25

The publication number so you can

12:56:28

find it among the various samples,

20

have different numbers to indicate what they

12:56:32

21

are.

12:56:35

22

some of them

12:56:32

19

That is standard.
Q.

If I look at J and I see the

23

publication number,

24

12:56:40

the lower left corner?

25

A.

I see the number 3075 in

12:56:39

Yes, that is the one.

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790

JOEL SACHS,

Ph.D. -

9/9/2014
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1

Q.

Is that what you're referring to?

12:56:44

2

A.

Yes.

12:56:45

3

Q.

What does that number tell you?

12:56:49

4

A.

Normally when a publisher puts a

12:56:51

5

number it is the number of their publication.

12:56:54

6

It is his 3,075th publication.

12:56:57

7

Q.

So is it sequential?

12:57:04

8

A.

It should be.

12:57:06

9

10

It may be in some

periods it is called a plate number for the

12:57:07

engraving plate.

12:57:11

11

Q.

My question is the one before it

12

the

engraving plates would be number.

13

And

3074 would be something else?

12:57:16
12:57:17
12:57:19
12:57:22

14

A.

Yes.

15

Q.

Can you look at Exhibit L for a

12:57:31

You see in the lower left-hand corner

12:57:32

And 76 would follow it.

16

moment.

17

that is 3076?

12:57:33

18

A.

That is probably the next one.

12:57:34

19

Q.

The next what?

12:57:36

20

A.

The next thing they published.

12:57:40

21

That would be my inference based on what I know

12:57:42

22

that they would number sequentially.

12:57:49

23

Q.

Let's look back at paragraph 28 to

24

make sure that I'm done there.

25

12:58:00

Did you review

the certificate for the copyright registration,

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1

E 51990, in preparing your report that is

12:58:10

2

referred to in paragraph 28?

12:58:11

A.

3
4

12:58:12

I don't remember

the number offhand.
Q.

5
6

I think I did.

12:58:15

It is referred to here in paragraph

12:58:15
12:58:16

28?

7

A.

Then I did.

12:58:19

8

Q.

It says it suggests that it may be

12:58:22

the print for the December 6th, 1935 copyright

12:58:24

10

certificate which says,

"arrangement as easy

12:58:28

11

piano solo with text."

You said the thing that

12:58:33

12

led you to believe that about Exhibit J is that

12:58:37

13

it was copyright 1935.

12:58:40

14

cover of Exhibit J also says it is underlined

12:58:43

15

piano with words, does that also support that?

12:58:46

9

16

A.

Yes.

Does the fact that the

12:58:48

However there are a few of

17

them and that is what is in 30 whatever is the

12:58:50

18

number I just gave you that do that and there

12:58:53

19

are certain differences among them.

12:58:56

20

possibly to be reprinted later, who knows.

21

some of them have Preston Ware Orem's name and

12:59:02

22

some don't and that is peculiar, but that is

12:59:02

23

what it is.

12:59:04

24
25

Q.

They seem
But

12:58:59

The fact that this says this is the

piano solo with words version also supports

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1

that it is the copy of copyright 51990?

2

MR. RIFKIN:

3

to that says piano solo with words?

4

MS. LE MOINE:

5

MR. RIFKIN:

6

What are we referring

referring to Exhibit J.

7

MS. LE MOINE:

8

MR. RIFKIN:

9

I thought you were

12:59:16
12:59:17
12:59:19
12:59:20
12:59:21

I am.
Where does it say

12:59:22
12:59:22
12:59:24

that.

10

MS. LE MOINE:

11

MR. RIFKIN:

12

Exhibit J.

12:59:13

The title page.

12:59:25

I thought you were

12:59:28

looking at plate number 3074.
MS. LE MOINE:

13

No I'm asking the

12:59:29
12:59:31

14

professor if the fact that that piano solo with

12:59:33

15

words is underlined that that is the indication

12:59:36

16

that this is this piece of music.

12:59:46

17

A.

As far as I could say yes.

12:59:49

18

Q.

Let's look at paragraph 29 which

12:59:58

If you look at tab K it has

13:00:02

19

refers to tab K.

20

the Hill sisters both names in the upper right

13:00:04

21

and arranged by Preston Ware Orem underneath

13:00:04

22

that.

13:00:05

23

A.

Yes.

24

Q.

Do you have any opinion as to why

25

13:00:07

Mildred Hill and Patty Hill are listed in the

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2

just know from Marc?

13:06:25

Well I assume there was. some

A.

13:06:25

3

copyright reason and whoever provided that

13:06:32

4

decided it was better at that point to not

13:06:34

5

provide the actual text lest it being an

13:06:36

6

infringement of some sort.

13:06:40

7

Let's look at paragraph 30.

Q.

13:06:44

8

Paragraph 30 refers to tab L that we looked at

13:06:48

9

briefly.

13:06:51

10
11

The sequential catalog number, right

or engraving plate number,
A.

Yes.

I'm not sure what

I don't know what it is

12

called now but that is what it is.

13

kind of publisher's index.

14
15

16
17

18
19

Q.

It is some

And indicating the order in which

Yes,

I assume so.

13:07:01

13:07:04
13:07:06

That is what it

always does.
Q.

13:06:57

13:07:03

these items were published?
A.

13:06:54

13: 07: 07
13:07:09

You have here at the top arranged

by Mrs. R.R. Forman?

13:07:10
13:07:11

20

A.

Yes.

13:07:14

21

Q.

And again Mildred Hill's name on

13:07:14

22

the right?

13:07:14

23

A.

Yes.

24

Q.

And you say,

25

13:07:17

"It is customary for

arrangers to appear either on the upper right

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upper left of tab V it says traditional?

14:39:17

2

A.

I sure did note that.

14:39:19

3

Q.

You say, "This is consistent with

14:39:22

4

the convention for identifying the author or

14:39:27

5

authors of the words and music and acknowledges

14:39:29

6

that the lyrics were originally a traditional

14:39:30

7

adaptation of the earlier work Good Morning To

14:39:32

8

All."

14:39:35

What about this is consistent with

9

14:39:37

10

the convention for identifying the author or

14:39:39

11

authors of the words and music?

14:39:43

A.

12

Because on the examples that I saw

14:39:47

13

at Julliard where the text was a traditional

14:39:54

14

text, in some cases a psalm or some spirituals

14:39:57

15

that were arranged,

14:40:00

16

traditional on the left-hand side.

17

doesn't refer to the music because a composer's

14:40:06

18

name is on the right as normal.

14:40:10

19

says the text for Happy Birthday was a

14:40:13

20

traditional text and not something written by a

14:40:13

21

person.

14:40:15

it will often say
It clearly

This to me

14:40:03

22

Q.

Tell me what a traditional text is?

14:40:22

23

A.

Perhaps from a folk poem, folk

14:40:24

24

song.

Let's see if I could think of one

25

offhand.

Yankee Doodle which was originally an

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1

more complicated interaction of composing and

16:02:59

2

dealing with words than simply putting text to

16:03:01

3

music because you may be dealing with a

16:03:09

4

preexisting melody.

16:03:10

MS. LE MOINE:

5
6

THE VIDEOGRAPHER:

16:08:30

THE VIDEOGRAPHER:

Returning to

16:08:41
16:08:42

the record at 16:08.
MS. LE MOINE:

12

16:08:27
16:08:27

(Recess taken.)

10
11

Going off the

record at 16:03.

9

16:03:10
16:03:11

minutes.

7

8

Let's take five

Professor Sachs,

16:08:46

13

thank for your time.

That's all I have today.

16:08:50

14

You indicated you might do additional research

16:08:54

15

and if you were to amend your report we reserve

16:08:55

16

the right to take another deposition.

16:08:56

THE WITNESS:

17

The only thing that I

16:08:59

18

would do is out of curiosity I would see

16:09:02

19

whether the Julliard Library has any Happy

16:09:04

20

Birthday prints and we will let you know if

16:09:04

21

they do.

16:09:07

22

MR. RIFKIN:

23

THE WITNESS:

24
25

Thank you very much.
Thank you, well

16:09:09
16:09:09

done.
THE VIDEOGRAPHER:

This concludes

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the videotape deposition at 16:09.
(TIME NOTED:

2

4:09 P.M.)

3
4

JOEL SACHS, Ph.D.

5
6

7

Subscribed and sworn to before me

8

this

day of - - - - - , 2014

9

10
11
12

13
14
15
16
17
18
19
20
21
22
23
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Ex. 64
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C E R T I F I CAT E

1

2

STATE OF NEW YORK
ss.

3

4
5

COUNTY OF NEW YORK
I, WILLIAM VISCONTI, a Shorthand Reporter

6

and Notary Public within and for the State of New York,

7

do hereby certify:

8

That prior to being examined, the witness named in

9

the foregoing deposition was duly sworn to testify the truth,

10

the whole truth, and nothing but the truth;

11

That said deposition was taken down by me in

12

shorthand at the time and place therein named and

13

thereafter reduced by me to typewritten form and that the

14

same is a true, correct, and ·complete transcript of said

15

proceedings.

16

Before completion of the deposition, review of the

1 was not requested.

17

transcript [ X ] was [

18

any changes made by the deponent (and provided to the

19

reporter) during the period allowed are appended hereto.

20
21
22

If requested,

I further certify that I am not interested in the
outcome of the action.
Witness my hand this

23
24
25

WILLIAM VISCONTI

Ex. 64
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