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)

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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: 619/239-4599 8 FacsImile: 619/234-4599 9 Interim Lead Counsel for Plaintiffs and the [Proposed] Class 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA - 12 WESTERN DIVISION 13 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 ) ) ) ) ) ) ) ) ) ) ) ) ) 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 • ~ ..'" I· ... / fl L:- Jf ~ .. "' .... ... .- / ~ .. """"" ~ * "' . .... I 2n • I~ ., .n to you, I~ ~ ., ., Hap-py In I> I " '- 2 8 - ..... - Hap-py } 5_ I; ''; " !'" --l'"": " 8 ..... - .1'"": I Birth- day, deaf .. 1:L G'" '- ~ 2 Birth - day 2 '..i II I,., f-' .. 8 - In l_ ''; ...., J I; 1 II t ~ f-' - ~- - " ., Birth - day ..... Hap-py you, II ... ., ., to " 'oJ I'. :L Birth- day - ..., LI· / V Hap-py 8 ., 2 I" .. 71ff' . I " 1"1 .., to 1". -'L ~ you! ~ In 8 J IlIIio r- -' * Here insert the name of the one oelebrating-. Copyright 1935 by Clayton F. Summy Co. International Copyright 3075 /" . t- I r ! \. 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 t: .-'" '-:../ I " ,' .,.,.....f,~.., 'I>t,· V ,,, .. ~"" • .,.I u. ., . , ., . ~~ , -. --'.-'. ~ ~ - 97• ~ 'l _ _ _ _~' ~. ...... .. I '" .. ~ -. -. ... "t :'I' . • "!"; THIS AGREEMENT made and' entered .~ i ",' Illinois ; this ~ 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 .. o the .~ ~ness ". If Old Company If ) which company is now engaged in of dealing in and publishing music j and ..WHEREAS, -, -"':l"J - Summy · is planning to -. ; ~ of said Old Company in pursuance of -the . of reorganization: .".1:0:, I (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, " \ 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:.;• ----- II t.", AII and made~ a part hereof. PIt'. is _ the intent ion ' of" ~ " " . ' .. - ......:': Summy to cause these securities to be distributed to Ex. 92 1059 WC0002081 ., .~. y ., -'1'1-2- - '. .~ the stockholders of the ·Old Oompany either by a dividend in kind or by a sale of the securities and the declara- , .. 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 . . . J. charter will provide that the Preferred • Stock~ ~ "I shall be ~. 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 ~}... . , per cent in each year thereafter. ,• . ~ , ... the issuance of ,such preferred stock, and at least six b r )'¥l' In the event of the ( 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 ---' ~ .' 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 ....... ~ o · ., ..' , . " - 10 !. - • 'I • -4- :::::> • , the transfer of the assets of 'the Old Oompany New Oompany) in exchange for all the capital . • ~ 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 .- " the Old Oompany, and .. ~ . WHEREAS, Sengstack is willing to purchase ' from ' Summy .' " ~ . • ! 'til the common no par stock in such New Oompany, as and when the . " r~ same is received by Summy, and Summy is willing to sell such stock, on the terms and conditions hereinafter contained, ,..{ . '.' }TOW, THEREFORE, in consideration of the ' sum of Ten "' ':-: :!~, ".f. ':::.-.... p Dollars ($10) each to the other in hand paid, and in considera- , '~r tion of other good and valuable considerations, receipt of which .. is hereby acknowledged by the parties hereto, and in further •• consideration of the mutual covenants and agreements herein, . • .,..'> ." < after contained, it .· is hereby stipulated, covenanted and , agreed n\'<, - ... ... ' ~' .... ' 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 ~J """ '; to the New Company as hereinabove recited. , 2. , ." I " Summy agrees to sell and Sengstack agrees to .~ •:... ,, ; !'- .. " ... purchase said 50 shares of common stock of said New Oompany, and to Summy therefor, in cash ; the sum of Five Hundred ps.y .. '. ,. "'- 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 o .. • / 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. " ~.".....,.. ,. ... , (. ---~ 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: < ,' ) Ex. 92 1063 WC0002085 ........:.' - ID 7- -6/ ,~ 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) .. -", 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 ~, sO ,~ , ~ perform the duties of mUBical reader of Baid New - shall not exceed the schedule of Balaries ,: Company ~ her~inabove set ... flo! ,." ..... ,.~ ; ':"'J,..Sof _~I> forth for SengBtack and said Orem; and agree B fUrther :that ' .~'. {" I .. f ,-•• ,. , ... " :.;. ' 4 ., ~"'~ in the event of the death, reBignation or refusal of said , ! 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 ~~ ~'., 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. . . . -, ,: , ".,~,•."1(-1", . •t.qf!"J" J.f!:I~ ... ~i .. ... ___.I, ..... ".1,' ·71':-:~~r;.~ SengBtack agrees fUrther that on incorporation of . . , :~ the New Company and ' as part consideration of the purchase by I Baid Sengstack of said no per value common stock from Baid \ ·'h.. \ . ,/)"'ftJ-' .n • '03 • . . 1r:l'-: .if 1.: ' .', Ex. 92 1064 WC0002086 , ,. t~ -/0'1- ,, - • -7, 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) gregorek@whatb.com 2 BETSY C. MANIFOLD (182450) manifold@whatb.com 3 RACHELE R. RICKERT (190634) rickert@whatb.com 4 MARISA C. LIVESAY (223247) livesay@whatb.com 5 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 6 750 B Street, Suite 2770 San Diego, CA 92101 7 Telephone: 619/239-4599 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 gregorek@whath.com BETSY C. MANIFOLD manifold@whath.com RACHELE R. RICKERT rickert@whath.com MARIS A C. LIVESAY livesay@whath.com 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 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) ritkin@whafh.com JANINE POLLACK (pro hac vice) pollack@whafh.com BETH A. LANDES (pro hac vice) landes @whafh.com GITI BAGHBAN (284037) baghban @whafh.com 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 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: 2121797-3737 HUNT ORTMANN PALFFY NIEVES DARLING & MAH, INC. ALISON C. GIBBS (257526) gibbs@huntortmann.com 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 626/440-5200 Facsimile 6261796-0107 25 26 27 28 DONAHUE GALLAGHER WOODS LLP WILLIAM R. HILL (114954) rock@donahue.com ANDREW S. MACKAY (197074) Ex. 94 - 9- 1081 1 2 3 4 5 6 andrew@donahue.com DANIEL J. SCHACHT (259717) daniel @donahue.com 1999 Harrison Street, 25 th Floor Oakland, CA 94612-3520 Telephone: 510/451-0544 Facsimile: 510/832-1486 13 GLANCY BINKOW & GOLDBERG LLP LIONEL Z. GLANCY (134180) 19lancy@glancylaw.com MARC L. GODINO (188669) mgodino@glancylaw.com 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: 310/201-9150 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) glenn.pomerantz@mto.com 2 KELLY M. KLAUS (State Bar No. 161091) kelly.klaus@mto.com 3 ADAM I. KAPLAN (State Bar No. 268182) adam.kaplan@mto.com 4 MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue 5 Thirty-Fifth Floor Los Angeles, California 90071-1560 6 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 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) o-regorek@whafh.com 2 BETSY C. MANIFOLD (182450) manifold@whafh.com 3 RACHELE R. RICKERT (190634) rickert@whafh.com 4 MARISA C. LIVESAY (223247) livesay'-@whafh.com 5 WOL.F HALDENSTEIN ADLER FREEMAN & HERZ LLP 6 750 B Street, Suite 2770 San Diego, CA 92101 7 Telephone: 619/239-4599 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 gregorek@whafh.com BETSY C. MANIFOLD manifold@whafh.com RACHELE R. RICKERT rickert@whafh.com MARIS A C. LIVESAY livesay@whafh.com 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 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) pollack@whafh.com BETH A. LANDES (pro hac vice) landes @whafh.com GITI BAGHBAN (284037) baghban @whafh.com 270 Madison A venue New York, NY 10016 Telephone: 212/545-4600 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) kelly.klaus@rnto.com 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: (213)683-9100 Facsimile: (213) 687-3702 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

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