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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TABLE OF CONTENTS

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I.

INTRODUCTION ....................................................................................... 1

II.

ARGUMENT............................................................................................... 4

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A.

Defendants’ Exhibits 101-104 Are Not Authentic .............................. 5

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B.

Defendants’ Exhibits 101-104 Are Inadmissible Hearsay ................ 11

C.

Defendants’ Exhibit 106 Is Not Authentic ....................................... 12

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D.

Defendants’ Exhibit 106 Is Inadmissible Hearsay ............................ 13

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E.

Defendants’ Exhibit 119 Has Not Been Authenticated ..................... 14

F.

Defendants’ Exhibit 119 is Inadmissible Hearsay ............................ 15

G.

Defendants’ Exhibit 119 Lacks Foundation ..................................... 16

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III.

CONCLUSION ......................................................................................... 17

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TABLE OF AUTHORITIES

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Cases
Beyene v. Coleman Sec. Servs., Inc.,
854 F.2d 1179 (9th Cir. 1988) .................................................................................... 5
Brown v. Brewer,
No. CV 06-3731-GHK (SHx), 2010 U.S. Dist.
LEXIS 60863 (C.D. Cal. June 17, 2010)..................................................................... 4
Burch v. Regents of the Univ. of Cal.,
433 F. Supp. 2d 1110 (E.D. Cal. 2006) ....................................................................... 5
Clark v. County of Tulare,
755 F. Supp. 2d 1075 (E.D. Cal. 2010) ....................................................................7, 8
Kesey, LLC v. Francis,
No. CV 06-540-AC, 2009 U.S. Dist.
LEXIS 28078 (D. Or. Apr. 3, 2009) ..........................................................................16
Menalco v. Buchan,
No. 2:07-cv-01178-PMP-PAL, 2010 U.S. Dist.
LEXIS 8042 (D. Nev. Feb. 1, 2010) ..........................................................................14
Miller v. Glenn Miller Prods., Inc.,
318 F. Supp. 2d 923 (C.D. Cal. 2004)......................................................................... 4
Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc.,
No. CV05-2200 MMM (MCx) 2008 U.S. Dist.
LEXIS 71761 (C.D. Cal. Mar. 17, 2008) ...................................................................16
Orr v. Bank of Am.,
285 F.3d 764 (9th Cir. 2002) ..............................................................................passim

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Rosebrock v. Beiter,
No. CV 10-01878 SJO (SSx), 2011 U.S. Dist.
LEXIS 61758 (C.D. Cal. May 26, 2011)........................................................ 12, 14, 15

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Siegel v. Warner Bros. Entm’t, Inc.,
542 F. Supp. 2d 1098 (C.D. Cal. 2008) ....................................................................... 7

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Uche-Uwakwe v. Shinseki,
972 F. Supp. 2d 1159 (C.D. Cal. 2013) ....................................................................... 5
United States v. Bellucci,
995 F.2d 157 (9th Cir. 1993) ........................................................................... 5, 13, 14
Statutes
1 U.S.C.
§ 114 .......................................................................................................................... 7
17 U.S.C.
§ 702 .......................................................................................................................... 9
§ 707(b) ...................................................................................................................... 9
Rules and Regulations
Code of Federal Regulations
37 C.F.R. § 201.2(b)(7) .............................................................................................. 9
Federal Rules of Evidence
602 ............................................................................................................................16
801(a) .................................................................................................................. 12, 15
801(c)(1).............................................................................................................. 12, 15
801(c)(2).............................................................................................................. 12, 15
801(d) ............................................................................................................ 12, 14, 15
802 ................................................................................................................ 12, 13, 15
803 ............................................................................................................................14
803(6) ........................................................................................................................15
803(15) ......................................................................................................................12
803(16) ................................................................................................................ 12, 15
901 .............................................................................................................. 4, 5, 10, 14
901(a) ......................................................................................................................... 5
901(b) ......................................................................................................................... 5
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901(b)(1) .................................................................................................................... 5
901(b)(4) .................................................................................................................... 5
901(b)(7) .................................................................................................................... 6
902 .....................................................................................................................passim
902(1) .................................................................................................................. 6, 7, 8
902(1)(A) and (B) ................................................................................................ 6, 7, 8

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Other Authorities
5-21 Nimmer on Copyright
§ 21.02........................................................................................................................ 9

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MEMORANDUM OF POINTS AND AUTHORITIES

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Plaintiffs hereby move to exclude Defendants’ Exhibits 101-104, 106, and 119

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(collectively, “Defendants’ Exhibits”) of the Amended Joint Evidentiary Appendix in

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Support of Notice of Cross-Motions and Cross-Motions for Summary Judgment Filed

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Pursuant to Court’s Dec. 5, 2014 Order, filed December 17, 2014 (Dkts. 187 (Vol. 1,

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Exs. 1-10, Pages 1-220); 188 (Vol. 2, Ex.11, Pages 221-486); 189 (Vol. 3, Exs. 12-54,

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Pages 487-706); 190 (Vol. 4, Exs. 55-81, Pages 707-974); 191 (Vol. 5, Exs. 82-99,

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Pages 975-1141); 192 (Vol. 6, Exs. 100-106, Pages 1200-1540); 193 (Vol. 7, Exs. 107-

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116, Pages 1541-1750); and 194 (Vol. 8, Exs. 117-126, Pages 1751-1947)) (collectively,

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the “Appendix”) from the Appendix and to strike all references to Defendants’ exhibits

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as well as the arguments based upon them from the Cross-Motions for Summary

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Judgment (as amended Nov. 26, 2014, Dkt. 182) (“Joint Brief”) and the [Corrected]

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Joint Statement of Uncontroverted Facts (as amended Dec. 1, 2014, Dkt. 183) (“SOF”).

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For all the reasons set forth below, Defendants’ Exhibits 101-104, 106, and 119 are

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inadmissible and should be stricken from the Appendix along with all references to

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them in the Joint Brief and the SOF.1

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I.

INTRODUCTION

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Defendants contend that Exhibits 101 and 103 are copies of the registration

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certificates for the copyrights to Happy Birthday registered on December 9, 1935, as

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Registration Nos. E51988 and E51990. Manifold Decl., Exs. 101 at 146-148 (App’x at

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6:1205-1207); 103 at 153-155 (App’x at 6:1212-1214). Defendants also contend that

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Exhibits 102 and 104 are copies of the registration certificates for the renewal

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copyrights to Happy Birthday registered on December 6, 1962, as Registration Nos.

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R306185 and R306186. Id., Exs. 102 at 150-151 (App’x at 6:1209-1210); 104 at 157-

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Attached to the Declaration of Betsy C. Manifold in Support of Plaintiffs’ Motion
to Exclude Evidence (“Manifold Decl.”) are true and correct copies of the Appendix
exhibits referenced herein. For ease of reference, each exhibit is identified by the same
number as it appears in the Appendix.
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158 (App’x at 6:1216-1217). The four documents are not what Defendants claim they

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are.

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sealed, signed, and certified by the Register of Copyrights, are marked as Plaintiffs’

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Exhibits 44 and 48 (for E51988 and E51990) and 67 and 68 (for R306185 and

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R306186). Id., Exs. 44 at 54-55 (App’x at 3:626-27, Dkt. 189-3); 48 at 57-58 (App’x at

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3:653-54, Dkt. 189-3); 67 at 60-62 (App’x at 4:808-810, Dkt. 190-2); 68 at 64-66

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(App’x at 4:812-814, Dkt. 190-2). Those official registration certificates are materially

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different than the ersatz copies proffered by Defendants.

The official registration certificates for the four copyrights, which have been

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In particular, Defendants base their claim that Mildred Hill wrote the familiar

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Happy Birthday lyrics virtually entirely upon the “fact” that her name appears on the

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purported registration certificates for E51988 and E51990. Defendants argue they are

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entitled to a presumption that Mildred Hill wrote the Song based on the “fact” that is

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supposedly stated in those purported registration certificates. That argument, repeated

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dozens of times in their sections of the Joint Brief, forms the crux of their argument that

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they own the Happy Birthday copyright. In truth, Mildred Hill’s name appears nowhere

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on the official registration certificates for the original copyrights, which are marked as

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Plaintiffs’ Exhibits 44 and 48, leaving Defendants with no proof that Mildred Hill wrote

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the Song and thus eviscerating Defendants’ argument almost entirely.

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The Court should accept Plaintiffs’ Exhibits 44, 48, 67, and 68 as the official

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sealed, signed, and certified registration certificates and should strike Defendants’

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Exhibits 101-104, which are not registration certificates at all, from the record.

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Defendants also contend that Exhibit 106 is a copy of the work covered by

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E51990. Manifold Decl., Ex. 106 at 160-161 (App’x at 6:1221-1222, Dkt. 192-1). No

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one has identified Exhibit 106 as such, and no one can do so.

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represents the work covered by E51990 is pure speculation, to say the least. As the

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Court will recall, Defendants do not have a copy of the work deposited with the

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application for E51990, the copyright for a piano arrangement composed by Preston

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Ware Orem as an employee-for-hire of the Clayton F. Summy Co. (“Summy Co.”) in
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That Exhibit 106

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1935. No one with personal knowledge has identified Exhibit 106 as the deposit copy

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for E51990 or, for that matter, a copy of the work covered by the copyright.

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At most, Defendants are left to argue that Exhibit 106 “must have been” the work

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covered by E51990. See Jt. Br. 40:13-15 (“publication 3075 . . . must have been

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submitted in connection with E51990”). However, no one alive knows from personal

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knowledge what that work was, and there is no way to prove it from the scant record

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Defendants have offered.

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person most knowledgeable on that question, admitted he did not know what work

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actually was done by Mr. Orem or what work was deposited with E51990. Id., Ex. A at

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Their Rule 30(b)(6) designee, Thomas Marcotullio, the

17-18 (185:19-186:3).

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Since Defendants’ Exhibit 106 has not been authenticated by anyone with

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knowledge of what that work was, and meets none of the other criteria for admissibility,

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it also should be stricken from the Appendix and all references to it stricken from the

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Joint Brief and the SOF.

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Finally, Defendants rely upon Exhibit 119, an October 1988 “Confidential

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Information Memorandum” (“CIM”) regarding Birch Tree Group Ltd. (“BTG”) to

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support the chain of title to their claim of ownership of E51988 and E51990 and the

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renewals thereof. Jt. Br. at 50:7-9; Manifold Decl., Ex. 119 at 164-166 (App’x at

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8:1761-1763, Dkt. 194-1).

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Defendants’ outside counsel Adam Kaplan, an associate with Munger Tolles & Olson

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LLP, was just seven or eight years old when the CIM was prepared in 1988. Manifold

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Decl., Ex. 100 at 143 (App’x at 6:1200-1203, Dkt. 192-1). Mr. Kaplan does not claim

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to have personal knowledge of the CIM or its creation, and plainly he lacks that

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knowledge. Id. We do not even know who wrote the CIM. Quite simply, Mr. Kaplan

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cannot authenticate a document that was created when he was just a young child.

The only witness who “recognizes” Exhibit 119,

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In addition, there is no foundation for the hearsay statements in the CIM

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regarding Defendants’ chain of title. Defendants rely upon the CIM to prove that David

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K. Sengstack owned 100% of BTG when the CIM was prepared. The CIM does not
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indicate that it was prepared by a person with personal knowledge of BTG’s ownership;

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indeed, it does not identify any author – only that it was prepared by Wertheim Schroder

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& Co. Nor has anyone described the circumstances under which the CIM was prepared.

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In any event, the out-of-court statements from the unknown author, which Defendants

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proffer to prove the truth of the matter asserted, are inadmissible hearsay.

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Since it has not been authenticated by anyone with personal knowledge of what it

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was, and since it is inadmissible hearsay in any event, Defendants’ Exhibit 119 should

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be stricken from the Appendix and any reference to it stricken from the Joint Brief and

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the SOF.

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II.

ARGUMENT

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“Only admissible evidence may be considered in deciding a motion for summary

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judgment.” Miller v. Glenn Miller Prods., Inc., 318 F. Supp. 2d 923, 932 (C.D. Cal.

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2004). Paragraph 7 of the Court’s March 24, 2014, Order re: Summary Judgment

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Motions (Dkt. 93) likewise provides that the evidentiary appendix may include only

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“admissible evidence.” It is axiomatic that a party may move to “exclude certain

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evidence from the Court’s consideration” on summary judgment if the evidence is

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inadmissible. Brown v. Brewer, No. CV 06-3731-GHK (SHx), 2010 U.S. Dist. LEXIS

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60863, at *85 (C.D. Cal. June 17, 2010).

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Defendants’ Exhibits 101-104, 106, and 119 are not admissible evidence. None

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of those six exhibits have been – or even can be – authenticated by anyone with

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personal knowledge of what they are. The official, sealed, signed, and certified copies

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of the additional registration certificates for E51988, E51990, R306185, and R306186

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prove conclusively that Exhibits 101-104 are not copies of those registration certificates.

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In addition, Exhibits 101-104, 106, and 119 are inadmissible hearsay and cannot be

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admitted on that additional basis. For these reasons, discussed more fully below, the

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Court should strike Exhibits 101-104, 106, and 119 from the Appendix and should strike

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any reference to them from the Joint Brief and the SOF.

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A.

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Under Fed. R. Evid. 901, to be admitted into evidence, a document must be

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authenticated by a witness with sufficient knowledge to identify it as what the proponent

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of the document purports it to be. Fed. R. Evid. 901(a). The proponent of the evidence

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has the burden of authenticating it. United States v. Bellucci, 995 F.2d 157, 160 (9th

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Cir. 1993). Defendants have not satisfied the requirement for authenticating Exhibits

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101-104; indeed, Defendants have not even attempted to do so.

Defendants’ Exhibits 101-104 Are Not Authentic

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The Ninth Circuit has “repeatedly held that unauthenticated documents cannot be

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considered in a motion for summary judgment.” Orr v. Bank of Am., 285 F.3d 764, 773

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(9th Cir. 2002) (citations omitted). A trial court can only consider admissible evidence

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in ruling on a motion for summary judgment and “authentication is a ‘condition

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precedent’ to admissibility.” Uche-Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1164

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(C.D. Cal. 2013) (citing Orr, 285 F.3d at 773). On a motion for summary judgment, the

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Court may only consider documents authenticated by an affiant with personal

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knowledge who could authenticate them at trial or through one of the means of

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authentication provided under Fed. R. Evid. 901(b) or 902. Orr, 285 F.3d at 773-74.

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“‘[D]ocuments which have not had a proper foundation laid to authenticate them cannot

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support [or defend against] a motion for summary judgment.’” Burch v. Regents of the

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Univ. of Cal., 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006) (quoting Beyene v. Coleman

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Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (alterations original).

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Rule 901(b) lists 10 examples of authenticating evidence. Defendants have not

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provided any evidence that falls within any of those examples, nor have they provided

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any evidence that even comes close to it. For example, they provide no testimony of a

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witness with knowledge that the documents are, in fact, the registration certificates for

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E51988 or E51990. See Fed. R. Evid. 901(b)(1). Nor do they provide any analysis of

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the contents or substance of Exhibits 101-104 to authenticate them. See Fed. R. Evid.

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901(b)(4). Defendants provide no evidence that Exhibits 101-104 were recorded or

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filed in a public office as the registration certificates for E51988 or E51990 or that they
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are kept by the Copyright Office as the registration certificates for the two copyrights.

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See Fed. R. Evid. 901(b)(7).

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No one has said – nor could they – that Exhibits 101-104 are genuine copies of

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the official registration certificates for the two copyrights and their renewals.

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Defendants appear to rely entirely upon an unsigned transmittal cover sheet with a

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facsimile copy of the Copyright Office’s seal on it to authenticate them. However, an

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unsigned, facsimile copy of an official seal is not sufficient to authenticate any

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document for the obvious reason that anyone with access to a photocopying machine

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can reproduce a copy of a seal at will. Therefore, only an official signature and seal are

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sufficient to authenticate a document.

Exhibits 101-104 are unsigned: no one has

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attested to their authenticity as registration certificates. While Exhibits 101-104 may be

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unofficial records of the Copyright Office, they are not registration certificates. As

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Defendants concede, any presumption to which they may be entitled must be based only

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upon factual information contained in the actual registration certificates. Jt. Br. at

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38:4-6 (“It is the registration certificates . . . that receive the statutory presumption. 17

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U.S.C. § 410(c).”) (emphasis added).

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If Defendants’ failure to provide authenticating evidence for Exhibits 101-104

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were not reason enough to exclude them from the record, Plaintiffs’ Exhibits 44, 48, 67

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and 68 (Manifold Decl., Exs. 44, 48, 67 and 68) prove definitively that Exhibits 101-104

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are not what Defendants claim them to be. Under Fed. R. Evid. 902(1)(A) and (B), a

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document is self-authenticating and admissible if it is under seal purporting to be that of

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a department, agency, or officer of the United States and signed by an official certifying

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its authenticity.

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authenticating if they have a raised seal purporting to be that of a department, agency, or

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officer of the United States and a signature purporting to be an execution or attestation.

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Fed. R. Evid. 902(1)(A) and (B).2 To be self-authenticating under Rule 902, public

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2

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Under Fed. R. Evid. 902(1), domestic public documents are self-

“In all cases where a seal is necessary by law to any commission, process, or
other instrument provided for by the laws of Congress, it shall be lawful to affix the
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documents must either be signed under seal or attached to a certification signed under

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seal. Clark v. County of Tulare, 755 F. Supp. 2d 1075, 1102 (E.D. Cal. 2010).

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Plaintiffs have lodged with the Court original Additional Certificates of

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Registration for E51988, E51990, R306185, and R306186. See Pls.’ Amend. Not.

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Lodging (Dkt. 195, Dec. 17, 2014). All four of those exhibits were sealed with the

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raised seal of the Copyright Office and signed by Maria A. Pallante, Register of

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Copyrights and Associate Librarian for Copyright Services, certifying that they are, in

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fact, what Plaintiffs say they are: Additional Certificates of Registration for the four

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copyrights in question. Manifold Decl., Ex. 99 at 117-130 (App’x at 5:1119-1140, Dkt.

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191-1) (excerpts of U.S. Copyright Office Compendium II).

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Thus, they are self-

authenticating under Rule 902(1).

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In Siegel v. Warner Bros. Entm’t, Inc., 542 F. Supp. 2d 1098, 1119-21 (C.D. Cal.

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2008), the court accepted as authentic under Rule 902(1) registration certificates that

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had the seal of the Copyright Office and were signed by the Register of Copyrights with

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the following legend: “[A]ttached are additional certificates for the [comics in question]

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which were registered in accordance with provisions of the United States Copyright

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Law.” Plaintiffs’ Exhibits 44 and 48, the original, sealed, signed, and certified official

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Additional Certificates of Registration for E51988 and E51990, respectively, meet both

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requirements of Rule 902(1) exactly: they have the raised seal of the Copyright Office

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and they are signed by Ms. Pallante with a legend attesting to the fact that they are

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Additional Certificates of Registration.

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Exhibits 44 and 48 are fully self-authenticating and admissible. Defendants’ Exhibits

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101 and 103, on the other hand, do not meet Rule 902(1) in any respect. They do not

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have the raised seal of the Copyright Office and they are not signed by anyone from the

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Copyright Office attesting to their authenticity. The mere fact they have an unsigned

Therefore, under Rule 902(1)(A) and (B),

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proper seal by making an impression therewith directly on the paper to which such seal
is necessary; which shall be as valid as if made on wax or other adhesive substance.”
1 U.S.C. § 114.
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cover sheet from the Copyright Office with a facsimile reproduction of the Copyright

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Office’s seal does not satisfy either requirement of Rule 902(1)(A) or (B), and

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Defendants have identified no authority suggesting otherwise.3

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authenticating and they are not admissible. Clark, 755 F. Supp. 2d at 1102 (only

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documents signed under seal or attached to a certification signed under seal are self-

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authenticating).

They are not self-

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Likewise, Plaintiffs’ Exhibits 67 and 68, the original, sealed, signed, and certified

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official Additional Certificates of Registration for the renewal copyrights R306185 and

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R306186, respectively, also meet Rule 902(1) exactly: like Exhibits 44 and 48, they also

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have the raised seal of the Copyright Office and they are signed by Ms. Pallante

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attesting to their authenticity. See Siegel, 542 F. Supp. 2d at 1119-21. Therefore, under

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Rule 902(1), Exhibits 67 and 68 are also fully self-authenticating and admissible. On

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the other hand, Defendants’ Exhibits 102 and 104, like Exhibits 101 and 103, do not

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meet Rule 902(1) in any respect. Notwithstanding the unsigned cover page, Exhibits

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102 and 104 do not have the raised seal of the Copyright Office and they are not signed

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by anyone from the Copyright Office attesting to their authenticity. They, too, are not

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self-authenticating and are not admissible. Clark, 755 F. Supp. 2d at 1102.

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Moreover, federal law and the Copyright Office’s own administrative procedures

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leave no doubt that Defendants’ Exhibits 101-104 are not authentic copies of the

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Certificates of Registration or Additional Certificates of Registration for E51988 or

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E51990.

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authorized to establish regulations not inconsistent with law for the administration of the

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Under Section 702 of the Copyright Act, the “Register of Copyrights is

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Defendants do not even attempt to argue that their Exhibits 101-104 are signed or
sealed (or the registration certificates, for that matter). They say only that the exhibits
“include official Copyright Office cover pages that state ‘Copy of Registration.’” Joint
Br. at 15:14-15 (emphasis added). Plaintiffs’ Exhibits 44, 48, 67, and 68, on the other
hand, are sealed, signed, and certified as the official registration certificates. See Not.
Lodging (Dkt. 195).

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functions and duties made the responsibility of the Register under this title.

All

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regulations established by the Register under this title are subject to the approval of the

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Librarian of Congress.” 17 U.S.C. § 702. Under Section 707(b) of the Copyright Act,

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the “Register also has the authority to publish compilations of information,

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bibliographies, and other material he or she considers to be of value to the public.” 17

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U.S.C. § 707(b).

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Under 37 C.F.R. section 201.2(b)(7), promulgated by the Register of Copyrights

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pursuant to the authority conferred under Sections 702 and 707(b) of the Copyright Act,

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the Copyright Office maintains administrative staff manuals, referred to as its

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Compendium of Office Practices I and II for the general guidance of its staff in making

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registrations and recording documents. See Manifold Decl., Ex. 99 at 118-130. Section

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1905.01 of Compendium II4 provides that a “certificate of registration . . . is a digital

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image of the application made on a form containing the signature of the Register of

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Copyrights and the seal of the Copyright Office.” Id. at 129 (emphasis added). Only

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one certificate of registration is issued for any copyright. Subsequent copies of the

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certificate are called “additional certificates of registration.” Id. see also 5-21 Nimmer

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on Copyright § 21.02 (original registration certificate issued upon registration;

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thereafter, additional certificates of registration are issued to anyone requesting a copy).

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Section 1906 of the Compendium provides, “[a]dditional certificates are certified copies

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of the record of registration and have the same legal effect as the original certificate.”

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There have been three editions of Compendium II. The third edition became
effective on December 15, 2014. The second edition of the Compendium became
effective in 1984 and was in effect until the third edition became effective. As is
relevant here, the two editions of Compendium II are verbatim identical. The first
version of the Compendium of Copyright Office Practices provided that “the body of
the certificate is prepared by the applicant himself, as a duplicate of his application.
This document becomes the certificate of registration when the signature of the
Register of Copyrights and the seal of the Copyright Office have been affixed.” Thus,
under all three versions of the Compendium, the application itself becomes the
certificate of registration once it is signed and sealed by the Register of Copyrights.
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Id. at 129 (emphasis added). This is exactly what Plaintiffs have submitted as Exhibits

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44 and 48. Defendants’ Exhibits 101 and 103, on the other hand, do not meet this

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requirement at all.

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Defendants may argue that Plaintiffs’ Exhibits 44 and 48 – which have been

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certified by the Register of Copyrights – are simply copies of the applications for the

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two copyrights. That argument would be entirely unfounded and demonstrably false.

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Under Section 1906.02 of Compendium II, for copyrights registered before December

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31, 1977 (including the registrations for E51988 and E51990), additional certificates of

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registration

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consist of a photocopy of the application that was used to make the

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original registration with a pre-printed certification statement attached.

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The registration number, date of certification, and the signature of the

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current Register of Copyrights are added to the certification statement

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form, which is issued under the seal of the Copyright Office.

15

Id. at 130 (emphasis added). Again, the official, sealed, signed, and certified documents

16

that Plaintiffs have lodged with the Court satisfy Section 1906.02 exactly.

17

unofficial, unsealed, unsigned, and uncertified Exhibits 101 and 103 do not meet

18

Section 1906.02 at all. The documents that Defendants contend are the “certificates” for

19

E51988, E51990, R306185, and R306186 are not authenticated under Rule 901 and they

20

are not self-authenticating under Rule 902.

The

21

No one with personal knowledge has said that Exhibits 101-104 are what

22

Defendants claim them to be, i.e., copies of the registration certificates for those four

23

copyrights.

24

President of Copyright Administration, who obtained the documents from the Copyright

25

Office in December 2013, has denied knowing what they are. For example, regarding

26

Exhibit 103, the purported copy of the original registration certificate for E51988, Mr.

27

Blietz testified, “I can read it, you know, here, but, as I said, this looks fairly different

28

from the forms that we fill out today.” Manifold Decl., Ex. B at 30-31 (92:24-93:5)

To the contrary, Jeremy Blietz, Defendant Warner/Chappell’s Vice

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1

(emphasis added). Mr. Blietz was asked if he understood what Mildred Hill’s name on

2

the document signified, to which he said “I can’t speak to the intent here or the

3

meaning. I’d have to speculate. All I can do is read it and tell you what it says.” Id. at

4

32 (94:12-14). Regarding Exhibit 104, the purported registration certificate for E51990,

5

Mr. Blietz could not identify the handwritten notations on it or even say whether the

6

notations were added by someone from Warner/Chappell or from the Copyright Office.

7

Id. at 33 (121:10-22). Mr. Blietz also did not understand what the term “arrangement”

8

used in Exhibit 103 meant in 1935 when the document supposedly was created. Id. at

9

33-34 (121:23-122:10).

10

Mr. Marcotullio, an in-house mergers-and-acquisitions lawyer for Warner Music

11

Group, claimed to “recognize” Exhibits 101 through 104 as copies of the “registration

12

certificates” for the two copyrights and their renewals. However, Mr. Marcotullio has

13

nothing to do with copyrights in the course of his employment by Defendants’ parent

14

company. Mr. Marcotullio admitted during his deposition that he has no first-hand

15

knowledge about the copyright applications for Happy Birthday and that his knowledge

16

was derived entirely from brief discussions with others (mostly other lawyers for

17

Warner Music Group) and by reviewing the handful of documents they provided to him.

18

Id., Ex. A at 11 (14:11-19).

19

authenticate the documents as “registration certificates.” Only an affiant with sufficient

20

personal knowledge to authenticate a document at trial may provide an affidavit to

21

authenticate it on summary judgment. Orr, 285 F.3d at 773-74. No one could do that

22

for these four exhibits, since they are not “registration certificates” for any copyrights.

Thus, Mr. Marcotullio lacks sufficient knowledge to

23

B.

24

Defendants apparently intend to rely upon Exhibits 101-104 to prove the truth of

25

what they purportedly say, i.e., that Mildred Hill wrote Happy Birthday. As Mr. Blietz

26

admitted, the four exhibits do not clearly identify Mildred Hill as the author of the Song

27

and no one can say what the name “Mildred Hill” means on them. See id., Ex. B at 32

28

(94:12-14). However, if Defendants nonetheless intend to rely upon Exhibits 101-104

Defendants’ Exhibits 101-104 Are Inadmissible Hearsay

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1

as proof that Mildred Hill wrote Happy Birthday, they are inadmissible for that purpose.

2

Any out-of-court statement offered to prove the truth of the matter asserted is

3

hearsay. Fed. R. Evid. 801(c)(1) and (2). A written assertion (such as the four exhibits

4

in question) is a “statement” within the definition of hearsay. Fed. R. Evid. 801(a).

5

Obviously, Defendants’ Exhibits 101-104 were not prepared at trial or a hearing. Fed.

6

R. Evid. 801(c)(1).

7

exclusions from hearsay. See Fed. R. Evid. 801(d).

8
9

Exhibits 101-104 do not fall within either of the two narrow

Hearsay is inadmissible unless it falls within one of the enumerated exceptions to
the hearsay rule. Fed. R. Evid. 801(d), 802.

See Orr, 285 F.3d at 778. The four

10

exhibits do not fall within any of the exceptions to the rule against hearsay. For

11

example, since Exhibits 101-104 are not the official, sealed, signed, and certified

12

registration certificate for E51988, E51990, R306185, or R306186, they neither

13

establish nor affect an interest in property. See Fed. R. Evid. 803(15). In addition, since

14

they have not been (and cannot be) authenticated, they are not admissible as ancient

15

documents. See Fed. R. Evid. 803(16). None of the other enumerated exceptions to the

16

hearsay rule apply.

17

Therefore, Defendants’ Exhibits 101-104 must also be excluded from the

18

summary judgment record under the hearsay rule.

“Hearsay is inadmissible, and

19

therefore, cannot be considered at the summary judgment stage.” Rosebrock v. Beiter,

20

No. CV 10-01878 SJO (SSx), 2011 U.S. Dist. LEXIS 61758, at *16 (C.D. Cal. May 26,

21

2011) (citing Orr, 285 F.3d at 773-74 (holding that exhibits were inadmissible

22

hearsay)).

23

C.

24

Defendants proffer Exhibit 106 as a copy of the work deposited with the

25

application for E51990. The deposit copy for E51990 no longer exists. Manifold Decl.,

26

Ex. A at 12-13 (141:22-142:4); 15-16 (144:23-145:5). No one has identified Exhibit

27

106 as a copy of the work deposited with E51990, and no one can do so. No one has

28

said, and no one can say, what work was done by Mr. Orem as Summy Co.’s employee-

Defendants’ Exhibit 106 Is Not Authentic

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1

for-hire in in 1935. No one with personal knowledge has identified Exhibit 106 as the

2

deposit copy for E51990 or, for that matter, a copy of the work covered by the

3

copyright. Apart from reading what was on the face of the copyright records, Mr.

4

Marcotullio did not know what work actually was done by Orem or what work was

5

deposited with E51990. Id. at 17-18 (185:19-186:3). And Mr. Marcotullio was unable

6

to state what was meant by the reference to Mr. Orem in the copyright records. Id. at

7

18-20 (186:4-188:12). No one has said that Exhibit 106 was published in 1935 or ever.

8

Defendants have not offered any competent evidence to meet their burden to

9

authenticate Exhibit 106 as a copy of the work deposited with E51990. Bellucci, 995

10

F.2d at 160. Without any evidence to identify or authenticate Exhibit 106, Defendants

11

simply theorize that, since it is sheet music for Happy Birthday, Exhibit 106 “must have

12

been” a copy of the work covered by E51990. See Jt. Br. at 40:13-15 (“publication

13

3075 . . . must have been submitted in connection with E51990”).

14

speculation is not adequate to authenticate Exhibit 106. See Orr, 285 F.3d at 773-74 (on

15

motion for summary judgment, Court may only consider documents authenticated by

16

affiant with personal knowledge who could authenticate them at trial).

Such sheer

17

D.

18

Defendants may try to rely upon Exhibit 106 to prove that Mildred Hill wrote

19

Happy Birthday since her name appears on the sheet music where the name of the

20

musical composer usually appears.5

21

inadmissible hearsay under Rule 802. Plainly, Exhibit 106, like Exhibits 101-104, does

22

5

23
24
25
26
27
28

Defendants’ Exhibit 106 Is Inadmissible Hearsay

Were they to do so, Exhibit 106 would be

The musical composer’s name is usually placed in the upper right-hand corner of
sheet music, where Mildred Hill’s name appears on Exhibit 106. Manifold Decl., Ex.
106 at 161. There is no dispute that Mildred Hill composed the Song’s melody, as
Good Morning to All, sometime before 1893. See SOF at P3 (Dkt. 183 at 1). However,
the placement of her name in the upper-right corner of the sheet music does not mean
that Mildred Hill wrote the familiar Happy Birthday lyrics, which also appear on
Exhibit 106. In any event, that inference would be inconsistent with Patty Hill’s sworn
deposition testimony she, not Mildred, wrote the Song’s familiar lyrics. Manifold Decl.,
Ex. 87 at 94-99 (App’x at 5:1000-1041, Dkt. 191-1).
- 13 -

1

not fall within either of the two narrow exclusions from hearsay. See Fed. R. Evid.

2

801(d). In addition, Exhibit 106 does not fall within any of the exceptions to the rule

3

against hearsay provided for in Rule 803.

4

Therefore, Exhibit 106 also must be excluded under the hearsay rule.

5

Rosebrock, 2011 U.S. Dist. LEXIS 61758, at *16 (inadmissible hearsay “cannot be

6

considered at the summary judgment stage”).

See

7

E.

8

Defendants have not satisfied the requirement for authenticating Exhibit 119.

9

Fed. R. Evid. 901 (document must be authenticated by witness with sufficient

10

knowledge to identify it); Bellucci, 995 F.2d at 160 (proponent of evidence has burden

11

of authenticating it).

12

Warner/Chappell, or anyone else with first-hand knowledge, authenticate Defendants’

13

Exhibit 119, the CIM. Instead, they rely upon one of their outside attorneys, Mr.

14

Kaplan, to authenticate it. In Paragraph 17 of his declaration, Mr. Kaplan claims to

15

“recognize the document” bearing Bates number WC0001137 and WC0001142-43 as a

16

true and complete copy of an excerpt of an October 1988 “Confidential Information

17

Memorandum” regarding Birch Tree Group Ltd. This document is Appendix Exhibit

18

119. Manifold Decl., Ex. 100 at 143, ¶ 17 (App’x at 6:1200-1203, Dkt. 192-1).

Defendants’ Exhibit 119 Has Not Been Authenticated

Defendants do not even attempt to have an employee of

19

Mr. Kaplan was only seven or eight years old when the CIM was prepared,

20

assuming it was prepared in 1988 as it says. Plainly, Mr. Kaplan has no first-hand

21

knowledge of its preparation, and he does not claim to have that knowledge. Even if

22

Mr. Kaplan could authenticate Exhibit 119 as an excerpt from the CIM, his declaration

23

does not provide any details explaining how he could “recognize” the CIM, such as

24

when he first saw it, when and how he obtained it, when and how he learned what it

25

was, and the like, much less authenticate Exhibit 119 as a “true and complete copy of an

26

excerpt” – whatever that means – from the CIM.

27

In Menalco v. Buchan, No. 2:07-cv-01178-PMP-PAL, 2010 U.S. Dist. LEXIS

28

8042, at *38 (D. Nev. Feb. 1, 2010), the district court struck certain documents from the
- 14 -

1

record on a summary judgment motion where counsel for the party offering the

2

documents provided no basis for him to have personal knowledge as to the authenticity

3

of the documents he attempted to authenticate. For that same reason, Mr. Kaplan’s

4

declaration, which plainly is not based on his personal information and which provides

5

no other basis for him to be able to authenticate a document that was created when he

6

just a young child, does not authenticate it.

7

F.

8

If the Court were to overlook the defects in the record and accept Exhibit 119 as

9

authentic, it remains inadmissible hearsay. Defendants rely upon Exhibit 119 to prove

10

the truth of what the CIM says: that “Birchtree, through a series of predecessor

11

companies, has been operated continuously by the Sengstack family since 1931 . . .”

12

and; 2) that “Birch Tree is 100% owned by its chairman, David K. Sengstack.”

13

Manifold Decl., Ex. 119 at 164.

14

document, offered to prove the truth of the matter asserted is hearsay. Fed. R. Evid.

15

801(a), (c)(1) and (2). Obviously, Exhibit 119 was not prepared at trial or a hearing.

16

Fed. R. Evid. 801(c)(1). In addition, Exhibit 119 does not fall within either of the two

17

narrow exclusions from hearsay. See Fed. R. Evid. 801(d).

Defendants’ Exhibit 119 is Inadmissible Hearsay

Any out-of-court statement, including a written

18

Nor does Exhibit 119 fall within any of the exceptions to the rule against hearsay.

19

See Fed. R. Evid. 802; Orr, 285 F.3d at 778. For example, the Defendants have offered

20

no testimony that Exhibit 119 meets the business records exception. See Fed. R. Evid.

21

803(6). In addition, since the CIM has not been (and cannot be) authenticated, it is not

22

admissible as an ancient document. See Fed. R. Evid. 803(16). None of the other

23

enumerated exceptions to the hearsay rule apply.

24

Therefore, Exhibit 119 must also be excluded from the summary judgment record

25

under the hearsay rule. “Hearsay is inadmissible, and therefore, cannot be considered at

26

the summary judgment stage.” Rosebrock, 2011 U.S. Dist. LEXIS 61758, at *16 (citing

27

Orr, 285 F.3d at 773-74 (holding that exhibits were inadmissible hearsay)).

28
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1

G.

Defendants’ Exhibit 119 Lacks Foundation

2

Even if the Court were to overlook the fact that Exhibit 119 is unauthenticated,

3

inadmissible hearsay, it cannot be considered on the motion for summary judgment

4

because there is no foundation for the hearsay statements in the CIM regarding

5

Defendants’ chain of title. A witness may only testify if evidence is introduced to prove

6

that he “has personal knowledge of the matter” in question. Fed. R. Evid. 602. A

7

witness may not testify in person or by declaration or affidavit when “he lacks personal

8

knowledge of the facts he is reciting.”

9

Worldwide, Inc., No. CV05-2200 MMM (MCx), 2008 U.S. Dist. LEXIS 71761, at *44

10

(C.D. Cal. Mar. 17, 2008) (excluding declaration where it appeared that witness lacked

11

personal knowledge of facts stated); Kesey, LLC v. Francis, No. CV 06-540-AC, 2009

12

U.S. Dist. LEXIS 28078, at *48-49 (D. Or. Apr. 3, 2009) (same) (striking affidavit from

13

summary judgment record where witness appeared not to have sufficient personal

14

knowledge to testify).

Milton H. Greene Archives, Inc. v. CMG

15

Whoever may have written Exhibit 119 – no author of the CIM is identified –

16

there is no proof that it was prepared by a person with personal knowledge of BTG’s

17

ownership. In fact, other evidence offered by the Defendants contradicts some of the

18

statements in the CIM. For example, the CIM states that “BTG has, through a series of

19

predecessor companies, operated continuously since 1931 when John F. Sengstack, an

20

accountant, purchased and reorganized Clayton F. Summy Co., a Chicago sheet music

21

retailer and publisher.” Manifold Decl., Ex. 119 at 165. However, the Agreement

22

between Clayton F. Summy and John F. Sengstack contradicts that statement; it was

23

Clayton Summy who reorganized the Clayton F. Summy Co. by contributing all the

24

assets of the Illinois company to a Delaware company in exchange for 1,500 preferred

25

shares of stock in the Delaware corporation worth $150,000. Id., Ex. 23 at 43-44, ¶¶ 6-

26

14 (App’x at 3:534-544, Dkt. 189-2); id., Ex. 92 at 106-115 (App’x at 5:1059-1068,

27

Dkt. 191-1).

28
- 16 -

1

Mr. Sengstack purchased 1,500 shares of common stock in the Delaware

2

corporation for only $15,000. The corporation could redeem Mr. Summy’s 1,500 shares

3

of preferred stock for $150,000 plus accrued dividends. Id. However, Defendants have

4

offered no evidence that Mr. Summy’s preferred shares were ever redeemed. (Id., Ex.

5

23 at 45, ¶ 19).

6

The CIM also states that “[a]cquisitions in the 1970’s included Educational Music

7

Bureau.” Id., Ex. 119 at 166. Again, that statement is not accurate. Other evidence

8

produced by Defendants shows that Educational Music Bureau in fact acquired Summy-

9

Birchard Company, not the other way around. Id., Ex. 23 at 47-48, ¶¶ 40-54; Id., Ex. 71

10

at 85-89 (App’x at 4:824-828, Dkt. 190-2); id., Ex. 72 at 72-78 (App’x at 4:830-836,

11

(Dkt. 190-2). After the merger, the owners of the Delaware corporation owned 60% of

12

Educational Music Bureau and the owners of Educational Music Bureau owned 40% of

13

the shares. Id., Ex. 23 at 48, ¶ 53; id., Ex. 72 at 72-78. Again, Defendants have offered

14

no evidence that the Sengstack family acquired the remaining 40% of Educational

15

Music Bureau after the merger. Id., Ex. 23 at 48-49, ¶ 54.

16

There are far too many problems with Defendants’ Exhibit 119 – the lack of

17

authentication, hearsay, and the lack of foundation for the information in the CIM itself

18

– to warrant its consideration on summary judgment.

19

III.

CONCLUSION

20

For all the foregoing reasons, Defendants’ Exhibits 101-104, 106, and 119 are

21

inadmissible and should be stricken from the Appendix and any reference to those

22

exhibits should be stricken from the Joint Brief.

23

Dated: December 22, 2014

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28

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By:

/s/ Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
- 17 -

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2
3
4
5
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7

BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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9
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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
BETH A. LANDES (pro hac vice)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

17
18

Interim Lead Counsel for Plaintiffs

19

RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
[e-mail]
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]

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HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
- 18 -

smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 626/796-0107
Facsimile: 212/797-3172

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DONAHUE FITZGERALD LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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GLANCY BINKOW & GOLDBERG LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160

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Attorneys for Plaintiff

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25
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Warner/Chappell: 21437.MOT.EXCLUDE

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