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)

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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 11 Interim Lead Counsel for Plaintiffs and the [Proposed] Class 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 13 14 15 16 GOOD MORNING TO YOU PRODUCTIONS CORP., et al., 17 18 19 20 Plaintiffs, v. 21 WARNER/CHAPPELL MUSIC, INC., et al. 22 23 24 25 26 27 28 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on or about February 9, 2015, at 9:30 a.m., or as 3 soon thereafter as this matter may be heard before the Honorable George H. King, Chief 4 Judge, in Courtroom 650 of the Edward R. Roybal Federal Building, located at 255 E. 5 Temple Street, Los Angeles, CA 90012, Plaintiffs Rupa Marya, Robert Siegel, and 6 Good Morning To You Productions Corp. and Majar Productions, LLC (“Plaintiffs”) 7 will, and hereby do, move this Court for an order to exclude Defendants’ Exhibits 101- 8 104, 106, and 119 (collectively, “Defendants’ Exhibits”) of the Amended Joint 9 Evidentiary Appendix in Support of Notice of Cross-Motions and Cross-Motions for 10 Summary Judgment Filed Pursuant to Court’s Dec. 5, 2014 Order, filed December 17, 11 2014 (Dkts. 187 (Vol. 1, Exs. 1-10, Pages 1-220); 188 (Vol. 2, Ex.11, Pages 221-486); 12 189 (Vol. 3, Exs. 12-54, Pages 487-706); 190 (Vol. 4, Exs. 55-81, Pages 707-974); 191 13 (Vol. 5, Exs. 82-99, Pages 975-1141); 192 (Vol. 6, Exs. 100-106, Pages 1200-1540); 14 193 (Vol. 7, Exs. 107-116, Pages 1541-1750); and 194 (Vol. 8, Exs. 117-126, Pages 15 1751-1947)) (collectively, the “Appendix”) from the Appendix and to strike all 16 references to Defendants’ Exhibits as well as the arguments based upon them from the 17 Cross-Motions for Summary Judgment (as amended Nov. 26, 2014, Dkt. 182) (“Joint 18 Brief”) and the [Corrected] Joint Statement of Uncontroverted Facts (as amended Dec. 19 1, 2014, Dkt. 183) (“SOF”). 20 21 Plaintiffs specifically seek to strike the following references from the Joint Brief Motion for Summary Judgment (Dkt. 182): 22 23 24 25 26 27 28 From To Text to be Deleted Page:Line Page:Line 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. -1- 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 From To Text to be Deleted Page:Line Page:Line 2:19 2:20 “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.’” 28 -2- 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 From To Text to be Deleted Page:Line Page:Line 16:23 17:1 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 -3- 1 2 From To Page:Line Page:Line 3 4 5 6 7 8 41:2 41:10 41:16 41:18 43:7 43:9 23 43:11 43:12 24 48:13 48:15 48:18 48:21 9 10 11 12 13 14 15 16 17 18 19 20 21 22 25 26 27 28 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,” -4- 1 2 From To Page:Line Page:Line 3 4 50:7 5 6 50:9. 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 8 in the parties’ [Corrected] Joint Statement of Uncontroverted Facts (Dkt. 183 at 21-22, 9 24-25, 49-51, 83-86, 87, 90-91, 95-99, 104-122, 124-129, 138-141, 143-147): 10 Text to be Deleted 11 12 Fact No. 13 Statement of Fact Admissible Evidence Supporting Fact 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 (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 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 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 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 • 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. 4 5 6 7 8 D23. 9 10 11 12 13 D25. 14 15 16 17 D26. 18 19 20 21 22 23 24 25 26 27 28 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 6 to You!” D31. 7 8 9 10 11 D33. 12 13 14 15 D36. 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 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 - 11 - 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 18 19 20 21 22 23 24 25 26 27 28 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 - 12 - 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 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 - 13 - 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 18 19 20 21 22 23 24 25 26 27 28 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. 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 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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