Rupa Marya v. Warner Chappell Music Inc

Filing 193

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 7, EXS. 108-116, PAGES 1541-1750) 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 7, Exs. 108-110), # 2 Appendix (Volume 7, Ex. 111), # 3 Appendix (Volume 7, Exs. 112-116A), # 4 Appendix olume 7, Exs. 116A-116B))(Manifold, Betsy)

EXHIBIT 108

Ex. 108
___
1541

1 GLENN D. POMERANTZ (State Bar No. 112503)
gl(!nn.pomerantz@'mto.com
2 KELLY M. KLAUS (State Bar No. 161091)
kelly.klaus@,mto.com
3 MELINDA£. LeMOINE (State Bar No. 235670)
melinda.lemoine@,mto.com
4 ADAM 1. KAPLAN (State Bar No. 268182)
adam.kl!lllan@,mto.com
5 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
6 Thirty-Fifth Floor
Los Angeles, California 90071-1560
7 Telephone: [phone]
Facsimile: [phone]
8
Attorneys for Defendants
9 Warner/Chap-pell Music, Inc. and
Summy-Bircliard, Inc.
10
11

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

12

13 GOOD MORNING TO YOU
PRODUCTIONS CORP.; et aI.,
14
Plaintiffs,
15

v.

16

WARNER/CHAPPELL MUSIC, INC.,
17 et aI.,

Lead Case No. CV 13-04460-GHK
(MRWx)
DECLARATION OF THOMAS B.
MARCOTULLIO IN SUPPORT OF
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT

19

Hearing
Date:
Time:
Judge:

20

Courtroom:

18

Defendants.

January 26,2015
9:30 a.m.
Hon. George H. King,
Chief Judge
650

21
22
23
24
25
26
27
28

Ex. 108
____
1542
MARCOTULLIO DECL. ISO MOT.
FOR SUMMARY JUDGMENT
CASE NO. CV I 3.()4460·GHK(MRWx)

1 I, THOMAS B. MARCOTULLIO, hereby declare:
2

L

I am currently the Vice President and Senior Counsel, Mergers and

3 Acquisitions, Corporate Governance & Securities at Warner Music Group
4 ("WMG")_ In connection with my job responsibilities, I am familiar with the nature
5 and scope ofthe business, including but not limited to the copyrights, business
6 records, and business relationships, of Warner/Chappell Music, Inc., which is an
7 affiliate entity ofWMG, and of Summy-Birchard, Inc., which is a wholly-owned
8 subsidiary of Warner/Chappell Music, Inc. For the sake of convenience, I will refer
9 to Warner/Chappell Music, Inc. and Summy-Birchard, Inc., collectively, as
10 "Warner/Chappel!." Except as noted below, I have personal knowledge of the
II following facts and/or possession, custody and/or control of the business records of

12 Warner/Chappell relevant thereto and, if called as a witness, could and would
13 competently testify thereto.
14

2.

Warner/Chappell is the owner of copyright registration certificates

15 E51990 and E51988. I recognize the documents bearing Bates numbers
16 WC0000388-WC0000390 and WC0000385-WC0000387 as true and correct copies
17 of these registration certificates.
18

3.

Copyright registration certificates E51990 and E51988 were issued on

19 December 9, 1935. Copyright was renewed on December 9, 1962, as R306186 and
20 R306185, respectively. I recognize the documents bearing Bates numbers
21 WCOOOO 103-WCOOOO 104 and WC0000953-WC0000954 as true and correct copies
22 of these renewal certificates.
23

4.

I recognize the document bearing Bates numbers WC0002081-

24 WC0002090 as a true and correct copy of an agreement between Clayton F. Summy
25 and John F. Sengstack, dated August 7, 1931, that reflects the August 1931
26 reorganization of Clayton F. Summy Co. (Illinois) and sale of assets to Clayton F.
Ex. 108
____

27 Summy Co. (Delaware)).
28

1543

-1-

MARCOTULLIO OECL ISO
MOT. FOR SUMMARY JUDGMENT
CASE NO. CV 13-04460-GHK (MRWx)

1

5.

I recognize the document bearing Bates numbers WC0002091-

2 WC0002093 as a true and correct copy of the minutes of a September 29, 1931,
3 meeting of the Board of Directors ofC.F.S. Musical Co. that reflects the August
4 1931 change of name from Clayton F. Summy Co. (Illinois) to C.F.S. Musical Co.
5 (Illinois), and the sale of assets to Clayton F. Summy Co. (Delaware).
6

6.

I recognize the document bearing Bates numbers WCOOO 1998-

7 WC0002075 as a true and correct copy of a declaration of David K. Sengstack,
8 which is dated January 20, 1981, and was recorded in the Copyright Office, that
9 attaches business records and/or public records that reflect the following: (a) the

10 1956 change of name of Clayton F. Summy Co. (Delaware) to Summy Publishing
11 Co. (Delaware); (b) the 1957 name change of Summy Publishing Co. (Delaware) to
12 Summy-Birchard Publishing Co. (Delaware), Ex. 7 at WC0002003-05; (c) the 1961
13 name change of Summy-Birchard Publishing Co. (Delaware) to Summy-Birchard
14 Co. (Delaware), id. at WC0002006-08; (d) the 1973 merger of Summy-Birchard Co.
15 (Delaware) with Educational Music Bureau, an Illinois corporation, and the
16 resulting surviving company named Summy-Birchard Co., an Illinois corporation,

17 id. at WC0002033-48, WC0002062-75; (e) the 1976 merger of Summy-Birchard
18 Co. (Illinois) with New Summy-Birchard Co., a Wyoming corporation, with the
19 surviving corporation being Summy-Birchard Co. (Wyoming), id. at WC000201820 32, WC0002049-61; (f) the 1978 name change of Summy-Birchard Co. (Wyoming)
21 to Sumco Corp. (Wyoming), id. at WC0002015-17; (g) the May 1979 name change
22 of Sumco Corp. (Wyoming) to Summy-Birchard Co. (Wyoming), id. at
23 WC0002013-14; (g) the July 1979 name change of Summy-Birchard Co.
24 (Wyoming) to The Birch Tree Group Ltd. (Wyoming), at WC0002011-12; and
25 (h) the September 1979 name change of The Birch Tree Group Ltd. (Wyoming) to
26 Birch Tree Group Ltd. (Wyoming), id. at WC0002009-1 O.
Ex. 108
____

27
28

1544

-2-

MARCOTULLIO DECL ISO
MOT. FOR SUMMARY JUDGMENT
CASE NO. CV 13-04460-GHK (MRWx)

1

7.

I am informed and believe that the document bearing Bates numbers

2 WCOOOI998-WC0002075 consists of copies made from microfiche and, according
3 to the Copyright Office, these copies are the best available copies.

4

8.

I recognize the document bearing Bates numbers WC0000760-

5 WC0000827 as a true and correct copy of the stock purchase agreement between
6 Warner/Chappell Music, Inc. and David K. Sengstack, dated December 1, 1988,
7 regarding the sale of all the capital stock of Birch Tree Group Ltd. (Wyoming).
8

9.

I recognize the document bearing Bates numbers WCOOOI995-

9 WCOOO 1997 as a true and correct copy of a Certificate of Amendment from the
10 Secretary of State of Wyoming, dated December 27, 1988, which reflects the name
11 change of Birch Tree Group Ltd. (Wyoming) to Summy-Birchard, Inc. (Wyoming).
12

10.

I recognize the document bearing Bates numbers WC0002094-

13 WC0002097 as a true and correct copy of the stock certificate that David K.
14 Sengstack transferred to Warner/Chappell Music, Inc. on January 3, 1989.
15

11 .

Summy-Birchard, Inc., a Wyoming corporation, is the defendant in this

16 lawsuit and is a wholly owned subsidiary of defendant Warner/Chappell Music, Inc.
17
18

I declare under penalty of peIjury under the laws of the United States that the

19 foregoing is true and correct. Executed

this ;7~day of November 2014, at New

20 York, New York.
21
22
23

~\~~~s:::::=:>-:-~mas B. Marcotulho

24
25
26
Ex. 108
____

27
28

1545

-3-

MARCOTULLIO DECL ISO
MOT. FOR SUMMARY JUDGMENT
CASE NO. CY 13·04460·GHK (MRWx)

(;+,%,7 

([ 
BBB
1546

Page 1
1
2
3

UNITED STATES DISTRICT COURT CENTRAL
DISTRICT OF CALIFORNIA
WESTERN DIVISION

4
5

6

7

8

9

10

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

)
)
)
Plaintiffs,
)
)
VS.
)
)
WARNER/CHAPPELL MUSIC INC., )
et al.,
)
)
Defendants.
)
_____________________________)

Lead Case Number
CV 13 04460 GHK
(MRWx)

11
12
13
14
15
16

DEPOSITION OF JEREMY BLIETZ
Los Angeles, California
Thursday, July 10, 2014

17
18
19
20
21
22
23
24
25

Job No: 81817
Reported by: NIKKI ROY
CSR No. 3052
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1

Deposition of JEREMY BLIETZ, taken on behalf of

2

the Plaintiffs, at 355 South Grand Avenue,

3

35th Floor, Los Angeles, California, on Thursday,

4

July 10, 2014 at 10:36 a.m., before NIKKI ROY,

5

CSR No. 3052.

6
7
8

APPEARANCES OF COUNSEL:

9
10

FOR THE PLAINTIFFS:

11

WOLF HALDENSTEIN ADLER FREEMAN & HERZ
BY:

12

BETSY C. MANIFOLD, Attorney at Law

Symphony Towers
750 B Street

13

San Diego, California 92101

14
15

DONAHUE FITZGERALD ATTORNEYS
BY:

16

DANIEL SCHACHT, Attorney at Law

1999 Harrison Street
Oakland, California 94612

17
18
19
20
21
22
23
24
25

///
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1

APPEARANCES OF COUNSEL (CONTINUED):

2
3
4

FOR THE DEFENDANTS:
MUNGER TOLLES & OLSON
BY:

5

MELINDA EADES LeMOINE, Attorney at Law

355 South Grand Avenue
Los Angeles, California 90071

6
7
8

MUNGER TOLLES & OLSON
BY:

9

ADAM KAPLAN, Attorney at Law

560 Mission Street
San Francisco, California 94105

10
11
12
13
14

ALSO PRESENT:
NATHAN OSHER
Vice President Legal & Business Affairs

15

Warner/Chappell Music, Inc.

16
17
18
19
20
21
22
23
24
25

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Page 4
1

I N D E X

2
3

WITNESS

4

JEREMY BLIETZ

EXAMINATION

PAGE

5

MS. MANIFOLD

6, 111, 160

6

MS. LeMOINE

157

7
8

E X H I B I T S

9
10

NUMBER

11

Exhibit

DESCRIPTION
42

PAGE

Plaintiffs' Second Amended

8

Notice Continuing the Taking of
12

Deposition of Jeremy Blietz
Pursuant to Fed. R. Civ. P.

13
14

30(b)(1)
Exhibit

43

Color photocopy of Application

89

for Copyright
15

Exhibit
16

44

Letter from William

137

Lichtenwanger to Robert Olsen,
January 23, 1961

17
18
19

(Exhibits previously marked for identification:
Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6,

20

Exhibit 7, Exhibit 9, Exhibit 10, Exhibit 12,
Exhibit 13, Exhibit 17, Exhibit 19, Exhibit 21,

21

Exhibit 39, Exhibit 40, and Exhibit 41)

22
23
24
25

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I N D E X (CONTINUED):

2
3

QUESTIONS INSTRUCTED NOT TO ANSWER

4

Page

Line

5

86

18

6
7
8
9

INFORMATION REQUESTED
None

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

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1

(The record was read as follows:

2

Q

3

recollection

4

a specific one.

5

general recollection of sending a song

6

question over to legal on Happy

7

Birthday to You?)

8

MS. LeMOINE:

9

Do you have any general
I know you don't have
Do you have any

You can answer to the extent

you don't reveal any communication.

10

THE WITNESS:

11

(The document referred to was marked

12

by the CSR as Deposition Exhibit 43

13

for identification and attached to the

14

deposition transcript hereto.)

15
16

No, I don't.

BY MS. MANIFOLD:
Q.

Okay.

I placed in front of the witness

17

excuse me

18

Plaintiffs' Exhibit 43 for identification.

19

same document as Plaintiffs' Exhibit 2 for

20

identification.

21

legible copy.

22

an exhibit that's been marked as
It is the

It's just what I think is a more

Plaintiffs' 2 for identification was used in

23

the Marcotullio's deposition, and we've decided to

24

mark a clearer version so you can look at the

25

document.
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Page 90
1

Do you know what this is?

2

A.

Yes.

3

Q.

And for which copyright?

4

A.

Well, I can read the document.

5
6

It's an application for copyright.

It says here

Happy Birthday to You unison song.
Q.

And to the best of your knowledge, in

7

looking at this document, does this refer to

8

copyright number 51988?

9

MS. LeMOINE:

Objection; lacks foundation.

10

You can answer if you can.

11

THE WITNESS:

Well, that is the number that

12

does appear here on the document.

13

BY MS. MANIFOLD:

14

Q.

In the archives at Warner/Chappell, would

15

you have this type of information, pictures of a card

16

catalog?

17

A.

No.

We wouldn't have pictures of a card

18

catalog.

19

are in the files.

20
21
22

23

Q.

We may have copies of registrations if they

Okay.

All that work to get a nice copy, but

at least you had a nice copy to look at.
A.

Yeah.

MS. MANIFOLD:

I'm placing in front of the

24

witness a document that's been previously marked as

25

Plaintiffs' Exhibit 4 for identification, and this is
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1

entitled Copy of Registration E51988.

2

me

It's

excuse

Bates stamped WC 385 to 387.

3

Q.

Do you recognize this document?

4

A.

I recognize that this was a document that I

5

received from the copyright office on a search

6

request.

7
8

Q.

And did you make that search request in or

about December of 2013?

9

A.

Yes, that is correct.

10

Q.

And did the archives at Warner/Chappell not

11

have a copy of this registration prior to December of

12

2013?

13
14

MS. LeMOINE:

As of the time he made the request or at any
time?

17
18

It's

overbroad and vague.

15
16

Objection; it's broad

MS. MANIFOLD:

At the time he made the

request.

19

THE WITNESS:

I can't say as to whether we

20

had this specific document.

21

different than most typical copyright searches.

22

couldn't say we had it on file.

23

BY MS. MANIFOLD:

24
25

Q.

The look of this looks
So I

And what is this a copyright registration

for?
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1
2

MS. LeMOINE:

Objection to the extent it

calls for a legal conclusion.

Objection to form.

3

You can answer if you can.

4

THE WITNESS:

I mean, all I can say is I

5

could read this to you, but it looks fairly different

6

from how registrations look today, so I couldn't

7

testify as to the intent here.

8

that appears on the previous picture, but I can't

9

can't speak to the content here.

10
11

I see the same number

BY MS. MANIFOLD:
Q.

Okay.

I notice in the upper right hand

12

corner of Bates stamped 386 of Plaintiffs' Exhibit 4

13

for identification, there's a number 27970.

14

know what that number means?

15

A.

I do not.

16

Q.

Okay.

Do you

17

And it says on this registration,

copy of registration for E51988, it says (reading):

18

Published musical composition by

19

Mildred J. Hill.

20

Do you see that?

21

A.

Yes, I do.

22

Q.

Do you have an understanding of what that

23

means on the registration?

24
25

MS. LeMOINE:
answered.

Objection; that's asked and

That's asked and answered.
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1

the record while you get a chance to look at.

2

don't want to hurry.

3

I

And it's Plaintiffs' Exhibit 5 for

4

identification.

5

It's entitled Happy Birthday to You unison song,

6

Mildred J. Hill's name appears in caps to the right,

7

arranged by Mrs. RR Forman is on the left, and the

8

front of it is School Choral

9

It's Bates stamped WC 413, 414.

Chorus Music.

And I note in pencil in the front cover it

10

says M1998.

11

to as the lead sheet for E51988?

12

MS. LeMOINE:

13

And, again, is this what you would refer

Objection; it calls for

speculation, but you can answer if you can.

14

THE WITNESS:

Yeah.

As I review it here and

15

I see that number printed on the cover, and the

16

contents appear to match with the record that we

17

reviewed.

18

BY MS. MANIFOLD:

19
20

Q.

Do you have an understanding of what a

deposit copy is?

21

A.

Yes, I do.

22

Q.

And what's a deposit copy?

23

A.

A deposit copy is something that we file

24

with the copyright office as support for our

25

copyright certificate and could be a lead sheet,
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1

could be a recording.

2

item can vary.

3

Q.

Speaking in general terms, the

And do you know whether this Plaintiffs'

4

Exhibit 5 for identification is the deposit copy for

5

E51988?

6

A.

I know that when I inquired to the copyright

7

office as to receive copies of the deposit copies,

8

they informed me that they had separated the lead

9

sheets or the backup copies from the certificates and

10

that I would need to contact their music division.

11

So we did receive this lead sheet with cover from

12

that music division, and I can see the numbers there,

13

but I can't tell you definitively because they have

14

separated the documents.

15
16

Q.

So you have no reason to doubt that

this is the deposit copy for E51988; is that correct?

17
18

Okay.

MS. LeMOINE:

As he sits here today, you're

asking him that question?

19

MS. MANIFOLD:

20

MS. LeMOINE:

As someone reading the

THE WITNESS:

As I sit here today and review

21

Yeah.

document.

22
23

it, I think that it is the deposit copy as I read it

24

here.

25

BY MS. MANIFOLD:
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1

Q.

As I understand your testimony

and

2

correct me if I'm misstating it

3

to the US Copyright Office to get both the copy of

4

registration for E51988; is that correct?

you made a request

5

A.

Yes, that is correct.

6

Q.

And then you made a separate request, since

7

the deposit copy had been separated from the

8

registration, to get the sheet music; is that

9

correct?

10

A.

Yes.

11

Q.

And this is, to the best of your knowledge,

12

a copy of that deposit copy that you received from

13

the US copy department, is that correct, referring to

14

Plaintiffs' Exhibit 5 for identification?

15

A.

To the best of my knowledge, yes.

16

Q.

And looking at Bates stamp WC 414 of

17

Plaintiffs' Exhibit 5 for identification, it says on

18

the left ARR.

19

arranged?

Can we agree that that stands for

20

A.

I think that is the common term used, yes.

21

Q.

Arranged by Mrs. RR Forman.

Do you have an

22

understanding of what that means with regard to this

23

lead sheet?

24
25

A.

I would be speculating because I haven't

reviewed the music itself to know what that

what
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1

that is, but it appears that this is a lead sheet of

2

an arrangement by this individual.

3

Q.

And you notice all the way over to the

4

right, it's in all caps, it says Mildred J. Hill.

5

you have an understanding of what that means to have

6

her name all the way over to the right?

7

A.

Do

From the placement of the name on the lead

8

sheet, I would say that they are one of the creators

9

of the work.

10

Lead sheets are often though limited in

11

names and so

12

front of it clarifying what that individual

13

contributed, all I can say is they're one of the

14

creators of the work based on this.

15
16

Q.

Okay.

and since it doesn't have anything in

I've placed

I haven't yet, but I

will.

17

I've placed in front of the witness a

18

document that's been previously marked as Plaintiffs'

19

Exhibit 7 for identification.

20

copyright registration.

It's a certificate of

21

And it's Bates stamped WC 952.

22

Have you seen this document before?

23

A.

Yes, I believe I have, yeah.

24

Q.

And what is it?

25

A.

This is a copyright registration
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1
2

A.

Could you be

could you rephrase the

question?

3

Q.

Well, in reviewing the documents in the

4

archives at Warner/Chappell in your database, when

5

you see the use of the word "arrangement," have you

6

ever understood it to include lyrics?

7

A.

I think because people use that term

8

differently, I think I've often received, in general,

9

songs where people call things arrangements and they

10

have changed lyrics, so it's pretty broad.

11

couldn't say specifically.

12
13

MS. MANIFOLD:

I

So I'm going to start on 5

can we go off the record for two seconds?

14

MS. LeMOINE:

15

(Off the record discussion.)

16

(At 1:21 P.M., the deposition of JEREMY BLIETZ was

17
18

Sure.

adjourned for luncheon recess.)
///

///

19
20
21
22
23
24
25

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LOS ANGELES, CALIFORNIA, THURSDAY, JULY 12, 2014

2

2:19 P.M.

3
4
5
6

EXAMINATION
BY MS. MANIFOLD:
Q.

7
8

Good afternoon.

Back on the record.

Did you discuss your testimony at all with
your counsel during the break?

9

A.

No.

10

Q.

I'm placing in front of the witness a

11

document that's been previously marked as Plaintiffs'

12

Exhibit 9 for identification.

13

registration E51990.

14
15

It's a copy of

It's Bates stamped WC 388, 389.

Can you identify this document?
A.

Yeah.

This is a copy of a copyright

16

registration that I received from the copyright

17

office in Washington.

18
19

Q.

And did you receive it on or about December

2013?

20

A.

That is correct.

21

Q.

And do you know whether there was a copy of

22

this registration in Warner/Chappell's archives

23

before you requested it?

24

A.

I do not.

25

Q.

Did you make a search of the records to see
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1

if there was a copy of it?

2

A.

I don't believe I did, no.

3

Q.

And did you also make a request for the

4

deposit copy of the lead sheet for registration

5

E51990?

6

A.

Yes, I did.

7

Q.

And what was the result of that request?

8

A.

Similar to as we discussed with the other

9

registration

I'm sorry, I can't recall the

10

number

11

separated from the registrations and that I would

12

need to speak with the separate department at the

13

copyright office to obtain anything they may have on

14

file.

15

Q.

I was told that the deposit copies had been

And did you speak with the separate

16

department at the copyright office in an attempt to

17

obtain a deposit copy for E51990?

18
19
20
21

A.

I did ask for copies of any lead sheets they

had on file, yes.
Q.

I apologize.

Were you done?

I didn't mean

to talk over you.

22

A.

No.

23

Q.

And what were you told by the US Copyright

24
25

Office with regards to lead sheets for E51990?
A.

I was provided with a few lead sheets, but
Ex. 109
TSG Reporting - Worldwide

877-702-9580

1562

Page 172
1

DECLARATION UNDER PENALTY OF PERJURY

2
3

I, JEREMY BLIETZ, do hereby certify under

4

penalty of perjury that I have read the foregoing

5

transcript of my deposition taken July 10, 2014; that

6

I have made such corrections as appear noted herein,

7

in ink, initialed by me; that my testimony as

8

contained herein, as corrected, is true and correct.

9
10
11

DATED this _______ day of ________________,
2014, at _____________________, California.

12
13
14
15
16
17
18
19
20
21

___________________________
JEREMY BLIETZ

22
23
24
25

Ex. 109
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877-702-9580

1563

Page 173
1

STATE OF CALIFORNIA

)
) ss.

2

COUNTY OF LOS ANGELES

)

3
4

I, NIKKI ROY, Certified Shorthand Reporter,

5

certificate number 3052, for the State of California,

6

hereby certify:

7

The foregoing proceedings were taken before me

8

at the time and place therein set forth, at which

9

time the deponent was placed under oath by me;

10

The testimony of the deponent and all objections

11

at the time of the examination were recorded

12

stenographically by me and were thereafter

13

transcribed;

14
15
16

The foregoing transcript is a true and correct
transcript of my shorthand notes so taken;
I further certify that I am neither counsel for

17

nor related to any party to said action nor in any

18

way interested in the outcome thereof.

19
20

In witness whereof I have hereunto subscribed my
name this 12th day of July, 2014.

21
22

________________________________
NIKKI ROY

23
24
25

Ex. 109
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877-702-9580

1564

Page 174
1

ERRATA SHEET FOR THE TRANSCRIPT OF:

2

Case Name:

3

Depo. Date:

4

Deponent:

5

Reason codes:

6

1. To clarify the record.

7

2. To conform to the facts.

8

3. To correct transcription errors.

Good Morning to All vs. Warner/Chappell
July 10, 2014
JEREMY BLIETZ

9
10

Pg. Ln.

Now Reads

Should Read

Reason

11
12

___ ___

___________

__________

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13

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14

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23

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24

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___ ___

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Ex. 109

TSG Reporting - Worldwide

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(;+,%,7 

([ 
BBB
1566

In The Matter Of:
GOOD MORNING TO YOU PRODUCTIONS CORP.
v.
WARNER/CHAPPELL MUSIC, INC.
___________________________________________________

SACHS, Ph.D., JOEL Ȭ Vol. 1
September 9, 2014

___________________________________________________

Ex. 110

1567

JOEL SACHS, Ph.D. - 9/9/2014
Page 1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
-----------------------------------x
GOOD MORNING TO YOU PRODUCTIONS
CORP.; et al.,

-against-

Plaintiffs,
Lead Case No.
CV 13-04460-GHK

WARNER/CHAPPELL MUSIC, INC.,
et al.,
Defendants.
-----------------------------------x
September 9, 2014
9:32 a.m.

Videotaped Deposition of JOEL SACHS, Ph.D.
taken by Defendants, pursuant to Notice, at the
offices of Paul, Weiss, Rifkind, Wharton &
Garrison, 1285 Avenue of the Americas, New
York, New York, before William Visconti, a
Shorthand Reporter and Notary Public within and
for the State of New York.

Ex. 110
Merrill Corporation
800-826-0277
www.deposition.com/southern-california.htm
1568

JOEL SACHS, Ph.D. - 9/9/2014
Page 2
1
2
3
4

A P P E A R A N C E S:
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
Attorneys for Plaintiff
270 Madison Avenue
New York, NY 10016
BY:

MARK C. RIFKIN, ESQ.
[e-mail]

5
6
7

MUNGER, TOLLES & OLSON LLP
Attorneys for Defendants
560 Mission Street
San Francisco, California 94105-2907

8

BY:
9
10

MELINDA LE MOINE, ESQ.
[e-mail]
ADAM I. KAPLAN, ESQ.
[e-mail]

11
12
13
14

ALSO PRESENT:
WILLIAM PACE, VIDEOGRAPHER

15
16
17
18
19
20
21
22
23
24
25

Ex. 110
Merrill Corporation
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1569

JOEL SACHS, Ph.D. - 9/9/2014
Page 3
1
2

E X H I B I T S
DESCRIPTION

3

(Sachs Exhibit 45 for

4

identification, Deposition Notice

5

for Professor Sachs.)

6

(Sachs Exhibit 46 for

7

identification, letter from

8

Mr. Rifkin to Professor Sachs.)

9

(Sachs Exhibit 47 for

PAGE

10

(Sachs Exhibit 48 for

13

identification, CV of Professor

14

Sachs dated November, 2012.)

15

(Sachs Exhibit 49 for

16

identification, Binder.)

17

(Sachs Exhibit 50 for

18

identification, document.)

19

(Sachs Exhibit 51 for

20

identification, document.)

21

(Sachs Exhibit 52 for

22

identification, document reflecting

23

Irving Berlin's Pretty Girl Is Like

24

45

Professor Sachs.)

12

43

identification, Expert report of

11

14

A Melody.)

45

74

110

140

142

25

Ex. 110
Merrill Corporation
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www.deposition.com/southern-california.htm
1570

JOEL SACHS, Ph.D. - 9/9/2014
Page 4
1

E X H I B I T S

2

DESCRIPTION

3

(Sachs Exhibit 53 for

4

identification, document.)

5

(Sachs Exhibit 54 for

6

identification, document.)

7

(Sachs Exhibit 55 for

8

identification, document.)

9

(Sachs Exhibit 56 for

10

(Sachs Exhibit 57 for

12

144

226

267

272

identification, document.)

11

PAGE

identification, document.)

275

13
14
15
16
17
18
19
20
21
22
23
24
25

Ex. 110
Merrill Corporation
800-826-0277
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1571

JOEL SACHS, Ph.D. - 9/9/2014
Page 5
1

IT IS HEREBY STIPULATED AND AGREED

2

by and between the attorneys for the

3

respective parties herein that filing and

4

sealing be and the same are hereby waived.

5

IT IS FURTHER STIPULATED AND AGREED

6

that all objections, except as to the form

7

of the question, shall be reserved to the

8

time of the trial.

9

IT IS FURTHER STIPULATED AND AGREED

10

that the within deposition may be signed

11

and sworn to before any officer authorized

12

to administer an oath with the same force and

13

effect as if signed and sworn to before the

14

Court.

15
16
17
18
19
20
21
22
23
24
25

Ex. 110
Merrill Corporation
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1572

JOEL SACHS, Ph.D. - 9/9/2014
Page 79
Do you have any evidence looking at

11:01:16

2

this that the other words are as you understand

11:01:16

3

them today?

11:01:18

1

Q.

4

A.

No, there is no way to know that.

11:01:21

5

I would say that the odds are that they are

11:01:23

6

because of the structure of the poem.

11:01:26

7

sing Happy Birthday To You, Happy Birthday To

11:01:31

8

You, Happy Birthday Dear So And So, Happy

11:01:34

9

Birthday To You.

11:01:36

10
11

Q.

You

This is not exactly a haiku.

Are you relying on anything other

11:01:37
11:01:37

than just these sentences --

12

A.

No.

11:01:39

13

Q.

-- for the principle that this was

11:01:41

14
15
16

11:01:43

widely known at this time?
A.

I'm relying only on the sentence

and the context of this entire bottom paragraph.

17

Q.

Do have any evidence that this

11:01:47
11:01:50
11:01:53

18

sentence means that it was widely known at the

11:01:53

19

time?

11:01:56

20

A.

No.

It's an inference and I

11:02:02

21

certainly acknowledge that.

I guess you might

11:02:04

22

say it's a kind of circumstantial evidence but

11:02:08

23

only a little type of circumstantial evidence.

11:02:12

24

But it is more an inference which we make all

25

the time as historians.

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JOEL SACHS, Ph.D. - 9/9/2014
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1

We see evidence and we try to

11:02:17
11:02:20

2

decide what it means.

3

things but sometimes it seems so clear what it

11:02:23

4

means that you sort of accept it.

11:02:26

5

don't have the absolute proof of it.

6

not alive in 1901 so we don't immediately know

11:02:32

7

that someone sang Happy Birthday.

11:02:35

8

certainly suggests very strongly that they did.

9

Q.

It could mean various

You know you
We are

But this

So the absence of the additional

11:02:30

11:02:37
11:02:41

10

lyrics suggests to you that the lyrics were

11:02:42

11

well known?

11:02:44

12

A.

That people knew the words.

11:02:55

13

Q.

You didn't survey materials other

11:02:57

14

than what Mr. Rifkin provided you to confirm

11:02:58

15

that belief?

11:03:01

16

A.

Frankly it probably would have taken

11:03:05

17

me a couple of years to locate the materials if

11:03:07

18

they even exist.

11:03:09

19
20

Q.

This could be unique.

That is not my question.

My

question is you did not?

11:03:10
11:03:12
11:03:12

21

A.

22

could do that.

11:03:19

23

Q.

11:03:24

I did not.

I did not feel that I

Do you know whether Clayton F.

24

Summy authorized the publication of Good

25

Morning To You lyrics in the Inland Educator

Ex. 110
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1574

JOEL SACHS, Ph.D. - 9/9/2014
Page 81
1

11:03:28

Journal here?

2

A.

I have no idea.

11:03:30

3

Q.

Do you have any idea whether

11:03:33

4

Clayton F. Summy knew that the lyrics were

11:03:34

5

reprinted in this book?

11:03:36

6
7

A.

10

There is no evidence

Q.

11:03:37
11:03:39

based on what I have.

8
9

I don't know.

How about the Hill sisters, do you

11:03:43

have any evidence that they knew this was

11:03:45

printed in the Inland Educator Journal?

11:03:47

11

A.

There is no evidence.

Since they

11:03:51

12

were both educators and apparently very dedicated

11:03:54

13

educators, I think there is a reasonable possibility

11:03:54

14

that they read this journal.

11:03:56

15
16

Q.

But you don't have any evidence of

11:03:56
11:03:57

that?

17

A.

I don't have any evidence of that.

11:04:01

18

Q.

Do you have any evidence that they

11:04:04

19

authorized the reprinting of the lyrics in this

11:04:04

20

journal?

11:04:05

21

A.

Neither that they did or they

22

didn't.

23

the Good Morning To You, why would they not

24

11:04:10

have wanted them also to print Happy Birthday

25

11:04:09

To You to be sure that people knew those words.

But if they authorized the reprint of

11:04:14

Ex. 110
Merrill Corporation
800-826-0277
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1575

JOEL SACHS, Ph.D. - 9/9/2014
Page 82
1

That was the question that I asked myself.

2
3

Q.

You don't know whether they

11:04:20
11:04:20
11:04:21

authorized --

4

A.

I don't, no.

11:04:23

5

Q.

Do you have a opinion either way as

11:04:25

6

to whether they authorized this printing of

11:04:26

7

Good Morning To You in this journal?

11:04:28

8
9

A.

I don't.

There is no way to form

an opinion based on what is here.

11:04:41
11:04:42

10

Q.

Look at paragraph 18.

11:04:43

11

A.

18 did you say?

11:04:52

12

Q.

Yes, sir.

11:04:54

Paragraph 18 some of

13

these questions are going to be the same but I

11:04:56

14

want to make sure that your testimony is the

11:04:56

15

same.

11:04:56

16

A.

Right.

11:04:59

17

Q.

This is with regard to material

11:05:02

18

called "Tell Me A True Story Tales Of Bible

11:05:04

19

Heros For The Children Of To-day" which

11:05:10

20

includes a birthday service.

11:05:14

21

here and that is at tab C; correct?

Again, we have

11:05:14

22

A.

That's right.

11:05:16

23

Q.

If we look at tab C?

11:05:18

24

A.

Page 250.

25

Q.

Page 250 the last line says "Sing

Ex. 110
Merrill Corporation
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1576

JOEL SACHS, Ph.D. - 9/9/2014
Page 83
1

Happy Birthday To You music same as Good-Bye To

11:05:34

2

You."

11:05:37

3

that "Because the author did not include the

11:05:39

4

printed words for Happy Birthday To You that

11:05:42

5

that indicates that the lyrics were well known

11:05:42

6

at that time."?

11:05:44

7

Correct?

A.

And you say in your report

Yes, I probably could have added

11:05:48

8

that it also didn't include the words to Good-Bye

11:05:50

9

To You which would indicate to me that both of

11:05:53

10

those texts were very well known at that time.

11:06:00

11

Q.

If you look at the prior page,

11:06:03

12

those are the lyrics to Good-Bye To You, aren't

11:06:04

13

they?

11:06:07

14

A.

Yes, sure.

11:06:10

15

Q.

Does the fact that those lyrics --

11:06:12

16

A.

I'm sorry, I didn't notice that, I

11:06:14

17

have to say that Good-Bye To You was already

11:06:14

18

printed.

11:06:16

19

Q.

Does the tact that Good-Bye To You

11:06:21

20

was printed indicate to you that the lyrics were

11:06:22

21

not well known at that time?

11:06:24

22

A.

Well since the song always says

23

Good Morning To You I suppose that the author

24

11:06:28

might have wanted to provide the words to

25

11:06:28

Good-Bye To You because maybe you couldn't

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JOEL SACHS, Ph.D. - 9/9/2014
Page 88
1
2
3

11:10:08

was?
A.

No, we don't unless we find a

11:10:10
11:10:18

written version of the text.
So when you say well known by that

11:10:20

5

time -- in paragraph 17 you said well known by

11:10:24

6

1901.

The absence of the lyrics here and just

11:10:27

7

the reference in Exhibit C led you to conclude

11:10:27

8

that the lyrics were well known by 1901;

11:10:30

9

correct?

11:10:30

10

A.

Yes.

11:10:40

11

Q.

Let's go through a few more of

11:10:44

4

Q.

Paragraph 18, did we cover that, we

11:10:48

When you say -- I'm at paragraph 18 for

11:10:51

12

these.

13

did.

14

Exhibit C.

11:10:53

15

A.

That is what we just did.

11:10:56

16

Q.

You say it indicates the lyrics

11:10:59

17

were well known by that time.

18

time mean there?

19

A.

What does that

11:11:00
11:11:05

Whenever this came out.

Is there

11:11:10
11:11:15

20

some kind of indication?

21

1909 by Revel & Company which means it was at

11:11:23

22

least by 1909.

11:11:25

23

Q.

11:11:27

24
25

That is copyright

Do you know whether in Exhibit C of

Exhibit 47 -A.

Exhibit C or D did you say?

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1578

JOEL SACHS, Ph.D. - 9/9/2014
Page 89
1
2

Q.

I said C.

I'm still at Tell Me A

11:11:32
11:11:32

True Story.

3

A.

Okay.

11:11:36

4

Q.

Do you have any knowledge of

11:11:39

5

whether the Clayton F. Summy Corporation

11:11:46

6

authorized the reprinting of Good-Bye To You?

11:11:47

7

A.

There is no evidence in this.

11:11:48

8

Q.

Do you have any evidence that the

11:11:51

9
10

Hill sisters authorized the reprinting of

11:11:53

Good-Bye To You?

11:11:54

11

A.

There is no evidence.

11:11:58

12

Q.

How about whether they knew that it

11:11:59

13

11:12:00

was reprinted in this book?

14

A.

There is no evidence.

11:12:02

15

Q.

That is true for both the Hill

11:12:04

16
17

sisters and the Summy Corporation; correct?
A.

Based on what we have in front of

11:12:06
11:12:19
11:12:25

18

us there is no evidence of any of that.

19

sorry to just continue that.

20

probability exists that as admired apparently

11:12:32

21

and busy educators that this is the kind of

11:12:36

22

volume that they probably would have seen and

11:12:40

23

they might have gotten very angry.

11:12:42

24

possible that they did authorize it.

25

Q.

However,

I think the same

So it is

11:12:29

Do you have any basis for that

Ex. 110
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1579

JOEL SACHS, Ph.D. - 9/9/2014
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1

11:12:47

statement?
No, it is just the inference

11:12:50

3

that it seems to be intended for teachers and

11:12:54

4

they were teachers and lots of teachers who are

11:12:57

5

very diligent would keep up on the journals

11:12:59

6

about teaching and try to be abreast of what is

11:13:01

7

going on.

11:13:01

8

saw it.

2

A.

9
10

No.

So I think it is possible that they

Q.

11:13:03

Do you have any evidence that they

11:13:03
11:13:04

saw it?

11

A.

No.

11:13:07

12

Q.

Are you opining today that they did

11:13:07

13

11:13:09

see it?

14

A.

I'm opining that they may have seen

11:13:12
11:13:13

15

it.

16

don't know.

17

It is the kind of thing that might have crossed

11:13:19

18

their vision.

11:13:21

I would not say they did see it because I
I think they might have seen it.

11:13:16

What are you relying on for that

11:13:22

20

statement other than the fact that they were

11:13:23

21

teachers?

11:13:24

19

22
23
24
25

Q.

A.

That is all and that this is

intended for teachers.
Q.

11:13:26
11:13:29

Did you read any biographies of the

Hill sisters in preparation of your report?

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JOEL SACHS, Ph.D. - 9/9/2014
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1

A.

No, I haven't.

11:13:38

2

Q.

Have you done any study of what the

11:13:40

3

Hill sisters did or how they prepared or what

11:13:41

4

kind of things they read at all?

11:13:43

5
6

A.

No, I only know the fact that they

were educators that had a very good reputation.

11:13:46
11:13:47

7

Q.

How do you know that?

11:13:51

8

A.

Marc probably informed me of that

11:13:54

9

11:13:57

and it seemed like a reasonable supposition

11:13:58

10

since he seemed to have done his research.

11

could have duplicated the research, but I think

11:14:00

12

the main point was that I knew they were

11:14:02

13

educators and that was the market.

11:14:04

14

Q.

I

The only fact that you're relying

11:14:06

15

on to conclude that they may have seen this is

11:14:06

16

something that you learned from Mr. Rifkin; is

11:14:11

17

that correct?

11:14:12

The only thing that led me to this

11:14:15

19

conclusion is that I knew they were educators.

11:14:17

20

That I did know.

11:14:20

21

didn't see any elaborate biography and didn't

11:14:22

22

after that.

11:14:27

23

composer and a writer pair who were educators.

18

A.

I looked them up.

But I

I just needed to know they were

24

And since I know many educators who

25

11:14:30

routinely read all the journals, it seems to me

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JOEL SACHS, Ph.D. - 9/9/2014
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1
2

possible that they did the same.
Q.

Because you know today that

11:14:37
11:14:40

3

educators read journals you're concluding that

11:14:42

4

it is possible that the Hill sisters read this

11:14:44

5

journal in the early 20th century?

11:14:46

6
7

A.

No, I know that educators in the

late 19th early 20th century also read journals.

11:14:52
11:14:52

8

Q.

How do you know that?

11:14:55

9

A.

From my research into Henry Cowell

11:14:56

10
11
12

and his mother.
Q.

But again, just to be clear, you

don't have any evidence, this is speculation?

11:14:57
11:14:59
11:15:07

13

A.

This is purely speculation.

11:15:19

14

Q.

Go to paragraph 19 which refers to

11:15:33

15

Exhibit D or tab D of Exhibit 47, correct?

11:15:36

16

This is an excerpt from something called

11:15:38

17

Program For Beginners' Department?

11:15:38

18

A.

Yes.

11:15:41

19

Q.

This does include the lyrics to

11:15:42

20

Happy Birthday as we understand them.

11:15:43

21

A.

That's right.

11:15:45

22

Q.

And you say that that leads you to

11:15:51

23

conclude that the words were widely known at

24

11:15:51

that time, correct?

25

A.

It leads me to conclude that they

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2

could be widely known at that time.
Q.

But I thought the absence of the

11:15:57
11:15:59

3

lyrics would lead you to conclude that they

11:16:05

4

were widely known at that time?

Here it is the

11:16:09

5

presence -- I'm trying to determine in previous

11:16:12

6

examples the absence of the lyrics led you to

11:16:14

7

conclude they were widely known?

11:16:15

8

A.

Yes.

11:16:17

9

Q.

Here the lyrics are included and

11:16:19

10

that leads you to conclude that they were

11:16:20

11

widely known?

11:16:24

12

A.

Well, in the sense that it seems

11:16:26

13

they are now being picked up by people and put

11:16:28

14

in their books, so in the context of what we

11:16:30

15

have gone through it strikes me that it is

11:16:32

16

becoming known to people who feel that they

11:16:43

17

want to include it for one reason or another.

11:16:45

18

Q.

But doesn't under the prior logic

11:16:48

19

of when we were talking about the words

11:16:50

20

Good-Bye To You having been included, that

11:16:53

21

indicated to you people did not know the

11:16:55

22

lyrics.

11:16:58

23

that these lyrics are included here indicate

24

that people did not know --

25

A.

So by that same logic doesn't the fact

11:16:59

I think that you're quite right

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that that was the question that you asked.

2

MS. LE MOINE:

I asked whether it

11:27:56
11:27:58

3

was authorized by Clayton F. Summy Co. and

11:27:59

4

Professor Sachs testified that he thought the

11:28:02

5

note 2 strongly suggested that it was.

11:28:05

6

MR. RIFKIN:

I would object to the

11:28:07

7

prior question because I don't think the prior

11:28:10

8

question referred to the song Happy Birthday To

11:28:17

9

You that appears on page 63 in Exhibit D to

11:28:19

10

Exhibit 47.

11:28:20

11

general.

12
13
14

I thought the reference was more

11:28:21

MS. LE MOINE:
Q.
clear.

Let's clarify.

Let me be clear then.

I want to be

I apologize if that was not clear.

11:28:23
11:28:25
11:28:27

15

What I'm trying to determine is

11:28:29

16

whether it is your testimony today that the

11:28:31

17

words "Happy Birthday To You, Happy Birthday To

11:28:34

18

You, Happy Birthday Dear John, Happy Birthday

11:28:36

19

To You," the printing of those in this book

11:28:38

20

Program For Beginners' Department was

11:28:41

21

authorized by the Clayton F. Summy Co. or

11:28:44

22

authorized by the Hill sisters?

11:28:47

23

A.

I would have to go back and say I

24

would only say that note 2 indicates that some

25

11:28:51

contact was made between the publisher of this

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and the Clayton F. Summy Company since, as Marc

11:28:59

2

pointed out, we don't actually know whether the

11:29:01

3

words to Happy Birthday To You were included in

11:29:03

4

the volume that referred to Song Stories For

11:29:06

5

The Sunday School.

11:29:07

We simply don't know that.

6

But something in the text of this

11:29:10

7

program for the Beginner's Department I think

11:29:13

8

clearly provoked the publisher of it to make

11:29:16

9

contact with Summy because Summy is referred to

11:29:17

here.

11:29:18

10
11
12
13

Q.

11:29:20

Song Stories For The Sunday School

11:29:21

is referred to here in note 2?
A.

11:29:25

Song Stories For The Sunday School

14

and Clayton F. Summy is given as the publisher.

15

actually.

No, it isn't

11:29:26
11:29:27

16

Q.

It isn't?

11:29:27

17

A.

It isn't, yes.

11:29:30

18

Q.

So let's try again.

Do you have

11:29:33

19

any evidence -- let's start very generally.

11:29:37

20

You pointed me to the note and I want to start -- I'm

11:29:39

21

taking it from the top, very general.

11:29:39

22

A.

Okay.

11:29:41

23

Q.

Are you aware of any evidence that

11:29:43

24

the Clayton F. Summy Co. authorized the

25

printing of the lyrics to Happy Birthday To You

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in Program For Beginners' Department?

11:29:48

2

A.

No.

11:29:50

3

Q.

Are you aware of any evidence that

11:29:55

4

the Hill sisters authorized printing of Happy

11:29:57

5

Birthday To You in Program For Beginners'

11:29:57

6

Department?

11:29:57

7

A.

No.

11:29:59

8

Q.

Are you aware of any evidence that

11:30:03

they are even aware of the printing of Happy

11:30:05

10

Birthday To You in this volume, either the Hill

11:30:07

11

sisters or the Clayton F. Summy Co.?

11:30:08

9

12

A.

There is no direct evidence of

11:30:08

13

that. To that I might add, however, that the

11:30:17

14

confusion in my mind about Song Stories came

11:30:21

15

from Exhibit A which is Song Stories For The

11:30:22

16

Kindergarten Published by Clayton F. Summy

11:30:24

17

Corporation which strikes me as probably

11:30:32

18

related to Song Stories For The Sunday School

11:30:35

19

because the title is the same.

11:30:37

20

So it strongly suggests that it is

11:30:40

21

Clayton F. Summy Company who is referred to in

11:30:43

22

footnote 2.

11:30:46

23

Birthday is in the collection Song Stories.

24
25

Q.

But it does not imply that Happy

11:30:49

Nor does it imply, does it, that

Clayton F. Summy Co. authorized the printing of

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Happy Birthday To You in this volume; is that

11:30:54

2

right?

11:30:56

3

A.

No, it does imply that Clayton F.

11:30:59

4

Summy may have authorized the publication of

11:31:01

5

something in this volume, but it doesn't refer

11:31:02

6

specifically to Happy Birthday To You.

11:31:04

7

Q.

So just to be totally clear, you're

11:31:08

8

not offering any opinion that this is an authorized

11:31:11

9

publication of Happy Birthday To You by Clayton

11:31:14

F. Summy Co. or by the Hill sisters; correct?

11:31:27

10
11

A.

Not on the basis of any evidence.

11:31:29

12

Q.

Let's talk about paragraph 20.

11:31:33

In

13

paragraph 20 and it is referring to tab E,

11:31:38

14

Exhibit E.

11:31:45

15

entitled "The 101 Best Songs For Home School

11:31:50

16

And Meeting."

11:31:59

17

no copyright date, correct?

18

this was published, tab E?

19

A.

We are discussing a song book

And you note that this print has

Well, I don't.

Do you know when

11:32:02
11:32:05

This was the first

11:32:08

20

of the compositions to provoke me to write

11:32:11

21

Nicholas Bell about the backwards based clef on

11:32:14

22

page 23.

Because that struck me as a very old

11:32:17

23

form of musical notation that one almost never

11:32:21

24

sees.

25

in the Julliard Library that was published in

And it happened that there was one song

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the 1840s, if I remember correctly, I think I

11:32:33

2

may refer to it here, which used that backwards

11:32:36

3

based clef.

11:32:39

4

a famous English publisher.

5

And it was publication of Novello,

At that point I wrote to Nicholas

11:32:40
11:32:42

6

Bell and said how late do you see this

11:32:45

7

backwards based clef and he replied that it is

11:32:51

8

impossible from the Novello archives to know

11:32:54

9

when they changed their orthography, but

11:32:58

certainly the 19th century I think he said.

11:33:00

10
11

In any case this is the 10th

11:33:02
11:33:06

12

edition of something.

13

we are looking at goes back probably 10 years,

11:33:10

14

if not more.

11:33:13

15

probably from the very early 20th century or

11:33:15

16

possibly even the late 19th century.

11:33:18

17
18

Q.

It means that whatever

Which makes me infer that it is

Let's take a minute to discuss this

backward based clef issue.

11:33:20
11:33:22

19

A.

Yes.

11:33:24

20

Q.

What can you conclude based on the

11:33:26

21

use of a backwards based clef in a piece of

11:33:27

22

printed music?

11:33:30

23

A.

11:33:33

The same thing that one concludes

24

with various symbols.

25

engraving.

It may date the

It may date the visual practice.

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putting out new editions.

2

put out new editions.

3
4

Q.

It is lot a work to

11:47:50
11:47:51

I think we covered that you don't

have expertise in music publishing in this era?

11:47:58
11:48:00

I don't have any expertise in music

11:48:00

6

publishing, but if you just think about it, you

11:48:02

7

realize that putting out a new edition is an

11:48:04

8

expense and you probably wouldn't want to do it

11:48:05

9

every week.

11:48:10

5

A.

I'm wondering why you are making an

11:48:13

11

assumption about the music publishers' practice

11:48:15

12

in the early 20th century?

11:48:18

10

13

Q.

A.

It is purely instinct based on

11:48:20

14

music that I have looked at and new editions

11:48:21

15

that I looked at that they don't come out that

11:48:23

16

frequently.

11:48:25

17

I have to say that I think that

11:48:27

18

while I understand the need for hard evidence

11:48:33

19

of a lot, I think my 60 or 65 years of experience

11:48:38

20

in working with and looking at music gives me a

11:48:42

21

certain amount of basis to make some

11:48:46

22

inferences.

11:48:48

23

can't always depend upon evidence.

24

evidence may not be there.

25

other circumstances and that includes your own

Because as an historian I know you
The

11:48:50

So you have to take

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experience.

2

because you don't want to draw conclusions

11:48:59

3

based on experience that might not prove to be

11:49:00

4

valid.

11:49:02

5

Q.

You have to be careful about it

What I'm trying to define is what

11:49:04

6

is it about your experience that you're relying

11:49:06

7

on when you make some of these inferences?

11:49:07

8

A.

Exactly, in this case it is from

11:49:10

looking at a lot of music that's comes out in

11:49:13

10

multiple editions and having some sense of the

11:49:15

11

time span they covered and therefore some sense

11:49:19

12

of perhaps a publisher's instinct about when it

11:49:21

13

is time to do a new edition.

11:49:27

9

You haven't done

11:49:30

15

any actual study of how frequent editions were

11:49:32

16

issued of music collections in the early 20th

11:49:33

17

century in America?

11:49:39

14

Q.

Just to clarify.

18

A.

That's correct.

11:49:46

19

Q.

In tab E this Good Morning To You

11:49:51

20

printing referred to as number 23 it says under

11:49:54

21

that Good-Bye To You, Happy Birthday To You, my

11:49:56

22

questions are going to be similar to those that

11:49:58

23

we already covered.

11:50:00

24
25

Do you have any evidence that the
Clayton F. Summy Co. was aware of this edition

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11:50:08

of the printing of Good Morning To You?

2

A.

There is no evidence of that.

11:50:13

3

Q.

How about the Hill sisters, do you

11:50:15

4

have any evidence that they knew about this

11:50:17

5

version of Good Morning To You and Happy

11:50:17

6

Birthday To You?

11:50:19

7

A.

There is no evidence of that.

And

11:50:23

8

if I may add there is no evidence that they

11:50:23

9

wrote the thing.

11:50:24

10
11

Q.

A.

11:50:25
11:50:28

wrote what?

12
13

There is no evidence that they

Good Morning To You.

Number 23 in

11:50:29
11:50:38

that publication.

14

Q.

What about tab A?

11:50:40

15

A.

That is the one that we talked

11:50:44
11:50:46

16

about before.

17

composing and arranging and Patty Hill with

11:50:49

18

writing and adapting.

11:50:53

19

only of Good Morning To You which we know is by

11:50:54

20

them.

11:50:56

21

Q.

Where it credits Mildred J. Hill

And that is a publication

Why would you say the song Good

11:50:57

22

Morning To You there is no evidence that they

11:50:58

23

wrote the thing?

11:51:01

24
25

MR. RIFKIN:
A.

He said in tab E.

In tab E there is no evidence that

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2
3
4
5

11:51:05

they wrote the thing.
MR. RIFKIN:

You were asking him

11:51:07

about tab E.
Q.

11:51:06

I want to clarify.

There is

11:51:10
11:51:11

evidence that they wrote that thing?

6

A.

But not in tab E.

11:51:16

7

Q.

What is the significance of that to

11:51:18

8

11:51:20

you that there is none in tab E?
Well, actually, you know, I was not

11:51:22

10

able to really make a conclusion as to why they

11:51:25

11

are not named there.

11:51:28

12

they aren't named there, which did strike me as

11:51:31

13

very strange.

11:51:32

14

without them being named.

9

A.

15

The only thing I see is

Why would this be published

11:51:35

We seem to have the title page,

11:51:39

16

which doesn't refer to the Hill sisters at all.

11:51:43

17

So, I don't know.

11:51:47

18

it also didn't indicate who wrote it.

19

whole thing may be a pirate.

20

Q.

Frankly Amicci the one below
The

Let's go to, there is a lot of

11:52:11
11:52:12
11:52:20
11:52:23

21

referring back and forth.

22

Paragraph 21 we are talking about a book called

11:52:26

23

"The Golden Book Of The Favorite Songs."

11:52:26

24

Correct?

25

A.

Go to paragraph 21.

Yes.

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4

Q.

And you again reference the

11:52:37

backward -A.

11:52:35

I'm sorry, may I interrupt you to

11:52:37
11:52:38

go back one?

5

Q.

Sure.

11:52:39

6

A.

To the previous example?

11:52:40

7

Q.

Sure.

11:52:42

8

A.

The one thing that we didn't

11:52:45

mention is that the title is Good-Bye To You,

11:52:48

10

Happy Birthday To You, but Happy Birthday To

11:52:49

11

You is not included.

11:52:50

9

12

Q.

What is the significance of that?

11:52:55

13

A.

I could infer that the engraver

11:52:57

14

felt that if he tried to fit two lines of words

11:52:59

15

in there he wouldn't be able to fit the next

11:53:03

16

song in and that would cause him some sort of

11:53:06

17

problem.

11:53:09

18

very end it clearly seems like the double bar

11:53:11

19

for Amicci is there.

11:53:13

20

whole of the second song.

Although this doesn't quite have the

Which means that is the

11:53:20

21

And if he had tried to put the

11:53:20

22

Happy Birthday words under Good Morning To

11:53:23

23

You he would have had to space it out so that

11:53:23

24

that next song would not fit there.

25

solution would have been to put a different

Another

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song there that only occupied two staves, but

11:53:30

2

he didn't or she didn't do that.

11:53:32

3

Again, it implied to me that people

11:53:36

4

knew what the words of Happy Birthday were,

11:53:38

5

they didn't have to be printed.

11:53:43

6

one might say the reasons why Good Morning To

11:53:45

7

You is printed is because that was copyrighted,

11:53:46

8

we know that.

11:53:48

9

Q.

And perhaps

11:53:52

You said you don't have any

10

evidence that this is authorized or they knew

11:53:52

11

about it?

11:53:55

12

A.

No, but the implication is whoever

11:53:59
11:54:01

13

put this together felt that there was no need

14

to put the words of Happy Birthday in there.

I

11:54:04

15

think one can go on to say that since the words

11:54:09

16

of Good Morning To You are in there, Good

11:54:10

17

Morning To All along with the music, whether

11:54:14

18

this is a pirated edition, whoever put it

11:54:16

19

together seems to have respected the

11:54:19

20

association of those two which were

11:54:22

21

copyrighted.

11:54:22

22

association in mind between the Happy Birthday

11:54:25

23

words and anything else, but that so many

11:54:27

24

people knew them that there was no point in

25

fiddling around with the layout of this page in

And it may be that there was no

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2

order to try to fit them in.
Q.

Do you have any evidence of what

11:54:32
11:54:34

3

you're describing right now that that was what

11:54:35

4

was going on in the minds of the engraver?

11:54:38

5

A.

No, I don't have evidence of it.

11:54:40

6

But it would have required a major rearrangement

11:54:44

7

of the page.

11:54:46

8

Happy Birthday To You in addition to the words

11:54:48

9

to Good Morning To You.

11:54:48

10
11
12
13

There is simply no room to fit in

There is no room.

11:54:52

There is no space
Q.

Could that be the reason just as

well that it was widely known?
A.

It could be, but I think the two go

11:54:55
11:54:57
11:54:59

14

hand in hand.

If you want people to know what

11:55:00

15

they are singing you either have to figure out

11:55:01

16

a way to layout the page.

11:55:04

17

clear to me.

18

song for the bottom half of the page and be

11:55:10

19

able to space out the staves a little bit so

11:55:12

20

you can fit in Happy Birthday.

11:55:15

21

The solution was

You have to find a shorter part

It seems, again, we don't know what

11:55:06

11:55:18

22

the engraver was thinking, but it seems that

11:55:19

23

the engraver didn't feel it was necessary to

11:55:21

24

put in those words.

25

probably because people knew the words.

Probably, I have to say

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Q.

But again, the same question, you

11:55:34

2

don't have any evidence that people knew the

11:55:36

3

words at the time other than the documents that

11:55:38

4

you have been provided by Mr. Rifkin?

11:55:39

5

A.

That's right.

11:55:41

6

Q.

We haven't done any independent

11:55:44

7

study about how widely, quote unquote, widely

11:55:47

8

the lyrics to Happy Birthday To You were known

11:55:48

9

at this time, correct?

11:55:49

10

A.

Well as I explained to you before,

11:55:53
11:55:55

11

yes, I don't see how you could do that.

12

talking about lyrics that may be associated

11:55:59

13

with hundreds of thousands, millions of people

11:56:03

14

perhaps even who never wrote down yesterday we

11:56:06

15

sang Happy Birthday or who may have written it

11:56:08

16

down but those letters can't be found anywhere

11:56:11

17

or if you went through 500,000 letters you

11:56:13

18

might find two that referred to it.

11:56:16

19

doesn't prove anything because it is not the

11:56:19

20

sort of thing that you bother writing about.

11:56:22

You're

But that

21

Look at it this way, you write Dear

11:56:24

22

Granny we went yesterday or we had yesterday my

11:56:28

23

birthday party and we sang Happy Birthday.

11:56:30

24

you think that letter is going to be preserved

25

somewhere.

Do

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Q.

Is it possible that it is?

11:56:33

2

A.

Yes, somewhere sure in the

11:56:35

3

11:56:39

universe.

4

Q.

But you have not looked for --

11:56:43

5

A.

It's a haystack.

11:56:46

It's a haystack

6

with maybe a needle in it and maybe not.

11:56:50

7

Because on something that may be, as I have to

11:56:53

8

say may be on a universal popular level the

11:56:58

9

chances of finding documentation are extremely

11:56:59

tiny.

11:57:00

10
11

11:57:05

Live me give you one example of

11:57:08

12

this.

13

know there was popular music in the 17th

11:57:11

14

century that is referred to, but hardly a note

11:57:14

15

of it is preserved because popular music was

11:57:16

16

sung by poorer people and they couldn't even

11:57:19

17

read, so nobody would bother engraving it.

11:57:22

18

even if they engraved it, who had the money to

11:57:22

19

buy it.

11:57:25

20

Popular music in the 17th century.

We

But

We

11:57:27

We can't say there was no

11:57:31

So it is a complete mystery.

21

know it is there.

22

popular music because there is no evidence of

11:57:31

23

it, but it is there.

11:57:33

24

people singing and they were singing something

25

and they are poor.

You see paintings with

This is very much the same.

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If three-quarters of the world were

11:57:39

2

singing Happy Birthday by 1910, which we don't

11:57:41

3

know, the chances of finding evidence of it I

11:57:45

4

would say are extremely small.

11:57:47

5

went through every last page of every English

11:57:50

6

language newspaper in that period you might

11:57:54

7

find some little item about people singing

11:57:55

8

Happy Birthday.

11:57:59

9

Q.

Maybe if you

The paintings you're talking about,

11:58:03

10

you're hypothesizing about a means by which

11:58:05

11

someone could conduct a study, correct?

11:58:08

12

A.

No.

There have been major studies

11:58:09
11:58:11

13

done of what is called musical iconography.

14

didn't do them.

But it's a major part of the

11:58:14

15

music history.

Looking at pictures that show

11:58:17

16

music being made and trying to determine what

11:58:18

17

is happening.

11:58:20

18

which you can read the music, but those are

11:58:22

19

paintings for rich people.

11:58:24

I

There are some paintings in

Are you aware of any such paintings

11:58:27

21

that have any evidence of Happy Birthday To You

11:58:29

22

contained within any of these paintings?

11:58:31

20

23

Q.

A.

None whatsoever.

But that doesn't

24

mean that there wasn't one.

25

11:58:36

have sketched the birthday party which they are

Somebody might

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2
3

11:58:44

all singing Happy Birthday.
Q.

But you're not aware of that

11:58:45
11:58:47

sitting here today?

4

A.

No.

11:58:53

5

Q.

Paragraph 21 The Golden Book Of

11:58:53

6

11:58:59

Favorite Songs.

7

A.

8

Q.

Look at tab F.

11:59:12

Yes

9
10

Look at the piece

11:59:16

of music again similar to the one, the previous

11:59:16

one; is that correct

11:59:19
11:59:20

11

A.

12

backward base.

11:59:21

13

Q.

11:59:23

Yes, the same thing with the

My questions are the same, is there

14

any evidence from this document that this was

11:59:28

15

authorized by the Clayton F. Summy Co., this

11:59:35

16

printing in tab F?

11:59:37

No, although as I think about it it

11:59:43

18

is another Chicago company and maybe that would

11:59:45

19

have been a little dangerous.

11:59:48

17

20
21
22
23
24
25

A.

Q.

When you say a little dangerous,

11:59:57

what do you mean?
A.

To Hall & McCreary.

The publisher

of this excerpt.
Q.

11:59:48

11:59:59
12:00:00

What I'm asking you is do you have

any evidence that it was authorized by the

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12:00:04

Clayton F. Summy Co.

2

A.

No.

12:00:07

3

Q.

Do you have any evidence that it

12:00:10

4

was authorized by the Hill sisters, either one?

12:00:10

5

A.

No.

12:00:11

6

Q.

Do you have any evidence that

12:00:14

7

Clayton F. Summy Co. knew about this publication?

12:00:14

8

A.

No.

12:00:16

9

Q.

How about the Hill sisters, any

12:00:17

10
11

evidence that they knew about this publication?
A.

No.

And in fact it is exactly the

12

same as the example in number E.

13

to be a reprint of something.

14
15

Q.

So this seems

17

compare.

18

Q.

12:00:31

12:00:35

The type phase is a little

A.

12:00:25

12:00:33

12:00:39

different, correct, between E and F?

16

12:00:23

Just looking at this, let me just

12:00:52
12:01:00

I would say it is the same.
In the sample in Exhibit E and the

12:01:02

19

sample Exhibit F of your report you say it is

12:01:03

20

the same.

12:01:04

21

A.

12:01:12

No, I'm sorry, there is one
This

12:01:15

Namely

12:01:17

22

difference.

23

must have been re-engraved in some way.

24

the bottom line, the first cord of the last

25

line in the left-hand and the last cord have

There are two differences.

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their stem facing downward rather than upward.

2
3

Q.

Can you could look at the title,

A.

Yes, the title is redone.

12:01:27
12:01:30

aren't the titles printed differently?

4

12:01:26

That is

12:01:32

5

not a re-engraving that could be done with type

12:01:36

6

I would think.

12:01:40

7

standing brightly Good Morning To You/Happy

12:01:41

8

Birthday To You that all seems to be the same.

12:01:43

9

The rest of it to be sung

In fact it could even be that the

12:01:48

10

engraver of 23 decided to have the left hand

12:01:51

11

stems face up so it wouldn't look so crowded

12:01:53

12

with respect to the next song, I don't know.

12:02:04

13

But they are essentially the same.

12:02:10

Look at tab G paragraph 22 of your

12:02:13

15

report you state that tab G is an undated copy

12:02:24

16

of Harvest Hymns from the '20s.

12:02:25

17

know it is from the '20s?

14

Q.

18

A.

How do you

12:02:28

One of the pieces, "Let Others See

12:02:34
12:02:37

19

Jesus In You" is copyrighted 1924.

20

probably be better to say no later than the

21

'20s.

22

next one is copyrighted 1922 of the three

12:02:53

23

examples that we have here number 37.

12:02:54

24
25

It would

But I suspect pretty close to that.

Q.

12:02:46

The

12:02:49

You note in your report that there

is no author -- Good Morning To You, number

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12:02:59

218?

2

A.

Yes.

12:03:01

3

Q.

And you note in your report that

12:03:04

4

there is no author, composer or copyright

12:03:09

5

indication despite the fact that such information

12:03:11

6

is given for the other two pieces that you

12:03:12

7

include, correct?

12:03:12

8

A.

Yes.

12:03:14

9

Q.

What is the significance of that to

12:03:14

10

12:03:15

you?

12:03:17

11

A.

I don't know.

12

Q.

What do you mean by odd?

12:03:19

13

A.

Supposedly Good Morning To You

12:03:22

It struck me as odd.

14

was copyrighted and yet the compiler of this is

12:03:25

15

very careful to indicate the copyright of the

12:03:29

16

other two specimens that I was sent.

12:03:31

17

very strange that there was no credits for this

12:03:34

18

nor any authorship of either the music or the

12:03:37

19

words.

12:03:40

20

one example and what is his name in the other

12:03:43

21

one for having written the words and music.

12:03:48

22

And you notice in 37 Herbert G. Tovey in the

12:03:52

23

composer's place and HGT on the left hand side

12:03:55

24

as the author.

25

It seems

Whereas Herbert Tovey is credited in

As far as this piece by McKinney

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which doesn't seem to have a number on it,

12:04:01

2

there is -- it is bound in so it is really hard

12:04:03

3

to see.

12:04:05

4

big binder off hand?

5

Do you know what number that is in the

Q.

12:04:15

McKinney, not offhand.

You might

12:04:18

6

know, I'm assuming that these are organized in

12:04:25

7

the way that you provided them?

12:04:28

Whatever, this is bound tightly but

12:04:31

I could see the K period on the left-hand side.

12:04:35

10

So I think what it probably says is BBK or

12:04:36

11

BBMK.

12:04:37

8
9

A.

12

Q.

13

A.

BBMK.

12:04:40

BBM?
But there is a copyright

12:04:44
12:04:48

14

credit there and author.

15

and McKinney apparently did both the words and

12:04:51

16

music and that is carefully credited and yet no

12:04:53

17

information at all about Good Morning To You.

12:04:57

18

Q.

In both cases Tovey

Does the absence of there being any

12:04:58

19

of that sort of information on Good Morning to

12:05:00

20

You suggest to you that Good Morning To You has

12:05:01

21

no author?

12:05:03

22

A.

Yes, that would be the implication.

23

That nobody wrote it.

24

and nobody wrote the words.

25

12:05:05
12:05:08

heaven.

Nobody wrote the music
Dropped from

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Q.

2

A.

We know that is not true.

12:05:12

We know that is not true?
And also

12:05:14

3

if you look at the example of Good Morning To

12:05:17

4

You you can see on the right the beginning of

12:05:20

5

220 where there is credit of some sort.

12:05:22

6

Q.

Is it possible that Good Morning To

12:05:24

7

You the authorship was not known by the

12:05:27

8

publisher, is that possible?

12:05:31

9
10

A.

I suppose anything is possible.

It

seems kind of stupid to me.

12:05:33
12:05:35

11

Q.

Why is that you stupid?

12:05:36

12

A.

That tune was around in

12:05:39

13

circulation.

14

prints of it.

15
16
17

Q.

We know, we have seen so many

12:05:43

What reason do you give for there

being no authorship noted here?
A.

12:05:40

One is I don't know, and the other

12:05:46
12:05:48
12:05:53

18

is the publisher of this was very careless,

12:05:56

19

possibly assuming that everybody knew that it

12:05:59

20

must have been like a folk song that has been

12:06:02

21

in the air for years.

12:06:05

22

is stupid and did not bother to check because

12:06:07

23

it's a little dangerous it strikes me.

12:06:09

24
25

Q.

And the third is that he

For this publication you're not

aware of any evidence that Clayton F. Summy Co.

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2

authorized this publication?
A.

No, actually strangely enough

12:06:17
12:06:19

3

unless I'm missing something here there doesn't

12:06:21

4

seem to be any indication on the cover who

12:06:22

5

published it.

12:06:25

6
7

Q.

You're not aware if Clayton F.

Summy Co. knew about this publication?

12:06:27
12:06:27

8

A.

No idea.

12:06:29

9

Q.

You're not aware that the Hill

12:06:32

10

sisters authorized publication, are you, any

12:06:33

11

evidence of that?

12:06:34

12

A.

There is no evidence.

12:06:35

13

Q.

How about whether they knew about

12:06:36

14
15

12:06:38

this publication?
A.

No evidence.

When I say no

12:06:41

16

evidence it always means maybe so, maybe not.

12:06:41

17

But there is evidence.

12:06:43

18

Q.

No evidence that you're aware of?

12:06:44

19

A.

That I'm aware of, yes.

12:07:02

20

Q.

Let's look at tab H which is

12:07:09

21

referred to in paragraph 23 of your report.

12:07:11

22

Again the version of Happy Birthday To You

12:07:17

23

printed in this volume, do you note that it

12:07:17

24

does not include any author information;

25

correct?

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A.

Whereas the one above it does?

12:07:31

2

Q.

Right.

12:07:33

3

Nor any copyright

information whereas the one above it does?

12:07:37

4

A.

Yes.

12:07:39

5

Q.

I guess my question is the same.

12:07:42
12:07:45

6

What do you conclude based on that?

7

same three things that you concluded about

12:07:46

8

absence in the prior document?

12:07:48

9

A.

Is it the

Yes, the music is identical, I

12:07:54
12:07:56

10

believe it is identical.

11

completely.

It is identical to the music of,

12:08:03

12

for example, tab F with the exception that to

12:08:08

13

accommodate happy and birthday -- sorry, happy,

12:08:11

14

it is always necessary to divide the single

12:08:29

15

pickup D into two parts.

12:08:32

16
17

Q.

I haven't compared it

My questions are the same with

12:08:35
12:08:36

regard to this publication?

18

A.

My answers are the same.

12:08:37

19

Q.

You don't have any evidence of any

12:08:39

20

authorization or knowledge by Clayton F. Summy

12:08:42

21

or the Hill sisters with regard to this publication, correct?

12:08:44

22
23

A.

That's correct and there is no

12:08:49

evidence as to who wrote it.

24

MS. LE MOINE:

25

THE VIDEOGRAPHER:

12:08:47

Let take a break.
Going off the

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12:18:22

record at 12:09.

2
3

THE VIDEOGRAPHER:

12:18:26

(Recess Taken.)
Returning to

12:18:30

4

the record at 12:18.

12:18:30

5

BY MS. LE MOINE:

12:18:34

6

Q.

Professor Sachs, let's look at

12:18:47
12:18:54

7

paragraph 23.

8

number 219 Birthday states copyright 1924 with

12:18:55

9

the composer's name on the right where by

12:18:58

10

convention the music composer is identified and

12:19:00

11

his initials on the left where by convention

12:19:04

12

the lyricist is identified."

12:19:06

Paragraph 23 you say, "In song

Do you see that?

13

A.

Yes.

12:19:07

14

Q.

Is it true that the convention that

12:19:10

15
16
17
18

you're referencing is not always followed?
A.

I would say it is followed about

99.999 percent of the time.
Q.

But the survey you didn't find that

12:19:12
12:19:14
12:19:21
12:19:23

19

it was followed 99.999 percent of the time,

12:19:24

20

right?

12:19:27

21

A.

Well, there were other examples.

12:19:30

22

For example just the indication traditional or

12:19:33

23

nothing at all because it's a Gospel song or

12:19:36

24

things like that.

25

there is author attribution that is where it

But of the ones in which

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1

the composer.

2

frankly if it appeared on the left.

It would

12:25:48

3

be so weird because the composer's name is on

12:25:50

4

the right except for that one example which you

12:25:53

5

managed to find.

12:25:56

6

he wrote his words and music, so there is no

12:25:57

7

reason not to put it that way.

12:25:58

8
9
10
11

Q.

14

At that time everybody knew

By seeing it on the right you would

conclude that he wrote the words and music?
A.

Since there is no other reference

MS. LE MOINE:

I'm going to

identify this as Exhibit 53.
A.

12:26:01
12:26:04
12:26:06
12:26:07

to a writer, yes.

12
13

I don't know what I would think

But I would add that because one

12:26:15
12:26:17
12:26:22

15

does know a little bit about Irving Berlin.

12:26:25

16

What one knows is he wrote his words a music.

12:26:27

17

Q.

You assume perhaps it is outside of

12:26:29

18

the convention because everyone knows that

12:26:31

19

Irving Berlin wrote the words and music?

12:26:34

20
21

A.

remember that he did it all.

22
23
24
25

Or maybe because he wanted you to

MS. LE MOINE:

Mark this as

12:26:46
12:26:47
12:26:48
12:27:12

Exhibit 53.
(Sachs Exhibit 53 for
identification, Document.)

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2

Q.

Similarly we have the composer and

12:27:18
12:27:19

writer of the words in the same place?

3

A.

Yes.

12:27:21

4

Q.

On the right-hand side of the page?

12:27:21

5

A.

Yes.

12:27:23

6

Q.

And it does not say words by,

12:27:23

7

correct?

8

A.

Correct.

12:27:26

9

Q.

So is this consistent with

12:27:30

12:27:23

10

convention for there to be on the right-hand

12:27:33

11

side of the page one name when that person

12:27:35

12

wrote both the words and the music?

12:27:56

13

A.

Yes, I think that is fine.

12:27:59

14

Q.

Go back to paragraph 23 for a

12:28:06
12:28:16

15

moment of your report.

16

page 6 the last line of paragraph 23.

17

"The preface to this volume says that the

12:28:21

18

publishers or compilers pay hundreds of dollars

12:28:23

19

to get permissions, but if that is true, there

12:28:25

20

is no evidence that such permission was

12:28:28

21

required for Happy Birthday To You."

12:28:29

When the preface -It says

Right?

12:28:18

22

A.

Right.

12:28:32

23

Q.

So I want to confirm that though it

12:28:36

24

says in the preface that the publishers and the

25

compilers pay hundreds of dollars to get

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permissions, you don't see any evidence in that

12:28:44

2

volume at tab H that Happy Birthday To You is

12:28:48

3

authorized by the publisher Clayton F. Summy

12:28:48

4

Co.?

12:28:48

5

A.

There is no evidence.

12:28:50

6

Q.

And there is no evidence that the

12:28:51

7

12:28:54

Hill sisters authorized it?

8

A.

There is no evidence.

12:28:55

9

Q.

Right before we took a break you

12:28:59

10

also said there is no evidence that the Hill

12:29:04

11

sisters wrote the song that is at tab H and I

12:29:07

12

want to confirm you're talking about in tab H

12:29:08

13

there is no evidence?

12:30:08

14

A.

In tab H there is no evidence.

12:30:13

15

Q.

Let's look at paragraph 24.

12:30:17

I want

16

to clear up some confusion first and make sure

12:30:19

17

we are clear on the record about this.

12:30:24

18

Tabs B -- you say paragraph 24 "The

12:30:27

19

materials before 1934 carry only two references

12:30:32

20

to Patty Hill.

12:30:37

21

School Journal and D, Program For Beginners'

12:30:39

22

Department."

12:30:44

23

is Inland Educator and D is Program For

24

Beginners' Department.

25

Tab A, Inland Educator and Indiana School

Tabs B, Inland Educator Indiana

Right?

And I'm looking at B it

12:30:45

And only one reference,

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1

Journal to Mildred is author of the song.

2

A is actually Song Stories For The

12:31:03

3

Kindergarten.

12:31:03

4

Inland Educator School Journal?

Tab

So should that read tab B,

12:31:05

5

A.

Tab B, probably, yes.

12:31:10

6

Q.

Significantly Happy Birthday To You

12:31:14
12:31:15

7

is not present in tab A.

8

Educator and Indiana School Journal but I think

12:31:17

9

is what you mean there, tab B?

12:31:21

It says Inland

Since that is

10

where Indiana -- Inland Educator and Indiana

12:31:22

11

School Journal is?

12:31:25

12

A.

Yes, I don't know how those -- oh,

12:31:30

13

yes, that may have come from Marc's office

12:31:32

14

rearranging things in chronological order and

12:31:35

15

perhaps forgetting to change the tab references

12:31:38

16

there.

12:31:40

17

everything to be sure it is clear.

18

That is why I put the titles in on

Q.

If the tabs are incorrect and this

12:31:43
12:31:45

19

happens a few times, there are things that

12:31:47

20

aren't present -- there is a tab that you

12:31:49

21

referenced that doesn't have a document or

12:31:52

22

there is tabs that are called something that

12:31:55

23

don't match up, should we rely on the title

12:31:55

24

rather than the tab?

25

A.

Yes, rely on the title.

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12:54:30

that is in Exhibit J?

2

MS. LE MOINE:

3

question.

4

That is a fair

Marc.

12:54:32
12:54:34

5
6

What I'm asking if I could clarify,

12:54:32

MR. RIFKIN:

I'm trying to follow

12:54:38

all of this.

7

12:54:35

MS. LE MOINE:

Is Professor Sachs

12:54:40

8

relying on anything other than what is behind --

12:54:43

9

because the paragraph referring to what is

12:54:46

10

behind Exhibit J does not reflect what is

12:54:49

11

actually behind the Exhibit J tab.

12:54:50

12

MR. RIFKIN:

I disagree with that

12:54:52
12:54:55

13

characterization.

14

refers to the sample that is attached as

12:54:57

15

Exhibit J and he also references the fact that

12:55:01

16

there are other samples of that same music that

12:55:05

17

are identical except as he knows.

12:55:07

18

I think in paragraph 29 he

If you want to see them I think if

12:55:10

19

we let him point to you in Exhibit 49 where

12:55:14

20

they might be, maybe that is the easiest way to

12:55:17

21

get the information.

12:55:18

22

whatever you want.

23

Q.

It is up to you, do

If it is important -- what I was

24

12:55:23

trying to identify, if this is the only sample

25

12:55:21

you feel that I need to look at to support the

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point that you're making in paragraph 28, fine.

12:55:34

2

If there are other documents that you feel you

12:55:38

3

need to include in your report, then I want you

12:55:39

4

to have the opportunity to do that.

12:55:39

5

don't take that now.

6

you identify it in the production which ones

12:55:40

7

you think --

12:55:42

8

A.

Maybe we

Maybe we take a break and

No, I could tell you right now.

I

12:55:40

12:55:45

just want to look back at that paragraph to see

12:55:48

10

what I actually referred to, but the various

12:55:57

11

samples start in the big black binder, Exhibit 49,

12:56:06

12

up to tab 38 and continue to tab 50.

12:56:09

9

Look at paragraph 28 where it says

12:56:11

14

"Various samples of this piece differ in their

12:56:15

15

cover information, design, publisher or price.

12:56:21

16

Some say Summy Publishing Company, (Summy

12:56:23

17

3075)."

What does Summy 3075 refer to there?

12:56:25

The publication number so you can

12:56:28

13

Q.

18

A.

19

find it among the various samples, some of them

12:56:32

20

have different numbers to indicate what they

12:56:32

21

are.

That is standard.

12:56:35

Q.

12:56:39

22

If I look at J and I see the

23

publication number, I see the number 3075 in

24

12:56:40

the lower left corner?

25

A.

Yes, that is the one.

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Q.

Is that what you're referring to?

12:56:44

2

A.

Yes.

12:56:45

3

Q.

What does that number tell you?

12:56:49

4

A.

Normally when a publisher puts a

12:56:51

5

number it is the number of their publication.

12:56:54

6

It is his 3,075th publication.

12:56:57

7

Q.

So is it sequential?

12:57:04

8

A.

It should be.

12:57:06

9
10

It may be in some

periods it is called a plate number for the

12:57:07

engraving plate.

12:57:11

11

Q.

My question is the one before it

12

the

13

3074 would be something else?

engraving plates would be number.

And

12:57:16
12:57:17
12:57:19
12:57:22

14

A.

Yes.

15

Q.

Can you look at Exhibit L for a

12:57:31

You see in the lower left-hand corner

12:57:32

16

moment.

17

And 76 would follow it.

that is 3076?

12:57:33

18

A.

That is probably the next one.

12:57:34

19

Q.

The next what?

12:57:36

20

A.

The next thing they published.

12:57:40

21

That would be my inference based on what I know

12:57:42

22

that they would number sequentially.

12:57:49

23

Q.

Let's look back at paragraph 28 to

24

make sure that I'm done there.

25

12:58:00

the certificate for the copyright registration,

Did you review

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E 51990, in preparing your report that is

12:58:10

2

referred to in paragraph 28?

12:58:11

3
4

A.

I don't remember

Q.

12:58:12
12:58:15

the number offhand.

5
6

I think I did.

It is referred to here in paragraph

12:58:15
12:58:16

28?

7

A.

Then I did.

12:58:19

8

Q.

It says it suggests that it may be

12:58:22

the print for the December 6th, 1935 copyright

12:58:24

10

certificate which says, "arrangement as easy

12:58:28

11

piano solo with text."

You said the thing that

12:58:33

12

led you to believe that about Exhibit J is that

12:58:37

13

it was copyright 1935.

12:58:40

14

cover of Exhibit J also says it is underlined

12:58:43

15

piano with words, does that also support that?

12:58:46

9

16

A.

Yes.

Does the fact that the

However there are a few of

12:58:48

17

them and that is what is in 30 whatever is the

12:58:50

18

number I just gave you that do that and there

12:58:53

19

are certain differences among them.

12:58:56

20

possibly to be reprinted later, who knows.

21

some of them have Preston Ware Orem's name and

12:59:02

22

some don't and that is peculiar, but that is

12:59:02

23

what it is.

12:59:04

24
25

Q.

They seem
But

12:58:59

The fact that this says this is the

piano solo with words version also supports

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that it is the copy of copyright 51990?

2

MR. RIFKIN:

3

to that says piano solo with words?

4

MS. LE MOINE:

5

MR. RIFKIN:

6

What are we referring

referring to Exhibit J.

7

MS. LE MOINE:

8

MR. RIFKIN:

9

I thought you were

12:59:16
12:59:17
12:59:19
12:59:20
12:59:21

I am.
Where does it say

12:59:22
12:59:22
12:59:24

that.

10

MS. LE MOINE:

11

MR. RIFKIN:

12

Exhibit J.

12:59:13

The title page.
I thought you were

looking at plate number 3074.

13

MS. LE MOINE:

No I'm asking the

12:59:25
12:59:28
12:59:29
12:59:31

14

professor if the fact that that piano solo with

12:59:33

15

words is underlined that that is the indication

12:59:36

16

that this is this piece of music.

12:59:46

17

A.

As far as I could say yes.

12:59:49

18

Q.

Let's look at paragraph 29 which

12:59:58
13:00:02

19

refers to tab K.

20

the Hill sisters both names in the upper right

13:00:04

21

and arranged by Preston Ware Orem underneath

13:00:04

22

that.

13:00:05

If you look at tab K it has

23

A.

Yes.

24

Q.

13:00:07

Do you have any opinion as to why

25

Mildred Hill and Patty Hill are listed in the

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2

13:00:12

upper right?
A.

I don't know why Patty is listed

13:00:15

3

there because again there are no words.

13:00:17

4

Mildred Hill is there because she wrote the

13:00:20

5

original music and Preston Ware Orem made this

13:00:23

6

arrangement.

13:00:24

The problem with that being in J --

7

Q.

I'm in K?

13:00:30

8

A.

I'm sorry, in K is that that is

13:00:33

9

redacted.

But there is an unredacted copy in

13:00:37

10

the big binder which is more important and I'm

13:00:41

11

not sure why this was bound in.

13:00:42

12

could quickly find that for you.

13
14

Q.

Let's see if I

We did not locate it but maybe you

13:00:48
13:00:51
13:00:53

can tell me where it is.
(Witness reviewing document.)

15

13:00:56

16

A.

It is number 42 in the big binder.

13:01:00

17

Q.

So you're saying number 42 in the

13:01:04
13:01:07

18

big binder is the unredacted.

19

include -- this is not exactly the same, is it,

13:01:10

20

because what I'm looking at is behind K has

13:01:14

21

Mildred Hill and Patty Hill and arranged by

13:01:16

22

Preston Ware Orem and the one that you pointed

13:01:20

23

me to behind 42 just says Mildred Hill and

13:01:22

24

arranged by Preston Ware Orem scratched out.

25

A.

Yes.

This does

The problem that I said with

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well with her -- the edition that she had.

2

With her

original version.

13:03:53
13:03:57

3

Q.

You're presuming that she didn't?

13:03:59

4

A.

Well, Preston Ware Orem had to do

13:04:00

5

something and since the piano part has changed,

13:04:05

6

that's what he did.

The piano part is more

13:04:10

7

elaborate than the earlier versions of Good

13:04:12

8

Morning To You and -- because they are all the

13:04:14

9

same up to there.

13:04:16

10

Very, very tiny change.

He has made something that is a

13:04:20
13:04:23

11

little bit more difficult.

12

higher level of piano playing.

13

of perhapses, perhaps Summy Birchard said why

13:04:28

14

don't you do this, we could sell it to a

13:04:31

15

slightly more advanced piano store.

13:04:33

Suggests a slightly
There are a lot

Who knows.

13:04:26

The fact that Preston Ware Orem is

13:04:41

17

referred to in 51990 and not in tab J doesn't -- you still

13:04:46

18

believe tab J has been arranged by Preston Ware

13:04:46

19

Orem?

13:04:49

16

20

Q.

A.

Well, it is identical to the ones

13:04:51
13:04:54

21

that have his name on it.

22

his name was deleted from that copy.

Nobody

13:04:56

23

knows who or why as far as I have been told.

13:05:02

24
25

Q.

We don't know why

My point is the absence of the

attribution to Mr. Orem doesn't indicate it was

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arranged by Mr. Orem?

2

A.

I would say the absence in the

13:05:09
13:05:10

3

attribution does not indicate and in fact that

13:05:14

4

he said later he said wait a minute, I want my

13:05:16

5

name on it.

13:05:20

6

about an easy piano solo with words and that is

13:05:36

7

what this is.

13:05:39

8
9
10

Q.

The copyright certificate talks

In tab K paragraph 29 that refers

13:05:42

to tab K, I apologize for bouncing back and

13:05:42

forth.

13:05:43

11

A.

That's all right.

13:05:44

12

Q.

You say at the end of this

13:05:47

13

paragraph, "The fact that one sample has Orem's

13:05:51

14

name crossed out is immaterial another does

13:05:55

15

not.

13:05:58

16

since he created the new piano part."

It appears that his name should be on it

17
18
19
20
21
22
23
24
25

Again that is not behind tab K but
it is somewhere in there?
A.

It is in the black binder

Do you know why those portions of

tab K were redacted?
A.

13:06:03
13:06:05
13:06:10
13:06:12

somewhere.
Q.

13:06:01

Marc explained it to me a long time

13:06:17
13:06:19
13:06:19

ago and I seem to have forgotten.
Q.

You don't independently know, you

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2

13:06:25

just know from Marc?
A.

Well I assume there was some

13:06:25

3

copyright reason and whoever provided that

13:06:32

4

decided it was better at that point to not

13:06:34

5

provide the actual text lest it being an

13:06:36

6

infringement of some sort.

13:06:40

7

Q.

Let's look at paragraph 30.

13:06:44

8

Paragraph 30 refers to tab L that we looked at

13:06:48

9

briefly.

13:06:51

10
11

The sequential catalog number, right

or engraving plate number, I'm not sure what -A.

Yes.

I don't know what it is

12

called now but that is what it is.

13

kind of publisher's index.

14
15
16
17
18
19

Q.

It is some

And indicating the order in which

Yes, I assume so.

13:07:01

13:07:04
13:07:06

That is what it

always does.
Q.

13:06:57

13:07:03

these items were published?
A.

13:06:54

You have here at the top arranged

by Mrs. R.R. Forman?

13:07:07
13:07:09
13:07:10
13:07:11

20

A.

Yes.

13:07:14

21

Q.

And again Mildred Hill's name on

13:07:14

22

13:07:14

the right?

23

A.

Yes.

24

Q.

13:07:17

And you say, "It is customary for

25

arrangers to appear either on the upper right

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under the composer's name or on the left."

13:07:24

2

A.

Yes.

13:07:25

3

Q.

What is the basis for that?

13:07:26

4

A.

Just experience of looking at many

13:07:27

5

13:07:29

many scores.
I think one of the earlier Preston

13:07:32

7

Ware Orem samples that we just looked at a few

13:07:35

8

moments ago, his name is under the composer's

13:07:35

9

name?

13:07:35

6

Q.

10

A.

Yes, it can appear both ways.

13:07:37

11

Q.

So it can appear both ways?

13:07:39

12

A.

Sometimes it just depends on the

13:07:42

13

eye of the engraver that decides is it's going

13:07:43

14

to look nicer if is balanced rather than with a

13:07:43

15

big space on the right.

13:07:46

16
17
18

Q.

Does it always say arranged by if

13:07:48

it is an arranger?
A.

I would say yes.

I would put it

19

another way.

20

then we don't know.

21

we know that is what the arranger did.

22

Q.

13:07:47

If it doesn't say arranged by
But if it says arranged by

Would you say that this is a custom

23

but, it being a custom but sometimes it is not

24

13:07:51
13:07:53
13:07:58
13:08:00
13:08:05
13:08:05

followed?

25

A.

I would say it is possible that it

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the videotape deposition at 16:09.

2

(TIME NOTED:

4:09 P.M.)

3
4
5

JOEL SACHS, Ph.D.

6
7

Subscribed and sworn to before me

8

this

day of

, 2014

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

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JOEL SACHS,

Ph.D.

-

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Page 282

1
2

CERTIFICATE
STATE OF NEW YORK
ss.

3

4
5

COUNTY OF NEW YORK
I, WILLIAM VISCONTI, a Shorthand Reporter

6

and Notary Public within and for the State of New York,

7

do hereby certify:

8

That prior to being examined, the witness named in

9

the foregoing deposition was duly sworn to testify the truth,

10

the whole truth, and nothing but the truth;

11

That said deposition was taken down by me in

12

shorthand at the time and place therein named and

13

thereafter reduced by me to typewritten form and that the

14

same is a true, correct, and complete transcript of said

15

proceedings.

16

Before completion of the deposition,

review of the

1 was not requested.

If requested,

17

transcript [ X ] was [

18

any changes made by the deponent (and provided to the

19

reporter) during the period allowed are appended hereto.

20
21
22
23

24
25

I further certify that I am not interested in the
outcome of the action.
Witness my hand this

day

Ofee~~ aOJIi.

~~QD.",=
WILLIAM VISCONTI

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