Rupa Marya v. Warner Chappell Music Inc

Filing 191

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 5, EXS. 82-99, PAGES 948-1141) 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 5, Exs. 82-99))(Manifold, Betsy)

EXHIBIT 82

Ex. 82
948

Ex. 82
949

Ex. 82
950

Ex. 82
951

EXHIBIT 83 CONFIDENTIAL

[PROVISIONALLY LODGED UNDER SEAL]

Ex. 83
952

Ex. 83
953

EXHIBIT 84 CONFIDENTIAL

[PROVISIONALLY LODGED UNDER SEAL]

954

Ex. 84
955

EXHIBIT 85

Ex. 85
956

Ex. 85
957

Ex. 85
958

Ex. 85
959

Ex. 85
960

Ex. 85
961

EXHIBIT 86

Ex. 86
962

1 FRANCIS M. GREGOREK (144785)
gregorek(a),whafh.com
2 BETSY C. MANIFOLD (182450)
manifold(a),whafh.com
3 RACHEL'E R. RICKERT (190634)
rickert(a),whafh.com
4 MARIS"'A C. LIVESAY (223247)
livesay@,whafh.com
5 WOLFtlALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Street, Suite 2770
San Diego, CA 92101
7 Telephone: [phone]
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

GOOD MORNING TO YOU
PRODUCTIONS CORP., et a/.,

14
Plaintiffs,

15
16

v.

17
18

WARNER/CHAPPELL MUSIC,
INC., et al.

19
Defendants.

20
21
22

)
)
)
)
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)
)
)
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Lead Case No. CV 13-04460-GHK (MRWx)

AFFIDAVIT OF JOEL SACHS IN
SUPPORT OF PLAINTIFFS' CROSSMOTION FOR SUMMARY
JUDGMENT

Date:
Time:
Room:
Judge:

January 26,2015
10:00 a.m.
650
Hon. George H. King, Chief
Judge

23
24

1.

I am a graduate faculty member of The Juilliard School, where I hav

25 been a professor of Music History and Chamber Music for over 40 years. The focu
26 of my academic study is 19th, 20th and 21 st century music history and performance.
27

2.

I earned my Bachelor of Arts degree in Music from Harvard Universit

28 in 1961, my Master of Arts degree in Musicology from Columbia University in 196
mad
and my Ph.D. in Musicology from Columbia University in 1968. In 2011, I was Ex. 86
963

1

an honorary member of the Phi Beta Kappa Society at Harvard University

2

recognition of my work in contemporary music.

3

3.

1

I have received several professional awards and honors, includin

4

Columbia University's Alice M. Ditson Conductor's Award, which recognize

5

distinguished conductors for their contributions to American music.

6

received the Gloria Artis Medal, a decoration in Arts awarded by the Ministry

7

Culture and National Heritage from the Republic of Poland for my contributions t

8

Polish music and culture.

9

4.

In 2011,
0

In 1993, I founded the New Juilliard Ensemble, which celebrate

10

contemporary music and repertory of the last decade. I also produce and direct Th

11

Juilliard School's annual FOCUS! Festival and, since 1993, have been the artisti

12

director of The Juilliard School's concerts at the Museum of Modem Art (MoMA).

13

was a co-director of the Sonic Boom Music Festival, a joint project organized b

14

eight of New York's most prestigious contemporary music ensembles.

15

5.

In June 2012, Oxford University Press published my book, Hen

16

Cowell: A Man Made of Music, the first complete biography of one of the mo

17

influential figures in 20th century American music.

18

6.

I have performed a variety of traditional and contemporary music as

19

conductor and pianist in hundreds of performances throughout the United State

20

Europe, Asia, and Latin America and have guest-conducted orchestras and ensemble

21

in Austria, Brazil, Canada, China, EI Salvador, Germany, Iceland, Mexico, Mongoli ,

22

Poland, Switzerland, and Ukraine.

23

Germany; London, England; Salzburg, Austria; Curitiba, Brazil; Helsinki, Finlan

24

and Banff (Alberta), Canada.

25

7.

In

2006,

I

I have held new music residencies in Berli ,

conducted

Continuum,

the

intemationally-acclaime

26

contemporary music ensemble, in Jakarta, Indonesia, including a performance of Ton

27

Prabowo's opera, The King's Witch, in full staging, Mr. Prabowo's piano concert ,

28

Psalm (both of which were composed for and premiered by the New Juilliar
Ensemble) and music by American composers. In 2007, I conducted a concert 86
Ex. 0
- 2-

964

1

American music at the Shanghai Conservatory, including the Chinese premiere

2

Ives's Symphony No.3, and I conducted the Danube-Hudson Project, comprisin

3

works by Juilliard and Liszt Academy composition students in Budapest, Hungary.
8.

4

0

In 2012 and 2013, I conducted the Arthur Rubinstein Philharmonic, i

5

Lodz, Poland, in the prize-winners' concert of the Grazyna Bacewicz internation

6

composition competition; and the Mongolian State Philharmonic Orchestra in Ulaa

7

Baatar, Mongolia. I also made my third, annual appearance conducting Camerat

8

Aberta, the distinguished Sao Paulo contemporary chamber orchestra,
9.

9

My keyboard appearances include numerous performances of Jo

10

Cage's seminal work, Sonatas and Interludes for Prepared Piano, in Brazil, Chin,

11

and mixed recitals around the world, including a Beethoven and Hummel recital i

12

France.

13

10.

My recordings appear on the Advance, CRI, Naxos, New Albio ,

14

Nonesuch, and TNC labels. The Dorian Sono Luminus label released a CD of m

15

music with Camerata de las Americas, a leading chamber ensemble based in Mexic

16

City.

17
18
19

11.

I have been a regular delegate to international music conferences and

radio commentator on contemporary music.
12.

My professional experience has included comparing vanous

20

works, including both musical compositions and lyrics, printed at different times to t

21

to determine the source and origin of the works in question.

22

13.

I have examined a number of samples of music in this case, including i

23

particular two samples attached hereto. Exhibit A is a copy of sheet music entitle

24

"Happy Birthday to You!" It has the number "3075" printed in the lower left come,

25

where the engraving plate number is usually printed. I have no first-hand knowledg

26

of when the number "3075" was added to Exhibit A or by whom it was added.

27
28

14.

Exhibit B is a copy of different sheet music, also entitled "Happ

Birthday to You!" It has the number "3076" printed in the lower left comer. I hav
Ex. 86

-3-

965

1 no first-hand knowledge of when the number "3076" was added to Exhibit B or b
2

whom it was added.

3

15.

The two samples were printed in obviously different typeface.

4

16.

The sample with the number 3075 in the lower left comer uses a

5

asterisk (*) in place of the celebrant's name, but the sample with the number in th

6

lower left comer 3076 uses a star (*) instead.

7
8
9

17.

The samples use different musical notations. For example, the rest sign

in the first measure of each sample are different stylistically.
18.

The sample numbered 3076 identifies Mrs. R.R. Forman as the arrange

10

of that musical composition. However, no arranger (such as Preston Ware Orem) i

11

identified in the sample numbered 3075.

12

19.

The sample numbered 3075 has parentheses around the sub-title, thus:

13

"(Vocal or Instrumental)." The sample numbered 3076 does not have parenthese

14

around the sub-title, thus: "Unison Song."

15
16
17

20.

The sample numbered 3075 includes fingering notations. The sampl

numbered 3076 does not use fingering notations.
21.

In my experience, had the same engraver prepared engraving plates fo

18

these two pieces of sheet music consecutively, there would not be so many difference

19

between the engraving plates.

20

22.

I have seen other samples of sheet music for the song "Happy Birthday! '

21

also published by Clayton F. Summy Co., which are attached as Exhibits C through .

22

Those samples include elements in common with the sample marked as Exhibit B,

23 . with the number 3076 in the lower left comer, such as the same notation for rest sign,
24
25

and they also include the name of the arranger of the musical composition.
23.

Those same samples also have elements in common with the sampl

26

marked as Exhibit A, with the number "3075" in the lower left comer, such as th

27

inclusion of fingering notations.

28
Ex. 86
-4-

966

1 Dated: November 17,2014
2 New York, NY
Joel Sachs

3
4

5

6
7

8
9

10
11
12
13
14
15

16
17
18
19
20
21
22
23
24
25

26
27

28
Ex. 86

- 1-

967

EXHIBIT A

Ex. 86
968

III

II

-U.tIPPYBI·.· . .T81>4Y

i

£

y LI) 1\.(1)
~I

J. III LL

Plano S% with word.s ... .25 cents
Plano ..50/0 -March . ....... .30 cent.s
.r:-our ./..Iond.s. .............. .40 cents
.sIx /-lands .... ........... ..40 cents
.5eC'ond Plano Port. .... .~O cents
Unison Chorus .......... 1)1) cent.s

CL.cIYtON
0.1 I (.tIGO

+.

SUMMY (0.
N{W YO,\K

Ex. 86
T.

WC0000977

969

•

HAPPY BIRTHDAY TO YOU!
(Vocal or Instrumental)
MILDRED}. HILL

.. Brightly
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Jf

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to

you,

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Hap-py

In

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2

8

- .....
-

Hap-py

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8

.....
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I

Birth- day, deaf

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Birth - day
2 '..i
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f-'

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8

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In

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Birth - day
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Hap-py

you,

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to

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Birth- day

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...,

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you!
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*

Here insert the name of the one oelebrating-.
Copyright 1935 by Clayton F. Summy Co.
International Copyright

3075

/"

.

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!

\.

Ex. 86

WC0000978

970

EXHIBITB

Ex. 86
971

Ex. 86
972

Ex. 86
973

EXHIBIT C

Ex. 86
974

(';

"

Ex. 86

WC0000119

975

Ex. 86

WC0000120

976

Ex. 86

WC0000121

977

EXHIBIT D

Ex. 86
978

Ex. 86
979

Ex. 86
980

Ex. 86
981

Ex. 86
982

Ex. 86
983

Ex. 86
984

EXHIBIT E

Ex. 86
985

Ex. 86
986

Ex. 86
987

Ex. 86
988

Ex. 86
989

Ex. 86
990

Ex. 86
991

EXHIBIT F

Ex. 86
992

Ex. 86
993

Ex. 86
994

Ex. 86
995

Ex. 86
996

Ex. 86
997

Ex. 86
998

EXHIBIT 87

Ex. 87
999

Ex. 87
1000

Ex. 87
1001

Ex. 87
1002

Ex. 87
1003

Ex. 87
1004

Ex. 87
1005

Ex. 87
1006

Ex. 87
1007

Ex. 87
1008

Ex. 87
1009

Ex. 87
1010

Ex. 87
1011

Ex. 87
1012

Ex. 87
1013

Ex. 87
1014

Ex. 87
1015

Ex. 87
1016

Ex. 87
1017

Ex. 87
1018

Ex. 87
1019

Ex. 87
1020

Ex. 87
1021

Ex. 87
1022

Ex. 87
1023

Ex. 87
1024

Ex. 87
1025

Ex. 87
1026

Ex. 87
1027

Ex. 87
1028

Ex. 87
1029

Ex. 87
1030

Ex. 87
1031

Ex. 87
1032

Ex. 87
1033

Ex. 87
1034

Ex. 87
1035

Ex. 87
1036

Ex. 87
1037

Ex. 87
1038

Ex. 87
1039

Ex. 87
1040

Ex. 87
1041

EXHIBIT 88

Ex. 88
1042

Ex. 88
1043

EXHIBIT 89

Ex. 89
1044

Ex. 89
1045

EXHIBIT 90

Ex. 90
1046

Ex. 90
1047

EXHIBIT 91

Ex. 91
1048

Ex. 91
1049

Ex. 91
1050

Ex. 91
1051

Ex. 91
1052

Ex. 91
1053

Ex. 91
1054

Ex. 91
1055

Ex. 91
1056

Ex. 91
1057

EXHIBIT 92

Ex. 92
1058

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THIS AGREEMENT made and' entered

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",' Illinois ; this

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day of

CLAYTON F. SUMMY of Chicago,
venience designated

If

,
,
Summy If ) , and JOHN F. SENGSTACX of

Philadelphia, Pennsylvania (hereinafter for convenience
designated

If

Sengstack"), WITNESSETH:

WHEREAS, Summy owns or controls the entire
capital stock of Clayton
•

ganized and existing under and by virtue of the laws 'of the
State of Illinois, (hereinafter for convenience

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the
.~

~ness

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If

Old Company If ) which company is now engaged in
of dealing in and publishing music j and

..WHEREAS,

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Summy · is planning to
-.

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of said Old Company in pursuance of -the

.
of reorganization:

.".1:0:,

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(a)

Among the assets of the Old Company are

certain securities carried on its books as of the close"
of business
"

Forty-three
Fifty Cents

($~3,707.50),

(not including accrued in-

••

t

terest) a list of said securities showing the valua~

I,

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tion thereof at which they are carried on the book,S "':t ,~'i~ (.,',I,t.,(,;"
. \--.,.,..- , ~{:t;''''
of the Old Company is attached hereto marked Exhibit ~-., ..~ 5rf:.;•

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AII and made~ a part hereof. PIt'. is _
the intent ion ' of"

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Summy to cause these securities to be distributed to
Ex. 92
1059
WC0002081

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the stockholders of the ·Old Oompany either by a dividend
in kind or by a sale of the securities and the declara- ,

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tion of a dividend equal to the price received from the'
sale thereof, and in addition, to distribute to the

.'

stockholders of the Old Company a cash dividend of Five

...

Thousand Eight Hundred Dollars ($5,SOO.00).
(b)

.'

Summy intends to cause to be incorporated a

new company under the laws of the State of Delaware, ,

1

r

under .t he name of Clayton F. Summy Company (here inafter

"

for convenience called the "New Company"), with ' a
capitalization consisting of One Hundred Fifty Thousand
Dollars ($150,000) Preferred Stock, being 1500 shares

o

of the par value of One Hundred Dollars ($100) a share,
~

•

and 50 shares of

Co~~on

Stock of no par

value~

The
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charter will provide that the Preferred
•

Stock~

~

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shall be

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entitled to dividends at the rate of six per cent per
annum and that the same shall be cumulative, and that
said Preferred Stock shall be redeemable at any time
,

at the option of the New Company, at par and accrued
dividends upon thirty days' notice.

..

In the event of

the liquidation of the said New Company said Preferred
Stock shall receive par per share and accrued dividends
before any payment is made on the Common Stock.

No

,

dividends shall be paid .on the Common Stock until the
Preferred Stock is retired.
----~

.

The Preferred Stock is to ·

have no voting rights except in the event of the failure
of the New Company to pay dividends at.the rate of at
Ex. 92
1060
WC0002082

- /0/-

-3-

•

least three per cent on the par value of t?e preferred
stock in each of the first two years from the date of

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,

per cent in each year thereafter.

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the issuance of ,such preferred stock, and at least six

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In the event of the

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failure to pay dividends on said preferred stock as
above specified, the preferred stock shall thereupon
have full voting rights and the common stock shall thereupon have no voting rights.

However, after all such ac-

crued dividends on the preferred stock shall have been
paid, the voting rights of said preferred stock shall
thereupon cease and said common stock shall again have
full voting rights.

o

The charter of said New Company
! •

will also provide that so long as any of the preferred

---'

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stock is outstanding the New Company shall not be consolidated or merged with or the business sold to any ,

,

.

other company without the consent of at least two-thirds
of the then outstanding preferred stock.

Said New Com-

pany will have such other charter powers and its charter
will contain such provisions not inconsistent with the
•

d

foregoing as may be deemed necessary or desirable by

•

•

counsel for Sengstack.
(c)

Summy will cause to be effectively trans-

ferred to said New Company all the assets of the Old
(

Company, including all good-will, patents, copyrights
~

and rights of every kind and. character, and the said

"

New Company shall assume the l1abil'ities of the Old
Company (except tax liability, if any. resulting from
Ex. 92
1061
WC0002083

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the transfer of the assets of 'the Old Oompany
New Oompany) in exchange for all the capital

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of the New Oompany.
(d)

,

Summy will immediately cause said New Oom-

pany to be qualified to do business in the State of
Illinois, and in order that the New Oompany may be
so qualified, will cause the name of the Old Oompany

•

to be changed.

•
,

(e)

~

In pursuance of such plan of reorganization

Summy will immediately cause the stock in the New
Oompany to be distributed among the stockholders of

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the Old Oompany,
and

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WHEREAS, Sengstack is willing to purchase ' from ' Summy

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the common no par stock in such New Oompany, as and when the

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same is received by Summy, and Summy is willing to sell such
stock, on the terms and conditions hereinafter contained,

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}TOW, THEREFORE, in consideration of the ' sum of Ten "'

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Dollars ($10) each to the other in hand paid, and in considera- , '~r
tion of other good and valuable considerations, receipt of which

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is hereby acknowledged by the parties hereto, and in further

••

consideration of the mutual covenants and agreements herein,

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after contained, it .· is hereby stipulated, covenanted and , agreed n\'<,
-

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by and between the parties hereto as follows:
---~

1.

Summy agrees to cause a reorganization of the

Old Oompany immediately by the formation of the New Oompany

Ex. 92
1062
WC0002084

,
- 10>-

-5and the effective transfer 'of the assets of the Old Company

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to the New Company as hereinabove recited.
,

2.

,

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Summy agrees to sell and Sengstack agrees to

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purchase said 50 shares of common stock of said New Oompany,
and to

Summy therefor, in cash ; the sum of Five Hundred

ps.y

..
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Dollars ($500).

3.

Sengstack agrees that immediately on the purchase

of the common stock of said New Oompany he will cause the

~

•
~

capitalization of said New Oompany to be increased so that
said New Oompany will have a total authorized capitalization

•

of 1500 shares of no par value stock, and will subscribe for

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.. •
/

and purchase from the New Company the additional 14-50 shares '

•

•

of the , increased no par value common stock at Ten Dollars ($10)
.

per share, and will pay 'therefor in cash to the New Company ••
4-.

•

Sengstack agrees to cause himself to be elected
"

president of said New Company and until said preferred stock'

. .

is retired agrees to devote all of his time and efforts to the
•

management of said New Oompany in active charge of its operations.

Sengstack agrees further to endeavor to secure for

said New Oompany the 'services of Preston W. Orem of Philadelphia',
Pennsylvania, who will until said preferred stock is retired
devote all of his time to the business of said New Oompany as
musical reader and such other duties as he may be required to
perform.
"

~.".....,..

,.

...

,
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Sengstack agrees that the aggregate salaries paid

by the New Company to Sengstack and said Or em shall not without '"
the prior written consent of Summy or hi,s legal representat-lve,
exceed the following schedule:

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Ex. 92
1063
WC0002085

........:.'

- ID 7-

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3

(a)

Until at least 25% of the preferred stock

is retired, $15,000 per annum.
•
After 25% but not leBs than 50% 'of said

(b)

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preferred stock is retired, $20,000 per annum.
,

After 50% but not leBB than 75% of Baid

(c)

preferred stock is retired, $25,000 per, annum.
Thereafter, until all of said preferred

(d)

Btock is retired, $30,000 per annum.

"

SengBtack agreeB that in the event

of

the death, •

reBignation or refusal of said Orem to " Berve as an officer
or employee of said New Company, that the aggregate salaries
of himself and whoever is employed by Baid New Company to
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perform the duties of mUBical reader of Baid New

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shall not exceed the schedule of Balaries
,:

Company ~

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set

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forth for SengBtack and said Orem; and agree B fUrther :that ' .~'. {"
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in the event of the death, reBignation or refusal of said

,

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Or em to act as mUBical reader for Baid New Company, if no
one is employed by the Baid New Company to perform the duties
~~

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contemplated to be performed by Baid Orem, that the Balary
of SengBtack shall not exceed seventy-five per cent (75%)

of the aggregate salaries provided in the foregoing schedule

..

for Sengstack and Orem.

. .

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SengBtack agrees fUrther that on incorporation of
.

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the New Company and ' as part consideration of the purchase by
I

Baid Sengstack of said no per value common stock from Baid

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Ex. 92
1064
WC0002086

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New Company, that Sengstack will cause said New Company to
enter into a contract with Summy, which agreement shall pro-

"

vide among other things that the salary of the president and
general manager of the New Company and said Orem or whoever
1

..

~

is employed to 'perform the duties contemplated to be performed

f

i-·

by said Orem shall ' not exceed t he schedule of salaries hereinabove set forth.

5.

Sengstack agrees immediately upon the acquisition

by him of all or part of the common stock of the New Company

.

to apply for and, if the application is accepted, take out
Fifty Thousand Dollars ($50,000) insurance on his life payable

l

to said New Company, it be ing under stood that the prem iums on

,
..

such insurance policy shall be payable by said New Company.

o

,

Sengstack may in his discretion take out an additional One
Hundred Thousand Dollars ($100,000) insurance on his life
under the same plan as above •

.,

.-

6; , Se~ gstack a grees that so long ' as ' any of the pre- '
ferred stock is outstanding no property or assets of the New
Company will be sold or disposed of, except in the ordinary

,

course of business, and that the New Company will on its incorporation pursuant to the foregoing plan of reorganization
enter into an a greement with Summy adopting and agreeing to the

o

prOVisions contained in this agreement and the plan of reorganization and agreeing and covenanting to do or not to do any of the
matters or things which by this agreement Sengstack has agreed

",:os"". """''!...._
..... .

-

'

. he will cause se.id New Company to do or refrain from doing. , ,
7. It is understood that the 'expenses of the reorgan i ~ etion

shall be paid by the New Company, but that counsel
Ex. 92
1065
WC0002087

:_.'

..

_

~.

- 1/1 -

- 8 •
•

---~' ".....
~

,

fees in connection with such reorganization shall not exceed
the sum of Five Hundred Dollars ($500).
8.

Summy hereby represents to Sengstack that the

financial statement attached here t o marked Exhibit

IIBII

and

made a par t hereof is a true and correct statement of the
assets and all of the liabiliti e s of the Old Company as of

"

December 31, 1930, as sho wn by the audit of the Company's ,

",

audi tor, and that Summy believes i,t to be oorrect and true;
that since December,31, 1930, there have been no changes

"

either in said assets or said liabilities except as occasioned
in the usual, normal and custom ry course of the carrying on ,
a

"

of the business of the Company.

-

f

t

,-

!

Summy further represents to

Sengstaclc and covenants that from the date of the execution
of this agreement to the date of the completion of the reorganization and the formation of the said

I~e1V

•

•

I'

_iii

14~.~

o

Company and "

the delivery to Sengstack of the common stock in the New -

I

-

".

.. ..... ',.,..... .
.... ...

Cor.lpany to be purchased by Sengstack, no assets shall be

,

removed or taken away from the Old Company or from said Uew
Company other than as provided in paragraph (a) of the recitals and paragraph 9 , in this agreement; that no dividends ', -

o

at all shall be declared or paid other than as provided in
said recitals and no

obli~ations

shall be incurred other than

in the ordinary, usual and customa ry course of bUSiness, and
except as herein provided.
"r=-=;"...

9.

According to the

'"
financ~al

"
,

statement of the '

.
.

1

"\,

-

'.

Old Com
pany as of close of business Decem
ber 31, 1930 (Exhibit B)
Ex. 92
1066
WC0002088

'.";': .....
'~..;..

-

1/3-

"

9 -

.. "
"

there was due as of that date from the Old Company to ' offioers !
"

and stockholders thereof the sum of Three Thousand Three Hundred
Twenty-two Dollars and Thirty-eight Cents ($3,322.38).

Summy

represents that as of tIle date of this contract the said sum of
Three Thousand Three Hundred Twenty-two Dollars and Thirty-eight
Cents

(;~3,322.38)

reamins due and unpaid.

It is agreed that

all of said swn of Three Thousand Three Hundred Twenty-two
Dollars and Thirty-eight Cents ($3,322.38) shall be part of
the obligations assumed by the New Company, but that said
sum of Tliree Thousand Three Hundred Twenty-two Dollars and
Thirty-eight Cents (;)3,322.38) shall be payable by the New

,.

Company to the holder of said claim in the manner following:
Sixty Dollars ($60.00) a week commencing with

.~

«

.

Saturday, September 5, 1931, and Sixty Dollars ($60.00)
.
a week thereafter until the entire sUm is paid, said
deferred payments to bear no interest.
S~y

hereby agrees to acquire w
hatever part, if any, of said

indebtedness of Three Thousand Three Hundred Twenty-Two
Dollars and Thirty-eight Cents ($3,322.38) which is not owned

o

by him, so tha t said paY!?lents of $60.00 per weelc shall be
payable by the Hew Company as above specified to said Summy,
10.

As of March 1, 1931, the salaries of certain

employes of the Old Company were reduoed to the amount now
,

•

being paid said employes", and the said Summy stated to the '
said employes that when the business of the company improved
he would endeavor to have thp. company m
ake u'p to them the

Ex. 92
1067
WC0002089

. -

- 11>"- 10 -

•

, .,
---~/ .

••
\

difference between their former salaries and the amount they
are now being paid .

Such differences in salaries ar'e not to

be paid by the Old Company prior to . the reorganization and so
far, i f at all, as this statement by Summy constitutes an obligation of the Old Company, it is not an obligation to be. assumed
by the He\v Company, and Stunmy a grees to indemnify and hold harmless the Old Company and the New Company against any claims of

..
formerly received by them and salaries paid them since' March 'l,

the aforementioned employes for any difference between salaries

1931.

,

..

Summy hereby agrees to enter into a binding covenant

.
with said Hew Company,

providinl1; for the carrying out of the

,..

above obl i gation on his part to be performed.
11. '

It is understood by and between the parties

hereto that the benef;l.ts derived hereunder and the obligations
,
I
and conditions set forth in this agreement shall inure to and

....

'~
,..

be binding upon the parties hereto and their heirs, executors,
administ rators and assigns.
IH WITNESS WHEREOF, the parties hereto have caused
these presents to be duly executed the day and year first

o

above written.

Ex. 92
1068
WC0002090

EXHIBIT 93

Ex. 93
1069

11/23/2014

Illinois Statewide Death Index

Home • Departments • Archives • Databases • Illinois Statewide Death Index

ILLINOIS STATE ARCHIVES
Illinois Statewide Death Index
Search Criteria: summy and clayton
Death certificates filed after 1947 are not currently available in the Illinois State Archives Reference Room. For deaths occurring after 1947, the
death date will appear in BOLD
Last Name

First Name

Middle Name

Sex/Race

Age

Cert No.

Death Date

County

City

Date Filed

SUMMY

CLAYTON

F

M/W

UNK

0220062

1932-02-10

DU PAGE

HINSDALE

32-02-11

Return to Search

P006368
http://www.ilsos.gov/isavital/idphDeathSearch.do

Ex. 93
1070
1/1

EXHIBIT 94

Ex. 94
1071

1 FRANCIS M. GREGOREK (144785)
[e-mail]
2 BETSY C. MANIFOLD (182450)
[e-mail]
3 RACHELE R. RICKERT (190634)
[e-mail]
4 MARISA C. LIVESAY (223247)
[e-mail]
5 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Street, Suite 2770
San Diego, CA 92101
7 Telephone: [phone]
8 FacsImile: 619/234-4599

9 Interim Lead Counsellor Plaintiffs and the [Proposed] Class
10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA -

12
13

WESTERN DIVISION
GOOD MORNING TO YOU
PRODUCTIONS CORP., et aI.,

14
Plaintiffs,

15
16
17
18

)
)
)
)
)

v.

PLAINTIFFS' REQUESTS FOR
PRODUCTION OF DOCUMENTS TO
DEFENDANTS - SET NO. ONE

)
)

WARNERICHAPPELLMUSIC,
INC., et al.

Lead Case No. CV 13-04460-GHK (MRWx)

)
)

19
20

)
)
)

Defendant.

21

)

22 PROPOUNDING PARTIES: PLAINTIFFS GOOD MORNING TO YOU
23

PRODUCTIONS CORP., ROBERT SIEGEL,

24

RUPA MARYA, AND MAJAR PRODUCTIONS,

25

LLC

26 RESPONDING PARTIES:

DEFENDANTS W ARNERICHAPPELL MUSIC,

27

INC. AND SUMMY-BIRCHARD, INC.

28 SET NO.:

ONE
Ex. 94
1072

1

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, plaintiffs

2 GOOD MORNING TO YOU PRODUCTIONS CORP., ROBERT SIEGEL, RUPA
3 MARYA, AND MAJAR PRODUCTIONS, LLC ("Plaintiffs"), by and through their
4 undersigned counsel, hereby propound the following interrogatories upon defendants
5 WARNER/CHAPPEL

MUSIC,

INC.

and

SUMMY-BIRCHARD,

INC.

6 ("Defendants"). Defendants shall identify and produce the requested documents and
7 things for inspection and copying within thirty (30) days-or such other time as the
8 parties may agree or the Court may order-during normal business hours, at the
9 offices of Wolf Haldenstein Adler Freeman & Herz LLP, 750 B Street, Suite 2770,
10 San Diego, California 92101.
DEFINITIONS

11

12

1.

"Defendants" means Warner/Chappell Music, Inc., and Summy-

13 Birchard, Inc. (or each individually, as context requires).
2.
"Warner/Chappel," means Warner/Chappel Music, Inc., its subsidiaries
14
15 and predecessors in interest, including without limitation Summy-Birchard, Inc.

16

3.

"Summy-Birchard" means Summy-Birchard, Inc., its subsidiaries and

17 predecessors in interest, including without limitation Summy-Birchard, Inc.
18

4.

"CFSC" refers to the Clayton F. Summy Co. identified as copyright

19 owner in the applications for Copyright E51988 and Copyright E51990.
20

5.

"AS CAP" refers to the American Society of Composers, Authors and

21 Publishers.
6.
"You" or "Your" refers to each Defendant served with these requests.
22
23

7.

"Happy Birthday to You" means the song Happy Birthday to You.

24

8.

"Copyright Office" refers to the United States Copyright Office.

25

9.

"Copyright" means statutory copyright.

26

10.

"Right" means an interest, including license and Copyright, in or to a

27 work.
28
Ex. 94

- 1-

1073

1
2
3
4
5
6
7
8

11.

"Copyright E51988" means the Copyright recorded with the Copyright

Office under the registration number E51988.
12.

"Copyright E51990" means the Copyright recorded with the Copyright

Office under the registration number E51990.
13.

"Including" and "includes" shall be construed to mean "including

without limitation."
14.

The use of the singular form of any word includes the plural and

VIce versa.

9
10
11
12

INSTRUCTIONS

1.

Plaintiffs incorporate the Instructions set forth in Plaintiffs' First Set of

Interrogatories as if fully set forth herein.
2.

In producing documents and other materials in response to this

13

document request, You are requested to furnish all documents in Your possession,

14
15

custody, or control, regardless of whether such documents are possessed directly by

16

investigators, or by Your attorneys or their agents, employees or investigators.

17

You or Your partners, agents, employees, representatives, subsidiaries, affiliates or
3.

Respondent shall produce the original of each document described

18
19

below or, if the original is not available, then a copy thereof; and in any event also all

20

for any reason, including the making of notes thereon (on either the front or back of

21

the document), and drafts. A document also shall be considered non-identical and

22

must be produced if it was kept in a different file from another copy of the same

23

document (which otherwise was identical). For example, if the same document was

24

kept in the usual course of business in the files of two different corporate directors

25

then both copies must be produced even if they were otherwise identical.

26

27

non-identical copies which differ from the original or from the other copies produced

4.

All documents produced shall be bound or stapled in the same manner

as the original.

28
Ex. 94

- 2-

1074

1

5.

All documents shall be produced as they are kept in the usual course of

2

business or the documents shall be organized and labeled to correspond to the

3

categories in these requests.

4

5
6

6.

Documents shall be produced in their original folders, binders, covers or

containers, or facsimile( s) thereof.
7.

In Your response to each request, identify by Bates Number, including

7

prefix, or otherwise, the identity of the person, department, branch, division or office

8

from whose files the document(s) are being produced.

9

8.

The fact that a document has been or shall be produced by one party or

10

entity does not relieve any other party or entity from the obligation to produce its

11

copy of the same document, even if the two documents are identical in all respects.

12

9.

All documents that originated in electronic form shall be produced in

13

their native electronic form, with metadata. These documents shall be produced with

14

an accompanying index, to the extent one exists, that lists:
Beg doc # - Document first Bates number;
End doc # - Document last Bates number;
Secondary begin doc # - First Bates number of unit;
Secondary end doc # - End Bates number of unit (last
page of last attachment to doc);
Owner - Name of person whose files the document
comes from;
Doc date - date of file;
File size - number of bytes in the file;
File name - name of the file;
Document type - document type;
Doc title - re: line of document;
Author Author;
Recipient - recipients;
cc- carbon copies; and
bcc - blind copies.

15
16

17
18
19
20
21

22
23
24

25
26
27

28

10.

All other documents shall be produced in searchable PDF format to the

extent they are available, or can be made available, in that format.
Ex. 94

-3-

1075

1

11.

All electronic mail shall be provided in native e-mail format (e.g., pst,

2

nsf, .xls, and .doc), with metadata, with the following fields combined

3

an

accompanying index:
Owner Name of person whose e-mail file or other efiles are being provided;
File Name - Name of file;
File Date - Date of file; and
File Size - Size of file.

4

5
6
7

8
9
10

12.

III

For those paper documents which have been created digitally but

executed with a hand-written signature or physical seal, then both the digital version
and the signed paper copy should be produced.
13.

You are instructed to produce each document in response to this

11
12

document request in its entirety, without deletion or excision, regardless of whether

13

You consider the entire document to be relevant or responsive. If any requested

14

document cannot be produced in full, produce it to the extent possible, indicating

15
16
17
18
19

which document, or portion of that document, is being withheld, and the reason that
document or portion is being withheld.
14.

If You object to any request in this document request on the ground that

it is overly broad, You are instructed to produce documents in response to the request
as narrowed to conform to Your objection within the period allowed for a response

20 and to state in Your responses: (1) how You narrowed the request, and (2) the reason
21
22
23

why You claim the request is overly broad. Plaintiffs do not waive the right to
compel the production as originally sought from Defendant.
15.

If You assert any claim of privilege in objecting to any document

24

request herein, and withhold any responsive document pursuant to that objection,

25

identify each document being withheld by providing a date, title and brief description

26
27
28

of same.
16.

If a document responsive to a document request has been destroyed or

discarded, identify the document.
Ex. 94

-4 -

1076

1

17.

If no documents responsive to a particular document request exist or are

2

within Your possession, custody, or control, You must so state in Your response to

3

the request.

4

18.

These requests are continuing such that they require supplemental

5

production pursuant to Rule 26(a) of the Federal Rules of Civil Procedure if You

6

discover, obtain possession of, or create varying or additional documents responsive

7

to a document request between the time of the original response and the time set for

8

trial. In that event, notice of such supplemental documents and copies thereof shall

9

be served on Plaintiffs' counsel no later than thirty days after the discovery of any

10
11

such documents, but in no event later than one week before the first day of trial.

12

REQUEST FOR PRODUCTION NO.1:

13

REQUESTS FOR PRODUCTION

All documents constituting, creating, describing, or relating to each Right You

14

claim to Happy Birthday to You, including, for the following listing of Copyrights

15

and every other Right You claim to Happy Birthday to You, applications for

16

Copyright, Copyright registration documents, certificates of registration, Copyright

17

renewal documents, Deposit Copies, correspondence with the Copyright Office, and

18
19

business records:

20
21
22
23
24
25
26
27
28

Registration Date

Renewal Number Renewal Date

E45655

Dec. 29, 1934

R289194

Jan. 22, 1962

E46661

Feb. 18, 1935

R291287

Feb. 19, 1962

E47439

Apr. 5,1935

R293413

Apr. 4,1962

E47440

Apr. 5,1935

R293412

Apr. 4, 1962

E51988

Dec. 9, 1935

R306185

Dec. 6,1962

E51990

Dec. 9,1935

R306186

Dec. 6,1962

45997

Oct. 16, 1893

R19043

Sep.3,1921

Registration
Number

Ex. 94

-5-

1077

1

Registration

2

Number

3

Registration Date

Renewal Number Renewal Date

34260

Jun. 18, 1896

R25771

Jan. 9, 1924

4

20441

Mar. 20, 1899

R36618

Jan. 3, 1927

5

142468

Feb. 7, 1907

R34877

Jan. 2, 1935

6

E513745

Jui. 28, 1921

7

286958

Feb. 14, 1942

8

EP26375

Apr. 13, 1948

9

EP32204

Dec. 9,1948

10

EP45486

Apr. 13, 1950

11

EP72792

Jun. 18, 1953

REI03939

Oct. 20, 1981

12

EPI08379

Apr. 26, 1957

RE243304

Mar. 25, 1985

13

PA66009

Apr. 16, 1980

14

PA140843

Jun. 17, 1982

15
16
17

REOUEST FOR PRODUCTION NO.2:
All documents constituting, creating, describing, or relating to Your

18

acquisition of each Right You claim to Happy Birthday to You, including

19

documentation of all assignment(s) or transfer(s) of such Rights.

20

REQUEST FOR PRODUCTION NO.3:

21

Pertinent publications of Happy Birthday to You, including the scores, lyrics,

22 arrangements, notes on arrangements, Deposit Copies, and other documents related
23

to Happy Birthday to You and Good Morning to All.

24

REOUEST FOR PRODUCTION NO.4:

25
26

All documents constituting, evidencing, describing or relating to the origin of

Happy Birthday to You or any part thereof.

27
28
Ex. 94

-6-

1078

1 REQUEST FOR PRODUCTION NO.5:

2

The closing binder and all other documents constituting, memorializing, or

3

relating to WarnerlChappell's acquisition of Birchtree Limited in or around 1988.

4

REQUEST FOR PRODUCTION NO.6:

5

The due diligence file and all other documents including without limitation,

6

reports, opinion letters, audit documents and representations of warranty in

7

connection with WarnerlChappell's acquisition of Birchtree Limited in or around

8

1988.

9

REQUEST FOR PRODUCTION NO.7:

10

11

All documents constituting, evidencing, describing or relating to the Rights of
the following persons and entities to Happy Birthday to You or Good Morning to All:

12

a.

Clayton F. Summy

13

b.

Clayton F. Summy Co. (incorporated 1895, Ill.)

14

c.

Clayton F. Summy Co. (incorporated 1925, Ill.)

15

d.

Clayton F. Summy Co. (incorporated 1931, Del.)

16

e.

John F. Segenstack

17

f.

Mildred Hill

18

g.

Patty Hill

19

h.

Jessica Hill

20

1.

The Hill Foundation

21

REQUEST FOR PRODUCTION NO.8

22

All documents constituting, evidencing, describing or relating to litigation over

23

Rights (including infringement of any Right) to Happy Birthday to You or Good

24

Morning to All,

25

briefs,

26

agreements, orders and judgments.

27

III

28

III

affidavits,

including without limitation docket sheets, pleadings, motions,
declarations,

memoranda,

transcripts,

opinions,

settlement

Ex. 94

-7-

1079

1 REQUEST FOR PRODUCTION NO.9
2

All documents describing the corporate structure, relationship and revenue

3

sharing agreements and policies concerning Happy Birthday to You between and

4

among Warner/Chappell and Summy-Birchard.

5

REQUEST FOR PRODUCTION NO. 10

6

All documents constituting, evidencing, describing or relating to ASCAP's

7

Right(s) to license Happy Birthday to You.

8

REQUEST FOR PRODUCTION NO. 11

9

All documents constituting, evidencing, describing or relating to Mildred

10

Hill's induction into AS CAP.

11

REQUEST FOR PRODUCTION NO. 12

12
13

All documents constituting, evidencing, describing or relating to CFSC's
induction into ASCAP.

14
15
16

Dated: February 12, 2014

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

17
18

19
20
21
22
23
24
25
26

[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARIS A C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 6191234-4599

27

28

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
Ex. 94

-8-

1080

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
BETH A. LANDES (pro hac vice)
landes @whafh.com
GITI BAGHBAN (284037)
baghban @whafh.com
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

Interim Lead Counsel for Plaintiffs
RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
rsn @randallnewman.net
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
nieves @nieves-Iaw .com
KATHLYNN E. SMITH (234541)
smith @huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 6261796-0107

25
26
27
28

DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
Ex. 94

- 9-

1081

1

2
3

4
5
6

[e-mail]
DANIEL J. SCHACHT (259717)
daniel @donahue.com
1999 Harrison Street, 25 th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

13

GLANCY BINKOW &
GOLDBERG LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160

14

Attorneys for Plaintiffs

7

8
9
10
11

12

15
16
17
18
19
20
21

22
23
24
25
26
27
28
Ex. 94

- 10 -

1082

EXHIBIT 95

Ex. 95
1083

1 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 ADAM I. KAPLAN (State Bar No. 268182)
[e-mail]
4 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
5 Thirty-Fifth Floor
Los Angeles, California 90071-1560
6 Telephone: [phone]
Facsimile: [phone]
7
Attorneys for Defendants
8 Warner/Chappell Music, Inc. and
Summy-Birchard, Inc.
9
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

10
11
12

13 GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
14
Plaintiffs,
15
v.
16
WARNER/CHAPPELL MUSIC, INC.,
17 et al.,

Lead Case No. CV 13-04460-GHK
(MRWx)
DEFENDANTS’ OBJECTIONS AND
RESPONSES TO PLAINTIFFS’
FIRST SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS

Defendants.

18
19
20
21
22
23
24
25
26
27

Ex. 95

28
23092169.1

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
CASE NO. CV 13-04460-GHK (MRWx)

1084

1

Pursuant to Federal Rule of Civil Procedure 34, Defendants Warner/Chappell

2 Music, Inc. and Summy-Birchard, Inc. (jointly “Warner/Chappell”) hereby submit
3 the following objections and responses to Plaintiff’s First Set of Requests for
4 Production of Documents (“Requests”).
5
6

GENERAL OBJECTIONS
The following General Objections are incorporated by reference into each

7 response to each specific Request, whether or not such General Objections are
8 expressly incorporated by reference in such response.
9

1.

Warner/Chappell objects to the Requests to the extent they purport to

10 impose on Warner/Chappell any obligation that is different from or greater than any
11 imposed by the Federal Rules of Civil Procedure, the Local Rules of the United
12 States District Court for the Central District of California, or any other applicable
13 law, rule or order.
14

2.

Warner/Chappell objects to the Requests to the extent they request

15 production of documents subject to the attorney-client privilege, the attorney work
16 product doctrine, or any other applicable privilege or protection from disclosure,
17 including without limitation any joint privilege relating to the same.
18 Warner/Chappell claims such privileges and protections to the extent implicated by
19 each Request, and excludes privileged and protected information from its responses
20 to the Requests. Any disclosure of such protected or privileged information is
21 inadvertent, and is not intended to waive those privileges or protections.
22

3.

Warner/Chappell objects to the Requests to the extent they seek

23 documents not in Warner/Chappell’s possession, custody or control; or documents
24 or information that are equally available to Plaintiffs and Warner/Chappell; or
25 documents or information that could be derived or ascertained by Plaintiffs with
26 substantially the same effort that would be required of Warner/Chappell.
27

4.

Warner/Chappell objects to the Requests to the extent they seek

28 documents that contain any confidential, proprietary, trade secret information, Ex. 95
23092169.1

-1-

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
1085
CASE NO. CV 13-04460-GHK (MRWx)

1 and/or competitively sensitive material. Warner/Chappell will produce responsive,
2 non-privileged documents containing such information only upon the entry of, and
3 in accordance with the terms of, an appropriate protective order.
4

5.

Warner/Chappell’s responses are necessarily preliminary and are made

5 without prejudice to its right to produce, introduce or rely upon documents that may
6 be later discovered or produced.
7

6.

Warner/Chappell objects to the Requests to the extent they seek

8 documents created after, or related to events after, the filing of the Complaint in this
9 action, on the grounds that such documents are neither relevant nor reasonably
10 calculated to lead to the discovery of admissible evidence.
11

7.

Warner/Chappell will make reasonable efforts to search for documents

12 in the places where they would be reasonably likely to be found, and
13 Warner/Chappell objects to the Requests to the extent they purport to require a
14 broader search.
15

8.

Warner/Chappell objects to the Requests to the extent they seek

16 documents outside of any applicable limitations period, whether arising by statute,
17 contract or otherwise.
18

9.

In responding to the Requests, Warner/Chappell does not waive, or

19 intend to waive, any privilege or objection, including, but not limited to, any
20 objections to the competency, relevance, materiality, or admissibility of any of the
21 documents produced in response to the Requests. No objection or response made in
22 these responses and objections shall be deemed to constitute a representation by
23 Warner/Chappell as to the existence or non-existence of the documents requested or
24 within the scope of Warner/Chappell’s agreement to search for and produce.
25

10.

Warner/Chappell objects to Plaintiff’s use of the terms “documents”

26 and “things” as vague, ambiguous, overly broad and unduly burdensome to the
27 extent any of those terms has a meaning or scope that is different than that required
Ex. 95
28 by Rule 34 of the Federal Rules of Civil Procedure, including, without limitation, to
23092169.1

-2-

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
1086
CASE NO. CV 13-04460-GHK (MRWx)

1 the extent the terms require Warner/Chappell to search for and provide electronic
2 documents and information that are not reasonably accessible.
3

11.

Warner/Chappell objects to any Request to the extent it purports to

4 require it to produce documents or information for inspection and copying in
5 violation of a legal or contractual obligation of non-disclosure to a third party.
6

12.

Warner/Chappell objects to any Request to the extent it calls for a legal

7 conclusion. Any response by Warner/Chappell shall not be construed as providing a
8 legal conclusion regarding the meaning or application of any terms or phrases used
9 in the Requests.
10

13.

Warner/Chappell objects to the Requests to the extent they call for the

11 production of “all” documents concerning a subject matter on the ground that such
12 Requests are, to that extent, overly broad and unduly burdensome.
13

14.

Warner/Chappell objects to any Request containing the defined terms

14 “You,” “Your,” “Defendants,” “Warner/Chappel” [sic], and/or “Summy-Birchard”
15 as vague, ambiguous, overbroad and unduly burdensome to the extent any of these
16 terms include any entity other than the responding Defendant(s).
17

15.

Warner/Chappell objects to Instruction Paragraph 1 to the extent that it

18 incorporates by reference instructions that are inapposite to the Requests.
19

16.

Warner/Chappell objects to all Instructions (including all subparts

20 thereof), including Instruction Paragraphs 3 through 17, to the extent they purport to
21 require Warner/Chappell to produce documents in certain formats and pursuant to
22 certain procedures on the ground that they are unduly burdensome and seek to
23 impose costs and obligations beyond those set forth in the Federal Rules of Civil
24 Procedure. Subject to and without waiving this objection, any documents that
25 Warner/Chappell agrees to produce, with the exception of email or efile documents,
26 will be produced as static TIFF images branded with bates numbers, along with a
27 loadfile/index that will indicate document breaks. With respect to any email or efile
Ex.
28 documents that Warner/Chappell agrees to produce (to the extent there are such 95
23092169.1

-3-

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
1087
CASE NO. CV 13-04460-GHK (MRWx)

1 documents), Warner/Chappell will produce such documents as TIFF images,
2 branded with bates numbers, with searchable metadata/information (where
3 available) sufficient to make these documents reasonably usable as required under
4 the Federal Rules of Civil Procedure. Warner/Chappell is willing to meet and
5 confer with Plaintiffs regarding specific metadata fields and/or other mutually
6 agreeable protocols.
7

17.

Warner/Chappell objects to Instruction Paragraph 15 to the extent it

8 purports to impose any obligation for Warner/Chappell to prepare a privilege log, if
9 any, in excess of the requirements of the Federal Rules of Civil Procedure. Any
10 privilege log that Warner/Chappell prepares will be completed in accordance with
11 the requirements of the Federal Rules of Civil Procedure. Further, Warner/Chappell
12 will not log any documents withheld on the basis of privilege or work product
13 created after the date of the filing of Plaintiffs’ original Complaint.
14

18.

Warner/Chappell objects to Instruction Paragraph 16 to the extent it

15 purports to impose any obligation for Warner/Chappell to prepare a log of destroyed
16 or discarded documents, if any, in excess of the requirements of the Federal Rules of
17 Civil Procedure.
18

19.

Warner/Chappell objects to Instruction Paragraph 18 to the extent it

19 purports to impose upon Warner/Chappell any obligation in excess of those required
20 under the supplementation rules of the Federal Rules of Civil Procedure. Except as
21 expressly provided in the Rules, Warner/Chappell specifically disclaims any
22 obligation to supplement its responses or production in response to Plaintiff’s
23 Requests.
24

20.

These General Objections are incorporated into each individual

25 response and supplement response below without further reference.
26

Warner/Chappell reserves the right to supplement or modify its responses and

27 objections to the Requests.
Ex. 95

28
23092169.1

-4-

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
1088
CASE NO. CV 13-04460-GHK (MRWx)

1 registrations referred to in Plaintiffs’ operative Complaint. To the extent that
2 Warner/Chappell discovers during that search non-privileged documents that
3 constitute or relate to filings with the Copyright Office regarding copyright
4 registrations contained in the Request but not referred to in Plaintiffs’ operative
5 Complaint, Warner/Chappell will produce such non-privileged documents.
6 REQUEST FOR PRODUCTION NO. 2:
7

All documents constituting, creating, describing, or relating to Your

8 acquisition of each Right You claim to Happy Birthday to You, including
9 documentation of all assignment(s) or transfer(s) of such Rights.
10 RESPONSE TO REQUEST FOR PRODUCTION NO. 2:
11

Warner/Chappell incorporates its General Objections.

12 Warner/Chappell specifically objects to this Request as vague and ambiguous,
13 including in its use of the undefined terms (“acquisition,” “assignment(s),” or
14 “transfer(s).” Warner/Chappell further objects to this Request as overly broad,
15 unduly burdensome, not reasonably calculated to lead to the discovery of admissible
16 evidence, and/or lacking in the reasonable particularity required by law.
17 Warner/Chappell further objects to this Request to the extent it calls for information
18 protected by the attorney-client privilege and/or work product doctrine.
Subject to and without waiving those objections, Warner/Chappell

19

20 responds as follows: Warner/Chappell will produce responsive, non-privileged
21 documents, if any, following a search of reasonable diligence that memorialize or
22 relate to Warner/Chappell’s acquisition of the copyright to Happy Birthday to You.
23 REQUEST FOR PRODUCTION NO. 3:
24

Pertinent publications of Happy Birthday to You, including the scores,

25 lyrics, arrangements, notes on arrangements, Deposit Copies, and other documents
26 related to Happy Birthday to You and Good Morning to All.
27
Ex. 95

28
23092169.1

-7-

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
1089
CASE NO. CV 13-04460-GHK (MRWx)

1 including in its use of the undefined term “due diligence file.” Warner/Chappell
2 further objects to this Request as overly broad, unduly burdensome, not reasonably
3 calculated to lead to the discovery of admissible evidence, and/or lacking in the
4 reasonable particularity required by law. Warner/Chappell further objects to this
5 Request to the extent it calls for information protected by the attorney-client
6 privilege and/or work product doctrine.
Subject to and without waiving those objections, Warner/Chappell

7

8 responds as follows: Warner/Chappell will produce responsive, non-privileged
9 documents, if any, following a search of reasonable diligence.
10 REQUEST FOR PRODUCTION NO. 7:
11

All documents constituting, evidencing, describing or relating to the

12 Rights of the following persons and entities to Happy Birthday to You or Good
13 Morning to All:
14

a.

Clayton F. Summy

15

b.

Clayton F. Summy Co. (incorporated 1895, Ill.)

16

c.

Clayton F. Summy Co. (incorporated 1925, Ill.)

17

d.

Clayton F. Summy Co. (incorporated 1931, Del.)

18

e.

John F. Segenstack

19

f.

Mildred Hill

20

g.

Patty Hill

21

h.

Jessica Hill

22

i.

The Hill Foundation

23 RESPONSE TO REQUEST FOR PRODUCTION NO. 7:
24

Warner/Chappell incorporates its General Objections.

25 Warner/Chappell specifically objects to this Request as vague and ambiguous.
26 Warner/Chappell further objects to this Request as overly broad, unduly
27 burdensome, not reasonably calculated to lead to the discovery of admissible
28 evidence, and/or lacking in the reasonable particularity required by law.
23092169.1

-10-

Ex. 95

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
1090
CASE NO. CV 13-04460-GHK (MRWx)

1 Warner/Chappell further objects to this Request to the extent it calls for information
2 protected by the attorney-client privilege and/or work product doctrine.
Subject to and without waiving those objections, Warner/Chappell

3

4 responds as follows: Warner/Chappell will produce responsive, non-privileged
5 documents, if any, following a search of reasonable diligence.
6 REQUEST FOR PRODUCTION NO. 8:
7

All documents constituting, evidencing, describing or relating to

8 litigation over Rights (including infringement of any Right) to Happy Birthday to
9 You or Good Morning to All, including without limitation docket sheets, pleadings,
10 motions, briefs, affidavits, declarations, memoranda, transcripts, opinions,
11 settlement agreements, orders and judgments.
12 RESPONSE TO REQUEST FOR PRODUCTION NO. 8:
13

Warner/Chappell incorporates its General Objections.

14 Warner/Chappell specifically objects to this Request as vague and ambiguous.
15 Warner/Chappell further objects to this Request as overly broad, unduly
16 burdensome, not reasonably calculated to lead to the discovery of admissible
17 evidence, and/or lacking in the reasonable particularity required by law, insofar as
18 the Request purports to seek documents related to this litigation. Warner/Chappell
19 further objects to this Request to the extent it calls for information protected by the
Obviously
not what
we asked
for. The
Para 103
and 104
lawsuits
are suits
that we
already
know
about.

20 attorney-client privilege and/or work product doctrine.
Subject to and without waiving those objections, Warner/Chappell

21

22 responds as follows: Warner/Chappell will produce non-privileged documents, if
23 any, following a search of reasonable diligence, that relate to the lawsuits referred to
24 in Paragraphs 103 and 104 of Plaintiffs’ operative Complaint.
25 REQUEST FOR PRODUCTION NO. 9:
26

All documents describing the corporate structure, relationship and

27 revenue sharing agreements and policies concerning Happy Birthday to You
28 between and among Warner/Chappell and Summy-Birchard.
23092169.1

-11-

Ex. 95

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
1091
CASE NO. CV 13-04460-GHK (MRWx)

1

Subject to and without waiving those objections, Warner/Chappell

2 responds as follows: Warner/Chappell will produce responsive, non-privileged
3 documents, if any, following a search of reasonable diligence.
4
5 DATED: March 21, 2014
6

MUNGER, TOLLES & OLSON LLP
By:

7
8

/s/ Kelly M. Klaus
KELLY M. KLAUS

Attorneys for Defendants Warner/Chappell
Music, Inc. and Summy-Birchard, Inc.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Ex. 95

28
23092169.1

-14-

DEFENDANTS’OBJECTIONS & RESPONSES TO
1st SET OF REQUESTS FOR PRODUCTION
1092
CASE NO. CV 13-04460-GHK (MRWx)

PROOF OF SERVICE
Good Morning to You Productions Corp., et al. v.
Warner/ChapfZel Music, Inc., et al.
U.S. District Court Case No. CV 13-04460-GHK (MRWx)

1

2
3

4 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, I was over 18 years of age and not a~party to this
action. I am employed in the City and County of San Francisco, State of California.
6 My business address is 560 Mission Street, Twenty-Seventh Floor, San Francisco,
CA 94105-2907.
5

7

. On March 21, 2014, I served true copies ofthe following document(s)
8 descnbed as

9

DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFFS'
FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS

10
11 on the interested parties in this action as follows:

** SEE ATTACHED SERVICE LIST **

12

BY MAIL: I enclosed the document(s) in a sealed envelope or package
addressed to the persons at the addresses listed in the Service List and placed the
14 envelope for collection and mailing, following our ordinary business practices. I am
readily familiar with the firm's practice for collecting and processing
15 correspondence for mailing. On the same day that the correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the
16 United States Postal Service, in a sealed envelope with postage fully prepaid, as
indicated on the attached service list.
17
BY ELECTRONIC MAIL: As indicated on attached Service List. I caused
18 such document(s) to be sent by electronic mail for instantaneous transmittal via
telephone line.
19
I declare under penalcy of perjury under the laws of the United States of
20 America that the foregoing is true and correct and that I am employed in the office
of a member of the bar of this Court at whose direction the service was made.
21
Executed on March 21, 2014, at San Francisco, California.
13

22
23

24
25
26
27
28
23093455.1

Ex. 95
PROOF OF SERVICE
CASE NO. CV 13-04460 GHK
1093

1

SERVICE LIST

2
3 Betsy C. Manifold
Francis M. Gregorek
4 Rachele R. Rickert
Marisa C. Livesay
5 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Street, Suite 2770
San Die12:o. California 921 01
7
Mark C. Rifkin
8 Janine Pollack
Beth A. Landes
9 Giti Baghban
WOLF HALDENSTEIN ADLER
10
FREEMAN & HERZ LLP
270 Madison Avenue
11 New York. New York 10016

Via E-Mail & US. Mail

12 Randall S. Newman
RANDALL S. NEWMAN PC
13 37 Wall Street, Penthouse D
New York. New York 10005
14
Omel A. Nieves
15 Alison C. Gibbs
Kathlynn E. Smith
16 HUNT ORTMANN P ALFFY NIEVES
DARLING & MAH INC.
h
17 301 North Lake Avenue, i Floor
Pasadena. California 91101
18
William R. Hill
19 AndrewS. MacKay
Daniel J. Schacht
20 DONAHUE GALLAGHER ~OODS LLP
1999 Harrison Street, 25t Floor
21 Oakland. California 94612-3520

Via E-Mail & US. Mail

22 Lionel Z. Glancy
Marc L. Godino
23 GLANCY BINKOW & GOLDBERG LLP
1925 Century Park East, Suite 21 00
24 Los An12:eles. California 90067

Via E-Mail & US. Mail

Via E-Mail & US. Mail

Via E-Mail & US. Mail

Via E-Mail & US. Mail

25
26
27
28
23093455.1

Ex. 95
PROOF OF SERVICE
CASE NO. CV 13-04460 GHK
1094

EXHIBIT 96

Ex. 96
1095

1 FRANCIS M. GREGOREK (144785)
[e-mail]
2 BETSY C. MANIFOLD (182450)
[e-mail]
3 RACHELE R. RICKERT (190634)
[e-mail]
4 MARISA C. LIVESAY (223247)
livesay'[e-mail]
5 WOL.F HALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Street, Suite 2770
San Diego, CA 92101
7 Telephone: [phone]
8 FacsImile: 619/234-4599

9 Interim Lead Counsel/or Plaintiffs and the [Proposed] Class
10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA -

12

WESTERN DIVISION

13
14

GOOD MORNING TO YOU
PRODUCTIONS CORP., et aI.,

16
17
18

v.
WARNER/CHAPPELL MUSIC,
INC., et al.

19
Defendant.

20
21

)

)
)
)
)

Plaintiffs,

15

) Lead Case No. CV 13-04460-GHK (MRWx)

PLAINTIFF GOOD MORNING TO
YOU PRODUCTIONS CORP.'S
INTERROGATORIES TO
DEFENDANTS - SET NO. ONE

)
)
)
)
)
)

----------------------)

22
23 PROPOUNDING PARTY:

PLAINTIFF GOOD MORNING TO YOU

24

PRODUCTIONS CORP.

25 RESPONDING PARTIES:

DEFENDANTS W ARNERICHAPPELL MUSIC,

26

INC. AND SUMMY-BIRCHARD, INC.

27 SET NO.:

ONE

28
Ex. 96
1096

1

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, plaintiff GOOD

2 MORNING TO YOU PRODUCTIONS CORP. ("Plaintiff'), by and through its
3 undersigned counsel, hereby propounds the following interrogatories upon
4 defendants WARNER/CHAPPEL MUSIC, INC. and SUMMY-BIRCHARD, INC.
5 ("Defendants"), to be answered, under oath, within 30 days or such other time as the
6 parties may agree or the Court may order.
DEFINITIONS

7

8

1.

"Defendants" means Warner/Chappell Music, Inc., and Summy-

9 Birchard, Inc. (or each individually, as context requires).
10
11

2.

"Warner/Chappel," means Warner/Chappel Music, Inc., its subsidiaries

and predecessors in interest, including without limitation Summy-Birchard, Inc.

12

3.

"Summy-Birchard" means Summy-Birchard, Inc., its subsidiaries and

13 predecessors in interest, including without limitation Summy-Birchard, Inc.
14

4.

"CFSC" refers to the Clayton F. Summy Co. identified as copyright

15 owner in the applications for Copyright E51988 and Copyright E51990.
16

5.

"ASCAP" refers to the American Society of Composers, Authors and

17 Publishers.
18

6.

"You" or "Your" refers to each Defendant served with these requests.

19

7.

"Happy Birthday to You" means the song Happy Birthday to You.

20

8.

"Copyright Office" refers to the United States Copyright Office.

21

9.

"Copyright" means statutory copyright.

22

10.

"Right" means an interest, including license and Copyright, in or to a

11.

"Copyright E51988" means the Copyright recorded with the Copyright

23 work.
24

25 Office under the registration number E51988.
26

12.

"Copyright E51990" means the Copyright recorded with the Copyright

27 Office under the registration number E51990.
28
Ex. 96
1097

- 1-

1
2

13.

is claimed in the application for Copyright.

3
4
5
6
7
8

"New Matter" means the work, or subset of work, in which Copyright

14.

"Deposit Copy" means the work deposited with the Copyright Office as

15.

"Including" and "includes" shall be construed to mean "including

such.
without limitation."
16.

The use of the singular form of any word includes the plural and

VIce versa.

9

INSTRUCTIONS

10

1.

The term "document," as used here, includes each "item" set forth in

11

Rule 34(a) of the Federal Rules of Civil Procedure, including, without limitation,

12

electronically stored information, electronic or computerized data compilations, and

13
14

e-mail.

15

mean the business entity, its affiliated companies, partnerships, divisions,

16

subdivisions, units, businesses, ventures, directors, officers, employees, imprints,

17

agents or other representatives or affiliated third parties.

18

2.

3.

Whenever reference to a business entity appears, the reference shall

Your answers shall include all available information, including hearsay,

19

in Your possession, custody or control, or in the possession, custody or control of

20
21

Your agents or attorneys.

22

unless it is objected to, in which event all reasons for the objection shall be stated in

23
24

lieu of an answer.

25

remaining part or parts completely.

26

27
28

4.

5.
6.

You shall answer each interrogatory fully, in writing and under oath,

If You object to any part of an interrogatory, please respond to the

All documents produced as an alternative to answering an interrogatory

shall be produced as they are kept in the usual course of Your business or shall be
organized and labeled in a manner responsive to the interrogatory.
Ex. 96
1098

-2-

1

If the person who verifies the answers to the interrogatories does not

7.

2

have personal knowledge of the information contained in each answer, that person

3

shall identify such information and its source.

4
5

8.

Where identification of a Copyright is required, the following shall be

separately stated as to each Copyright:

6

a. the title, description, and author( s) of the work as stated on the

7

application for Copyright;

8

b. the title, description, and author(s) of the New Matter, if different from

9

(a.) in any respect;

10

c. the title, description, deposit date, and author(s) of the Deposit Copy, if

11

different from (a.) or (b.) in any respect;

12

d. the Registration Number and registration date;

13

e. the Copyright owner;

14

15

16

9.

Where identification of a meeting is required, state the meeting date,

location and attendees, and the substance of the subjects discussed.
10.

Where identification of a telephone conversation is required, state the

17

date of the conversation, the location and identity of the call originator(s),

18

recipient(s) and all other participants, and the substance of the subjects discussed.

19

20
21

11.

Where identification of a document is required, separately state as to

each document:
a. its date, its exact title, and the substance of the document with sufficient

22

particularity to enable it to be identified and located within any

23

document production;

24

25
26
27

28

b. the identification and location of the files where the original and each
copy is normally or presently kept;
c. the name, business affiliation, and last known address of each author,
intended recipient, and person currently in possession of the original or
a copy of the document; and,
Ex. 96
1099

-3-

1

d. if such document is no longer in existence, state the circumstances

2

surrounding its elimination, the date and reasons for such elimination,

3

and, the identity of the person(s) who ordered and/or supervised the

4

elimination.

5

12.

Where information concerning licensing activity is requested, provide

6

the requested information by license type, such that information about the public

7

performance licenses, mechanical licenses, synchronization licenses and all other

8

types of licenses of the Song You have authorized or granted are separately provided.

9
10

13.

Where identification of a person is required, the following shall be

separately stated as to each person:

11
12

a. the name and last known business address or location and phone number

13

b. if such person is an individual, additionally state each business position

14

held by that individual at the time or times for which such identification

15

is requested; and

of each such person; and

16

c. if such a person is not an individual, identify each individual employed

17

by or representing such person who has knowledge of the matter at

18

Issue.

19

14.

If You refuse to respond to any of these interrogatories based on a claim

20

of privilege or confidentiality, Your statement of the claim shall include all facts

21
22

relied upon in support thereof.

23
24
25
26
27

If You claim attorney work-product privilege,

identify the litigation for which the work-product was prepared.
15.

If You answer any interrogatory by reference to business records

pursuant to Rule 33(d) of the Federal Rules of Civil Procedure, identify the business
records and provide the name(s) of your employee(s) certifying the documents as
business records for purposes of answering the interrogatory.
16.

These interrogatories are continuing requests and you are obligated to

28 notify Plaintiff's counsel right away and amend or supplement your responses as
Ex. 96
1100

-4-

1

soon as reasonably possible if you determine that an answer You provided was false,

2

or if You subsequently obtain information which leads You to believe that Your

3

response was incomplete or incorrect when made, or that Your response, although

4

correct and complete when made, is no longer correct and complete.

5

RELEV ANT TIME PERIOD

6
7

Unless otherwise specified, the relevant time period for these interrogatories is
June 18,2009 to the present date (the "Relevant Time Period").

INTERROGATORIES

8
9

INTERROGATORY NO.1:

10

Identify and describe in detail each Right that You claim to Happy Birthday to

11

You.

12

INTERROGATORY NO.2:

13

Describe the New Matter for which Copyright was claimed on the application

14

for Copyright E51988.

15
16

INTERROGATORY NO.3:

17

for Copyright E51990.

18
19

INTERROGATORY NO.4:

20
21

written by that person(s)?

22

Describe the New Matter for which Copyright was claimed on the application

Who wrote the familiar lyrics to Happy Birthday to You and when were they

INTERROGATORY NO.5:
If different than the person You identified in response to Interrogatory No.4,

23

who wrote the lyrics to the work in which CFSC claimed Copyright in its application

24
25

for Copyright No. E51988, what lyrics did that person(s) write, and when were they

26

INTERROGATORY NO.6:

27
28

written by that person(s)?
If different than the person You identified in response to Interrogatory No.4,
who wrote the lyrics to the work in which CFSC claimed Copyright in its application
Ex. 96
1101

-5-

1

2
3

INTERROGATORY NO. 14:
Describe Your system of monitoring use of Happy Birthday to You, including
monitoring by a performance or reproduction rights organization or other agent(s).

4
5

6
7
8

9
10
11

12
13
14
15
16

Dated: February 12, 2014

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By:~~~~~~~~~~_____

BETSY/ . MANIFO~
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARIS A C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

17
18
19
20
21
22
23
24
25
26
27
28

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
rifkin @whath.com
JANINE POLLACK (pro hac vice)
[e-mail]
BETH A. LANDES (pro hac vice)
landes @whafh.com
GITI BAGHBAN (284037)
baghban @whafh.com
270 Madison A venue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

Interim Lead Counsel for Plaintiffs
Ex. 96
1102

-7-

EXHIBIT 97

Ex. 97
1103

_________________________________

1 GLENN D. POMERANTZ (State Bar No. 112503)
glenn.pomerantzrnto corn
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 ADAM I. KAPLAN (State Bar No. 26$ 182)
adam .kap1an(mto corn
4 MUNGR, TOLLES & OLSON LLP
355 South Grand Avenue
5 Thirty-Fifih Floor
Los Angeles, California 9007 1-1560
6 Telephone: [phone]
Facsimile: [phone]
7
Attorneys for Defendants
$ Warner/Chappell Music, Inc. and
Sumrny-Birchard, Inc.
9
.

.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT Of CALIFORNIA
WESTERN DIVISION

10
11
12

13 GOOD MORNING TO YOU
PRODUCTIONS CORP.; et al.,
14
Plaintiffs,
15
v.
16
WARNERJCHAPPELL MUSIC, INC.,
17 etal.,

Lead Case No. CV 13-04460-GHK
(MRWx)
DEFENDANTS’ OBJECTIONS AND
RESPONSES TO PLAINTIFFS’
FIRST SET OF
INTERROGATORIES

Defendants.

1$
19
20
21
22
23
24
25
26
27

Ex. 97
1104
DEFS’ OBJECTIONS & RESPONSES TO 1st SET

28
23221328.1

OF INTERROGATORIES
CASE NO. CV 13-04460-GHK (MRWx)

1

Pursuant to Federal Rule of Civil Procedure 33, Defendants

2 Warner/Chappell Music, Inc. and Summy-Birchard, Inc. (jointly
3 “Wamer/Chappell”) hereby submit the following objections and responses to
4 Plaintiffs’ First Set of Interrogatories (“Interrogatories”).
5

PRELIMINARY STATEMENT

6

1.

These responses are made solely for purposes of this action. Any

7 information provided in response to any particular Interrogatory is subject to and
$ without waiver of all objections as to competence, relevance, materiality, propriety,
9 admissibility, and all other objections on grounds that would per-mit or require the
10 exclusion of the infonriation, if such information were offered in evidence, all of
11 which objections and grounds are hereby expressly reserved and may be interposed
12 at the time of trial or in response to any motion or application that may be made by
13 Plaintiffs.
14

2.

Discovery in this action is ongoing. Additional information may be

15 discovered in the future that conceivably could be responsive to one or more of the
16 Interrogatories propounded by Plaintiffs. In accordance with the provisions of
17 Federal Rule of Civil Procedure 26(e), Warner/Chappell reserves its right to
1$ supplement its responses to the Interrogatories to the extent that additional
19 responsive and/or corrective information becomes available, though
20 Wamer/Chappell does not thereby assume any obligation to supplement its
21 responses to these Interrogatories, other than as required under the Federal Rules of
22 Civil Procedure. Warner/Chappell reserves all rights to rely at trial or for any
23 purpose in connection with this action upon any and all such information, whether
24 or not provided in response to any particular Interrogatory. Nothing stated herein
25 shall constitute or be construed as a waiver of Warner/Chappell’s right to prove its
26 contentions through information, documents and/or other materials that currently are
27 not in its possession, custody, or control.

Ex. 97
1105

28
23221328.1

-1-

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FIRST SET OF INTERROGATORIES
CASE NO. CV 13-04460-GHK (MRWx)

1

3.

No incidental or implied admissions are intended by these responses.

2 The fact that Wamer/Chappell has agreed to provide information in response to any
3 particular Interrogatory is not intended, and shall not be construed, as waiver by
4 Warner/Chappell of any part of any objection to any such Interrogatory, or any part
5 of any General Objection.

6

GENERAL OBJECTIONS

7

The following General Objections are incorporated by reference into

8 each response to each specific Interrogatory, whether or not such General
9 Objections are expressly incorporated by reference in such response.
10

1.

Warner/Chappell objects to the Interrogatories to the extent they

11 purport to impose on Warner/Chappell any obligation that is different from or
12 greater than any imposed by the Federal Rules of Civil Procedure, the Local Rules
13 of the United States District Court for the Central District of California, or any other
14 applicable law, rule or order.
15

2.

Warner/Chappell objects to the Interrogatories to the extent they

16 request information that is protected from disclosure by the attorney-client privilege,
17 the attorney work product doctrine, or any other applicable privilege or protection
18 from disclosure, including without limitation any joint privilege relating to the same.
19 Warner/Chappell claims such privileges and protections to the extent implicated by
20 each Interrogatory, and excludes privileged and protected information from its
21 responses to the Interrogatories. Any disclosure of such protected or privileged
22 information is inadvertent, and is not intended to waive those privileges or
23 protections.
24

3.

Warner/Chappell obj ects to the IntelTogatories to the extent they seek

25 information that is not within Warner/Chappell’s possession, custody, or control;
26 that is equally available to Plaintiffs and Warner/Chappell; or that could be derived
27 or ascertained by Plaintiffs with substantially the same effort that would be required

Ex. 97
1106

28 of Warner/Chappell.
23221328.1

-2-

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FIRST SET OF INTERROGATORIES
CASE NO. CV 13-04460-GHK (MRWx)

______,

1

4.

Warner/Chappell objects to the Interrogatories to the extent they seek

2 information that is confidential, proprietary, trade secret information, and/or
3 competitively sensitive. Subject to and without waiver of any and all other
4 objections to the production of such information, Warner/Chappell will produce
5 such information only upon the entry of, and in accordance with the terms of, an
6 appropriate protective order.
7

5.

Wamer/Chappell obj ects to the Interrogatories to the extent they seek

$ information created after, or related to events after, the filing of the Complaint in
9 this action, on the grounds that such information is neither relevant nor reasonably
10 calculated to lead to the discovery of admissible evidence.
11

6.

Wamer/Chappell objects to the Interrogatories to the extent they seek

12 information outside of any applicable limitations period, whether arising by statute,
13 contract or otherwise. In particular, Warner/Chappell objects to the statement of the
14 “relevant time period” as being from June 18, 2009 to the present date, insofar as the
15 limitations period under 17 U.S.C.

§

507(b) extends back only three years before the

16 filing of the first complaint consolidated in this action.
17

7.

Warner/Chappell objects to any Interrogatory to the extent it calls for a

18 legal conclusion. Any response by Warner/Chappell shall not be construed as
19 providing a legal conclusion regarding the meaning or application of any terms or
20 phrases used in the Interrogatories.
21

8.

Wamer/Chappell obj ects to any Interrogatory containing the defined

22 term “Happy Birthday to You” as vague and ambiguous to the extent Plaintiffs have
23 not defined what is meant by “the song Happy Birthday to You.” Warner/Chappell’s
24 responses construe “Happy Birthday to You” to mean the lyrics, “Happy Birthday to
25 you, Happy Birthday to you, Happy Birthday dear

Happy Birthday to

26 you!,” as well as the arrangement of those lyrics with the underlying musical
27 melody.

Ex. 97
1107

28
23221328.1

_3_

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FIRST SET OF INTERROGATORIES
CASE NO. CV 13-04460-GHK (MRWx)

1

9.

Warner/Chappell objects to any Interrogatory containing the defined

2 terms “Copyright” and/or “Right” as vague, ambiguous, overbroad and unduly
3 burdensome to the extent either of those terms includes any copyrights other than
4 United States copyrights. Wamer/Chappell’s responses are limited to U.S.
5 Copyrights.
6

10.

Warner/Chappell objects to any Interrogatory containing the defined

7 terms “You,” “Your,” “Defendants,” “Warner/Chappel” [sic], and/or “Summy
8 Birchard” as vague, ambiguous, overbroad and unduly burdensome to the extent
9 any of these terms include any entity other than the responding Defendant(s).
10 Warner/Chappell further objects to Instruction Paragraph 2 as vague, ambiguous,
11 overbroad and unduly burdensome to the extent it includes any entity or person
12 other than the responding Defendant(s). Warner/Chappell’s objections herein are
13 made only on behalf of the responding defendants.
14

11.

Warner/Chappell objects to any Interrogatory containing the defined

15 term “New Matter” as vague and ambiguous, and potentially calling for a legal
16 conclusion, insofar as it refers to “the work, or subset of work, in which Copyright is
17 claimed in the application for Copyright.” To the extent an Interrogatory uses the
18 term “New Matter,” Warner/Chappell construes the Interrogatory to request that
19 Warner/Chappell identify what, if anything, is stated on an application for copyright
20 following the question, “State exactly on what new matter copyright is claimed (see
21

Sec. 6 of Act of 1909).”

22

12.

Wamer/Chappell objects to any Interrogatory containing the defined

23 term “Deposit Copy” as vague and ambiguous insofar as it refers to “the work
24 deposited with the Copyright Office.” “The work” is not deposited with the
25 Copyright Office; rather, copies of a work are deposited with the Copyright Office
26 at the time of an application for registration. To the extent an Interrogatory uses the
27 term “Deposit Copy,” Warner/Chappell construes the Interrogatory to refer to the
28
23221328.1

-4-

Ex. 97
1108

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FiRST SET OF INTERROGATORIES
CASE NO. CV 13-04460-GHK (MRWx)

1 copies of the work deposited with the Copyright Office at the time of the application
2 for registration.
3

13.

Warner/Chappell objects to Plaintiffs use of the terms “documents” as

4 vague, ambiguous, overly broad and unduly burdensome to the extent any of those
5 terms has a meaning or scope that is different than that required by Rule 34 of the

6 Federal Rules of Civil Procedure, including, without limitation, to the extent the
7 terms require Warner/Chappell to search for and provide electronic documents and
$ information that are not reasonably accessible.
9

14.

Warner/Chappell obj ects to Instruction Paragraph 7 on the ground that

10 it purports to impose obligations on Warner/Chappell beyond those required by the
11 Federal Rules of Civil Procedure, the Local Rules of the United States District Court
12 for the Central District of California, or any other applicable law, rule or order.
13 Warner/Chappell will respond to the Interrogatories in accordance with the
14 applicable Rules and Orders of the Court, and not Plaintiffs’ Instructions beyond the
15 same.
16

15.

Wamer/Chappell objects to Instruction Paragraph 8, and any

17 Interrogatory that includes the defined term “Copyright,” to the extent that the
1$ application of Instruction Paragraph 8 has the effect of increasing the number of
19 interrogatories served, including discrete subparts, to a number greater than the 25
20 written inteirogatories permitted under Federal Rule of Civil Procedure 33.
21 Application of Instruction Paragraph 8 has the effect of asking as many as 13
22 separate interrogatories. Any response by Warner/Chappell to an Interrogatory
23 requesting the identification of a “Copyright” will include the number of the original
24 registration only. Plaintiffs are able to read the documentation associated with any
25 registered copyright.
26

16.

Wamer/Chappell objects to Instruction Paragraph 11, and any

27 Interrogatory for which identification of a document is required, to the extent that

Ex. 97
28 the application of Instruction Paragraph 11 has the effect of increasing the number 1109
23221328.1

-5-

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FIRST SET Of INTERROGATORIES
CASE NO. CV 13-04460-GHK (MRWx)

1 of interrogatories served, including discrete subparts, to a number greater than the
2 25 written interrogatories permitted under Federal Rule of Civil Procedure 33.
3 Application of Instruction Paragraph 11 has the effect of asking as many as 13 (or
4 more) unique interrogatories. Any response by Warner/Chappell to an Interrogatory
5 requesting the identification of a document will include information sufficient to
6 describe the document with reasonable particularity. Plaintiffs are able to read such
7 documents.
8

17.

Warner/Chappell objects to Instruction Paragraph 12, and any

9 Interrogatory for which “information concerning licensing activity is requested,” to
10 the extent that the application of Instruction Paragraph 12 has the effect of
11 increasing the number of interrogatories served, including discrete subparts, to a
12 number greater than the 25 written interrogatories permitted under federal Rule of
13 Civil Procedure 33. Application of Instruction Paragraph 12 has the effect of asking
14 numerous separate interrogatories. Further, any Interrogatory intended to request
15 “information concerning licensing activity” is irrelevant to the issues in the first
16 phase of this litigation.
17

18.

Warner/Chappell objects to Instruction Paragraph 13, and any

18 Interrogatory for which identification of a person is required, to the extent that the
19 application of Instruction Paragraph 13 has the effect of increasing the number of
20 interrogatories served, including discrete subparts, to a number greater than the 25
21 written interrogatories permitted under Federal Rule of Civil Procedure 33.
22 Application of Instruction Paragraph 13 has the effect of asking as many as 4 (or
23 more) unique interrogatories. Any response by Warner/Chappell to an Interrogatory
24 requesting the identification of a document will include the person’s name.
25

19.

Warner/Chappell objects to Instruction Paragraph 16 to the extent it

26 purports to impose upon Warner/Chappell any obligation in excess of those required
27 under the supplementation rules of the federal Rules of Civil Procedure. Except as
28 expressly provided in the Rules, Warner/Chappell specifically disclaims any
23221328.1

-6-

Ex. 97
1110

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FIRST SET OF INTERROGATORIES
CASE NO. CV 13-04460-GHK(MRWx)

1 obligation to supplement its responses or production in response to Plaintiffs
2 Interrogatories.
3

20.

These General Objections are incorporated into each individual

4 response and supplement response below without further reference.
5

Warner/Chappell reserves the right to supplement or modify its

6 responses and objections to the Requests.
7 INTERROGATORY NO.1:
8

Identify and describe in detail each Right that You claim to Happy

9 Birthday to You.
10 RESPONSE TO INTERROGATORY NO.1:
11

Warner/Chappell incorporates its General Objections.

12 Warner/Chappell specifically objects to this Interrogatory as vague and ambiguous.
13 Warner/Chappell further obj ects to this Interrogatory as overly broad, unduly
14 burdensome, not reasonably calculated to lead to the discovery of admissible
15 evidence, and/or lacking in the reasonable particularity required by law,
16 including insofar as the Interrogatory seeks information relating to any “Right”
17 other than Copyright, which is the only right in issue in the case. Warner/Chappell
1$ further objects to this Request to the extent it calls for information protected by the
19 attorney-client privilege and/or work product doctrine.
20

Subject to and without waiving the foregoing objections,

21 Warner/Chappell responds as follows: Warner/Chappell owns the copyrights (with
22 all rights under copyright, as set forth in 17 U.S.C.

§

106) to Happy Birthday to You

23 as defined in General Objection 8, above, as evidenced and presumed valid by and
24 through (1) copyright registration certificate E51990, which includes the lyrics to
25 Happy Birthday to You as defined in General Objection 8, above, and (2) copyright
26 registration certificate E5 1988, which includes those same lyrics as well as a second
27 verse of lyrics, “May your birthday be bright, full of cheer and delight, Happy
2$
2322132$.!

_7_

Ex. 97
1111

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FIRST SET OF INTERROGATORIES
CASE NO. cv 13-04460-GHK (MRWx)

______,

1 birthday dear

Happy birthday to you,” as well as the renewals of both

2 copyrights.
3 INTERROGATORY NO.2:
4

Describe the New Matter for which Copyright was claimed on the

5 application for Copyright E51988.
6 RESPONSE TO INTERROGATORY NO.2:
7

Warner/Chappell incorporates its General Objections.

8 Warner/Chappell specifically objects to this Interrogatory as vague and ambiguous,
9 and calling for legal conclusions, in its use of the defined term “New Matter.”
10 Warner/Chappell further obj ects to this request on the ground that it contains
11 express or implied assumptions of fact and/or law with respect to matters at issue in
12 this case. Warner/Chappell further objects to this Request to the extent it calls for
13 information protected by the attorney-client privilege and/or work product doctrine.
14

Subject to and without waiving the foregoing objections,

15 Wamer/Chappell responds as follows: The copyright application submitted in
16 connection with the registration that resulted in the issuance of copyright
17 registration E5 1988 states, following the question, “State exactly on what new
18 matter copyright is claimed (see Sec. 6 of Act of 1909)”: “Arrangement for Unison
19 Chorus and revised text.”
20 INTERROGATORY NO.3:
21

Describe the New Matter for which Copyright was claimed on the

22 application for Copyright E5 1990.
23 RESPONSE TO INTERROGATORY NO.3:
24

Warner/Chappell incorporates its General Objections.

25 Warner/Chappell specifically objects to this Interrogatory as vague and ambiguous,
26 and calling for legal conclusions, in its use of the defined term “New Matter.”
27 Warner/Chappell further objects to this request on the ground that it contains

Ex. 97

28 express or implied assumptions of fact and/or law with respect to matters at issue in 1112
23221328.1

-8-

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FIRST SET OF INTERROGATORIES
CASE NO. CV I 3-04460-GHK (MRWx)

1 DATED: April 11, 2014

MUNGER, TOLLES & OLSON LLP
By:

3

i

KELLY M. KLAUS

Attorneys for Defendants Warner/chappell
Music, Inc. and Suinmy3irchard, Inc.

5
6

7
8
9
10
11
12
13
14

15
16
17
18
19
20
21

22
23
24
25
26

27

Ex. 97
1113

28
23221328.1

-20-

DEFENDANTS’ RESPONSES TO PLAINTIFFS’
FIRST SET Of INTERROGATORIES
CASE NO. CV 13-04460-GHK (MRWx)

1

VERIFICATION

2

1, Nathaniel A. Osher, am Vice President, Legal and Business Affairs
3 of Warner/Chappefl Music, Inc., and I have been authorized to make this

4 verification on behalf of Warner/Chappell and Summy-Birchard, Inc. (jointly
5 “Warner/Chappell”).
6

1 have read the Objections and Responses of Warner/Chappell to

7 Plaintiffs’ First Set of Interrogatories (the “Responses”) and hereby declare that the
$ Responses are either true to the best of my personal knowledge or were assembled
9 by authorized employees or agents of Warner/Chappell who inform me that the facts
10 as to which I do not have personal knowledge are true to the best of those persons’
11

knowledge and belief.

12
13

1 declare under the penalty of peijury under the laws of the United
States of America that the facts set forth in the document described above are true

14 and correct.
15
16

Executed at Los Angeles, California

11,2014.

17
18
er

19
20
21
22
23
24
25
26
27
28

Ex. 97
1114

2322 132S

-21-

DEFENDANTS’ RESPONSES 10 PLAINTIFFS
FIRST SET or USTERROGATORIES
CASE NO. C\’ 13-01460-GHK (MRWx)

PROOF OF SERVICE
Good Morning to You Frod;tctions Corp., et al. v.
Warner/Chappel Music, Inc., et at.
U.S. District Court Case No. CV 13-04460-GHK (MRWx)

1
2

3
4 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, I was over 18 years of age and not a party to this
action. I am employed in the City and County of San Francisco, State of California.
6 My business address is 560 Mission Street, Twenty-Seventh Floor, San Francisco,
CA 94 105-2907.
7
On April 11, 2014, I served true copies of the following document(s)
8 described as
5

DEFENDANTS’ OBJECTIONS AND RESPONSES TO
PLAINTIFFS’ FIRST SET Of INTERROGATORIES

9

10
11

on the interested parties in this action as follows:
**

12

SEE ATTACHED SERVICE LIST

**

BY MAIL: I enclosed the document(s) in a sealed envelope or package
addressed to the persons at the addresses listed in the Service List and placed the
14 envelope for collection and mailing, following our ordinary business practices. I am
readily familiar with the firm’s practice for collecting and processing
15 correspondence for mailing. On the same day that the correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the
16 United States Postal Service, in a sealed envelope with postage fully prepaid, as
indicated on the attached service list.
17
BY ELECTRONIC MAIL: As indicated on attached Service List. I caused
18 such document(s) to be sent by electronic mail for instantaneous transmittal via
telephone line.
19
I declare under penalty of perjury under the laws of the United States of
20 America that the foregoing is true and correct and that I am employed in the office
of a member of the bar of this Court at whose direction the service was made.
21
Executed on April 11, 2014, at San Francisco, California.
22

13

23

7.

f1c

idhieW Lunsford

24
25

26
27

Ex. 97
1115

28
23093455.1

—1—
PROOF OF SERVICE
CASE NO. CV 13-04460 GHK

SERVICE LIST

1
7

3 Betsy C. Manifold
Francis M. Gregorek
4 Rachele R. Rickert
Marisa C. Livesay
5 WOLF HALDENSTEIN ADLER
LLP
FREEMAN &
6 750 B Street, Suite 2770
San Diego. California 92101
7
Mark C. Ri&in
$ Janine Pollack
Beth A. Landes
9 GitiBaghban
10

Via E-Mail & US. Mail

Via E-Mail & US. Mail

WOLF HALDENSTEIN ADLER
FREEMAN &HERZLLP

270 Madison Avenue
11 New York. New York 10016
12 Randall S. Newman
RANDALL S. NEWMAN PC
13 37 Wall Street, Penthouse D
New York. New York 10005
14
Omel A. Nieves
15 Alison C. Gibbs
Kathlynn E. Smith
16

Via E-Mail & US. Mail

Via E-Mail & US. Mail

HUNT ORTMANN PALFFY NTEVES
DARLING & MAR, INC.
7th

Floor
17 301 North Lake Avenue,
Pasadena. California 91101
18
William R. Hill
19 Andrew S. MacKay
Daniel J. Schacht
20 DONAHUE GALLAGHER ‘v\OODS LLP
25 Floor
1999 Harrison Street,
21 Oakland. California 94612-3520

22 Lionel Z. Glancy
Marc L. Godino

Via E-Mail & US. Mail

Via E-Mail & US. Mail

& GOLDBERG LLP
1925 Century Park East, Suite 2100
24 Los Angeles. California 90067
23

GLANCY BINK0w

25
26
27

Ex. 97
1116

2$
23093455.1

—2—
PROOF OF SERVICE
CASE NO. CV 13-04460 GHK

EXHIBIT 98

Ex. 98
1117

FL
4c

Date:

June 12,2014

Type of remittance received:
LIBRARY
OF
CONGRESS

Beth Landes
Wolf Haldenstein Alder Freeman &
HerzLLP
270 Madison Avenue
New York, NY 10016

deposit account-description number:

x

COPYRIGHT
OFFICE

101 Independence
Avenue, S.E.

check or money order

credit card
SRl-1415479123

The Records Research and Certification Section has provided the following services and
applied fees as shown below.
Additional certificate

Washington, D.C.
20559-6000

$280.00

Expedited service (rush certifications, searches, or additional certificates)

$265.00

Total fees charged

$545.00

Total remittance received

$545.00

Sincerely yours,

Jatietta walls
Supervisory Copyright Specialist
Records Research and Certification Section
Office of Public Records and Repositories
Enclosure: 8
Additional Certificate E 51988 & 7 others

P006370

Ex. 98
1118

EXHIBIT 99

Ex. 99
1118

Ex. 99
P006371

1119

CHAPTER 1900
RECORDS, INDEXES, AND DEPOSITS OF THE COPYRIGHT OFFICE;
INSPECTION, COPYING, ADDITIONAL CERTIFICATES,
AND OTHER CERTIFICATIONS
1901

Records of the Copyright Office; statutory provisions.
The copyright code states that the Register of
Copyrights shall provide and keep records of all
deposits, registrations, recordations, and other
actions taken by the Copyright Office and shall prepare
indexes of all such records. See 17 U.S.C. 705. The
statute also provides the fee schedule for Office
services in connection with searches of the records,
and the certification of copies of records. See 17
U.S.C. 708.

1902

Inspection of Copyright Office records and deposits in
general. The public may inspect completed records and
indexes relating to a processed application for
registration--whether the claim was registered or
rejected--and may inspect copies, phonorecords, or
identifying material deposited in connection with such
applications. They may also inspect completed records
and indexes related to a recorded document. See 17
U.S.C. 705 and 37 C.F.R. 201.2(b)(1).
Persons who satisfy the criteria set out in the
regulations and in 1902.02 of this chapter may have
access to pending applications for registration, the
deposit material accompanying them, and documents that
have been submitted to the Office for recordation which
have not yet been recorded. See 37 C.F.R. 201.2(b)(4).
Also see section 1902.02 below.
The public may also inspect the Office's authorization
file, which contains original copies of requests for
copies of deposits for reasons of pending or
prospective litigation, sworn statements of persons
requesting such copies; claimants' letters authorizing
deposits to be copied; and claimants' death
certificates supplied by the next of kin who request
copies of deposits. The file also contains complete
copies of the deposit requested or a brief description
of oversized copies, three dimensional works or
negatives or a copy of the tape cover and accompanying
materials for audio-visual deposits, copies of each
certification issued for a deposit, and copies of the
photo identifications of persons who have filed
requests, statements, authorizations or death
certificates. These documents are retained in the
authorization file for a period of 10 years from the
end of the calendar year in which they were filed.
Portions of this file are available for public
inspection and copying pursuant to section 1903.

[1998]
P006372

Ex. 99
1120

1900-2
1902

Inspection of Copyright Office records and deposits in
general. (cont'd)
1902.01

Completed records. All completed records and
indexes relating to a registration or a rejection
or to a recorded document, and all articles
deposited in connection with completed
registrations or rejections and retained under the
control of the Copyright Office, are open to
public inspection. See 17 U.S.C. 705. Before
being permitted to inspect any deposit, however,
the requester must (1) show proper photo
identification, including a photograph and current
address, and (2) complete and sign a "Request for
Inspection of Copyright Deposit" (Form C-8),
indicating agreement not to copy or deface the
material to be inspected. Requesters who need to
make limited notes about the deposit copy during
the inspection may do so only on the form provided
for that purpose by the Certifications and
Documents staff. The staff will review all notes
before requesters leave the inspection area.

1902.02

Pending applications, documents, and open
correspondence files. Access will be afforded to
pending applications for registration, the deposit
material accompanying them, and pending documents
for recordation and to open correspondence files
on such materials in the following instances:
1.

In the case of applications for registration,
the deposits accompanying them and
correspondence files, access will be afforded
upon the request of the copyright claimant or
an authorized representative. In exceptional
circumstances, the Register may allow
inspection of pending applications and open
correspondence files by someone other than
the copyright claimant or the claimant's
representative upon receipt of a written
request which is deemed by the Register to
show good cause for such access and
establishes that the person making the
request is properly and directly concerned.
The written request for such access should be
addressed to the General Counsel, Copyright
GC/I&R, P.O. Box 70400, Southwest Station,
Washington, D.C. 20024 or faxed to the
General Counsel at 202-707-8366.

2.

Access to documents will be afforded upon the
request of one of the persons who executed
the document or an authorized representative
of that person.

[1998]
P006373

Ex. 99
1121

1900-3
1902

Inspection of Copyright Office records and deposits in
general. (cont'd)
1902.03

Official correspondence. Official correspondence,
including preliminary applications between
copyright claimants or their agents and the
Copyright Office, that relate directly to a
completed registration, a recorded document, a
rejected application for registration, or a
document for which recordation was refused, may be
inspected by the public. NOTE: That portion of
official correspondence that is directly related
to rejected applications for registration or
documents for which recordation was refused and
which once represented a closed case is open for
public inspection and copying. This is true even
though the once-closed case may have been later
re-opened by some subsequent action on the part of
the copyright claimant, an authorized agent
thereof, or by the Copyright Office.

1902.04

Time and place of inspection. All of the
materials open for inspection may be inspected
during the operating hours of the Copyright
Office, 8:30 a.m. to 5:00 p.m., Monday through
Friday, except legal holidays, in the
Certifications and Documents Section of the
Information and Reference Division. Some of these
materials are not stored on the premises of the
Copyright Office and access to them cannot be
assured unless arrangements are made in advance
with the Certifications and Documents Section.
Where authorized, inspection of pending
applications and documents will be permitted in
the Certification and Documents Section.

1902.05

Records not open to public inspection. The
general policy of the Copyright Office is to
prohibit access to in-process files and to any
areas where they are kept. Access to certain
information contained in Copyright Office inprocess files may be allowed under conditions
specified in section 1902.06(b) below. See 37
C.F.R. 201.2(b)(2). In-process files are those
which the Copyright Office prepares for its own
internal use in connection with pending
applications for registration or for the
recordation of documents and which are preliminary
to the completion of the public record. These
files include the Receipt-In-Process Records,
Exception Tracking System Records, accounting
files, open unfinished business files, and other
files of a similar nature. Certain information
contained in Copyright Office in-process files may

[1998]
P006374

Ex. 99
1122

1900-4
1902

Inspection of Copyright Office records and deposits in
general. (cont'd)
1902.05

Records not open to public inspection. (cont'd)
be obtained by anyone upon request. See section
1902.06 below. In no case, however, will access
be permitted to any financial or accounting
records without the prior approval of the Register
or the General Counsel.

1902.06

Requests by the public for information in the inprocess files.

1902.06(a)Requests not requiring payment of a fee.
Limited access to in-process files. Public
access to a limited amount of information
contained in the Copyright Office's inprocess files is permitted on a computer
terminal designated for that purpose in the
Records Maintenance Unit of the Information
and Reference Division. The in-process file
may be accessed between 8:30 a.m. and 5:00
p.m., Monday through Friday, excepting legal
holidays, upon payment of the applicable
fees. The following information is
available:
1)

the title(s) of the work(s), including,
in the case of serials, volume number,
date of issue, and issue number. NOTE:
Only the first title listed in an
application or document is included;

2)

the date(s) of receipt of the
application or document;

3)

the class of an application for
registration;

4)

the number of deposit copies, sets of
identifying material, or phonorecords
received;

5)

the name of the remitter; and

6)

the name of the claimant, if different
from the name of the remitter.

1902.06(b)Requests requiring payment of a fee. Certain
information contained in the Copyright Office
in-process files may be obtained by anyone
upon request and the payment of applicable
fees to the Certifications and Documents
Ex. 99
[1998]
P006375
1123

1900-5
1902

Inspection of Copyright Office records and deposits in
general. (cont'd)
1902.06

Requests by the public for information in the inprocess files. (cont'd)

1902.06(b)Requests requiring payment of a fee. (cont'd)
Section, Information and Reference Division.
The following information will be supplied in
response to each such request:
1)

2)

the title(s) of the work(s), including
(if a serial) the date of issue, volume
number, and issue number;

3)

the name of the remitter;

4)

the description or classification, if an
application for registration;

5)

the number of copies or phonorecords
deposited; and

6)

the name of the claimant, if different
from the name of the remitter.

7)

the registration status of the claim.

8)
1902.07

the date(s) of receipt of: (i) the
application(s) for registration that may
have been submitted and is (are) being
processed; (ii) the document(s) that may
have been submitted for recordation and
is (are) being processed; and (iii) the
copy (copies) or phonorecord(s) that may
have been deposited;

the registration number, if any.

Administrative staff manuals. Administrative
staff manuals, referred to as "Compendium of
Office Practices I" and "Compendium of Office
Practices II," are prepared for the general
guidance of the Copyright Office staff in making
registration and recording documents, and for the
public who avails itself of the registration and
recordation systems. These manuals are available
for public inspection in the Certifications and
Documents Section from 8:30 a.m. to 5:00 p.m.,
Monday through Friday, except legal holidays. See
37 C.F.R. 201.2(b)(7). See also section 1903.06.

[1998]

Ex. 99

1900-6
P006376

1124

1902

Inspection of Copyright Office records and deposits in
general. (cont'd)
1902.08

1903

Materials not open for public inspection. As a
general rule and subject to requirements of the
Freedom of Information Act and the Privacy Act,
the Office will not permit public inspection of
notes, internal memoranda, information relating to
facts concerning personal privacy or financial
information, trade secrets, or internal matters of
a relatively trivial nature. Similarly, material
relating to internal matters of personnel and
procedures, Office administration, security
matters or internal considerations of policy,
including the work product of an attorney, are not
open to public inspection.

Copying Copyright Office records, indexes,
correspondence, and deposits in general. Copies may be
made of any public records or indexes of the Copyright
Office, including the Office's file of litigation
statements and other documents, known as (the
"authorization file"). See section 1904.01(2); see 17
U.S.C. 706(a). Copies of applications may be made by
the requester or may be furnished by the Copyright
Office upon payment of the duplication fees. Copies
may be made of official correspondence, including
preliminary applications between copyright claimants or
their agents and the Office, and directly relating to a
completed registration, a recorded document, a rejected
application for registration, or a document for which
recordation was refused. Requests for copies of
correspondence should include the information specified
in the Copyright Office regulations. See 37 C.F.R.
201.2(c) and (d). See also section 1903.02 below for
requirements. Copies or reproductions of materials
deposited for registration and retained under the
control of the Copyright Office will be furnished under
the conditions specified below. The copyright owner or
anyone providing a litigation statement may use a
camera or other small copying device to copy a deposit
if the copy is made in the Certifications and Documents
Section under the supervision of Copyright Office
personnel and if no electrical power, special lights,
or other equipment is required. However, only copies
made by the Copyright Office will be certified by the
Office. See 17 U.S.C. 706(b) and 37 C.F.R. 201.2(d).
See also sections 1904 and 1906 below.
1903.01

Making copies. If the requested copies can be
made routinely on the photocopying equipment
available in the Certifications and Documents
Section, the copies will be prepared by Copyright
Office staff. If the amount of material to be

[1998]

Ex. 99

1900-7
P006377

1125

1903

Copying Copyright Office records, indexes,
correspondence, and deposits in general. (cont'd)
1903.01

Making copies. (cont'd)
reproduced or its complexity makes duplication by
the Certifications and Documents staff
impracticable, the copies will be made by the
Photoduplication Service of the Library of
Congress or the Motion Picture, Broadcasting and
Recorded Sound Division. The current duplication
fees will be charged. See section 1911 below.

1903.02

Requests for copies other than additional
certificates. Requests for copies of records,
indexes, material from the authorization file,
correspondence, and deposits should be made to the
Certifications and Documents Section. Fees are
charged for making copies, for any searches
required to find the material, and for
certification. Failure to provide a registration
number and year date, or volume and document
number for a recorded document, may result in a
search charge to find the material. To minimize
search fees and expedite copying, the request for
copies should include the following information
when available:
1)

A clear identification of the type of records
or deposits to be copied (for example copies
of deposits, correspondence, catalog entries,
etc.).

2)

A specification of whether the copies are to
be certified or uncertified.

3)

A clear identification of the specific
records to be copied including, where
possible, the type of work involved (for
example a novel, song lyrics, technical
drawing), the registration number, if any,
the year date or approximate year date of
registration or submission to the Office, the
complete title of the work, the author(s)
including any pseudonym, the claimant(s), and
if the requested copy is of an assignment,
license, contract, or other recorded
document, the volume and page number of the
recorded document.

4)

The telephone number and address of the
requester.
See 37 C.F.R. 201.2(d).

[1998]

Ex. 99

1900-8
P006378

1126

1903

Copying of Copyright Office records, indexes,
correspondence, and deposits in general. (cont'd)
1903.03

Copies of records. The Copyright Office will
furnish a copy of any official record upon request
and payment of the duplication fee. Official
records include completed records of
registrations, rejections, or recorded documents;
indexes; litigation statements; and catalog
entries relating to a registration or a recorded
document.

1903.04

Materials which may generally be copied. The
Copyright Office will furnish a copy of official
correspondence, including preliminary
applications, between copyright and mask work
claimants or their agents and the Office, that
directly relate to a completed registration
(however, see section 1903 above), a recorded
document, a rejected application for registration,
or a document for which recordation was refused.
See 37 C.F.R. 201.2(c)(1).

1903.05

Materials which may generally not be copied. The
Copyright Office will not make copies available of
correspondence, application forms, and any
accompanying material (including deposit material)
forming part of a pending application. As a
general rule and subject to requirements of the
Freedom of Information Act and the Privacy Act,
the Office will not furnish copies of notes,
internal memoranda, information relating to facts
concerning personal privacy or financial
information, trade secret or internal matters of a
relatively trivial nature. Similarly, no copies
will be furnished of material relating to internal
matters of personnel and procedures, Office
administration, security matters, or internal
consideration of policy and decisional matters,
including the work product of office attorneys.

1903.06

Administrative staff manuals. Copies of
Compendium I (1973) are available for purchase
from the National Technical Information Service
and copies of Compendium II (1984) may be
purchased from the Government Printing Office. As
Compendium II is updated, changes will be
available on-line at www.loc.gov/copyright. In
addition, requests for photocopies of the
administrative staff manuals referred to as
"Compendium of Copyright Office Practices I" and
"Compendium of Copyright Office Practices II" may
be submitted to the Certifications and Documents
Section of the Copyright Office during regular

[1998]

Ex. 99

1900-9
P006379

1127

1903

Copying of Copyright Office records, indexes,
correspondence, and deposits in general. (cont'd)
1903.06

1904

Administrative staff manuals. (cont'd)
work hours, 8:30 a.m. to 5:00 p.m., Monday through
Friday, except legal holidays. A fee will be
charged for this service.

Copies of deposits. Requests for copies or
phonorecords of deposited articles retained under the
continuous control of the Copyright Office should be
made to the Certifications and Documents Section.
Requests for copies of deposits that have been
transferred to the Library of Congress should be made
to the Photoduplication Service or to the custodial
division of the Library that has the copy in its
collection.
1904.01

Authorization to make copies of deposits.
Reproductions of the copies, phonorecords, or
identifying material deposited in connection with
a copyright or mask work registration or a refusal
to register a published or unpublished work, and
held in the custody of the Copyright Office will
be provided only when one of the following three
conditions have been met:
1)

The Copyright Office receives written
authorization from the copyright or mask work
claimant of record or his or her designated
agent, or from the owner of any of the
exclusive rights in the copyright or mask
work whose ownership is demonstrated by
written documentation of the transfer of
ownership. If the requester appears in
person and alleges to be entitled to a
reproduction of the deposit material on one
of the foregoing bases, identification
consisting of a photo I.D. and a current
address is required along with the abovementioned written authorization. A copy of
the photo identification will be retained in
the authorization file. If the request is
made by telephone, the Office will ask for a
written request.

2)

The Copyright Office receives a completed
Copyright Office litigation statement form
from an attorney on behalf of either the
plaintiff or defendant in connection with
litigation, actual or prospective, involving
the copyrighted work or mask work. The
following information must be included on the
completed form: (i) the names of all the

[1998]

Ex. 99

1900-10
P006380

1128

1904

Copies of deposits.
1904.01

Authorization to make copies of deposits.
(cont'd)
parties involved and the nature of the
controversy; and (ii) the name of the court
in which the actual case is pending or, in
the case of a prospective proceeding, a full
statement of the facts of the controversy in
which the work is involved; and (iii) a sworn
statement from the requester that the
reproduction is to be used in connection with
the specified litigation. In addition, the
Office will ask for photo identification from
any person filing a litigation statement, a
copy of that identification will be made part
of the file. The name of any authorized
person receiving deposit copies will be
retained in the authorization file.
3)

1904.02

(cont'd)

The Copyright Office receives a court order
for a reproduction of the deposit copies,
phonorecords, or identifying material of a
work which is the subject of litigation. The
order must be issued by a court having
jurisdiction over the case in which the
reproduction is to be submitted as evidence.

Nature of copies or phonorecords. Upon
authorization and receipt of the duplication fee,
the Copyright Office will supply a photocopy of
copies, phonorecords, or identifying material
deposited as part of a copyright or mask work
registration. When a request is made for a
reproduction of a work, such as a sound recording
embodied on an audiotape or cassette, or a work
embodied on a floppy disk, a CD-ROM or other
format in which either a sound recording or the
underlying musical, dramatic, or literary work is
embodied, the Copyright Office will provide a
reproduction when possible. The Office reserves
the right to substitute a monaural reproduction
for a stereo, quadraphonic, or any other fixation
accepted for deposit. The Office will provide the
title and the registration number of the work
along with the date of any registration that has
been made. In response to a specific request, the
Office will provide reproductions of any printed
or other visually perceptible material published
with a phonorecord. For other deposit materials,
the Office will supply uncertified copies that
depict or reproduce the deposit with varying
degrees of fidelity depending on the needs of the
requester. For example: a photocopy of a

[1998]

Ex. 99

1900-11
P006381

1129

1904

Copies of deposits.
1904.02

1905

(cont'd)

Nature of copies or phonorecords. (cont'd)
photograph can be supplied if such a reproduction
is suited to the requester's needs. For the
nature of certified copies, see section 1909
below.

Certificates of registration. After the Register of
Copyrights determines that the material deposited for
registration constitutes copyrightable or mask work
subject matter, and that the other legal and formal
requirements of the law have been met, the Register
will register the claim and issue to the applicant a
certificate of registration under the seal of the
Copyright Office. The certificate will contain the
information given in the application, together with the
number and effective date of the registration. See 17
U.S.C. sections 410(a), 908(e). A certificate of
renewal registration will be issued for works first
published or registered before January 1, 1978, upon
compliance with the renewal provisions of the copyright
code. See 17 U.S.C. 304(a). Certificates returned to
the Copyright Office as undeliverable will be mailed a
second time unless they were undeliverable because the
addressee moved and left no forwarding address.
Certificates returned a second time are destroyed after
updating the Office's records to show the status of the
mailing was "undeliverable."
1905.01

1906

Nature of the certificate. The certificate of
registration or certificate of renewal is a
digital image of the application made on a form
containing the signature of the Register of
Copyrights and the seal of the Copyright Office.

Additional certificates of registration. Additional
certificates of an original or renewal registration
will be issued to anyone upon request and payment of
the fee. See 17 U.S.C. 706(a). Additional
certificates are certified copies of the record of
registration and have the same legal effect as the
original certificate. Certified copies of additional
certificates may also be requested from the
Certifications and Documents Section upon payment of
the appropriate fee. The manner in which additional
certificates are prepared may vary, depending upon the
date of the original registration. Additional
certificates are prepared by the Certifications and
Documents Section of the Information and Reference
Division. The Copyright Office will not issue
additional certificates of cancelled registrations. It
will, however, certify a copy of the cancelled
registration in the same manner as it certifies any

[1998]

Ex. 99

1900-12
P006382

1130

1906

Additional certificates of registration. (cont'd)
other public record. See sections 1903.03(a) above and
1909.06 below. The Office will certify copies of
applications refused registration as part of the
correspondence file.
1906.01

Registration made on or after January 1, 1978.
Additional certificates for registrations made on
or after January 1, 1978, are duplicate
facsimiles. These may be made from original
applications, from a microfilm copy or from
another imaged copy. The additional certificate
contains the signature of the current Register of
Copyrights together with the seal of the Copyright
Office. Each such additional certificate is
stamped to identify it as an additional
certificate.

1906.02

Registration made on or before December 31, 1977.
Additional certificates for registrations made on
or before December 31, 1977, consist of a
photocopy of the application that was used to make
the original registration with a pre-printed
certification statement attached. The
registration number, date of certification, and
the signature of the current Register of
Copyrights are added to the certification
statement form, which is issued under the seal of
the Copyright Office. In cases where a photocopy
of the application cannot be used to produce an
additional certificate of registration, an
additional certificate may be made by typing the
name of the claimant, title, date of publication,
date of receipt of copy(s), and the registration
number on a pre-printed certification form. The
name of the Register of Copyrights is then added
to the form together with the seal of the
Copyright Office.

1906.03

Prints or labels registered in the Patent Office
before July 1, 1940. The Patent Office retained
carbon copies of each certificate issued by that
Office. Copies of the Patent Office records were
transferred to the Copyright Office on July 1,
1940. An additional certificate of copyright
registration for a print or label registered in
the Patent Office before July 1, 1940, consists of
a photocopy of the carbon copy of the original
certificate of registration together with the
Copyright Office's certification of the photocopy.

1907

Certificate of recordation. Upon receipt of any
transfer of ownership or other document pertaining to a
copyright or mask work, which meets the requirements of

[1998]

Ex. 99

1900-13
P006383

1131

1907

Certificate of recordation. (cont'd)
the law (see 17 U.S.C. 205(a)), the Copyright Office
will record the document and return it with a
certificate of recordation. See 17 U.S.C. 205(b).
1907.01

1908

Nature of the certificate of recordation. The
document submitted for recordation is returned to
the sender with an attached certificate of
recordation after a preservation copy has been
made for Copyright Office records. The
certificate consists of a form containing the
signature of the Register of Copyrights, the date
of recordation, and the volume and document number
of the recorded document. The certificate also
bears the seal of the Copyright Office.

Certified copy of a recorded document. A certification
of recordation may be issued to anyone upon request and
payment of the fee(s). See 17 U.S.C. 706(a). The
certification consists of a copy of the document, or
relevant portions thereof, and an attached
certification form.
1908.01

Microfilm recordation. Some documents originally
recorded in the Copyright Office on microfilm
(generally before 1982) also include a microfilm
copy of the original certificate of recordation.
In such cases, the original certificate of
recordation is reproduced along with the document
and is included in the certified copy.

1908.02

Preparation of copies of document. Copies of most
documents are prepared by the Certifications and
Documents Section of the Information and Reference
Division. A fee for making the copy will be
charged. See section 1911 below. Some copies of
documents must be prepared by the Photoduplication
Service, which charges its current fees for the
service.

1908.03

Certification of copies of recorded documents.
Copies of recorded documents are certified by the
Certifications and Documents Section of the
Information and Reference Division. Certified
copies of recorded documents are furnished by
providing a photocopy of the document printed on
paper, including a photocopy of the original
certificate of recordation, if it is on record.
See sections 1908.01 and 1908.02 above. The copy
of the document is attached to a certification
form on which is included the volume and document
number where the document is recorded, the date of
certification, and the date of recordation. The
signature of the Register of Copyrights and the

[1998]

Ex. 99

1900-14
P006384

1132

1908

Certified copy of a recorded document.
1908.03

1909

(cont'd)

Certification of copies of recorded documents.
(cont'd)
seal of the Copyright Office are included on the
certificate. A fee for making the copy will be
charged at the rate established by the
Photoduplication Service.

Certification in general. Certification is an official
written representation of the Copyright Office
attesting to one or more facts and bearing the seal of
that Office and issued under the name and title of the
Register of Copyrights. The Office will certify only
an authorized work product produced by the Office or
official Office records.
1909.01

Register's name on certification. The name of the
current Register of Copyrights will be used
regardless of his or her temporary absence from
the Office for reasons such as travel, illness,
etc. Only during a change in terms, when an
Acting Register has been appointed by the
Librarian of Congress, will the name of an Acting
Register be used.

1909.02

Authentication of certified documents issued by
the Copyright Office. The Copyright Office has
adopted an official seal to authenticate its
certified documents. See 17 U.S.C. 701(b). The
appearance of the seal has varied during different
periods of time; however, the certification
remains valid if it was correctly sealed at the
time it was made. Use of the Library of Congress
seal or any other non-official Copyright Office
seal does not result in a valid certification.

1909.03

Omission of Register's name or Copyright Office
seal. A document lacking either the Register's
name or the Copyright Office seal is not validly
certified.

1909.04

Appeal from denial of certification. Denial of a
request for certification may be appealed in the
following order: (1) Head, Certifications and
Documents Section, (2) Chief of the Information
and Reference Division, and (3) Register of
Copyrights, who may delegate the responsibility to
the General Counsel or the Assistant General
Counsel.

1909.05

Undeliverable certifications. Certifications,
including additional certificates of registration,
returned to the Copyright Office as undeliverable,

[1998]

Ex. 99

1900-15
P006385

1133

1909

Certification in general.

(cont'd)

1909.05

Undeliverable certifications. (cont'd)
are generally remailed one time. If returned
again, the certification is destroyed after the
CIS image status has been updated to show that the
mailing was "undeliverable," in accordance with
retention policies established by the Register of
Copyrights for those files.

1909.06

Who may authenticate documents. Documents may be
authenticated by the person or persons to whom
that authority has been delegated by the Register
of Copyrights. Documents will generally be
authenticated by the Head of the Certifications
and Documents Section or in his/her absence by the
Assistant Chief or Chief of the Information and
Reference Division. For original certificates of
registration or certificates of recordation of
documents see sections 1905.01 and 1907.01 above.

1909.07

Certifications. Certifications are made in four
different formats depending on the nature of the
material being certified.
1)

Certification of original certificates of
registration, rejected applications, or
recordation of documents. For the form of
certification of original certificates of
registration see section 1905.01 above. For
the form of certification for original
certificates of recordation of documents see
section 1907.01 above.

2)

Certification of statements from the public
record. A standard certification attests to
one or more facts from the public record
about a document or deposit. It bears the
name and title of the Register of Copyrights
and is signed by the head of the Office's
Certification and Documents Section, or an
authorized designee.

3)

Certification of a deposit in a format
different from the original. A special
certification is required when the
reproduction is not exact, e.g. a cassette
tape is made from a phonorecord, a photograph
is made of a three-dimensional object, a copy
is reduced in size from the original deposit,
or a copy is made of only part of a larger
work (preface only of a book or five pages of
a twenty-page document). Such a certificate
is issued under the name and title of the

[1998]

Ex. 99

1900-16
P006386

1134

1909

Certification in general.
1909.07

Certifications.
Register of
head of the
Section, or
4)

1909.08

(cont'd)

(cont'd)
Copyrights, and is signed by the
Certification and Documents
an authorized designee.

Certification of other materials.
Specifically drawn certifications of other
materials, including apostilles,
exemplifications, and declarations will be
issued by the Office upon payment of a fee.
An apostille is an attachment to a
certification form required by some foreign
courts pursuant to the Hague Convention of
October 5, 1961. An apostille certifies,
under the seal and signature of the current
Register of Copyrights, that an attached
public document has been signed by the head
of the Copyright Office's Certifications and
Documents Section.

Method of requesting certification.
Certifications, including certification of
additional certificates of registration, are made
by the Certifications and Documents Section of
the Information and Reference Division, and all
requests for certification should be addressed to
that Section. The request should include the
following:
1)

2)

1909.09

Specific request for certification. The
request should clearly indicate whether the
copies are to be certified. Where the
request is unclear whether the copies are to
be certified or not, the Copyright Office
will ask for further instructions.
Full identification of material to be
certified. The request should fully identify
the material to be certified. See section
1903.02 above. Failure to identify
adequately the material may necessitate an
inquiry by the Office for further information
or may result in a search fee to locate the
material.

Preparation and handling of certifications in
general. All Copyright Office certifications must
be prepared under the direction and control of the
Copyright Office. See section 1903 above. When
preparing copies for Office certification, the
Photoduplication Service or Motion Picture,
Broadcasting and Recorded Sound Division acts at

[1998]

Ex. 99

1900-17
P006387

1135

1909

Certification in general.
1909.09

(cont'd)

Preparation and handling of certifications in
general. (cont'd)
the direction of the Copyright Office. When
material is submitted to those offices for
copying, the Copyright Office will observe the
following procedures:
1)

Furnish the materials to be copied, identify
the exact material to be copied, and specify
the copying process to be used; and,

2)

Indicate that the material is being prepared
for certification and that it should be
returned to the Copyright Office for that
purpose.

1909.10

Certified copies of official records. Upon
payment of the certification and duplication fees,
certified copies of official records of the
Copyright Office may be furnished. Examples of
official records include: entries in the
registration record books, numbered applications,
indexes to registration and recorded transfers and
other documents pertaining to a copyright or mask
work. The certified copies furnished by the
Office will be accompanied by the appropriate
certification form. See section 1909.07 above.

1909.11

Certified copies of correspondence. Upon payment
of the certification and duplication fees, the
Copyright Office will certify copies of any
correspondence which is permitted to be copied.
See section 1903.04 above. Every certification
covering correspondence must be specially drawn.
If the various pieces of correspondence all relate
to the same registration, or group of related
registrations, they may all be included in one
certification, but each item must be separately
identified in the certification.

1909.12

Certified copies of search reports. Search
reports prepared by the Copyright Office will be
certified on letterhead stationery available for
that purpose. The search report is certified
under the seal of the Register of Copyrights and
is usually signed also by the Head of the
Reference and Bibliography Section or in his or
her absence it may be signed by the Assistant
Chief or Chief of the Information and Reference
Division.

[1998]

Ex. 99

1900-18
P006388

1136

1909

Certification in general.

(cont'd)

1909.13

Certification of copies of information circulars,
former circulars, and blank application forms.
The Copyright Office will certify copies of
information circulars and blank application forms
currently or formerly issued as official
publications of the Office. Certifications are
made by the Certifications and Documents Section,
under the seal of the Register of Copyrights and
signed by the Head of the Certifications and
Documents Section or in his or her absence by the
Assistant Chief or Chief of the Information and
Reference Division.

1909.14

Certified copies of material deposited for
copyright or mask work registration. When the
Copyright Office has retained continuous control
of deposits (see section 1904 above) and it is
authorized to make copies (see section 1904.01
above), certified copies or phonorecords may be
furnished of materials deposited for copyright or
mask work registration, (whether registration is
made or refused), upon receipt of the
certification and duplication fees. The Office
will not certify copies found in the collections
of the Library of Congress. Only the Library of
Congress can make such certifications.
NOTE: The practice of the Copyright Office
regarding the retention under its control of
materials deposited for copyright has varied at
different times. Therefore, not all materials
deposited for copyright registration are available
for copying or certification.

1909.15

Jurisdictional requirement for certifying material
deposited for copyright. The Copyright Office
will certify a copy of material deposited in
connection with a claim to copyright or a mask
work only if such material has remained
continuously under the control of the Copyright
Office. Copies of such materials made part of the
Library of Congress' collections will only be
certified by the Photoduplication Service or the
Motion Picture, Broadcast, and Recorded Sound
Division. When such deposit materials are loaned
for exhibit purposes to the Library of Congress
Exhibits Office, the Copyright Office asks that
these items be returned, and the Office insists
that they not be altered in any way and that they
not be available for public handling. In these
cases the material is considered to have remained
under the control of the Office and therefore can

[1998]

Ex. 99

1900-19
P006389

1137

1909

Certification in general.
1909.15

(cont'd)

Jurisdictional requirement for certifying material
deposited for copyright. (cont'd)
be certified while it is on exhibit and after it
is returned to the Office. The Office will not
certify any other material returned to it from the
Library of Congress.
The Copyright Office will not certify any material
added to a deposit after registration has been
completed, except where the additional material is
added as an addendum to the original registration.
The Copyright Office will certify only those
copies which have been made by it or at its
request. It will not certify copies of deposit
material made by copyright or mask work owners or
litigants, even if those copies are made under the
supervision of the Office. See section 1903
above.

1909.16

Form and content of certified copies of material
deposited for copyright or mask work registration
(other than phonorecords and Patent Office
deposits). The Copyright Office will provide the
best possible reproduction(s) of deposited
material, depending on the nature of the material
and the need of the requester. Photocopies are
provided for most flat material. As a general
rule, the Office certifies a copy of the entire
deposit retained by the Office. The material
certified must include a copy of the page or
surface bearing the registration number and date
of deposit, if any.

1909.16(a)Copies of part or portions of a work. When a
request is received to copy and certify only
a part or portion of a work, a special
certification clearly identifying the
material certified must be drawn and typed.
In such cases, the material copied and
certified must include the page or surface
bearing the registration number and date of
deposit, and also the page or surface bearing
the notice of copyright, if any.
1909.16(b)Copies of photographs and identifying
reproductions deposited for certain threedimensional works. To certify copies of
photographs or reproductions deposited in
lieu of three-dimensional or over-size
copies, a certification must be prepared
which identifies the "certified copies" as
[1998]
1900-20
P006390

Ex. 99
1138

1909

Certification in general.
1909.16

(cont'd)

Form and content of certified copies of material
deposited for copyright or mask work registration
(other than phonorecords and Patent Office
deposits). (cont'd)

1909.16(b)Copies of photographs and identifying
reproductions deposited for certain threedimensional works. (cont'd)
copies of photographs or identifying material
deposited in lieu of copies. In such cases
all of the photographs or reproductions in a
set should be reproduced, unless the request
specifies that only certain ones are to be
copied. In all cases, however, the material
copied and certified should include the page
or surface bearing the registration number
and date of receipt of the deposit, if any,
and also the page or surface showing the
notice of copyright, if any. For some pre1956 registrations where both threedimensional copies and photographs may be
available, the Copyright Office will certify
the photographs, unless the applicant
specifically requests certification of the
three-dimensional copies.
1910

Certification of actual deposit copy when required by
the court. When required by a court, the Copyright
Office will certify the actual copy, phonorecord, or
identifying material used to make the registration, or
to refuse registration, provided that the copy,
phonorecord, or identifying material has been under the
continuous control of the Copyright Office. The actual
deposit material will be made available only upon the
condition that it will be promptly returned to the
custody of the Copyright Office. A certificate is
drawn to show that the copy, phonorecord, or
identifying material is the copy, phonorecord, or
identifying material used to make or to refuse the
registration. If the deposit material has been
transferred to the Library of Congress's collections,
the Office will not certify that copy, phonorecord, or
identifying material.

1911

Fees in general. Fees are charged for the various
services provided by the Copyright Office, the
Photoduplication Service, or the Motion Picture,
Broadcasting, and Recorded Sound Division.
1911.01

Statutory fees. Fees are charged for certain
services as set forth in section 708 of the
Copyright Act and section 908(d) of the

[1998]

Ex. 99

1900-21
P006391

1139

1911

Fees in general.
1911.01

(cont'd)

Statutory fees. (cont'd)
Semiconductor Chip Protection Act of 1984.
are payable to the Register of Copyrights.

They

Fees are charged:
1)

For issuance of an additional certificate of
registration;

2)

For issuance of any other certification;

3)

For making a search or any related service;
and

4)

For a special service, at a rate fixed by the
Register.

1911.02

Photoduplication Service and Motion Picture,
Broadcasting, and Recorded Sound Division fees.
Fees for the making of copies by these units are
established by them and are payable to the Library
of Congress at the copying rate then in effect for
their services.

1911.03

Certification fees. The check for preparing a
certification should be made payable to "the
Register of Copyrights," regardless of which
Library service unit is preparing the
certification.

1912

Applicability of fees to other U.S. Government
agencies. Section 708(b) of the Copyright Act provides
that all fees prescribed by the Act are applicable to
the United States Government and any of its agencies,
employees, or officers, but that the Register of
Copyrights has discretion to waive these requirements
in occasional or isolated cases involving relatively
small amounts.

[END OF CHAPTER 1900]

[1998]

Ex. 99
P006392

1140

Page 1141 Intentionally Omitted