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)

EXHIBIT A

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER

SPECIFIC TEXT TO STRIKE FROM CROSS-MOTIONS FOR
SUMMARY JUDGMENT (Dkt. 182)
From
To
Specific 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.
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.”
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER

From
To
Specific Text to be Deleted
Page:Line Page:Line
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.’”
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 . . . .”
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
-2-

From
To
Specific Text to be Deleted
Page:Line Page:Line
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
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).”
41:2
41:10
“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.”
41:16
41:18
“(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’). . . .”
43:7
43:9
As shown above, the evidence conclusively demonstrates
that the E51990 deposit copy contained the familiar lyrics
for Happy Birthday to You.”
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
-3-

From
To
Specific Text to be Deleted
Page:Line Page:Line
43:11
43:12
“Here, there is no suggestion of any defect with the deposit
copies submitted for E51990.”
48:13
48:15
“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.”
48:18
48:21
“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,”
the name of the proprietor, and the year in which copyright
was secured. Ex. 106 . . . .”
50:7
50:9.
“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.”

Exhibit A Continues on Next Page

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
-4-

SPECIFIC TEXT TO STRIKE FROM JOINT STATEMENT
OF UNCONTROVERTED FACTS (Dkt. 183)
Specific Text to be Deleted
Fact
No.

Statement of Fact

D9.

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

• 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/Chappel
l by the
Copyright
Office
• App’x Ex. 106

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
-5-

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

(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
Co. obtained
certificate)
copyright
• . . . . App’x Ex.
Registration
101
Certificate
E51990.
(Marcotullio Ex.
9) was provided
to
Warner/Chappel
l by the
Copyright
Office
D18. Registration
Certificate 51990
states that it

• App’x Ex. 101
(E51990
registration

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
-6-

Specific Text to be Deleted
Statement of Fact

Admissible
Evidence
Supporting Fact

applies to a
“published
musical
composition”
entitled “Happy
birthday to you.”

Fact
No.

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

certificate)
• App’x Ex. 109
(Dep. Tr. of
Jeremy Blietz)
at 1561: App’x
Ex. 101
(Marcotullio Ex.
9) was provided
to
Warner/Chappel
l by the
Copyright
Office

D19. The listing under
• App’x Ex. 101
the byline in
(E51990
Registration
registration
Certificate E51990 certificate)
states: “By
• App’x Ex. 109
Mildred J. Hill,
(Dep. Tr. of
arr. by Preston
Ware Orem;* pf.,
Jeremy Blietz)
with words.”
at 1561: App’x
Ex. 101
(Marcotullio Ex.
9) was provided
to
Warner/Chappel
l by the
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
-7-

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Copyright
Office
• App’x Ex. 100
(Kaplan Decl.)
at ¶¶ 2, 9
D20. Registration
• App’x Ex. 101
Certificate E51990 (E51990
also states: “(© is
registration
claimed on
certificate)
arrangement as
• App’x Ex. 109
easy piano solo
(Dep. Tr. of
with text).”
Jeremy Blietz)
at 1561: App’x
Ex. 101
(Marcotullio Ex.
9) was provided
to
Warner/Chappel
l by the
Copyright
Office
• App’x Ex. 100
(Kaplan Decl.)
at ¶¶ 2, 9
D21. Registration
• App’x Ex. 101
Certificate E51990 (E51990
lists the date of
registration
publication as
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
-8-

Specific Text to be Deleted
Statement of Fact

Admissible
Evidence
Supporting Fact

December 6, 1935.

Fact
No.

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

certificate)
• App’x Ex. 109
(Dep. Tr. of
Jeremy Blietz)
at 1561: App’x
Ex. 101
(Marcotullio Ex.
9) was provided
to
Warner/Chappel
l by the
Copyright
Office
• App’x Ex. 100
(Kaplan Decl. at
¶¶ 2,9)

D22. Registration
• App’x Ex. 101
Certificate E51990 (E51990
states that two
registration
copies of the
certificate)
published musical
composition were • App’x Ex. 109
(Dep. Tr. of
received and
registered in the
Jeremy Blietz)
Copyright Office
at 1561 App’x
on December 9,
Ex. 101
1935.
(Marcotullio Ex.
9) was provided
to
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
-9-

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Warner/Chappel
l by the
Copyright
Office
• App’x Ex. 100
(Kaplan Decl.)
at ¶¶ 2, 9
D23.

• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)
.

D25.

• App’x Ex.106
(1935
publication of
sheet music for
Happy Birthday
to You!)

D26.

• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)

D28. The version of

• App’x Ex. 106

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 10 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Happy Birthday to
(1935
You with
publication of
publication
sheet music for
number 3075
Happy Birthday
identifies the title
to You!)
of the
• App’x Ex. 100
composition, on
the sheet music, as
(Kaplan Decl.)
“Happy Birthday
at ¶ 7
to You!”
D31.

• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)

D33.

• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday
to You!)

D36.

• App’x Ex. 106
(1935
publication of
sheet music for
Happy Birthday

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 11 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

to You!)
D41.

• 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
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/Chappel
l by the

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 12 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

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/Chappel
l by the
Copyright
Office

D44. Registration
• App’x Ex. 103
Certificate E51988 (E51988
applies to a
registration
“published
certificate)
musical
• App’x Ex. 109
composition”
(Dep. Tr. of
entitled “Happy
birthday to you;
Jeremy Blietz)
unison song.”
at 1553-54:
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 13 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

App’x Ex. 103
(Marcotullio Ex.
4) was provided
to
Warner/Chappel
l by the
Copyright
Office
• App’x Ex. 100
(Kaplan Decl.)
at ¶¶ 4, 9
D45. The listing under
• App’x Ex. 103
the byline in
(E51988
Registration
registration
Certificate E51988 certificate)
states: “By
• App’x Ex. 109
Mildred J. Hill,
(Dep. Tr. of
rev. text and arr.
of music by Mrs.
Jeremy Blietz)
R. R. Forman*
at 1553-54:
4to.”
App’x Ex. 103
(Marcotullio Ex.
4) was provided
to
Warner/Chappel
l by the
Copyright
Office
• App’x Ex. 100
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 14 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

(Kaplan Decl.)
at ¶¶ 4, 9
D46. Registration
• App’x Ex. 103
Certificate E51988 (E51988
also states: “(© is
registration
claimed on
certificate)
arrangement for
unison chorus and • App’x Ex. 109
(Dep. Tr. of
revised text).”
Jeremy Blietz)
at 1553-54:
App’x Ex. 103
(Marcotullio Ex.
4) was provided
to
Warner/Chappel
l by the
Copyright
Office
• App’x Ex. 100
(Kaplan Decl.)
at ¶¶ 4, 9
D47. Registration
• App’x Ex. 103
Certificate E51988 (E51988
lists the date of
registration
publication as
certificate)
December 6, 1935.
• App’x Ex. 109
(Dep. Tr. of
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 15 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Jeremy Blietz)
at 1553-54:
App’x Ex. 103
(Marcotullio Ex.
4) was provided
to
Warner/Chappel
l by the
Copyright
Office
• App’x Ex. 100
(Kaplan Decl.)
at ¶¶ 4, 9
D48. Registration
• App’x Ex. 103
Certificate E51988 (E51988
states that two
registration
copies of the
certificate)
published musical
composition were • App’x Ex. 109
(Dep. Tr. of
received and
registered in the
Jeremy Blietz)
Copyright Office
at 1553-54:
on December 9,
App’x Ex. 103
1935.
(Marcotullio Ex.
4) was provided
to
Warner/Chappel
l by the
Copyright
CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 16 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Office
• App’x Ex. 100
(Kaplan Decl.)
at ¶¶ 4, 9
D67. On or about
• App’x Ex. 102
December 6, 1962, (certificate of
Summy-Birchard
registration of a
Co. obtained
claim to renewal
Registration
copyright,
Certificate
306186)
R306186, which
was a renewal of
Registration
E51990.
D68. Registration
Certificate
R306186 applies
to “HAPPY
BIRTHDAY TO
YOU! – easy
piano solo with
text.”

• App’x Ex. 102
(certificate of
registration of a
claim to renewal
copyright,
306186)

D69. Registration
Certificate
R306186 states
that the
“Renewable
Matter” is
“Arrangement as
easy piano solo

• App’x Ex. 102
(certificate of
registration of a
claim to renewal
copyright,
306186)

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 17 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

with text.”
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)

D71. On or about
• App’x Ex. 104
December 6, 1962, (certificate of
Summy-Birchard
registration of a
Company obtained claim to renewal
Registration
copyright,
Certificate
306185)
R306185, which
was a renewal of
Registration
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

• App’x Ex. 119
(Excerpt of
October 1988

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 18 -

Specific Text to be Deleted
Statement of Fact

Admissible
Evidence
Supporting Fact

its then chairman,
David K.
Sengstack.

Fact
No.

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

“Confidential
Information
Memorandum”
regarding Birch
Tree Group Ltd)
• App’x Ex. 100
(Kaplan Decl.)
at ¶ 17

D82.

• 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

D83. Between
approximately
September 1931
and January 1989,
the Sengstack
family
continuously
operated

• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information
Memorandum”
regarding Birch

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 19 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Warner/Chappell’s Tree Group
predecessors-inLtd.)
interest (in
• App’x Ex. 100
chronological
(Kaplan Decl.)
order): Clayton F.
Summy Co.
at ¶ 17
(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
Tree Group Ltd.
(Wyoming),
Summy-Birchard,
Inc. (Wyoming).
P59

Disputed.
Summy-

CASE NO. CV 13-04460-GHK

• App’x Ex. 119
(Excerpt of

Ex. A to [PROPOSED] ORDER
- 20 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

October 1988
Birchard
“Confidential
Company has
Information
been operated
Memorandum”
continuously by
regarding
the Sengstack
Birch Tree
family since
Group Ltd.)
1931. As of
October 1988,
• App’x Ex. 100
Summy(Declaration of
Birchard
Adam I.
Company’s
Kaplan
successor
(“Kaplan
company, Birch
Decl.”) at ¶ 17
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P60

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 21 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P61

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.

P62

Disputed.
SummyBirchard

CASE NO. CV 13-04460-GHK

• App’x Ex. 119
(Excerpt of
October 1988

Ex. A to [PROPOSED] ORDER
- 22 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

“Confidential
Company has
Information
been operated
Memorandum”
continuously by
regarding
the Sengstack
Birch Tree
family since
Group Ltd.)
1931. As of
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P68

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 23 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P115

• App’x Ex. 106
(1935
publication of
sheet music for
Happy
Birthday to
You!) at 122123
• App’x Ex. 101
(E51990
registration
certificate,
marked as
Marcotullio
Ex. 9) at 120507

P116

Disputed.
Defendants do
possess copies
of Happy
Birthday to You
that were
published in
1935 as a
“Piano Solo

CASE NO. CV 13-04460-GHK

App’x Ex. 106
(1935
publication of
sheet music for
Happy
Birthday to
You!) at 122023

Ex. A to [PROPOSED] ORDER
- 24 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response
with words.”
Defendants do
not possess a
copy of the
specific copy
deposited with
the Copyright
Office.

Admissible
Evidence
Supporting
Response
App’x Ex. 100
(Kaplan Decl.)
at ¶ 7

P192

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.

P193

Disputed.
SummyBirchard

CASE NO. CV 13-04460-GHK

• App’x Ex. 119
(Excerpt of
October 1988

Ex. A to [PROPOSED] ORDER
- 25 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

“Confidential
Company has
Information
been operated
Memorandum”
continuously by
regarding
the Sengstack
Birch Tree
family since
Group Ltd.)
1931. As of
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P196

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 26 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P197

P198

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
.

Disputed.
SummyBirchard
Company has

CASE NO. CV 13-04460-GHK

• App’x Ex.119
(Excerpt of
October 1988
“Confidential

Ex. A to [PROPOSED] ORDER
- 27 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Information
been operated
Memorandum”
continuously by
regarding
the Sengstack
Birch Tree
family since
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P202

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 28 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P208

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.

P209

Disputed.
• App’x Ex. 119
Unsupported by
(Excerpt of
the evidence.
October 1988
Summy“Confidential
Birchard
Information

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 29 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Memorandum”
Company has
regarding
been operated
Birch Tree
continuously by
Group Ltd.)
the Sengstack
family since
• App’x Ex. 100
1931. As of
(Kaplan Decl.)
October 1988,
at ¶ 17
SummyBirchard
Company’s
successor
company, Birch
Tree Group
Ltd., was100%
owned by its
then chairman
David K.
Sengstack.
P224

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 30 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P225

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.

P226

Disputed.
SummyBirchard
Company has

CASE NO. CV 13-04460-GHK

• App’x Ex. 119
(Excerpt of
October 1988
“Confidential

Ex. A to [PROPOSED] ORDER
- 31 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Information
been operated
Memorandum”
continuously by
regarding
the Sengstack
Birch Tree
family since
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P227

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 32 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P228

Disputed.
• App’x Ex. 119
Summy(Excerpt of
Birchard
October 1988
Company has
“Confidential
been operated
Information
continuously by
Memorandum”
the Sengstack
regarding
family since
Birch Tree
1931. As of
Group Ltd.)
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.

P229

Disputed.
SummyBirchard
Company has
been operated

CASE NO. CV 13-04460-GHK

• App’x Ex. 119
(Excerpt of
October 1988
“Confidential
Information

Ex. A to [PROPOSED] ORDER
- 33 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

Memorandum”
continuously by
regarding
the Sengstack
Birch Tree
family since
Group Ltd.)
1931. As of
October 1988,
• App’x Ex. 100
Summy(Kaplan Decl.)
Birchard
at ¶ 17
Company’s
successor
company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.
P230

Disputed.
• App’x Ex. 119
Unsupported by
(Excerpt of
the evidence.
October 1988
Summy“Confidential
Birchard
Information
Company has
Memorandum”
been operated
regarding
continuously by
Birch Tree
the Sengstack
Group Ltd.)
family since
1931. As of
October 1988,
SummyBirchard
Company’s
successor

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 34 -

Specific Text to be Deleted
Fact
No.

Statement of Fact

Admissible
Evidence
Supporting Fact

Opposing
Party’s
Response

Admissible
Evidence
Supporting
Response

company, Birch
Tree Group
Ltd., was 100%
owned by its
then chairman
David K.
Sengstack.

WARNERCHAPPELL:21436.EXH.A.ORDER

CASE NO. CV 13-04460-GHK

Ex. A to [PROPOSED] ORDER
- 35 -