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
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17
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21
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23
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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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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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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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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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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
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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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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
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