Rupa Marya v. Warner Chappell Music Inc

Filing 198

DECLARATION of BETSY C. MANIFOLD in Support of MOTION for Order for to Exclude Evidence 197 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A-B, 23, 44, # 2 Exhibit 48, 67-68, 71, 72, 87, 92, # 3 Exhibit 99-104, 106, 119)(Manifold, Betsy)

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FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
[e-mail]
RACHELE R. RICKERT (190634)
[e-mail]
MARISA C. LIVESAY (223247)
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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Interim Lead Class Counsel for Plaintiffs and Proposed Class

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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Plaintiffs,
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v.
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WARNER/CHAPPELL MUSIC, )
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INC., et al.,
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Defendants.
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GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,

Lead Case No. CV 13-04460-GHK (MRWx)
DECLARATION OF BETSY C.
MANIFOLD IN SUPPORT OF
PLAINTIFFS’ NOTICE OF MOTION
AND MOTION TO EXCLUDE
EVIDENCE
Date:
Time:
Room:
Judge:

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

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I, Betsy C. Manifold, hereby declare as follows:

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1.

I am an attorney duly licensed to practice law in the States of California,

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New York, and Wisconsin, and before this Court. I am a partner with the law firm

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Wolf Haldenstein Adler Freeman & Herz LLP, interim lead class counsel for

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plaintiffs and the class. I have personal knowledge of the following facts, and if

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called upon to do so, I could and would competently testify as to them.

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2.

I submit this declaration in support of the Motion to Exclude Evidence

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by plaintiffs Good Morning To You Productions Corp., Robert Siegel, Rupa Marya

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d/b/a Rupa & The April Fishes, and Majar Productions, LLC’s (“Plaintiffs”) filed

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concurrently herewith. Plaintiffs respectfully request an order regarding Defendants’

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Exhibits 101-104, 106, and 119 (collectively, “Defendants’ Exhibits”) of the

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Amended Joint Evidentiary Appendix in Support of Notice of Cross-Motions and

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Cross-Motions 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); 188 (Vol. 2,

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Ex.11, Pages 221-486); 189 (Vol. 3, Exs. 12-54, Pages 487-706); 190 (Vol. 4, Exs.

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55-81, Pages 707-974); 191 (Vol. 5, Exs. 82-99, Pages 975-1141); 192 (Vol. 6, Exs.

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100-106, Pages 1200-1540); 193 (Vol. 7, Exs. 107-116, Pages 1541-1750); and 194

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(Vol. 8, Exs. 117-126, Pages 1751-1947)) (collectively, the “Appendix”): (i) finding

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Defendants’ Exhibits are inadmissible; (ii) excluding Defendants’ Exhibits from the

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Appendix and (iii) striking all references to Defendants’ Exhibits as well as the

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arguments based upon them from the Cross-Motions for Summary Judgment (Dkt.

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

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Statement of Uncontroverted Facts (Dkt. 183, as amended on Dec. 1, 2014) (the

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“SOF”).

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DEPOSITION TESTIMONY CITED IN THE MOTION TO EXCLUDE
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On June 3, 2014, the deposition of Warner/Chappell Music, Inc.

(“Warner Chappell”) – appearing through its Federal Rule of Civil Procedure

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30(b)(6) designee, Thomas B. Marcotullio – was taken under oath and duly certified.

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A true and correct copy of excerpts of Mr. Marcotullio’s deposition testimony is

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attached hereto as Exhibit A.

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Mr. Marcotullio, Vice President, Mergers and Acquisitions, Warner

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Music Group, testified with regard to Exhibit 106, marked at the time of his

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deposition as Exhibit 13. See Ex. A at 12-20 (141:22-142:4; 144:23-145:5; 185:19-

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188:12). Mr. Marcotullio also testified with regard to Exhibits 101, 103, and 104,

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which were marked at his deposition as Exhibits 9, 4, and 8, respectively. With

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respect to Exhibit 102 (bates numbered WC0000103-104), Mr. Marcotullio provided

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testimony concerning a document, which at the deposition was marked as Exhibit 22,

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that is identical to Exhibit 102, except that it bears a different bates number,

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WC0000141-142.

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5.

On July 10, 2014, the deposition of Jeremy Blietz was taken under oath

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and duly certified. A true and correct copy of excerpts of Mr. Blietz’s testimony is

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attached hereto as Exhibit B.

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Mr. Blietz, Vice President, Administration, Warner/Chappell Music,

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Inc., testified with regard to Exhibit 103, marked at the time of his deposition as

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Exhibit 4. Ex. B at 30-32 (92:11-93:5; 94:12-14). Mr. Blietz also testified with

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regard to Exhibit 104, marked at the deposition as Exhibit 9. Id. at 33-34 (121:10-

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122:10). Under Federal Rule of Civil Procedure 30(e), the witness was given the

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opportunity to review his testimony and provide a signature page; Mr. Blietz’s errata

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sheet and signature page are appended to the end of the transcript excerpts in Exhibit

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B. Id. at 39-40.
EXHIBITS

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7.

Attached hereto are true and correct copies of the following documents

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included in the Appendix (for ease of reference, each exhibit is identified by the

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same number as it appears in the Appendix):

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Exhibit 23: Declaration of Randall S. Newman in Support of Plaintiffs’
Motion for Summary Judgment (App’x at 3:534-544, Dkt. 189-2);

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Exhibit 44: Certified Copy of Additional Certificate of Registration to Claim

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of Copyright for Reg. No. E51988 (P006334-6335) (App’x at 3:626-627, Dkt.

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189-3) (original lodged Dec. 19, 2014);

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Exhibit 48: Certified Copy of Additional Certificate of Registration to Claim

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of Copyright for Reg. No. E51990 (P006336-6337) (App’x at 3:653-654) (Dkt.

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189-3) (original lodged Dec. 19, 2014);

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Exhibit 67: Certified Copy of Additional Certificate of Registration of a Claim

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to Copyright for Renewal Reg. No. R306185 (Original Reg. No. E51988)

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(P006338-6340) (App’x at 4:808-810, Dkt. 190-2) (original lodged Dec. 19,

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2014);

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Exhibit 68: Certified Copy of Additional Certificate of Registration of a Claim

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to Copyright for Renewal Reg. No. R306186 (Original Reg. No. E51990)

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(P006341-6343) (App’x at 4:812-814, Dkt. 190-2) (original lodged Dec. 19,

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2014);

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Exhibit 71: Articles of Merger of Domestic and Foreign Corporation for EMB

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and Summy-Birchard Company filed with the Illinois Secretary of State on or

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about December 28, 1973 (WC0002064-2068) (App’x at 4:824-828, Dkt. 190-2);

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Exhibit 72: Plan and Agreement of Merger entered into on or about December

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21, 1973 between Summy-Birchard Company (Delaware) and EMB (WC002069-

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2075) (App’x at 4:830-836, Dkt. 190-2)

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Exhibit 87: (Excerpts only) Deposition Transcripts de benne esse of Patty S.

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Hill and Jessica Hill taken July 1, 1935, filed in the Hill v. Harris, Eq. No. 78-350

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(P002756-2797) (App’x at 5:1000-1041, Dkt. 191-1);

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Exhibit 92: Confidential Purchase Agreement between Clayton F. Summy and

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John Sengstack dated August 7, 1931 (WC0002081-2090) (App’x at 5:1059-

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1068, Dkt. 191-1);

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Exhibit 99: Excerpts from Compendium of Copyright Office Practices II, Ch.

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1900, Records, Indexes, And Deposits Of The Copyright Office; Inspection,

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Copying, Additional Certificates, And Other Certifications (1984) (P006371-

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6392) (App’x at 5:1119-1140, Dkt. 191-1);

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Exhibit 100: Declaration of Adam I. Kaplan in Support of Notice of Motion

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and Cross-Motion and Motion and Cross-Motion for Summary Judgment (App’x

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at 6:1200-1203, Dkt. 192-1);

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Exhibit 101: Copy of Registration E51990 (WC0000388-90, marked as

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Marcotullio Dep. Ex. 9) (App’x at 6:1205-1207, Dkt. 192-1) (original lodged Dec.

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19, 2014);

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Exhibit 102: Certificate of Registration of a Claim to Renewal Copyright

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R306186 (WC0000103-104) (App’x at 6:1209-1210, Dkt. 192-1) (original lodged

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Dec. 19, 2014);

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Exhibit 103: Copy of Registration E51988 (WC0000385-87, marked as
Marcotullio Dep. Ex. 4) (App’x at 6:1212-1214, Dkt. 192-1);
Exhibit 104: Certificate of Registration of a Claim to Renewal Copyright
R306185 (WC0000953-54) (App’x at 6:1216-1217, Dkt. 192-1);

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Exhibit 106: Copy of sheet music for Happy Birthday to You!, published in

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1935 by Clayton F. Summy Co. as publication number 3075 (WC0000977-979)

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(App’x at 6:1221-1223, Dkt. 192-1); and

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Exhibit

119:

Excerpt

of

October

1988

“Confidential

Information

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Memorandum” regarding Birch Tree Group Ltd. (WC0001137, WC0001142-

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1143) (App’x at 8:1761-1763, Dkt. 194-1).

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I declare under penalty of perjury that the foregoing is true and correct.

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Executed this 22nd day of December 2014, in the City of San Diego, State of

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California.
By:

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/s/ Betsy C. Manifold
BETSY C. MANIFOLD

WARNER/CHAPPELL:21434v3.decl.bcm

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