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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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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

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v.

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WARNER/CHAPPELL MUSIC,
INC., et al.,

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Defendants.

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Lead Case No. CV 13-04460-GHK (MRWx)
[PROPOSED] ORDER GRANTING
PLAINTIFFS’ MOTION TO EXCLUDE
EVIDENCE

Date:
Time:
Courtroom:
Judge:

February 9, 2015
9:30 A.M.
650
Hon. George H. King,
Chief Judge

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HAVING FOUND GOOD CAUSE APPEARING in Plaintiffs Rupa Marya,

2 Robert Siegel, and Good Morning To You Productions Corp. and Majar
3 Productions, LLC (“Plaintiffs”) will, and hereby do, move this Court for an order to
4 exclude Defendants’ Exhibits 101-104, 106, and 119 (collectively, “Defendants’
5 Exhibits”) of the Amended Joint Evidentiary Appendix in Support of Notice of
6 Cross-Motions and Cross-Motions for Summary Judgment Filed Pursuant to Court’s
7 Dec. 5, 2014 Order, filed December 17, 2014 (Dkts. 187 (Vol. 1, Exs. 1-10, Pages 18 220); 188 (Vol. 2, Ex.11, Pages 221-486); 189 (Vol. 3, Exs. 12-54, Pages 487-706);
9 190 (Vol. 4, Exs. 55-81, Pages 707-974); 191 (Vol. 5, Exs. 82-99, Pages 975-1141);
10 192 (Vol. 6, Exs. 100-106, Pages 1200-1540); 193 (Vol. 7, Exs. 107-116, Pages
11 1541-1750); and 194 (Vol. 8, Exs. 117-126, Pages 1751-1947)) (collectively, the
12 “Appendix”) from the Appendix and to strike all references to Defendants’ Exhibits
13 as well as the arguments based upon them from the Cross-Motions for Summary
14 Judgment (as amended Nov. 26, 2014, Dkt. 182) (“Joint Brief”) and the [Corrected]
15 Joint Statement of Uncontroverted Facts (as amended Dec. 1, 2014, Dkt. 183)
16 (“SOF”). The Court makes the following findings:
Findings of Fact and Conclusions of Law

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1.

Defendants contend that Exhibits 101 and 103 are copies of the

19 registration certificates for the copyrights to Happy Birthday registered on December
20 9, 1935, as Registration Nos. E51988 and E51990.
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2.

Defendants also contend that Exhibits 102 and 104 are copies of the

22 registration certificates for the renewal copyrights to Happy Birthday registered on
23 December 6, 1962, as Registration Nos. R306185 and R306186.
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3.

The four documents are not what Defendants claim they are.

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4.

The official additional registration certificates for the two copyrights,

26 which have been sealed, signed, and certified by the Register of Copyrights and
27 marked as Plaintiffs’ Exhibits 44 and 48 (for E51988 and E51990) and the two
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renewals, marked as Plaintiffs’ Exhibits 67 and 68 (for R306185 and R306186), are

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materially different than the copies of unofficial documents proffered by Defendants.

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5.

Defendants base their claim that Mildred Hill wrote the familiar Happy

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Birthday lyrics upon the “fact” that her name appears on the purported registration

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certificates for E51988 and E51990 and then argue they are entitled to a presumption

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that Mildred Hill wrote the Song based on the “fact” stated in those purported

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registration certificates.

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6.

After reviewing the official additional registration certificates, Mildred

Hill’s name does not appear on the official registration certificates for the original
copyrights, which are marked as Plaintiffs’ Exhibits 44 and 48.
7.

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

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sealed, signed, and certified additional registration certificates and strikes

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Defendants’ Exhibits 101-104, which are not registration certificates or additional

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registration certificates.

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8.

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

by E51990.
9.

Based on the record before the Court, no one with personal knowledge

has identified Exhibit 106 as a copy of the work covered by E51990.
10.

To conclude that Exhibit 106 represents the work covered by E51990 is

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speculation because Defendants do not have a copy of the work deposited with the

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1935 application filed with the U.S. Copyright Office for E51990 (the copyright for

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a piano arrangement composed by Preston Ware Orem as an employee-for-hire of

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the Clayton F. Summy Co.).

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11.

Defendants’ speculative argument that Exhibit 106 “must have been”

the work covered by E51990 fails here.
12.

Because Exhibit 106 has not been authenticated by anyone with

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

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

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stricken from the Joint Brief and the SOF.

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13.

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 (citing App’x, Ex. 119 at 1761).

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14.

The only witness who claims to “recognize” Exhibit 119 is Defendants’

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outside counsel, Adam Kaplan, an associate with Munger Tolles & Olson LLP. Mr.

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Kaplan does not claim to have, and plainly lacks, personal knowledge of the CIM or

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its creation.
15.

The out-of-court statements from the unknown author in the CIM

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regarding BTG, which Defendants offer to prove the truth of the matter asserted, are

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inadmissible hearsay.

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Furthermore, there is no foundation for the hearsay statements in the

CIM regarding Defendants’ chain of title.
17.

The CIM does not indicate that it was prepared by a person with

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personal knowledge of BTG’s ownership and does not identify any author – only

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that it was prepared by Wertheim Schroder & Co. There is no indication that anyone

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with personal knowledge of the purported facts stated in the CIM was competent to

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testify as to those purported facts.

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17.

The CIM’s out-of-court statements from the unknown author, which

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Defendants proffer to prove the truth of the matter asserted, are inadmissible

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hearsay.

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18.

Defendants’ Exhibit 119 should be stricken from the Appendix and any

reference to it stricken from the Joint Brief and the SOF.
ORDER
THEREFORE, based upon the foregoing Findings of Fact and Conclusions
of Law, Plaintiffs’ Motion To Exclude Evidence is hereby GRANTED, as follows:

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1.

Defendants’ Exhibits 101-104 (App’x at 1204-1217), 106 (id. at 1220-

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1223), and 119 (id. at 1760) in the Amended Joint Evidentiary

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Appendix in Support of Notice of Cross-Motions and Cross-Motions

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for Summary Judgment Filed Pursuant to Court’s Dec. 5, 2014 Order,

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filed December 17, 2014 (Dkts. 187 (Vol. 1, Exs. 1-10, Pages 1-220);

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

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

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82-99, Pages 975-1141); 192 (Vol. 6, Exs. 100-106, Pages 1200-

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1540); 193 (Vol. 7, Exs. 107-116, Pages 1541-1750); and 194 (Vol. 8,

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Exs. 117-126, Pages 1751-1947)) (collectively, the “Appendix”) are

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excluded.

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2.

All references to those exhibits as well as the arguments based upon

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them are excluded from the Cross-Motions for Summary Judgment

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

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[Corrected] Joint Statement of Uncontroverted Facts (as amended

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Dec. 1, 2014, Dkt. 183) (“SOF”).

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3.

is set in the chart attached here as Exhibit A.

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The specific text to be stricken from the Joint Brief and from the SOF

IT IS SO ORDERED.

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Dated:

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_____________________________________
HON. GEORGE H. KING, CHIEF JUDGE
UNITED STATES DISTRICT COURT JUDGE

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WARNER/CHAPPELL:21433v2.ORDER

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