Rupa Marya v. Warner Chappell Music Inc
Filing
197
NOTICE OF MOTION AND MOTION for Order for to Exclude Evidence filed by plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. Motion set for hearing on 2/9/2015 at 09:30 AM before Judge George H. King. (Attachments: # 1 Memorandum of Points and Authorities In Support Thereof, # 2 Proposed Order, # 3 Exhibit A to Proposed Order)(Manifold, Betsy)
1 FRANCIS M. GREGOREK (144785)
2 gregorek@whafh.com
BETSY C. MANIFOLD (182450)
3 manifold@whafh.com
4 RACHELE R. RICKERT (190634)
rickert@whafh.com
5 MARISA C. LIVESAY (223247)
6 livesay@whafh.com
WOLF HALDENSTEIN ADLER
7
FREEMAN & HERZ LLP
8 750 B Street, Suite 2770
9 San Diego, CA 92101
Telephone: 619/239-4599
10 Facsimile: 619/234-4599
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Interim Lead Counsel for Plaintiffs and the [Proposed] Class
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
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16 GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
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Plaintiffs,
v.
21 WARNER/CHAPPELL MUSIC,
INC., et al.
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Defendant.
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Lead Case No. CV 13-04460-GHK (MRWx)
PLAINTIFFS’ NOTICE OF MOTION
AND MOTION TO EXCLUDE
EVIDENCE; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT THEREOF; AND
[PROPOSED] ORDER GRANTING
MOTION TO EXCLUDE EVIDENCE
Date:
Time:
Room:
Judge:
February 9, 2015
9:30 a.m.
650
Hon. George H. King,
Chief Judge
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on or about February 9, 2015, at 9:30 a.m., or as
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soon thereafter as this matter may be heard before the Honorable George H. King, Chief
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Judge, in Courtroom 650 of the Edward R. Roybal Federal Building, located at 255 E.
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Temple Street, Los Angeles, CA 90012, Plaintiffs Rupa Marya, Robert Siegel, and
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Good Morning To You Productions Corp. and Majar Productions, LLC (“Plaintiffs”)
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will, and hereby do, move this Court for an order to exclude Defendants’ Exhibits 101-
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104, 106, and 119 (collectively, “Defendants’ Exhibits”) of the Amended Joint
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Evidentiary Appendix in Support of Notice of Cross-Motions and Cross-Motions for
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Summary Judgment Filed Pursuant to Court’s Dec. 5, 2014 Order, filed December 17,
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2014 (Dkts. 187 (Vol. 1, Exs. 1-10, Pages 1-220); 188 (Vol. 2, Ex.11, Pages 221-486);
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189 (Vol. 3, Exs. 12-54, Pages 487-706); 190 (Vol. 4, Exs. 55-81, Pages 707-974); 191
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(Vol. 5, Exs. 82-99, Pages 975-1141); 192 (Vol. 6, Exs. 100-106, Pages 1200-1540);
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193 (Vol. 7, Exs. 107-116, Pages 1541-1750); and 194 (Vol. 8, Exs. 117-126, Pages
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1751-1947)) (collectively, the “Appendix”) from the Appendix and to strike all
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references to Defendants’ Exhibits as well as the arguments based upon them from the
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Cross-Motions for Summary Judgment (as amended Nov. 26, 2014, Dkt. 182) (“Joint
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Brief”) and the [Corrected] Joint Statement of Uncontroverted Facts (as amended Dec.
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1, 2014, Dkt. 183) (“SOF”).
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Plaintiffs specifically seek to strike the following references from the Joint Brief
Motion for Summary Judgment (Dkt. 182):
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2:13
2:15
“On December 9, 1935, Summy published two versions of
Happy Birthday to You that included lyrics and obtained
registration certificates E51988 and E51990. Exs. 101,
103.”
2:19
2:20
“Id. Forman also arranged the music for the 51988 version.
Ex. 103.
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“Forman also arranged the music for the 51988 version. Ex.
103.”
2:22
2:23
“The music for this version was arranged by Preston Ware
Orem, another Summy employee. Ex. 101.”
2:24
2:26
“On December 6, 1962, Summy-Birchard Co.—Summy’s
successor—renewed these copyrights. Exs. 120 [sic, should
be 102], 104.”
6:11
6:13
Certificate E51990 establishes prima facie that
Warner/Chappell has a
copyright in Happy Birthday to You’s “words” and “text”—
what the undisputed evidence shows to be the “familiar
lyrics.” Ex. 101.”
6:18
6:21
“If any further proof were needed—and it is not—it is
supplied by certificate E51988, registered the exact same
day by Clayton F. Summy, Warner/Chappell’s predecessor,
which refers to an “arrangement of unison chorus” and
“revised text.” Ex. 103.”
6:22
7:1
“The only ‘revised text’ therein is the ‘second verse.’
Thus, the unrevised text is, and can only be, the ‘familiar
lyrics,’ which were registered the same day in E51990.
Plaintiffs, who bear the burden proof, have no admissible
evidence rebutting the certificates.”
6:27
6:28
“Warner/Chappell has submitted admissible copies of the
registrations from the Copyright Office. Exs. 101, 103, 107
at 109 at 1553-54, 1561
(Blietz Dep.), 125.”
15:7
15:10
“Certificates E51990 and E51988 each identify Mildred J.
Hill as the author of Happy Birthday to You. Exs. 101, 103.
This is prima facie evidence that Mildred authored the
lyrics of Happy Birthday to You and that the lyrics were
original to her.”
15:12
15:15
“Plaintiffs object to Warner/Chappell’s registration
certificates, which Warner/Chappell received from the
Copyright Office and which include official Copyright
Office cover pages that state ‘Copy of Registration.’”
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Warner/Chappell’s copyright certificates constitute prima
facie evidence that Summy was authorized to copyright
Happy Birthday to You.”
35:22
36:1
“Certificate E51990 describes the publication of Happy
Birthday to You as “pf., with words” and states that “© is
claimed on arrangement as easy piano solo with text.”
Ex.101 (emphasis added). Certificate E51988 states, with
respect to that publication of Happy Birthday to You, that
“© is claimed on arrangement for unison chorus and
revised text.” Ex. 103 (emphasis added). The plain
language of these certificates demonstrates that the
copyrights cover the lyrics to the songs, and not simply the
arrangements.”
36:14
36:21
“Certificate E51990 covers “arrangement as easy piano
solo with text,” while certificate E51988 covers
“arrangement for unison chorus” and ‘revised text.’ Exs.
101, 103. As discussed above, if the ‘revised text’ in
E51988 is the second verse of Happy Birthday to You, then
the ‘text’ claimed in E51990 (on the same day) must have
been the ‘familiar,’ first verse of Happy Birthday to You.
“Warner/Chappell’s certificates are prima facie evidence
that Summy had the right to copyright these lyrics.”
38:4
38:6
“It is the registration certificates—both of which identify
Mildred J. Hill as the author of the work—and not the
applications—that receive the statutory presumption. 17
U.S.C. § 410(c); see Exs. 101, 103.”
40:3
40:4
“In 1935, Summy published only two versions of Happy
Birthday to You with lyrics. Exs.101, 103 . . . .”
40:7
40:8
“The other version contains only the familiar lyrics, and
bears the publication number 3075. Ex. 106.”
40:13
41:1
Because there is no evidence that Summy published other
lyrical versions of Happy Birthday to You in 1935,
publication 3075, which was not submitted in connection
with E51988, must have been submitted in connection with
E51990.
“The information on publication 3075 also corresponds
with the Copyright Office’s record of the work deposited
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Text to be Deleted
for E51990. The cover of publication 3075 contains the title
‘Piano Solo with words,’ which is the exact same phrase
that appears in the Copyright Office deposit record for
E51990, down to the capitalization of the first two words
only, and which is different from the description in the
application and the certificate (which include the phrases
‘pf., with words’ and ‘Arrangement as easy piano solo,
with text’). . . . . 103 (certificate) . . . 106 (3075
publication).”
“in completing the deposit record for E51990, the
Copyright Office was actually looking at the deposit copy,
which was Summy publication 3075. Other information on
publication 3075 matches the description contained in the
deposit record for E51990. The title of publication 3075, as
shown above the sheet music, is ‘Happy
Birthday to You!’—with an exclamation mark. Ex. 106.
The deposit record likewise lists an exclamation mark,
which was not at the end of the title on the application or
the title on the certificate. Exs. 48, 103, 105. The statement
‘by Mildred J. Hill’ also appears on both the cover of
publication 3075 and the deposit record for E51990. Exs.
105-06.”
“(1) an original version, which was deposited for 51990,
that contains only the familiar lyrics to the song, and claims
copyright in the entirety of those lyrics (‘© is claimed on
arrangement on easy piano solo with text’). . . .”
As shown above, the evidence conclusively demonstrates
that the E51990 deposit copy contained the familiar lyrics
for Happy Birthday to You.”
“Here, there is no suggestion of any defect with the deposit
copies submitted for E51990.”
“On December 9, 1935, Summy Co. deposited in the
Copyright Office two copies of each of the works published
in connection with E51990 and E51988. Exs. 101, 103.”
“the evidence shows that the only other 1935 publication of
Happy Birthday to You that contained words aside from the
E51988 deposit copy also contained the term “Copyright,”
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Text to be Deleted
the name of the proprietor, and the year in which copyright
was secured. Ex. 106 . . . .”
“The undisputed evidence demonstrates that, at the time of
the 1988 acquisition, Warner-Chappell’s predecessor-ininterest was “100% owned by its chairman, David K.
Sengstack.” Ex 119. at 1761.”
7
Plaintiffs specifically seek to strike the following text (only) from the facts listed
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in the parties’ [Corrected] Joint Statement of Uncontroverted Facts (Dkt. 183 at 21-22,
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24-25, 49-51, 83-86, 87, 90-91, 95-99, 104-122, 124-129, 138-141, 143-147):
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Text to be Deleted
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Fact
No.
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Statement of Fact
Admissible
Evidence
Supporting Fact
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D9.
• App’x Ex. 103
(E51988
registration
certificate which
states, “By
Mildred J. Hill”)
• App’x Ex. 101
(E51990
registration
certificate which
states, “By
Mildred J. Hill”)
• . . . . App’x Ex.
101 (Marcotullio
Ex. 9) was
provided to
Warner/Chappell
by the Copyright
Office
• App’x Ex. 106
-5-
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
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Text to be Deleted
Fact
No.
Statement of Fact
Admissible
Evidence
Supporting Fact
(1935
publication of
“Happy Birthday
to You!,” which
states “By
Mildred J. Hill
on the cover and
“Mildred J. Hill”
at the top of the
sheet music)
D16. On or about
• App’x Ex. 101
December 9, 1935, (E51990
Clayton F. Summy registration
certificate)
Co. obtained
• . . . . App’x Ex.
copyright
101 (Marcotullio
Registration
Ex. 9) was
Certificate
provided to
E51990.
Warner/Chappell
by the Copyright
Office
D18. Registration
• App’x Ex. 101
(E51990
Certificate 51990
registration
states that it
certificate)
applies to a
• App’x Ex. 109
“published
(Dep. Tr. of
musical
Jeremy Blietz) at
composition”
1561: App’x Ex.
entitled “Happy
101 (Marcotullio
birthday to you.”
Ex. 9) was
provided to
Warner/Chappell
-6-
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
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Text to be Deleted
Fact
No.
Statement of Fact
Admissible
Evidence
Supporting Fact
by the Copyright
Office
D19. The listing under
• App’x Ex. 101
(E51990
the byline in
registration
Registration
Certificate E51990 certificate)
• App’x Ex. 109
states: “By
(Dep. Tr. of
Mildred J. Hill,
Jeremy Blietz) at
arr. by Preston
1561: App’x Ex.
Ware Orem;* pf.,
101 (Marcotullio
with words.”
Ex. 9) was
provided to
Warner/Chappell
by the Copyright
Office
• App’x Ex. 100
(Kaplan Decl.) at
¶¶ 2, 9
D20. Registration
• App’x Ex. 101
Certificate E51990 (E51990
registration
also states: “(© is
certificate)
claimed on
• App’x Ex. 109
arrangement as
(Dep. Tr. of
easy piano solo
Jeremy Blietz) at
with text).”
1561: App’x Ex.
101 (Marcotullio
Ex. 9) was
provided to
Warner/Chappell
by the Copyright
Office
-7-
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
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Text to be Deleted
Fact
No.
Statement of Fact
Admissible
Evidence
Supporting Fact
• App’x Ex. 100
(Kaplan Decl.) at
¶¶ 2, 9
D21. Registration
• App’x Ex. 101
Certificate E51990 (E51990
registration
lists the date of
certificate)
publication as
December 6, 1935. • App’x Ex. 109
(Dep. Tr. of
Jeremy Blietz) at
1561: App’x Ex.
101 (Marcotullio
Ex. 9) was
provided to
Warner/Chappell
by the Copyright
Office
• App’x Ex. 100
(Kaplan Decl. at
¶¶ 2,9)
D22. Registration
• App’x Ex. 101
Certificate E51990 (E51990
registration
states that two
certificate)
copies of the
published musical • App’x Ex. 109
(Dep. Tr. of
composition were
Jeremy Blietz) at
received and
1561 App’x Ex.
registered in the
101 (Marcotullio
Copyright Office
Ex. 9) was
on December 9,
provided to
1935.
Warner/Chappell
by the Copyright
-8-
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
Text to be Deleted
Fact
No.
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D23.
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D25.
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D26.
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D28.
Statement of Fact
Admissible
Evidence
Supporting Fact
Office
• App’x Ex. 100
(Kaplan Decl.) at
¶¶ 2, 9
• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!).
• App’x Ex.106
(1935
publication of
sheet music for
Happy Birthday
to You!)
• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)
• App’x Ex. 106
The version of
(1935
Happy Birthday to
publication of
You with
sheet music for
publication
Happy Birthday
number 3075
to You!)
identifies the title
• App’x Ex. 100
of the
(Kaplan Decl.) at
composition, on
¶7
the sheet music, as
“Happy Birthday
-9-
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
Text to be Deleted
Fact
No.
Statement of Fact
4
5
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to You!”
D31.
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D33.
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D36.
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Admissible
Evidence
Supporting Fact
D41.
• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)
• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)
• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)
• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)
• App’x Ex. 103
(E51988
registration
certificate)
• App’x Ex. 101
(E51990
registration
- 10 -
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
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Text to be Deleted
Fact
No.
Statement of Fact
Admissible
Evidence
Supporting Fact
certificate)
• App’x Ex. 109
(Dep. Tr. of
Jeremy Blietz) at
1553-54, 1561:
App’x Exs. 101
and 103
(Marcotullio
Exs. 9 and 4)
were provided to
Warner/Chappell
by the Copyright
Office
D42.
• App’x Ex. 103
(E51988
registration
certificate)
• App’x Ex. 109
(Dep. Tr. of
Jeremy Blietz) at
1553-54: App’x
Ex. 103
(Marcotullio Ex.
4) was provided
to
Warner/Chappell
by the Copyright
Office
D44. Registration
• App’x Ex. 103
Certificate E51988 (E51988
registration
applies to a
certificate)
“published
• App’x Ex. 109
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Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
Text to be Deleted
Fact
No.
Statement of Fact
4
5
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Admissible
Evidence
Supporting Fact
musical
composition”
entitled “Happy
birthday to you;
unison song.”
(Dep. Tr. of
Jeremy Blietz) at
1553-54: App’x
Ex. 103
(Marcotullio Ex.
4) was provided
to
Warner/Chappell
by the Copyright
Office
• App’x Ex. 100
(Kaplan Decl.) at
¶¶ 4, 9
D45. The listing under
• App’x Ex. 103
(E51988
the byline in
registration
Registration
Certificate E51988 certificate)
• App’x Ex. 109
states: “By
(Dep. Tr. of
Mildred J. Hill,
Jeremy Blietz) at
rev. text and arr.
1553-54: App’x
of music by Mrs.
Ex. 103
R. R. Forman*
(Marcotullio Ex.
4to.”
4) was provided
to
Warner/Chappell
by the Copyright
Office
• App’x Ex. 100
(Kaplan Decl.) at
¶¶ 4, 9
D46. Registration
• App’x Ex. 103
(E51988
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Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
4
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Text to be Deleted
Fact
No.
Statement of Fact
Admissible
Evidence
Supporting Fact
Certificate E51988 registration
certificate)
also states: “(© is
claimed on
• App’x Ex. 109
arrangement for
(Dep. Tr. of
unison chorus and
Jeremy Blietz) at
revised text).”
1553-54: App’x
Ex. 103
(Marcotullio Ex.
4) was provided
to
Warner/Chappell
by the Copyright
Office
• App’x Ex. 100
(Kaplan Decl.) at
¶¶ 4, 9
D47. Registration
• App’x Ex. 103
Certificate E51988 (E51988
registration
lists the date of
certificate)
publication as
December 6, 1935. • App’x Ex. 109
(Dep. Tr. of
Jeremy Blietz) at
1553-54: App’x
Ex. 103
(Marcotullio Ex.
4) was provided
to
Warner/Chappell
by the Copyright
Office
• App’x Ex. 100
(Kaplan Decl.) at
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Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
Text to be Deleted
Fact
No.
Statement of Fact
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Admissible
Evidence
Supporting Fact
¶¶ 4, 9
D48. Registration
• App’x Ex. 103
Certificate E51988 (E51988
registration
states that two
certificate)
copies of the
published musical • App’x Ex. 109
(Dep. Tr. of
composition were
Jeremy Blietz) at
received and
1553-54: App’x
registered in the
Ex. 103
Copyright Office
(Marcotullio Ex.
on December 9,
4) was provided
1935.
to
Warner/Chappell
by the Copyright
Office
• App’x Ex. 100
(Kaplan Decl.) at
¶¶ 4, 9
D67. On or about
• App’x Ex. 102
December 6, 1962, (certificate of
registration of a
Summy-Birchard
claim to renewal
Co. obtained
copyright,
Registration
306186)
Certificate
R306186, which
was a renewal of
Registration
E51990.
D68. Registration
Certificate
R306186 applies
• App’x Ex. 102
(certificate of
registration of a
- 14 -
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
Text to be Deleted
Statement of Fact
Admissible
Evidence
Supporting Fact
to “HAPPY
BIRTHDAY TO
YOU! – easy
piano solo with
text.”
claim to renewal
copyright,
306186)
D69. Registration
Certificate
R306186 states
that the
“Renewable
Matter” is
“Arrangement as
easy piano solo
with text.”
• App’x Ex. 102
(certificate of
registration of a
claim to renewal
copyright,
306186)
D70. Registration
Certificate
R306186 states
“By Mildred J.
Hill” in the area
designated for
Copyright Office
notations.
• App’x Ex. 102
(certificate of
registration of a
claim to renewal
copyright,
306186)
Fact
No.
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5
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8
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10
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12
13
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D71. On or about
• App’x Ex. 104
December 6, 1962, (certificate of
registration of a
Summy-Birchard
Company obtained claim to renewal
copyright,
Registration
306185)
Certificate
R306185, which
was a renewal of
Registration
- 15 -
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
Text to be Deleted
Fact
No.
Statement of Fact
4
5
6
7
8
9
10
11
12
13
14
15
16
17
E51988.
D72. Registration
Certificate
R306185 applies
to “HAPPY
BIRTHDAY TO
YOU! – Unison
Song.”
• App’x Ex. 104
(certificate of
registration of a
claim to renewal
copyright,
306185)
D79. As of October
1988, Birch Tree
Group Ltd. Was
100% owned by
its then chairman,
David K.
Sengstack.
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding Birch
Tree Group Ltd)
• App’x Ex. 100
(Kaplan Decl.) at
¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding Birch
Tree Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.) at
¶¶ 16-17
• App’x Ex. 119
(Excerpt of
18
19
20
D82.
21
22
23
24
25
26
27
28
Admissible
Evidence
Supporting Fact
D83. Between
- 16 -
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Text to be Deleted
Fact
No.
Statement of Fact
Admissible
Evidence
Supporting Fact
October 1988
approximately
“Confidential
September 1931
Information
and January 1989,
Memorandum”
the Sengstack
regarding Birch
family
Tree Group Ltd.)
continuously
operated
• App’x Ex. 100
Warner/Chappell’s (Kaplan Decl.) at
predecessors-in¶ 17
interest (in
chronological
order): Clayton F.
Summy Co.
(Delaware),
Summy
Publishing Co.
(Delaware),
Summy-Birchard
Publishing Co.
(Delaware),
Summy-Birchard
Co. (Delaware),
Summy-Birchard
Co. (Illinois),
Summy-Birchard
Co. (Wyoming),
Sumco Corp.
(Wyoming),
Summy-Birchard
Co. (Wyoming),
The Birch Tree
Group Ltd.
(Wyoming), Birch
- 17 -
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
1
2
3
Text to be Deleted
Fact
No.
Statement of Fact
4
5
7
9
Admissible
Evidence
Supporting
Response
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
Disputed.
SummyBirchard
Company has
been operated
P59
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Opposing
Party’s
Response
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Tree Group Ltd.
(Wyoming),
Summy-Birchard,
Inc. (Wyoming).
6
8
Admissible
Evidence
Supporting Fact
P60
26
27
28
- 18 -
• App’x Ex. 100
(Declaration of
Adam I.
Kaplan
(“Kaplan
Decl.”) at ¶ 17
1
2
3
Text to be Deleted
4
Statement of Fact
Admissible
Evidence
Supporting Fact
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
P61
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Fact
No.
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
20
21
22
23
24
25
26
27
28
- 19 -
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
5
Admissible
Evidence
Supporting
Response
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
6
7
8
9
10
11
12
Opposing
Party’s
Response
P62
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 20 -
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
1
2
3
Text to be Deleted
Fact
No.
4
5
6
Statement of Fact
Admissible
Evidence
Supporting Fact
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
P115
Admissible
Evidence
Supporting
Response
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
P68
Opposing
Party’s
Response
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 106
(1935
publication of
sheet music for
Happy
Birthday to
You!) at 122123
• App’x Ex. 101
(E51990
23
24
25
26
27
28
- 21 -
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
Opposing
Party’s
Response
5
6
7
8
9
10
P116
Disputed.
Defendants do
possess copies
of Happy
Birthday to
You that were
published in
1935 as a
“Piano Solo
with words.”
Defendants do
not possess a
copy of the
specific copy
deposited with
the Copyright
Office.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
11
12
13
14
15
16
17
18
19
20
21
22
P192
23
24
25
26
27
28
- 22 -
Admissible
Evidence
Supporting
Response
registration
certificate,
marked as
Marcotullio
Ex. 9) at 120507
App’x Ex. 106
(1935
publication of
sheet music for
Happy
Birthday to
You!) at 122023
App’x Ex. 100
(Kaplan Decl.)
at ¶ 7
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
6
7
8
9
10
11
12
13
14
15
P193
16
17
18
19
20
21
22
23
24
25
26
27
28
- 23 -
Admissible
Evidence
Supporting
Response
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
5
Opposing
Party’s
Response
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
5
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
6
7
8
P196
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Opposing
Party’s
Response
P197
25
26
27
28
- 24 -
Admissible
Evidence
Supporting
Response
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
1
2
3
Text to be Deleted
Fact
No.
Statement of Fact
Admissible
Evidence
Supporting Fact
4
6
7
8
9
10
11
12
13
14
15
16
17
P198
.
18
19
20
21
22
23
24
25
26
27
28
- 25 -
Admissible
Evidence
Supporting
Response
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
5
Opposing
Party’s
Response
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex.119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
5
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
6
7
8
9
10
P202
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Opposing
Party’s
Response
P208
27
28
- 26 -
Admissible
Evidence
Supporting
Response
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
6
7
8
9
10
11
12
13
14
15
16
17
18
19
P209
20
21
22
23
24
25
26
27
28
- 27 -
Admissible
Evidence
Supporting
Response
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
Unsupported
by the
evidence.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
5
Opposing
Party’s
Response
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
5
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
6
7
8
9
10
11
12
13
14
Opposing
Party’s
Response
P224
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 28 -
Admissible
Evidence
Supporting
Response
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
5
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
6
7
P225
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Opposing
Party’s
Response
P226
24
25
26
27
28
- 29 -
Admissible
Evidence
Supporting
Response
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
6
7
8
9
10
11
12
13
14
15
16
P227
17
18
19
20
21
22
23
24
25
26
27
28
- 30 -
Admissible
Evidence
Supporting
Response
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
5
Opposing
Party’s
Response
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
5
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
SummyBirchard
Company has
been operated
6
7
8
9
P228
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Opposing
Party’s
Response
P229
26
27
28
- 31 -
Admissible
Evidence
Supporting
Response
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
1
2
3
Text to be Deleted
Fact
No.
4
Statement of Fact
Admissible
Evidence
Supporting Fact
6
7
8
9
10
11
12
13
14
15
16
17
18
P230
19
20
21
22
23
24
25
26
27
28
- 32 -
Admissible
Evidence
Supporting
Response
continuously
by the
Sengstack
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
Disputed.
Unsupported
by the
evidence.
SummyBirchard
Company has
been operated
continuously
by the
Sengstack
family since
1931. As of
October 1988,
Summy-
5
Opposing
Party’s
Response
Memorandum”
regarding
Birch Tree
Group Ltd.)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17
• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding
Birch Tree
Group Ltd.)
1
2
3
Text to be Deleted
Fact
No.
Statement of Fact
4
Admissible
Evidence
Supporting Fact
5
Opposing
Party’s
Response
Admissible
Evidence
Supporting
Response
Birchard
Company’s
successor
company,
Birch Tree
Group Ltd.,
was 100%
owned by its
then chairman
David K.
Sengstack.
6
7
8
9
10
11
12
13
14
This motion is based on this Notice of Motion and Motion, the accompanying
15
Memorandum of Points and Authorities, the Declaration of Betsy C. Manifold filed
16
concurrently herewith, all the pleadings and documents on file herein, such other oral
17
and documentary evidence as may be presented at or before the hearing on this motion,
18
and all facts of which this Court may take judicial notice.
19
This motion is made following the conference of counsel pursuant to L.R. 7-3,
20
which took place on December 12, 2014.
21
Dated: December 22, 2014
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
22
23
24
By:
/s/ Betsy C. Manifold
BETSY C. MANIFOLD
25
26
27
28
FRANCIS M. GREGOREK
gregorek@whafh.com
BETSY C. MANIFOLD
- 33 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
manifold@whafh.com
RACHELE R. RICKERT
rickert@whafh.com
MARISA C. LIVESAY
livesay@whafh.com
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: 619/239-4599
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
rifkin@whafh.com
JANINE POLLACK (pro hac vice)
pollack@whafh.com
BETH A. LANDES (pro hac vice)
landes@whafh.com
270 Madison Avenue
New York, NY 10016
Telephone: 212/545-4600
Facsimile: 212-545-4753
17
Interim Lead Counsel for Plaintiffs
18
RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
rsn@randallnewman.net
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: 212/797-3737
19
20
21
22
23
24
25
26
27
28
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
- 34 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
gibbs@huntortmann.com
OMEL A. NIEVES (134444)
nieves@huntortmann.com
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone 626/440-5200
Facsimile 626/796-0107
Facsimile: 212/797-3172
DONAHUE FITZGERALD LLP
WILLIAM R. HILL (114954)
rock@donahue.com
ANDREW S. MACKAY (197074)
andrew@donahue.com
DANIEL J. SCHACHT (259717)
daniel@donahue.com
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: 510/451-0544
Facsimile: 510/832-1486
16
17
18
19
20
21
22
GLANCY BINKOW & GOLDBERG LLP
LIONEL Z. GLANCY (134180)
lglancy@glancylaw.com
MARC L. GODINO (188669)
mgodino@glancylaw.com
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: 310/201-9150
Facsimile: 310/201-9160
23
24
Attorneys for Plaintiff
25
26
27
28
- 35 -
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