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)

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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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 787 JOEL SACHS, Ph.D. - 9/9/2014 Page 128 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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 788 JOEL SACHS, Ph.D. - 9/9/2014 Page 131 1 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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 789 JOEL SACHS, Ph.D. - 9/9/2014 Page 165 1 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. Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 790 JOEL SACHS, Ph.D. - 9/9/2014 Page 166 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, Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 791 JOEL SACHS, Ph.D. - 9/9/2014 Page 167 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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 792 JOEL SACHS, Ph.D. - 9/9/2014 Page 168 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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 793 JOEL SACHS, Ph.D. - 9/9/2014 Page 174 1 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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 794 JOEL SACHS, Ph.D. - 9/9/2014 Page 218 1 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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 795 JOEL SACHS, Ph.D. - 9/9/2014 Page 280 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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 796 JOEL SACHS, Ph.D. - 9/9/2014 Page 281 1 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 24 25 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm Ex. 64 797 JOEL SACHS, Ph.D. - 9/9/2014 Page 282 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 ┬Ěcomplete 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 Merrill Corporation 800-826-0277 www.deposition.com/southern-california.htm 798 EXHIBIT 65 Ex. 65 799 Ex. 65 800 Ex. 65 801 Ex. 65 802 EXHIBIT 66 Ex. 66 803 Ex. 66 804 Ex. 66 805 Ex. 66 806 EXHIBIT 67 [ORIGINAL EXHIBIT MANUALLY LODGED & FILED PURSUANT TO L.R. 11-5.4] [Copy of Original Exhibit Attached] Ex. 67 807 Ex. 67 808 Ex. 67 809 Ex. 67 810 EXHIBIT 68 [ORIGINAL EXHIBIT MANUALLY LODGED & FILED PURSUANT TO L.R. 11-5.4] [Copy of Original Exhibit Attached] Ex. 68 811 Ex. 68 812 Ex. 68 813 Ex. 68 814 EXHIBIT 69 Ex. 69 815 Ex. 69 816 EXHIBIT 70 Ex. 70 817 Ex. 70 818 Ex. 70 819 Ex. 70 820 Ex. 70 821 Ex. 70 822 EXHIBIT 71 Ex. 71 823 Ex. 71 824 Ex. 71 825 Ex. 71 826 Ex. 71 827 Ex. 71 828 EXHIBIT 72 Ex. 72 829 Ex. 72 830 Ex. 72 831 Ex. 72 832 Ex. 72 833 Ex. 72 834 Ex. 72 835 Ex. 72 836 EXHIBIT 73 Ex. 73 837 Ex. 73 838 P006360 Ex. 73 839 P006361 Ex. 73 840 P006362 Ex. 73 841 P006363 Ex. 73 842 P006364 Ex. 73 843 P006365 Ex. 73 844 P006366 Pages 845-846 Intentionally Omitted EXHIBIT 74 Ex. 74 847 Ex. 74 848 Ex. 74 849 Ex. 74 850 Ex. 74 851 Ex. 74 852 EXHIBIT 75 Ex. 75 853 Ex. 75 854 Ex. 75 855 Ex. 75 856 Ex. 75 857 EXHIBIT 76 Ex. 76 858 Ex. 76 859 Ex. 76 860 Ex. 76 861 Ex. 76 862 Ex. 76 863 Ex. 76 864 Ex. 76 865 EXHIBIT 77 Ex. 77 866 Ex. 77 867

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