Rupa Marya v. Warner Chappell Music Inc

Filing 192

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 6, EXS. 100-107, PAGES 1200-1540) 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 6, Exs. 100-107))(Manifold, Betsy)

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CONFIDENTIAL
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UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA

3

WESTERN DIVISION

4
5

------------------------------------------x

6

GOOD MORNING TO YOU PRODUCTIONS CORP.,

7

et al.,

8

Plaintiffs,

9

vs.

10

WARNER/CHAPPELL MUSIC INC., et al.,

11

Defendants.

12

------------------------------------------x

13

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

14
15
16
17

DEPOSITION OF THOMAS B. MARCOTULLIO

18
19

New York, New York
Tuesday, June 3, 2014

20

CONFIDENTIAL

21
22
23
24

Reported by:

25

David Henry

JOB NO. 80120
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2
3

June 3, 2014

4

9:00 a.m.

5
6
7

Videotaped 30(b)(6) Deposition of

8

THOMAS B. MARCOTULLIO, held at the

9

offices of Wolf Haldenstein Adler Freeman

10

& Herz, 270 Madison Avenue, New York, New

11

York, pursuant to Notice, before David

12

Henry, a Certified Court Reporter and

13

Notary Public of the State of New York.

14
15
16
17
18
19
20
21
22
23
24
25
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A P P E A R A N C E S:

2
3
4
5

WOLF HALDENSTEIN ADLER FREEMAN
& HERZ
Attorneys for Plaintiffs
270 Madison Avenue
New York, NY 10016
BY: MARK RIFKIN, ESQ.
AND: BETH LANDES, ESQ.

6
7
8
9

RANDALL S. NEWMAN
Attorneys for Plaintiffs
37 Wall Street
New York, NY 10005
BY: RANDALL NEWMAN, ESQ.

10
11
12
13

MUNGER ROLLES & OLSON
Attorneys for Defendants and
the Witness
355 South Grand Avenue
Los Angeles, CA 90071
BY: KELLY KLAUS, ESQ.

14
15
16
17
18
19
20

ALSO PRESENT:
ELLEN HOCHBERG, ESQ.,
Warner Music Group

21
22

ALI TOUMADJ, Summer Associate,
Wolf Haldenstein Adler & Herz

23

MANUEL GARCIA, Videographer

24
25
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the application for the copyright E51988?

2

A.

I do.

3

Q.

Do you recognize this as the

4

application for 51988?

5

A.

Yes.

6

Q.

Okay.

Do you need to see the

7

certificate as well?

8

MR. KLAUS:

9
10

I think your

question was about the renewal.
Q.

Well, hold on a second.

When I

11

asked you the question about the renewal

12

you said you needed to see the certificate.

13

When I asked you which certificate you

14

needed, you said both, both 306185 and

15

51988.

16

asked you about who you obtained

17

information from, and what you knew, do you

18

want me to show you the applications, the

19

renewals, the certificates, what would you

20

like to see?

21

you might need.

22
23
24
25

A.

To answer the question that I had

I've got all the documents

I did want to see the renewal

that you were referring to.
(Marcotullio Exhibit 3,
WC341-343, marked for identification.)
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Q.

Mr. Marcotullio, the court

2

reporter has placed in front of you for

3

identification a three-page document

4

bearing the production number WC 341

5

through 343.

6

copy of an application for registration of

7

a claim to renew a copyright for R306185?

Do you recognize this as a

8

A.

I do.

9

Q.

Is there anything else you need

10

to look at in order to be able to answer

11

the question that I had asked you before?

12
13

MR. KLAUS:

What was the

question?

14

MR. RIFKIN:

We're going to have

15

to go back and read the question.

16

Q.

So the question that I asked you

17

that you were unable to answer is, did you

18

obtain information about the renewal

19

copyright R306185 from Mr. Blietz, and you

20

asked to see all these documents in order

21

to answer that question.

22

helped you answer that question?

23

So have they

So just so we're clear, the

24

question is, did you receive any

25

information from Mr. Blietz about the
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1

application or the renewal copyright

2

R306185?

3

A.

Yes, with respect to the renewal,

4

my understanding is that this is one of the

5

documents we received as part of our

6

request for information from the Copyright

7

Office.

8

Q.

9
10

What information did you receive

from Mr. Blietz about R306185?
A.

Just what I mentioned, was that

11

it was part of the documents that we

12

received.

13

Q.

So he told you that you received

14

this when you requested documents in

15

December of 2013, correct?

16

A.

That's my understanding.

17

Q.

Did he tell you anything else

18
19
20
21

about the renewal copyright R306185?
A.

I'm not sure.

Other than that,

that was the scope of our discussion.
Q.

How much time did you spend

22

discussing all of your investigation with

23

Mr. Blietz during of the course of your

24

investigation?

25

A.

Probably 45 minutes to an hour,
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if not more.

2

Q.

Did you receive any information

3

from Mr. Blietz about the copyright renewal

4

R306186?

5

A.

Again, similarly with 306185,

6

just that it was received in connection

7

with the request from the Copyright Office

8

in that no other individuals I think had

9

any information with respect to it.

10

Q.

Are you the person most

11

knowledgeable about assignments to

12

Warner/Chappell of the copyrights relating

13

to Happy Birthday To You?

14

MR. KLAUS:

15

You can answer.

16

A.

Object to the form.

Again, I believe I've conducted a

17

thorough investigation of the information

18

provided.

19

Q.

Before you began your

20

investigation, what if anything did you

21

know about assignments of copyrights

22

relating to Happy Birthday To You to

23

Warner/Chappell?

24

A.

Just a passing knowledge.

25

Q.

Okay.

Are you the person most

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A.

I can tell you what I do know,

2

and I can read this card and what it states

3

on the face of the card in connection with

4

the request for stating exactly what new

5

matter copyright is claimed, see Section 6

6

of act of 1909, and it's arrangement for

7

unison chorus and revised text.

8

Q.

Okay, was Mrs. Forman an employee

9

for hire of the Clayton F. Summy Company

10

when she wrote the arrangement for unison

11

chorus and revised text that is the subject

12

matter of this copyright application?

13

MR. KLAUS:

14

of the question.

15

A.

Object to the form
You can answer.

I don't have particular knowledge

16

with the relationship at the time that this

17

was done.

18

that can give us the specific information.

19

Q.

I don't think anybody is alive

Well, did your review of the

20

records disclose for you whether

21

Mrs. Forman was an employee for hire of the

22

Clayton F. Summy Company when she wrote the

23

arrangement for unison chorus and revised

24

text?

25

MR. KLAUS:

Object to the form

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of the question.

2

A.

You can answer.

I reviewed the registration

3

itself and I believe on the registration it

4

may identify that.

5

don't know if you have a copy that I can

6

just take a look at and confirm that.

7

I don't have a copy, I

(Marcotullio Exhibit 4,

8

WC385-387, marked for identification.)

9

Q.

Mr. Marcotullio, the court

10

reporter has placed before you a document

11

marked for identification as Marcotullio 4.

12

It's a copy of the registration for

13

copyright number E51988 bearing the

14

production numbers WC385 through 387.

15

you seen this before?

16

A.

Yes, I have.

17

Q.

Have

And on page two of Exhibit

18

Marcotullio 4, is there an indication that

19

Mrs. Forman is an employee for hire of

20

Clayton F. Summy Co.?

21

A.

Yes, there is a handwritten note.

22

Q.

Is this the record to which you

23

were just referring?

24

A.

Yes, it is.

25

Q.

So Warner/Chappell does not
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mentioned, I just looked at the face of the

2

documents.

3

Q.

Did you uncover any information

4

in the course of your investigation,

5

whether documents or information given to

6

you by someone else, that Mildred Hill and

7

Mrs. Forman collaborated to write the song

8

Happy Birthday To You?

9

A.

Again, it wasn't part of the

10

discussion that I had or a review of the

11

documents that I had.

12

what I've seen on the face of the

13

documentation.

14

I just can tell you

MR. RIFKIN:

Okay, we're going

15

to switch topics a little bit here, so

16

maybe now might be a good time for

17

another five minute break.

18

(Recess taken:

19

FURTHER EXAMINATION BY MR. RIFKIN:

20

Q.

11:39-11:53 a.m.)

Mr. Marcotullio, we've spoken now

21

about 51988 and also renewal 306185.

Let's

22

switch gears a little bit and let's talk

23

about 51990.

24

reporter mark for identification as the

25

next exhibit a document I'd like to ask you

So let's have the court

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1

about.

2

(Marcotullio Exhibit 9,

3

WC388-390, marked for identification.)

4

Q.

So after that little bit of

5

confusion, the court reporter has marked

6

for identification as Marcotullio 9 a copy

7

of the registration for copyright E51990

8

bearing the production number WC388 through

9

WC390.

Have you seen this document before?

10

A.

Yes, I have.

11

Q.

And do you recognize this as the

12

registration record for copyright E51990?

13

A.

Yes, it appears to be.

14

Q.

Do you know whether a copy of

15

this document existed in Warner/Chappell's

16

files before the request was made of the

17

Copyright Office in December of 2013 for

18

records?

19

MR. KLAUS:

20

You can answer.

21

A.

Object to the form.

I don't believe we discussed that

22

in particular but I do know that the copy

23

we had was from that request.

24
25

Q.

Okay.

And does this appear to be

the same as the copy you received from the
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Copyright Office?

2

A.

To my knowledge yes, based on

3

information I received.

4

December, 2013 request.

5

Q.

Yes.

That's the

Let me ask the court

6

reporter to mark the next document for

7

identification.

8

(Marcotullio Exhibit 10, WC831,

9

marked for identification.)

10

Mr. Marcotullio, for the record

11

Exhibit Marcotullio 10 is a one-page

12

document.

13

copyright registration for copyright E51990

14

bearing the production number WC831.

15

you seen this document before?

It is the certificate of

16

A.

Yes, I have.

17

Q.

Have

Do you recognize this as the

18

certificate of copyright registration for

19

copyright E51990?

20

A.

Yes, it appears to be, yes.

21

Q.

And again, is this a copy of the

22

record that Warner/Chappell received in

23

response to its request in December of

24

2013?

25

A.

My understanding is no, this was
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outside the scope.

2

testify to what your factual

3

investigation told you about the

4

search for documents in the case.

5

A.

Sure.

I believe you can

So as I mentioned, I spoke

6

with Jeremy Blietz and others at

7

Warner/Chappell.

8

believe we may have received this in

9

connection with our request from the

I understand, I think, I

10

Copyright Office.

11

conducted an extensive investigation of

12

their records, including microfiche files

13

that they had, hard copy files that were

14

retained by Warner/Chappell, and other

15

digital files that they had already copied

16

and pdf'd into a digital file.

17

went through a fairly extensive review of

18

those materials including with respect to

19

the copyrights, the Hills, Summy-Birchard

20

and otherwise, in addition as I mentioned

21

earlier the requests to the Copyright

22

Office.

23

Q.

Okay.

In any case they

So they

And as a result of all

24

that you were told, or you learned that you

25

do not have a copy of the deposit copy
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1

either, correct?

2

MR. KLAUS:

3

You can answer.

4

A.

5

My understanding is they could

not find a copy of it either.

6
7

Object to the form.

Q.

Okay.

Were you told what that

work was?

8

A.

What work was?

9

Q.

What the deposited work was.

10

MR. KLAUS:

11

You can answer.

12

A.

Object to the form.

I think we believe that the work

13

was the Happy Birthday To You, I think you

14

called it the familiar Happy Birthday To

15

You.

16
17
18

Q.

Well, why do you think -- what is

your basis for thinking that?
A.

Sure, so obviously we know from

19

both this letter and the record that there

20

were deposit copies received.

21

the registration that those were I think on

22

December 9th they were received.

23

that on the same day they registered --

24

they applied for and registered for the

25

51988, which as I mentioned earlier is

We know from

We know

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substantially similar and that does have

2

the deposit copy with it, you know,

3

Warner/Chappell has been licensing --

4

Warner/Chappell and its predecessors Summy

5

and otherwise have been licensing the works

6

for many, many years and there has never

7

been an objection about what this applied

8

to, the music, what Happy Birthday To You,

9

what the lyrics and music were, and we've

10

seen sheet music provided in terms of, you

11

know, sheet music that's been sold and

12

licensed that clearly indicates what Happy

13

Birthday To You refers to.

14
15

Q.

Well, there's two things you said

that I want to follow up on.

16

A.

Sure.

17

Q.

You said there's never been an

18

objection to what the scope of 51990 is?

19

MR. KLAUS:

20

said.

21

Q.

That's not what he

Well, what did you say -- what

22

did you mean to say when you said there has

23

never been an objection?

24

what?

25

A.

An objection to

I think when people ask for a
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the record.

2
3

MR. KLAUS:

Then let's keep

going.

4

MR. RIFKIN:

That's okay, I'm

5

just trying to speed things up.

6

just seems to me that we're wasting

7

valuable time.

8

Q.

9

It

But so be it.

Alright, and so is it also

correct that you did not learn anything

10

about whether E51990 was still in effect in

11

the course of your investigation?

12

MR. KLAUS:

13

You can answer.

14

A.

15

particular.

16

Sure.

Same objections.

We didn't discuss that in

(Marcotullio Exhibit 21,

17

WC344-346, marked for identification.)

18

Q.

For the record, Mr. Marcotullio,

19

Exhibit 21 is a multi-page document

20

beginning with WC344 and ending WC346.

21

is a copy of the application for

22

registration of a claim to renewal

23

copyright for copyright number R306186.

24

Have you seen this before?

25

A.

It

Yes, I have seen a copy of this,
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1

yes.

2

Q.

As part of your investigation?

3

A.

Correct.

4

Q.

And do you recall discussing this

5
6

with anyone as part of your investigation?
A.

Yes, I discussed it with, again,

7

Jeremy Blietz and Nathan Osher in

8

connection with their collection of

9

information.

10

Q.

11
12

And what did you and Mr. Blietz

discuss about this?
A.

That he requested information

13

from the Copyright Office in December of

14

2013 and this was one of the documents he

15

received.

16

Q.

Did he tell you anything else

17

about this exhibit other than that he

18

requested it from the Copyright Office and

19

received it from the Copyright Office?

20

A.

Other than -- we don't have any

21

documents or information other than what

22

was provided by the Copyright Office.

23
24
25

Q.

Okay.

And what did Mr. Osher

tell you about this copyright application?
A.

Nothing else.
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A C K N O W L E D G M E N T

2
3

STATE OF NEW YORK

4
5

)
: ss

COUNTY OF

)

6
7

I, THOMAS B. MARCOTULLIO, hereby

8

certify that I have read the transcript of

9

my testimony taken under oath in my

10

deposition of June 3, 2014; that the

11

transcript is a true, complete and correct

12

record of my testimony, and that the

13

answers on the record as given by me are

14

true and correct.

15
16

__________________________

17

THOMAS B. MARCOTULLIO

18
19

Signed and subscribed to before

20

me, this

day

21

of

, 2014.

22
23
24

________________________

25

Notary Public, State of New York
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C E R T I F I C A T E

2
3

STATE OF NEW YORK

4
5

)
) ss.:

COUNTY OF NEW YORK

)

6
7

I, DAVID HENRY, a Notary Public within

8

and for the State of New York, do hereby

9

certify:

10

That THOMAS B. MARCOTULLIO, the

11

witness whose deposition is hereinbefore

12

set forth, was duly sworn by me and that

13

such deposition is a true record of the

14

testimony given by such witness.

15

I further certify that I am not

16

related to any of the parties to this

17

action by blood or marriage; and that I am

18

in no way interested in the outcome of this

19

matter.

20

IN WITNESS WHEREOF, I have hereunto

21

set my hand this 13th day of June, 2014.

22
23
24

-------------------------

25

DAVID HENRY
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E R R A T A

2

PAGE

LINE

EMENDATION

3

_____ _____ _______________________________

4

_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

15

_____ _____ _______________________________

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_____ _____ _______________________________

17
18

____________________

19

Signature of Deponent

20

SUBSCRIBED AND SWORN BEFORE ME

21

THIS _____ DAY OF ____________, 2014.

22
23

_______________________________

24

(Notary Public)

25

MY COMMISSION EXPIRES: ____________
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1

INDEX OF EXHIBITS

2
3

Marcotullio Exhibit 1, Amended

8

4

Notice of Deposition

5

Marcotullio Exhibit 2, P3290-91

40

6

Marcotullio Exhibit 3, WC341-343

41

7

Marcotullio Exhibit 4, WC385-387

74

8

Marcotullio Exhibit 5, WC413-414

76

9

Marcotullio Exhibit 6, WC1365-66

120

10

Marcotullio Exhibit 7, WC952

127

11

Marcotullio Exhibit 8, WC953-954

129

12

Marcotullio Exhibit 9, WC388-390

135

13

Marcotullio Exhibit 10, WC831

136

14

Marcotullio Exhibit 11, WC132

138

15

Marcotullio Exhibit 12, WC405

142

16

Marcotullio Exhibit 13,

155

17

WC977-979

18

Marcotullio Exhibit 14, Record

19

of the Filing of Copyright

20

Deposits Under the At of March

21

4, 1909

22

Marcotullio Exhibit 15, Record

23

of the Filing of Copyright

24

Deposits Under the At of March

25

4, 1909

159

160

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Marcotullio Exhibit 16,

2

P113771-782

3

Marcotullio Exhibit 17,

4

WC443-444

5

Marcotullio Exhibit 18, P5030

198

6

Marcotullio Exhibit 19,

199

7

P2756-2797

8

Marcotullio Exhibit 20,

9

WC1639-1646

162

166

230

10

Marcotullio Exhibit 21,

243

11

WC344-346

12

Marcotullio Exhibit 22,

13

WC141-142

14

Marcotullio Exhibit 23, P5029

246

15

Marcotullio Exhibit 24,

246

16

P122219-237

17

Marcotullio Exhibit 25,

18

WC1482-1497

19

Marcotullio Exhibit 26,

20

P2647-2661

21

Marcotullio Exhibit 27,

22

WC362-374

23

Marcotullio Exhibit 28,

24

WC1446-1449

245

252

253

256

264

25
TSG Reporting - Worldwide - 877-702-9580

Ex. 107



CONFIDENTIAL
Page 316

1

Marcotullio Exhibit 29,

2

WC1453-1455

3

Marcotullio Exhibit 30,

4

P6041-6049

5

Marcotullio Exhibit 31,

6

P6050-6058

7

Marcotullio Exhibit 32,

8

P6034-6040

9

Marcotullio Exhibit 33,

267

269

270

272

277

10

WC1411-1412

11

Marcotullio Exhibit 34, WC1409

283

12

Marcotullio Exhibit 35, WC1416

285

13

Marcotullio Exhibit 36,

287

14

WC1422-1423

15

Marcotullio Exhibit 37, WC1244

289

16

Marcotullio Exhibit 38,

291

17

WC963-973

18

Marcotullio Exhibit 39,

19

WC957-962

20

Marcotullio Exhibit 40,

21

WC106-107

22

Marcotullio Exhibit 41,

23

WC760-827

293

295

302

24
25
TSG Reporting - Worldwide - 877-702-9580

Ex. 107