Rupa Marya v. Warner Chappell Music Inc

Filing 219

SUPPLEMENT to Cross MOTION for Summary Judgment as to Declaratory Judgment 179 Joint Supplemental Brief Filed Pursuant to Dkt No. 215 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Manifold, Betsy)

1 BETSY C. MANIFOLD (182450)
[e-mail]
2 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
3 750 B Street, Suite 2770
San Diego, CA 92101
4 Telephone: [phone]
Facsimile: 619/234-4599
5
Interim Lead Counsel for Plaintiffs and the [Proposed]
6 Class
7 GLENN D. POMERANTZ (112503)
[e-mail]
8 KELLY M. KLAUS (161091)
[e-mail]
9 MELINDA E. LeMOINE (235670)
[e-mail]
10 ADAM I. KAPLAN (268182)
[e-mail]
11 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
12 Thirty-Fifth Floor
Los Angeles, California 90071-1560
13 Telephone: [phone]
Facsimile: [phone]
14
Attorneys for Defendants Warner/Chappell Music, Inc.
15 and Summy-Birchard, Inc.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
) Lead Case No. CV 13-04460-GHK (MRWx)
GOOD MORNING TO YOU
)
PRODUCTIONS CORP., et al.,
) JOINT SUPPLEMENTAL BRIEF
) FILED PURSUANT TO DKT. NO. 215
Plaintiffs,
)
)
v.
)
650
WARNER/CHAPPELL MUSIC, ) Room:
) Judge:
Hon. George H. King,
INC., et al.,
)
Chief Judge
)
Defendants.
)
)
)

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CASE NO. CV 13-04460-GHK (MRWx)

TABLE OF CONTENTS

1

Page

2
3 I. 
II. 
4
III. 
5
6

PLAINTIFFS’ INTRODUCTION ............................................................................ 1 
WARNER/CHAPPELL’S INTRODUCTION.......................................................... 1 
PLAINTIFFS’ ARGUMENT .................................................................................... 2 
A. 

Abandonment Depends Upon the Nature of the Copyright ............................ 2 
1. 

8

B. 

9

Abandonment Under the Federal Copyright Act .................................. 3 

2. 

7

Abandonment Under the Common Law ............................................... 4 

Patty Hill Abandoned Any Common Law Copyright To Happy
Birthday ........................................................................................................... 5 

10

1. 

Patty Hill’s Overt Acts of Abandonment.............................................. 6 

11

2. 

Patty Hill’s Subsequent Acts Confirming Abandonment ................... 11 

3. 

References to Jessica Hill and Good Morning Are Misleading ......... 12 

12
13
14
15

IV. 

WARNER/CHAPPELL’S ARGUMENT ............................................................... 14 
A. 

Patty and Jessica Exploited, Fought to Protect, and Profited from the
Happy Birthday to You Lyrics....................................................................... 14 

B. 

Abandonment of a Common Law or Statutory Copyright Requires an
Overt Act, and Not Just the Failure to Enforce One’s Rights....................... 17 

C. 

Plaintiffs Have No Evidence That Patty Hill Abandoned Her Rights in
the Happy Birthday to You Lyrics ................................................................. 18 

D. 

Plaintiffs Have No Evidence That Jessica Hill Abandoned Her Rights
in the Happy Birthday to You Lyrics ............................................................ 23 

E. 

In the Alternative, There Are Triable Issues on Abandonment .................... 24 

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TABLE OF AUTHORITIES

1

Page

2 FEDERAL CASES
3 A&M Records, Inc. v. Napster, Inc.¸
4

239 F.3d 1004 (9th Cir. 2001) ................................................................................................. 17

5 Abend v. MCA, Inc.,

863 F.2d 1465 (9th Cir. 1988) ................................................................................................... 2

6
7

Am. Tobacco Co. v. Werckmeister,
207 U.S. 284 (1907) .................................................................................................................. 4

8 Application of People of State of N.Y.,
138 F. Supp. 661 (S.D.N.Y. 1956) ............................................................................................ 4
9
10 Ashton-Tate Corp. v. Ross,

916 F.2d 516 (9th Cir. 1990) ................................................................................................... 13

11
12

Bartlett v. Crittenden,
2 F. Cas. 967 (C.C.D. Ohio 1849) ............................................................................. 4, 5, 17, 20

13 Bell v. Com. Reg. Co.,
397 F. Supp. 1241 (N.D. Ill. 1975) ........................................................................................ 3, 4
14
15 Bobbs-Merrill Co. v. Straus,

210 U.S. 339 (1908) .................................................................................................................. 3

16
17

Capitol Records, Inc. v. MP3tunes, LLC,
821 F. Supp. 2d 627 (S.D.N.Y. 2011) ..................................................................................... 17

18 Covington Indus., Inc. v. Nichols,
19

2004 WL 784825 (S.D.N.Y. Apr. 12, 2004) ........................................................................... 21

20 Davis v. Blige,

419 F. Supp. 2d 493 (S.D.N.Y. 2005) ............................................................................... 13, 14

21
22

Davis v. Blige,
505 F.3d 90 (2d Cir. 2007) ...................................................................................................... 23

23 Dodd, Mead & Co. v. Lilienthal,
24
25

514 F. Supp. 105 (S.D.N.Y. 1981) .......................................................................................... 21
Egner v. E.C. Schirmer Music Co.,
139 F.2d 398 (1st Cir. 1943) ................................................................................................... 22

26

Egner v. E.C. Schirmer Music Co.,
48 F. Supp. 187 (D. Mass. 1942) ......................................................................................... 9, 22
27

28 Ferris v. Frohman,
223 U.S. 424 (1912) .................................................................................................................. 4

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CASE NO. CV 13-04460-GHK (MRWx)

1

Hadady Corp. v. Dean Witter Reynolds, Inc.,
739 F. Supp. 1392 (C.D. Cal. 1990) ........................................................................................ 18

2

Hampton v. Paramount Pictures,
279 F.2d 100 (9th Cir. 1960) ............................................................................................ passim
3

4 Holmes v. Hurst,
5
6

174 U.S. 82 (1899) .................................................................................................................... 3
Hosp. for Sick Children v. Melody Fare Dinner Theatre,
516 F. Supp. 67 (E.D. Va. 1980) ............................................................................................ 20

7 Johnson v. Berry,
171 F. Supp. 2d 985 (E.D. Mo. 2001) ..................................................................................... 15
8
9 Judscott Handprints, Ltd., v. Washington Wall Paper Co., Inc.,
377 F. Supp. 1372 (E.D.N.Y. 1974) .................................................................................. 19, 24

10
11
12

Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance,
Inc.,
380 F.3d 624 (2d Cir. 2004) ...................................................................................................... 2

13 Marvin Worth Prods. v. Superior Films Corp.,

319 F. Supp. 1269 (S.D.N.Y. 1970) ............................................................................ 17, 19, 24

14
15

Maternally Yours, Inc. v. Your Maternity Shop, Inc.,
234 F.2d 538 (2d Cir. 1956) .................................................................................................... 22

16 Maurel v. Smith,
17

220 F. 195 (S.D.N.Y. 1915) ...................................................................................................... 9

18 Meredith v. Smith,

145 F.2d 620 (9th Cir. 1944) ................................................................................................... 16

19
20

Mills Music v. Cromwell Music,
126 F. Supp. 54 (S.D.N.Y. 1954) ...................................................................................... 20, 24

21 National Comics Publ’ns, Inc. v. Fawcett Publ’ns, Inc.,
22
23

191 F.2d 594 (2d Cir. 1951) .................................................................................... 3, 17, 19, 24
Neva, Inc. v. Christian Duplications Int’l, Inc.,
743 F. Supp. 1533 (M.D. Fla. 1990) ......................................................................................... 2

24

Nutt v. Nat’l Inst. Inc. for the Improvement of Memory,
31 F.2d 236 (2d Cir. 1929) .................................................................................................. 6, 20
25

26 Oravec v. Sunny Isles Luxury Ventures L.C.,
27
28

469 F. Supp. 2d 1148 (S.D. Fla. 2006) .................................................................................... 18
Pac. & S. Co. v. Duncan,
572 F. Supp. 1186 (N.D. Ga. 1983)......................................................................................... 18

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1

Paramount Pictures Corp. v. Carol Publ’g Group,
11 F. Supp. 2d 329 (S.D.N.Y. 1998) ................................................................................. 19, 24

2

Richlin v. MGM Pictures, Inc.,
531 F.3d 962 (9th Cir. 2008) ............................................................................................... 9, 14
3

4 Rohauer v. Killiam Shows, Inc.,
5
6

379 F. Supp. 723 (S.D.N.Y. 1974) .................................................................................... 18, 21
Sandler and Richard Robins, Inc. v. Katz,
U.S.C.O. Bull. No. 20, 1924-35 (S.D.N.Y. June 8, 1925) ............................................ 9, 10, 22

7 Schellberg v. Empringham,
36 F.2d 991 (S.D.N.Y. 1929) .............................................................................................. 6, 20
8
9 Shapiro, Bernstein & Co. v. Jerry Vogel Music Co.,
161 F.2d 406 (2d Cir. 1946) .................................................................................................... 15

10
11

Sony BMG Music Entm’t v. Tenenbaum,
672 F. Supp. 2d 217 (D. Mass. 2009) ................................................................................ 19, 24

12 Sweet Music, Inc. v. Melrose Music Corp.,
189 F. Supp. 655 (S.D. Cal. 1960) .......................................................................................... 14
13
14 Tilford v. Jones,

2006 U.S. Dist. LEXIS 64729 (S.D. Tex. Sept. 11, 2006) ...................................................... 13

15
16

United States v. Hsia,
87 F. Supp. 2d 10 (D.D.C. 2000)............................................................................................. 21

17 Weissmann v. Freeman,
868 F.2d 1313 (2d Cir. 1989) .................................................................................................. 13
18
19 Wheaton v. Peters,

33 U.S. 591 (1834) .................................................................................................................... 4

20
21

White v. Kimmell,
193 F.2d 744 (9th Cir. 1952) ..................................................................................... 6, 7, 20, 22

22 White-Smith Music Publ’g. Co. v. Apollo Co.,
23

209 U.S. 1 (1908) ...................................................................................................................... 6

24 Young Money Entm’t, LLC v. Digerati Holdings LLC,

2012 WL 5571209 (C.D. Cal. Nov. 15, 2012) ........................................................................ 23

25

STATE CASES

26
27

Robert A. Kreiss, Abandoning Copyright to Try to Cut Off Termination Rights
58 MO. L. REV. 85, 100(1993) ................................................................................................... 2

28
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1

Roby v. New York, C. & H. R. R. Co.,
142 N.Y. 176 (1894) .................................................................................................................. 4

2

Starrett City, Inc. v. Smith,
889 N.Y.S.2d 362 (Sup. Ct. 2009) ............................................................................................ 4
3

4 STATUTES AND RULES
5 17 U.S.C. § 101 ............................................................................................................................... 9
6 Fed. R. Evid. 803(b)(3)(A) .............................................................................................................. 7
7 Fed. R. Evid. 805 ........................................................................................................................... 13
8 OTHER
9

Robert A. Kreiss, Abandoning Copyright to Try to Cut Off Termination Rights
58 MO. L. REV. 85, 100(1993) ................................................................................................... 2
10

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CASE NO. CV 13-04460-GHK (MRWx)

1 I.

PLAINTIFFS’ INTRODUCTION

2

The Court has directed Plaintiffs to identify evidence in the record that Patty Hill

3 abandoned “her alleged rights to the Happy Birthday lyrics.” Dkt. 215 at 1. Patty Hill
4 never obtained a federal copyright to Happy Birthday – i.e., the derivative work in which
5 the familiar lyrics are set to the melody of Good Morning to All (the joint work she
6 created with her sister Mildred before 1893) – and there is no evidence she ever tried to
7 do so. Patty’s name does not appear anywhere in the copyright records for E51990 (the
8 principal copyright on which Defendants base their claim) or E51988.1 Patty’s sisters
9 Mildred and Jessica had no copyright to Happy Birthday (Mildred’s rights were limited
10 to Good Morning). Patty wrote the Happy Birthday lyrics as a derivative work. The
11 record includes evidence of at least six overt acts of abandonment by her and many other
12 acts consistent with abandonment of any copyright to the Happy Birthday lyrics and her
13 intent to give that song, unlike Good Morning (for which the copyright expired in 1949),
14 to the public.
15 II.

WARNER/CHAPPELL’S INTRODUCTION

16

Plaintiffs’ abandonment argument fails as a matter of law. Plaintiffs rely on

17 incorrect legal standards, inadmissible hearsay, conduct uniformly held not to constitute
18 abandonment, and factual misrepresentations. Patty Hill did obtain a federal copyright in
19 Happy Birthday to You, and the undisputed facts show why. Patty co-wrote the song
20 with Mildred;2 when Mildred died, her co-ownership interest passed to, among others,
21 Mildred and Patty’s sister, Jessica; in 1934 and 1935 Jessica licensed Clayton F. Summy
22 Co. (“Summy”) the rights to publish, copyright and sell the song as sheet music, as any
23
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1

Defendants originally asserted that Mildred Hill wrote the Happy Birthday lyrics. At the
summary judgment hearing, they admitted that Patty, not Mildred, wrote the lyrics. See,
e.g., Dkt. 208 at 33:18-25. They have back-tracked from that admission, now asserting
that Mildred wrote the lyrics with Patty. See infra at 14-15.
2
Contrary to Plaintiffs’ contention, ante, at n.1, Defendants stated on summary judgment
that “[w]hile writing Good Morning to All, the Hill Sisters [i.e., Mildred and Patty] wrote
a number of songs with the melody of Good Morning to All but different titles and
lyrics,” one of which was Happy Birthday to You. Mot. for Summ. J. (“MSJ,” Dkt. 182)
at 4 (citing Ex. 87 at 1007-08); see also Ex. 50 at 664.
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1 co-owner of the song could do; Summy then registered the copyright in the song upon
2 publishing the sheet music; and the copyright inured to the benefit of the song’s co3 owners, including both Patty (who co-wrote the song) and Jessica (who inherited part of
4 Mildred’s co-ownership interest).3 Finally, because both Patty and Jessica transferred all
5 of their respective rights in Happy Birthday to You to Summy in 1944, Plaintiffs must
6 prove that both Patty and Jessica abandoned their respective rights before this transfer.
7 Plaintiffs cannot prove that either of them did. Undisputed evidence shows both Patty
8 and Jessica exploited their rights in Happy Birthday to You, brought claims in federal
9 court to protect those rights, and accepted royalties for the song’s publication and
10 performance.
11 III.

PLAINTIFFS’ ARGUMENT

12

A.

13

The Copyright Act does not provide for abandonment of copyright; it is a judicially

Abandonment Depends Upon the Nature of the Copyright

14 created doctrine. However, an author is free to withhold her work rather than publish or
15 distribute it. See L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE

OF

16 COPYRIGHT 52 (1991). Thus, “an author’s abandonment of her copyrights should be
17 honored as a matter of personal freedom and personal autonomy.” Robert A. Kreiss,
18 Abandoning Copyright to Try to Cut Off Termination Rights 58 MO. L. REV. 85,
19 100(1993). As Prof. Kreiss noted:
An author might choose to abandon a work based on the author’s desire to
treat some works as non-economic in nature . . . . An author should be
allowed to declare that a particular work is outside of the economic system
....

20
21
22

23 Id. (emphasis added).
24
25

3

As a licensee, Summy was authorized to register the song for copyright. Abend v. MCA,
Inc., 863 F.2d 1465, 1468-70 (9th Cir. 1988), aff’d sub nom. Stewart v. Abend, 495 U.S.
26 207 (1990). Summy’s registration of the copyright in its own named preserved the
copyright for the song’s co-owners. Id.; see also Martha Graham Sch. & Dance Found.,
27 Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 380 F.3d 624, 638 n.30, 645
(2d Cir. 2004); Neva, Inc. v. Christian Duplications Int’l, Inc., 743 F. Supp. 1533, 154728 48 (M.D. Fla. 1990).
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1

Abandonment depends upon the nature of the copyright in question. As discussed

2 below, the test for abandonment under the common law differs from the test for
3 abandonment under the federal Copyright Act. Before the Copyright Act was amended in
4 1976, federal and common law copyrights did not coexist for the same work. Works
5 created prior to 1978 could not be protected under a common law copyright and the
6 federal Copyright Act at the same time. The common law copyright ended when the
7 statutory federal copyright began. Holmes v. Hurst, 174 U.S. 82, 85 (1899). See also
8 Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 346-47 (1908) (citation omitted) (federal
9 copyright begins when common-law right ends).
10

Since Patty never obtained a federal copyright to Happy Birthday or ever tried to

11 obtain one,4 whether she abandoned any alleged copyright to the Happy Birthday lyrics
12 must be decided under state common law.
13

1.

14

Abandonment Under the Federal Copyright Act

The test for abandonment of a federal copyright is whether the author has shown

15 by some overt act his intention to surrender his or her federal copyright. As Judge
16 Learned Hand held more than sixty years ago:
[W]e do not doubt that the “author or proprietor of any work made the
subject of copyright” by the Copyright Law may “abandon” his literary
property in the “work” before he has published it, or his copyright in it after
he has done so; but he must “abandon” it by some overt act which manifests
his purpose to surrender his rights in the “work,” and to allow the public to
copy it.

17
18
19
20

21 National Comics Publ’ns, Inc. v. Fawcett Publ’ns, Inc., 191 F.2d 594, 598 (2d Cir. 1951),
22 modified, 198 F.2d 927 (2d Cir. 1952).
23

In Bell v. Com. Reg. Co., 397 F. Supp. 1241 (N.D. Ill. 1975), the court held:

24

Abandonment of a copyright occurs if the owner intends to give up his
copyright protection. Some overt act is necessary to evidence such an intent,
National Comics v. Fawcett Pub., 191 F.2d 594 (2d Cir. 1951), mere

25
26
27

4

Defendants’ unsupported assertion that Patty had a federal copyright to Happy Birthday
is based on their fanciful speculation that Patty and Mildred wrote it together, even
28 though Patty claimed that she wrote the lyrics herself. Ex. 87 at 1007.
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inaction is not enough, Hampton v. Paramount Pictures, 279 F.2d 100 (9th
Cir. 1960). . . . A limited distribution, even if not widespread enough to
effect a forfeiture, can, coupled with the requisite intent, cause an
abandonment.
Id. at 1249. The court found that after registering a federal copyright for the poem
“Desiderata,” the author, Max Ehrman, abandoned his copyright by including it in
Christmas cards he sent to friends, authorizing a psychiatrist to use the poem when
treating soldiers, and declaring in his diary that he left a “gift” to the world. Id.
2.

Abandonment Under the Common Law

The state common law copyright is regarded as an ordinary property right. Ferris
v. Frohman, 223 U.S. 424, 434 (1912) (referring to the authors as having a “common-law
right of property in the play”); Wheaton v. Peters, 33 U.S. 591, 657 (1834) (“an author, at
common law, has a property in his manuscript . . . and exclusive property in the future
publication of the work, after the author shall have published it to the world”); Am.
Tobacco Co. v. Werckmeister, 207 U.S. 284, 290-91, 299 (1907) (considering the “nature
of the property” in copyright).
Abandonment of a common law property right requires an intention to abandon or
relinquish, which may be manifested either by an overt act or by some failure to act
implying that the party neither claims nor retains any interest in the abandoned property.
See Starrett City, Inc. v. Smith, 889 N.Y.S.2d 362, 365 (Sup. Ct. 2009) (tenant’s failure to
pay rent for over a year and absence from premises and relocation to Florida justified
inference that she abandoned premises); Roby v. New York, C. & H. R. R. Co., 142 N.Y.
176, 181 (1894) (“easement may be abandoned by unequivocal acts showing a clear
intention to abandon, or by mere non-user, if continued for a long time”) (emphasis
added); Application of People of State of N.Y., 138 F. Supp. 661, 666 (S.D.N.Y. 1956)
(“property unclaimed over a large number of years has been abandoned”). No single act
of abandonment is required; courts consider the totality of circumstances to decide
whether a copyright has been abandoned. See Am. Tobacco, 207 U.S. at 299.
Bartlett v. Crittenden, 2 F. Cas. 967 (C.C.D. Ohio 1849), cited by Defendants infra
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1 at 17, 20, does not support their argument that abandonment of a common law copyright,
2 like abandonment of a federal copyright, also requires an overt act. Discussing the
3 difference between transfer and abandonment (rather than between abandonment under
4 common law and federal law), the court held only that “evidence of a transfer or
5 abandonment must be as clear and as specific in the one case as in the other.” Id. at 970.5
6 The court never considered or addressed, and did not decide, that a common law
7 copyright may only be abandoned by an overt act.
B.

8
9

Patty Hill Abandoned Any Common Law Copyright
To Happy Birthday

Mildred and Patty Hill jointly composed a collection of songs they published for

10

11 the World’s Fair in Chicago in 1893. Ex. 87 at 1006. Mildred composed the melodies and
12 Patty wrote the lyrics for the songs. Id. at 1013. Good Morning was one of 73 songs
13 included in the songbook Song Stories for the Kindergarten. Ex. 5 at 93. Patty explained
14 how she and Mildred composed Good Morning:
It [Good Morning] was one of the earliest of the group and for that reason
took longer to work out with the children. It would be written and I would
take it into the school the next morning and test it with the little children. If
the register [i.e., the singing part] was beyond the children we went back
home at night and altered it and I would go back the next morning and try it
again and again until we secured a song that even the youngest children
could learn with perfect ease.

15
16
17
18
19

20 Ex. 87 at 1007. Patty claimed that she later wrote the Happy Birthday lyrics. Id. The
21 Happy Birthday lyrics were not included in either the original (1893) or the revised
22 (1896) edition of Song Stories. Ex. 1 at 9, ¶ 26, Ex. 2 at 50, ¶ 26.
Assuming Patty wrote the Happy Birthday lyrics, the record is replete with
23
24 evidence that she abandoned any copyright to that work, both by her overt acts and by her
25 persistent failure to act when others used the lyrics over a period of decades.
26

5

In Bartlett, the plaintiff intended to publish his work under copyright and immediately
27 complained about the defendant’s own publication of his work. Here, there is no evidence
that Patty ever intended to publish the Happy Birthday lyrics under copyright, and she
28 never complained about anyone’s use of those lyrics.
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1

1.

2

Patty Hill’s Overt Acts of Abandonment

Patty Hill’s first act of abandonment was to teach Happy Birthday to all her

3 students without restricting their right to sing it anywhere and everywhere thereafter. She
4 taught Happy Birthday to all her students and to other teachers as well, and she placed
5 no restriction whatsoever on their subsequent use of the song.6 By not limiting their use
6 of those lyrics, she left her students and colleagues free to sing and teach Happy Birthday
7 whenever and wherever they wanted to for the rest of their lives. That way, Happy
8 Birthday spread quickly and became immensely popular and part of the public conscience
9 by 1901.
10

Nutt v. Nat’l Inst. Inc. for the Imp. of Memory, 31 F.2d 236 (2d Cir. 1929), cited by

11 Defendants infra at 20 n.23, is irrelevant. There is a fundamental difference between
12 lecturing to a class and teaching students and other teachers a new song. When a
13 professor gives a lecture, he does not expect his students to memorize it and repeat it
14 verbatim to all their family and friends for the rest of their lives. However, that is
15 precisely what Patty Hill intended when she taught the Happy Birthday lyrics to all her
16 students and to other teachers.7
17

In White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952), the Ninth Circuit

18 reversed the district court’s decision that the author of a manuscript entitled “Gaelic”
19 retained his common law copyright after publishing the work, holding that “White clearly
20 did not wish to publish Gaelic as a conventionally printed book . . . . His only apparent
21 purpose was to enable any persons interested to obtain a copy of the manuscript.” The
22
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6

There is no evidence that Patty Hill distributed copies of the Happy Birthday lyrics to
her students. She most likely taught the song to them by telling them the words. Under
the early versions of the Copyright Act, only tangible copies of copyrightable works were
protected. White-Smith Music Publ’g. Co. v. Apollo Co., 209 U.S. 1, 16 (1908)
(perforated rolls used to produce music on player piano were not copies under thenexisting Copyright Act).
7
Likewise, a doctor who distributes unmarked copies of reprinted journal articles to
patients does not expect them to republish the articles any more than he expects them to
go out and treat other patients. See Schellberg v. Empringham, 36 F.2d 991, 994
(S.D.N.Y. 1929) (no abandonment where doctor provided copies of journal article to
patients for informational purposes).
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1 facts in White are very similar to the facts in this case. Both authors provided their works
2 to a fairly large number of people (manuscripts given to 80 people in White, id. at 745);
3 Patty Hill taught the new song to all her students for many years. Neither author placed
4 any limitations on whom the work was given to, nor did they limit how the recipients
5 could use it (id.at 745-46). Just as in White, Patty’s act of teaching Happy Birthday to all
6 her students and teachers in training for many years divested her of any copyright she had
7 in those new lyrics.
8

Patty’s overt acts of abandonment continued long after she taught the Happy

9 Birthday song to all her students and other teachers:
(1)

On August 15, 1934, Patty Hill told the New York Times that the use of
Happy Birthday in the Broadway play “As Thousands Cheer” was a
“plagiarism on the music” of Good Morning, but claimed no interest in the
Happy Birthday lyrics (Ex. 34 at 591) (emphasis added).

(2)

On August 15, 1934, the New York Herald reported that performance of
Happy Birthday in “As Thousands Cheer” used the melody, but not the
words, of the song Patty Hill claimed as theirs. (Ex. 37 at 603).

(3)

On August 27, 1934, Patty Hill told Time that she had “no complaint to
make of the use of the words because she long ago resigned herself to the
fact that her ditty had become common property of the nation,” again
referring to performance of Happy Birthday in “As Thousands Cheer” (Ex.
90 at 1047) (emphasis added).

(4)

10

In The Hill Foundation, Inc. v. Clayton F. Summy Co., No. 19-377
(S.D.N.Y.) (1942), when The Hill Foundation, on behalf of Patty and her
sister Jessica Hill, sued Summy Co. for an accounting, the plaintiff asserted
a claim under the federal copyrights for Good Morning only, and never
asserted a claim under any common law copyright to the Happy Birthday
lyrics. (Ex. 50).

11
12
13
14
15
16
17
18
19
20
21
22

23 Together, all these acts were a clear and unequivocal declaration that Patty did not intend
24 to assert any copyright to the Happy Birthday lyrics.8
25
26

Any doubt that Patty Hill intended to forego any copyright to Happy Birthday was
8

The statements attributed to Patty in the articles are admissible as statements against an
27 unavailable declarant’s pecuniary or property interest. See Fed. R. Evid. 803(b)(3)(A).
Defendants do not argue otherwise, but merely wishfully assert without any analysis,
28 infra at 21, that the cited statements satisfy no hearsay exception.
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JOINT SUPPLEMENTAL BRIEF
CASE NO. CV 13-04460-GHK (MRWx)

1 eliminated when she admitted that she and Mildred intended to protect only their
2 copyright to the published work, Good Morning (which copyright Defendants concede
3 expired in 1949), and did not intend to protect the Happy Birthday lyrics or any other
4 lyrical variation of the song: “we were not trying to protect ourselves in any way except
5 as to publication at that time.” Ex. 87 at 1024 (emphasis added). The only work
6 published at that time was Good Morning. Ex. 87 at 1007 (“only the words ‘Good
7 Morning to All’ were put in the book”). That is why, when The Hill Foundation sued
8 Summy for an accounting, it asserted only the copyrights to Good Morning; no claim was
9 made for an accounting under E51990 or E5198 because the Hill sisters knew those
10 copyrights did not cover the Happy Birthday lyrics.9 It is also why the Jessica Hill
11 complained only about the Good Morning melody, not about the Happy Birthday lyrics
12 when she sued Sam Harris and Irving Berlin for using Happy Birthday in “As Thousands
13 Cheer” without permission. The Hill sisters always intended to protect their copyright in
14 the Good Morning melody but – as Patty herself admitted – they also intended to share
15 the Happy Birthday lyrics with the public.
16

Defendants cannot erase these acts of abandonment from the record simply by

17 denying they exist. Instead, they try to confuse the Court by blurring the distinction
18 between Mildred’s and Patty’s original joint work, Good Morning, with Patty’s
19 derivative work, Happy Birthday.10 However, the record proves that Mildred and Patty
20 protected only their rights to their joint work, Good Morning, which was published in
21 1893, 1896, 1899, and 1907, not Happy Birthday. They are not the same song. Good
22 Morning was a joint work composed by Mildred and Patty.11 According to Patty, Good
23

9

Although The Hill Foundation alleged that Summy Co. allowed others to use the “sound
24 and dialogue rights” for Happy Birthday, see Ex. 50 at 664, it complained that only their
Good Morning copyright was infringed. That copyright did not include the new lyrics. It
25 never asserted any copyright to the Happy Birthday lyrics.
10
Defendents’ predecessor, Summy Co., judicially admitted that the Happy Birthday
26
lyrics – which Patty wrote – were added after Mildred and Patty created Good Morning.
27 Ex. 51 at 680-81. Defendants’ creative argument, infra at 14-15, that Mildred and Patty
co-wrote Happy Birthday, is contradicted by Summy Co.’s binding admission.
28 11 As defined in the Copyright Act, a “‘joint work’ is a work prepared by two or more
(footnote continued on following page)
JOINT SUPPLEMENTAL BRIEF
-8CASE NO. CV 13-04460-GHK (MRWx)

1 Morning was one of the earliest songs they wrote together. Ex. 87 at 1007. Happy
2 Birthday was one of many lyrical variations Patty later wrote using the melody Mildred
3 composed for Good Morning. Ex. 87 at 1007. All those lyrical variations, including
4 Happy Birthday, were derivative works.12
5

Patty’s acts of abandonment of Happy Birthday are remarkably similar to the facts

6 in Egner v. E.C. Schirmer Music Co., 48 F. Supp. 187 (D. Mass. 1942), aff’d, 139 F.2d
7 398 (1st Cir. 1943) (finding abandonment through failure to assert rights). In Egner, the
8 author of “The Caissons Go Rolling Along” taught the song to his fellow soldiers in 1908
9 so they could sing it to celebrate the reunion of two portions of their Army regiment. Id.
10 at 188. Soon thereafter, the song became widely used throughout the military service. Id.
11 In 1917, John Philip Sousa used the song in his own composition, “The Field Artillery
12 March.” Id. The author never objected to Sousa’s use of the song, which constituted a
13 practical abandonment . . . of his rights to a copyright. Id. (emphasis added).
14

Sandler and Richard Robins, Inc. v. Katz, U.S.C.O. Bull. No. 20, 1924-35

15 (S.D.N.Y. June 8, 1925), also is especially instructive. Sandler allegedly composed the
16 words and music of a lament, called “Eili Eili,” in 1896. Ten years later, the song was
17 published by someone named Goldberg without identifying its author. The song was
18
19 authors with the intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole.” 17 U.S.C. § 101. The Copyright Act adopted
20 the common law concept of joint authorship. See Richlin v. MGM Pictures, Inc., 531 F.3d
962, 967 (9th Cir. 2008) (citing Maurel v. Smith, 220 F. 195, 199 (S.D.N.Y. 1915) (Hand,
21 J.)).
12
“A derivative work is a work based on or derived from one or more already existing
22 works.” COPYRIGHT OFFICE CIRCULAR 14, COPYRIGHT IN DERIVATIVE WORKS AND
COMPILATIONS 1 (Oct. 2013). “The copyright in a derivative work covers only the
23 additions, changes, or other new material appearing for the first time in the work.
Protection does not extend to any preexisting material, that is, previously published or
24 previously registered works or works in the public domain or owned by a third party.” Id.
at 2 (emphasis added). Likewise, under Section 6 of the 1909 Copyright Act, “other
25 versions of . . . copyrighted works when produced with the consent of the proprietor of
the copyright in such work, or works republished with new matter, shall be regarded as
26 new works subject to copyright under the provisions of this Act; but the publication of
any such new works shall not affect the force or validity of any subsisting copyright upon
27 the matter employed . . . or be construed to imply an exclusive right to such use of the
original works, or to secure or extend copyright in such original works.” (Emphasis
28 added).
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CASE NO. CV 13-04460-GHK (MRWx)

1 published several more times over several years without any authorship or copyright
2 attribution. In 1917, it was performed during a concert at the Metropolitan Opera House
3 in New York and soon thereafter became very popular in the Jewish community. Two
4 years later, Sandler authorized a publisher to obtain a federal copyright for him. The
5 publisher hired a composer to compose a piano arrangement for the song and registered a
6 copyright in August of 1919. Sandler was later identified as the author of Eili Eili in
7 articles written about the song.
8

On facts remarkably similar to this case, the court held that Sandler abandoned his

9 copyright, holding, “it is to be regretted that Sandler, if in fact he wrote Eili Eili, cannot
10 enjoy the fruits of his labor; but it is difficult to find that he did not, for many years,
11 acquiesce in the wide-spread publication of the song.” Id. (emphasis added). As in this
12 case, there was some doubt whether Sandler actually wrote the song in question (although
13 Sandler at least produced a manuscript for Eili Eili, whereas no manuscript ever has been
14 produced for Happy Birthday). Many years passed between when each song was written
15 and when the respective federal copyrights were sought. Both songs became immensely
16 popular (Happy Birthday obtained far more widespread popularity). Both songs were
17 published many times without authorship or copyright ownership attributed to anyone.
18 Both songs were performed on the stage in New York, after which music publishers
19 sought to obtain federal copyrights for piano arrangements of them. Neither author
20 sought to protect his or her rights to the song in question. Finally, the authors were
21 identified in articles about each song (Patty Hill disclaimed ownership of the song in the
22 articles written about Happy Birthday; Sandler never disclaimed ownership of Eili Eili).
23

Thus, these overt acts of distributing the song and renouncing any interest in it,

24 together with Patty relying only upon the Good Morning copyright without claiming any
25 copyright to the Happy Birthday lyrics, make it abundantly clear that she intended for
26 Happy Birthday to be outside the economic system and, therefore, abandoned any
27 common law copyright she may have had to that song’s lyrics.
28

There is no evidence in the record – none – to support Defendants’ argument, infra
-10-

JOINT SUPPLEMENTAL BRIEF
CASE NO. CV 13-04460-GHK (MRWx)

1 at 16-17, that Patty and Jessica asserted “rights” to Happy Birthday. To the contrary, the
2 evidence is overwhelming that the only rights Mildred and Patty ever asserted, exploited,
3 or protected were to Good Morning: (i) they published Good Morning at least four times,
4 but they never published Happy Birthday; (ii) they copyrighted Good Morning, but not
5 Happy Birthday; (iii) they kept others from publishing Good Morning, but not Happy
6 Birthday – which Patty herself admitted was “common property of the nation”; and (iv)
7 they sued to protect their copyright to Good Morning, but never for Happy Birthday, and
8 after the copyright to Good Morning expired in 1949, nobody has ever been sued for
9 infringing Happy Birthday.
10

2.

11

Patty Hill’s Subsequent Acts Confirming Abandonment

The evidence that Patty Hill abandoned any copyright she may have had to Happy

12 Birthday is consistent with a mountain of other evidence corroborating her intent to
13 relinquish any copyright to the Happy Birthday lyrics:
(1)

The Happy Birthday lyrics were not published in either version of Song
Stories (Ex. 1 at 9, ¶ 26; Ex. 2 at 51, ¶ 26; Ex. 7 at 127).

(2)

No infringement lawsuit was ever filed over the sale or use of Happy
Birthday in the 1901 edition of Inland Educator (Ex. 8 at 212-213), in Tell
Me a True Story in 1909 (Ex. 10 at 217-218), in The Elementary Worker and
His Work in 1911 (Ex. 11 at 290), as sheet music published by Cable
Company in 1912 (Ex. 13 at 492-493), in Golden Book of Favorite Songs
(Ex. 14 at 495-497), as sheet music in Harvest Hymns in 1924. (Ex. 19 at
512), and as sheet music in Children’s Praise and Worship (Ex. 21 at 528).13

(3)

No infringement lawsuit was ever filed over the performance of Happy
Birthday in Girls About Town in 1931 (Ex. 35), in Bosko’s Party in 1932
(Ex. 25), in Strange Interlude in 1932 (Ex. 26), in Baby Take a Bow in 1934
(Ex. 30), in The Old Homestead in 1935 (Ex. 39), and in Way Down East in
1935) (Ex. 41).

(4)

14

No infringement claim of any common law copyright for Happy Birthday
was asserted in the original complaint filed in Hill v. Harris on Aug. 14,
1934 (Ex. 32 at 580-587) or in the amended complaint filed in that case on
Jan. 28, 1935 (Ex. 36 at 594-601).

15
16
17
18
19
20
21
22
23
24
25
26
27

13

Patty testified that she made it her business to be familiar with songs books published
28 for young children, “especially those in this country.” (Ex. 87 at 1018).
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JOINT SUPPLEMENTAL BRIEF
CASE NO. CV 13-04460-GHK (MRWx)

(5)

2

No claim for infringement was asserted under either E51990 or E51988 in
the complaint filed in The Hill Foundation v. Postal Telegraph-Cable Co.
(filed Mar. 2, 1943) (Ex. 52 at 691-696).

3

These additional acts are fully consistent with Patty Hill’s abandonment of any

1

4 common law copyright she may have had in Happy Birthday; they are equally consistent
5 with her vigorous protection of the federal copyright to Good Morning. The juxtaposition
6 of these acts are overwhelming evidence that Patty intended for Happy Birthday – unlike
7 Good Morning – to be outside the economic system and that she abandoned any common
8 law copyright to that song’s lyrics.
9

3.

References to Jessica Hill and Good Morning Are Misleading

Faced with overwhelming evidence that Patty abandoned any copyright to the

10

11 Happy Birthday lyrics, Defendants now resort to a new argument: that Jessica Hill also
12 had to abandon the copyright to Happy Birthday. That sleight-of-hand is now the heart of
13 their argument. Defendants deceptively assert that Mildred had a copyright to Happy
14 Birthday, which Jessica inherited upon Mildred’s death in 1916. In fact, Mildred had no
15 copyright in the Happy Birthday lyrics because that was Patty’s derivative work. Thus,
16 there was nothing for Jessica to inherit from Mildred, and the issue of Jessica’s
14
17 abandonment is nothing more than a red herring.

The parties agree that Good Morning was a joint work created by Mildred and

18

19 Patty some time before it was published in 1893. Good Morning was one of the first
20 songs the Hill sisters wrote together. Ex. 87 at 1007. Happy Birthday, on the other hand,
21 was a derivative work subsequently created only by Patty (assuming the Court accepts
22 Patty’s testimony that she wrote those lyrics). The summary judgment record includes
23 multiple admissions by Defendants that Patty, not Mildred, wrote the Happy Birthday
24 lyrics. See, e.g., Dkt. 208 at 19:17-19 (“the lyrics were written by Patty Hill”); 20:18
25 (“Patty says she did it”); 33:18-25 (admitting that Patty, not Mildred, wrote the lyrics).
26

14

Defendants also argue, infra at 16, that Jessica Hill licensed Happy Birthday to Summy
Co. in 1934 and 1935. That is false. In its answer to the amended complaint in The Hill
27 Foundation v. Summy Co., Summy Co. judicially admitted it acquired only rights to
“various piano arrangements of the said musical composition ‘Good Morning to All’”
28 from Jessica. Ex. 81 at 684-85 (emphasis added).
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JOINT SUPPLEMENTAL BRIEF
CASE NO. CV 13-04460-GHK (MRWx)

1

Under the Copyright Act, each different version of a work is a separate work, and

2 the copyright for either one does not cover the other. This concept applies even when the
3 original work was a joint work and the derivative work was made by one of the original
4 joint authors. Thus, in Ashton-Tate Corp. v. Ross, 916 F.2d 516, 523 (9th Cir. 1990), the
5 Ninth Circuit held that an “author of a joint work does not acquire an authorship interest
6 in derivative works that utilize part of the joint work.” Likewise, in Weissmann v.
7 Freeman, 868 F.2d 1313, 1317 (2d Cir. 1989), the Second Circuit reversed the district
8 court’s holding that both authors of a joint work also shared copyrights in a derivative
9 work created by one author of the original work. See also Davis v. Blige, 419 F. Supp. 2d
10 493, 501 (S.D.N.Y. 2005) (“non-participating co-owner acquires no property rights in a
11 newly created derivative work”); Tilford v. Jones, No. H-05-2989, 2006 U.S. Dist.
12 LEXIS 64729, at *8 (S.D. Tex. Sept. 11, 2006) (prior interest in song is not sufficient to
13 declare joint ownership in derivative work).
14

Jessica has only the rights she inherited as Mildred’s heir. Since Mildred had no

15 copyright to Patty’s derivative work, Jessica did not inherit a copyright from Mildred in
16 1916,15 and, thus, she had no interest in the Happy Birthday lyrics to abandon. Jessica did
17 not abandon any rights she never had.16
18
19
20
21
22
23
24
25
26
27
28

15

There is no admissible evidence to support Defendants’ argument that either Patty or
Jessica received any royalties from ASCAP for Happy Birthday. To begin, Ex. 126, the
October 16, 1944, assignment agreement between Patty, Jessica, The Hill Foundation and
Summy Co., refutes Defendants’ argument: it expressly excludes ASCAP royalties – that
is, Summy was not required to share any royalties from ASCAP (regardless of why they
were paid to Summy) with Patty or Jessica. Id. at 1947 (¶ 6(a)). The other document they
cite, Ex. 60, the January 1950 American Family magazine article, claims that Jessica was
“supported by royalties from ‘Happy Birthday,’” but did not say that the royalties came
from ASCAP. The other assertion in that article, that “ASCAP reports that Happy
Birthday is very valuable to the ASCAP repertory,” is inadmissible hearsay within
hearsay. See Fed. R. Evid. 805 (imbedded hearsay must separately fall within its own
hearsay exception). Moreover, ASCAP does not attribute payment to any particular work.
16
Regarding Defendants’ last argument that there are triable issues of fact on whether
Patty abandoned any alleged copyright to the Happy Birthday lyrics, infra at 24, both
parties agreed the Court may decide disputed questions of fact on that issue before a jury
trial of the remaining issues. Dkt. 208 at 47:20-21 (Defendants) and 79:5-7 (Plaintiffs).
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CASE NO. CV 13-04460-GHK (MRWx)

1 IV.

WARNER/CHAPPELL’S ARGUMENT

2

A.

3

Happy Birthday to You was “written and composed by … Patty S. Hill and Mildred

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Patty and Jessica Exploited, Fought to Protect, and Profited from the
Happy Birthday to You Lyrics

J. Hill.” Ex. 50 at 664. Mildred and Patty jointly created the song sometime between
1889 and 1893. Ex. 87 at 1006. Patty’s deposition explains that while she was the
lyricist and Mildred the composer, the two worked together closely in creating Happy
Birthday to You and other songs from this time period. Patty explained that she and
Mildred “were writing” different versions of Good Morning to All “practically every
day.” Id. at 1007-08. The collaborative nature of Mildred and Patty’s work is evident
throughout Patty’s testimony. Id. at 1007-09, 1013-15.17 Similarly, when asked if she
had seen Mildred and Patty working together on Good Morning to All and Happy
Birthday to You, Jessica testified that she “saw it so often.” Id. at 1031. Because Happy
Birthday to You was a joint work, Mildred and Patty each held an undivided one-half
interest in both the melody and lyrics of the song. Richlin v. Metro-Goldwyn-Mayer
Pictures, Inc., 531 F.3d 962, 967 (9th Cir. 2008) (defining a joint work at common law);
Sweet Music, Inc. v. Melrose Music Corp., 189 F. Supp. 655, 659 (S.D. Cal. 1960)
(noting default rule that each of two co-authors holds an undivided one-half interest in the
joint work).18
17

See also Ex. 87 at 1004 (“We were writing songs from 1889 to 1893.”); id. at 1006
(“When my sister Mildred and I began the writing of these songs ….”); id. (“[W]e wished
the song to express the idea and the emotions .…”); id. (“We did not write them for
publication. We wrote them for the group of children I was teaching ….”).
18
Contrary to Plaintiffs’ contention (ante, at 12-13), the record contains no evidence that
Patty created Happy Birthday to You on her own. Patty and Jessica’s unrefuted testimony
(and not “fanciful speculation”) demonstrates that both Mildred and Patty jointly created
Good Morning to All in its various forms—including Happy Birthday to You—and other
songs for their manuscript. Ex. 87 at 1004, 1007-09, 1013-15, 1031. Accordingly, Patty
and Jessica’s 1942 suit against Summy specifically alleged that Happy Birthday to You
was “written and composed by the said Patty S. Hill and Mildred J. Hill.” Ex. 50 at 664.
Plaintiffs also are wrong on the law. Ante, at 13. They draw a false distinction between
derivative and joint works. Their cases, however, show only that a person may not claim
co-ownership of a derivative work that she took no part in creating. E.g., Davis v. Blige,
419 F. Supp. 2d 493, 501 (S.D.N.Y. 2005). Because Mildred actively participated with
Patty in creating the Good Morning to All/Happy Birthday to You combination, the sisters
(footnote continued on following page)
JOINT SUPPLEMENTAL BRIEF
-14CASE NO. CV 13-04460-GHK (MRWx)

1

Mildred and Patty began exploiting their rights almost immediately.

Mildred

2 licensed Good Morning to All to Summy, which published and copyrighted the song in
3 1893, 1896 and 1899, and she contracted for a share of the sales. Exs. 50 at 663-64, 126
4 at 1939-40.

Patty taught Good Morning to All and Happy Birthday to You to

5 kindergartners and other teachers, although before Good Morning to All was published,
6 she was careful to tell them “specifically that it must never appear in print.” Ex. 87 at
7 1024. Patty was also careful to restrict the permissible uses of Mildred and Patty’s
8 works. Teachers were only to use Good Morning to All, in its various versions, “for
9 educational purposes with young children.” Id. at 1021.
10

Mildred died intestate in 1916. Ex. 50 at 670. Because Mildred and Patty had not

11 yet published or authorized the publication of Happy Birthday to You, they shared a
12 common law copyright in the song (i.e., the melody and lyrics). MSJ at 16-20. As
13 Defendants previously explained, Jessica inherited an interest in Mildred’s common law
14 co-ownership rights upon Mildred’s death. MSJ at 17; Ex. 50 at 670.
15

Jessica fought to protect these rights. In 1934, Jessica sued producer Sam Harris

16 and composer Irving Berlin for the unauthorized performance of Happy Birthday to You
17 in “As Thousands Cheer.” Ex. 32 at 580-87.19 Patty and Jessica were both deposed in
18 that case. They testified as to the creation of Good Morning to All and Happy Birthday to
19 You and their limited awareness of unauthorized uses of these works. Ex. 87 at 1015-19,
20 1036-37. Patty explained that she “expected the publisher to look after that end of it.”
21 Id. at 1016, 1018. There is no testimony or any other evidence showing that either Patty
22 or Jessica intended irrevocably to dedicate the lyrics to the public.
23
24
25
26
27
28

jointly owned the new work. It is irrelevant that the melody was composed first for a
different song, or that Patty wrote the lyrics later. Shapiro, Bernstein & Co. v. Jerry
Vogel Music Co., 161 F.2d 406, 409-10 (2d Cir. 1946) (composer became the co-author
of a new work when his 1911 melody was combined with 1912 lyrics that he did not
write); Johnson v. Berry, 171 F. Supp. 2d 985, 988 (E.D. Mo. 2001) (Chuck Berry and
Johnnie Johnson became co-owners of a new work when they “both willingly
participated in the marriage of Johnson’s pre-existing tune with Berry’s newly-created
lyrics.”) (emphasis added); see generally 1 Nimmer on Copyright § 6.03.
19
Jessica alleged that the performances infringed the Good Morning to All copyright.
Defendants explain below why this does not support Plaintiffs’ abandonment theory.
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JOINT SUPPLEMENTAL BRIEF
CASE NO. CV 13-04460-GHK (MRWx)

1

In 1934 and 1935, Jessica granted Summy the rights to publish, copyright, and sell

2 Happy Birthday to You as sheet music, in exchange for a percentage of the list price for
3 sales. Ex. 50 at 668-69; Ex. 126 at 1939-43, 1947.20 Summy then published four musical
4 and two lyrical versions of song. It published the lyrical versions in December 1935 and
5 copyrighted them under registrations E51988 and E51990. Exs. 43, 44, 48, 106. Patty
6 and Jessica’s foundation, the Hill Foundation, sued Summy in 1942. Ex. 50. The
7 Foundation asserted that Summy had exceeded the scope of its license to publish Happy
8 Birthday to You sheet music by sublicensing the “sound and dialogue rights for the use of
9 the song”—i.e., the melody and lyrics—in movies and plays. Ex. 50 at 666-70 (emphasis
10 added). The Hill Foundation sought an accounting from Summy for royalties received,
11 and demanded that Summy account for a percentage of the sales of its Happy Birthday to
12 You sheet music. Id. at 673-74.
13

Patty and Jessica settled their suit against Summy by transferring to Summy all of

14 their respective rights in Good Morning to All and Happy Birthday to You. Ex. 126; see
15 also Exs. 113, 115. The settlement also provided for the Hill Foundation to receive about
16 $11,000, which reflected a portion of Summy’s royalties for licensing the melody and
17 lyrics of Happy Birthday to You in movies and plays (i.e., the conduct that led to the suit
18 in the first place). Ex. 126 at 1941, 1945-46; see also Exs. 50 at 666-67, 51 at 683. It
19 also entitled the Hill Foundation to one-third of any recovery Summy obtained for the
20 infringement of Happy Birthday to You. Ex. 126 at 1941-46. Similarly, the settlement
21 provided for the Hill Foundation to receive one-third of any future royalties Summy
22 collected for licensing Happy Birthday to You—which would include royalties for
23 Summy’s continued licensing of the Happy Birthday to You lyrics in movies and plays.
24 Ex. 126 at 1945-46; see also Ex. 50 at 666-67.
25

The settlement did not affect the Hill Foundation’s right to 10 percent of the list

26 price for sales of Happy Birthday to You sheet music—including sales of sheet music
27

20

As co-owner, Jessica could authorize Summy to publish, copyright, and sell the song.
28 Meredith v. Smith, 145 F.2d 620, 621 (9th Cir. 1944).
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JOINT SUPPLEMENTAL BRIEF
CASE NO. CV 13-04460-GHK (MRWx)

1 with lyrics. Ex. 126 at 1947; see also Ex. 50 at 668-69. Nor did it make Patty or Jessica
2 accountable to Summy for any royalties they received from ASCAP for Happy Birthday
3 to You. Ex. 126 at 1947.21 ASCAP was Patty and Jessica’s “greatest protection against
4 unlicensed commercial use of the song.” Ex. 60 at 755. Jessica was “to a considerable
5 extent supported by the royalties from ‘Happy Birthday’” Id. at 754.22
B.

6
7

Abandonment of a Common Law or Statutory Copyright Requires an
Overt Act, and Not Just the Failure to Enforce One’s Rights

“[A]bandonment of copyright occurs only if there is an intent by the copyright

8

9 proprietor to surrender rights in his work.” A&M Records, Inc. v. Napster, Inc.¸ 239 F.3d
10 1004, 1026 (9th Cir. 2001). Abandonment “must be manifested by some overt act
11 indicative of a purpose to surrender the rights and allow the public to copy.” Hampton v.
12 Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960). Plaintiffs bear the burden
13 of proving abandonment. Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627,
14 647-48 (S.D.N.Y. 2011). Plaintiffs incorrectly draw a distinction between abandonment
15 of a common law copyright and abandonment under the Copyright Act. Ante, at 2-5.
16 The same “overt act” requirement applies in each instance. Plaintiffs cite, but do not
17 comprehend, the very law that makes this clear. See Nat’l Comics Publ’ns, Inc. v.
18 Fawcett Publ’ns, Inc., 191 F.2d 594, at 597-98 (2d Cir. 1951); see also Marvin Worth
19 Prods. v. Superior Films Corp., 319 F. Supp. 1269, 1273 (S.D.N.Y. 1970) (“As in
20 National Comics, so here, there is no affirmative evidence of intention to abandon
21 common law copyright ….”); Bartlett v. Crittenden, 2 F. Cas. 967, 970 (C.C.D. Ohio
22
23
24
25
26
27
28

21

Summy was not required to share its publisher royalties with Patty or Jessica, but the
sisters were entitled separately to a share of writer royalties from ASCAP. Ex. 126 at
1947; see also Ex. 60 at 755.
22
Plaintiffs’ attempt to cabin the 1934 and 1935 licenses to piano arrangements without
lyrics, ante, at n. 14, fails for the reasons shown in Defendants’ summary judgment
papers, MSJ at 37. Plaintiffs’ portrayal of these licenses also is flatly contradicted by
what actually transpired after the licenses were executed: Summy published and
copyrighted lyrical versions of Happy Birthday to You; Patty and Jessica challenged
Summy’s licensing of the lyrics; and Patty and Jessica resolved their dispute with Summy
by transferring to it the lyrical versions of the songs in exchange for a share of future
royalties derived from the songs.
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JOINT SUPPLEMENTAL BRIEF
CASE NO. CV 13-04460-GHK (MRWx)

1 1849).
2

The “overt act” requirement is demanding; findings of abandonment are

3 uncommon. “Lack of action,” such as the failure to police one’s copyright through
4 litigation or otherwise, is not enough. Hampton, 279 F.2d at 104; see, e.g., Rohauer v.
5 Killiam Shows, Inc., 379 F. Supp. 723, 730-31 (S.D.N.Y. 1974) (no abandonment where
6 copyright owner failed to object to frequent television broadcasts of his film for 19
7 years), rev’d on other grounds, 551 F.2d 484 (2d Cir. 1977).

Courts have found

8 abandonment only in extreme cases, such as where the owner intentionally destroyed the
9 only copy of the videotape at issue, Pac. & S. Co. v. Duncan, 572 F. Supp. 1186, 1196
10 (N.D. Ga. 1983), aff’d in part, rev’d in part on other grounds, 744 F.2d 1490 (11th Cir.
11 1984), signed a letter stating that “he ‘reserve[d] no … copyright’” in his architectural
12 design, as required to enter the World Trade Center design competition, Oravec v. Sunny
13 Isles Luxury Ventures L.C., 469 F. Supp. 2d 1148, 1178 (S.D. Fla. 2006), or employed a
14 copyright notice explicitly stating that a commodities newsletter was protected by
15 copyright only “through noon EST on the 2d day after its release,” Hadady Corp. v. Dean
16 Witter Reynolds, Inc., 739 F. Supp. 1392, 1395 n.2, 1398-99 (C.D. Cal. 1990).
17
18
19

C.

Plaintiffs Have No Evidence That Patty Hill Abandoned Her Rights in
the Happy Birthday to You Lyrics

The record shows without exception that Patty intended to retain and exploit her

20 rights in the Happy Birthday to You lyrics.
First, as a co-owner of the common law copyright in this song, Patty was entitled
21
22 to share in the royalties and other benefits of Jessica’s licenses with Summy to the extent
23 of Patty’s interest. These licenses allowed Summy to publish, copyright, and sell Happy
24 Birthday to You sheet music in exchange for a percentage of the list price for sales. Ex.
25 50 at 668-69; Ex. 126 at 1939-43, 1947. Summy published, copyrighted, and sold six
26 versions of Happy Birthday to You in 1934 and 1935, two of which included the Happy
27 Birthday to You lyrics. See Ex. 1 at 15-19; Ex. 43; Ex. 106; MSJ at 40-45. There is no
28 evidence that Patty ever disavowed her interest in the licenses. On the contrary, in 1944,
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CASE NO. CV 13-04460-GHK (MRWx)

1 Patty, Jessica and Summy reaffirmed Patty and Jessica’s rights to a share of sheet music
2 sales, which would include sales of the Happy Birthday to You publications with lyrics.
3 Ex. 126 at 1946-47. Courts routinely rely on evidence of publication and registration in
4 rejecting claims of abandonment. See, e.g., Fawcett, 191 F.2d at 598 (attempts to publish
5 a work are “conclusive evidence” of author’s intent to retain his/her rights); Judscott
6 Handprints, Ltd., v. Washington Wall Paper Co., Inc., 377 F. Supp. 1372, 1378
7 (E.D.N.Y. 1974) (issuance of license to publish work with proper copyright notice
8 “indicates a positive and continuing purpose to maintain one’s rights”) (citation and
9 internal quotation marks omitted); Marvin Worth, 319 F. Supp. at 1273 (that plaintiff
10 copyrights “his own material during his lifetime is compelling evidence that he intended
11 his original work to be protected in every respect”).
12

Second, after Happy Birthday to You sheet music was published and the copyright

13 registered in 1935, Patty dedicated substantial time and resources to enforcing her rights
14 in the Happy Birthday to You lyrics through litigation in the federal courts. She and
15 Jessica, through the Hill Foundation, jointly sued Summy in 1942 to obtain a share of the
16 royalties Summy received for licensing the lyrics in movies and plays. Ex. 50 at 666-70,
17 673.

This undermines any claim that Patty “foreswore any effort to enforce [her]

18 copyrights or otherwise intended to surrender the rights to [Happy Birthday to You].”
19 Sony BMG Music Entm’t v. Tenenbaum, 672 F. Supp. 2d 217, 233 (D. Mass. 2009); see
20 also Paramount Pictures Corp. v. Carol Publ’g Group, 11 F. Supp. 2d 329, 337
21 (S.D.N.Y. 1998) (rejecting abandonment, and emphasizing that Paramount “expended
22 substantial resources in enforcing its copyrights” in Star Trek properties).
23

Third, as part of the 1944 settlement with Summy, the Hill Foundation negotiated

24 to receive $11,000, which reflected a share of Summy’s royalties for having licensed the
25 melody and lyrics of Happy Birthday to You in movies and plays; and one-third of any
26 future royalties Summy collected for licensing Happy Birthday to You, which would
27 include royalties for use of the Happy Birthday to You lyrics. Ex. 126 at 1941, 1945-46;
28 see also Exs. 50 at 666-67, 51 at 683. Separately, Patty also received royalties for the
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CASE NO. CV 13-04460-GHK (MRWx)

1 public performance of Happy Birthday to You through ASCAP. See Ex. 60 at 755. All
2 this compels the conclusion that Patty never intended to abandon her copyright in the
3 lyrics. See, e.g., Mills Music v. Cromwell Music, 126 F. Supp. 54, 70 (S.D.N.Y. 1954)
4 (no abandonment where author collected royalties for the use of his song).
5

Plaintiffs have no proof that Patty committed any overt act showing an intent to

6 abandon her copyright interest before 1944, when she transferred all of her rights to
7 Summy.

Plaintiffs argue abandonment based on Patty teaching the song to

8 kindergartners and other teachers. They once again conflate abandonment with divestive
9 general publication (which the teaching, in any event, was not, see MSJ at 18-19). Courts
10 have long held that teaching or performing one’s work publicly is not an “overt act”
11 showing an intent to abandon all rights in one’s work. See, e.g., Bartlett, 2 F. Cas. at 971
12 (no abandonment of common law copyright in manuscript where author used it in
13 instructing students and allowed students to possess copies of it).23 White v. Kimmell,
14 193 F.2d 744 (9th Cir. 1952), is inapposite because there is no evidence that Patty
15 distributed physical copies of Happy Birthday to You;24 and because Patty’s teaching the
16 song—which did not constitute publication—was “restricted both as to persons and
17 purpose.” White, 193 F.2d at 746-47.25
18

Plaintiffs also rely on cites from three newspaper or magazine articles. Two of the

19
20
21
22
23
24
25
26
27
28

23

See also Nutt v. Nat’l Inst. Inc. for the Improvement of Memory, 31 F.2d 236, 238 (2d
Cir. 1929) (no abandonment where author publicly delivered lectures prior to
copyrighting them); Schellberg v. Empringham, 36 F.2d 991, 994 (S.D.N.Y. 1929) (no
abandonment where doctor distributed unmarked copies of reprinted journal articles to
patients for instructional purposes). Plaintiffs’ attempt to distinguish these authorities is
unpersuasive. Ante, at 6.
24
See, e.g., Hosp. for Sick Children v. Melody Fare Dinner Theatre, 516 F. Supp. 67, 6970 & n.3 (E.D. Va. 1980) (performances of the play Peter Pan between its creation in
1904 and its copyright in 1928 did not constitute “publication”).
25
See Ex. 87 at 1019 (“Q. And you were entirely willing that it should be used as
extensively as possible with children? A. In training only with permission and for
educational use, yes – where the children were simply singing it.”); id. at 1021 (“Q.
What did you expect them to do with it after you had taught it to them? [objection] A.
Why, I expected them to use it for educational purposes with young children.”); id. at
1023-24 (“Q. But they then thought there was no restriction placed upon their use?
[objection] A. Provided it was with children and teachers.”).
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CASE NO. CV 13-04460-GHK (MRWx)

1 cites simply reference the allegations in the Hill v. Harris litigation, which was based on
2 the Good Morning to All copyright. Exs. 34, 37. The third cite is inadmissible hearsay
3 (Exhibit 37 is as well). Ex. 90. There is no evidence that Patty made the statement that
4 Plaintiffs try to attribute to her in the third cite; the author does not quote Patty or claim
5 to have spoken with her. In any event, even if Plaintiffs could show the third cite was a
6 quotation from Patty (which they cannot), this cite would be hearsay that would not
7 qualify for the statement-against-interest exception because Plaintiffs offer no evidence
8 that Patty “perceive[d] and underst[ood] the potential consequences” of making the
9 alleged statement.

United States v. Hsia, 87 F. Supp. 2d 10, 15 (D.D.C. 2000).

10 Moreover, the alleged statement, if admissible, would show only that Patty was
11 “resigned” to the song being common property (Ex. 90), not that she intentionally
12 “relinquish[ed] [her] rights” in it. Covington Indus., Inc. v. Nichols, 2004 WL 784825, at
13 *5 (S.D.N.Y. Apr. 12, 2004).
14

Plaintiffs also make much of the fact that the suits against Harris and Summy were

15 explicitly based on the Good Morning to All copyrights rather than the Happy Birthday to
16 You copyright. Under controlling law, the failure to pursue a common law copyright
17 claim in the Harris suit (before E51990 was registered) or a federal claim in the Summy
18 suit (once E51990 was registered) is mere inaction or negative behavior, and not an
19 “overt act” capable of demonstrating abandonment. Hampton, 279 F.2d at 104; Dodd,
20 Mead & Co. v. Lilienthal, 514 F. Supp. 105, 108 (S.D.N.Y. 1981) (abandonment cannot
21 be premised on “[m]ere inaction or negative behavior”); Rohauer, 379 F. Supp. at 730.26
22 Jessica’s and the Hill Foundation’s election to base their suits on one valid and
23 enforceable copyright that they owned (Good Morning to All) rather than another valid
24 and enforceable copyright that they owned (Happy Birthday to You) does not “overtly”
25 demonstrate an intent forever to relinquish their rights in the latter copyright.27
26

26

Likewise, Jessica’s failure to base her 1943 claim against the Postal Telegraph-Cable
Co. on E51990 was not an “overt act” of abandonment. Contra ante, at 12.
27
27
Moreover, the fact that Patty and Jessica did not identify E51990 in their complaint
28 against Summy proves nothing, given that the settlement of this litigation entailed an
(footnote continued on following page)
JOINT SUPPLEMENTAL BRIEF
-21CASE NO. CV 13-04460-GHK (MRWx)

1

Plaintiffs incorrectly assert that Patty admitted when deposed that she did not

2 intend to protect the Happy Birthday to You lyrics. In reality, Patty testified that before
3 Good Morning to All was first published in Song Stories for the Kindergarten, “we were
4 not trying to protect ourselves in any way except as to publication.” Ex. 87 at 1024.
5 Patty’s intent is obvious because immediately before this, she explained that the other
6 teachers “were told specifically that it [i.e., the various versions of Good Morning to All]
7 must never appear in print, that the book would be published and that they could not even
8 from memory write it down and publish it.” Id. (emphasis added). This evidences an
9 intent to protect rights to Good Morning to All and its alternate versions, including Happy
10 Birthday to You, not to abandon them.
11

Plaintiffs’ continued reliance on Egner is misplaced as already shown in the

12 summary judgment papers, at 20-21. In Egner, the plaintiff authorized publication of his
13 work before he copyrighted it; that is why the First Circuit affirmed. Egner v. E.C.
14 Schirmer Music Co., 139 F.2d 398, 399 (1st Cir. 1943). Plaintiffs have no evidence of a
15 general or divestive publication here. Any claim that Egner holds that abandonment is
16 shown by failing to object to unauthorized uses is foreclosed in this Circuit. Hampton,
17 279 F.2d at 104 (distinguishing Egner and holding that “lack of action” cannot support an
18 abandonment defense). Sandler and Richard Robins, Inc. v. Katz, U.S.C.O. Bull. No. 20,
19 1924-35, pp. 621-625 (S.D.N.Y. June 8, 1925)—an obscure unreported order cited only
20 by the district court in Egner—does not help Plaintiffs. It is not the law in the Ninth or
21 Second Circuits.28 White v. Kimmell does not help Plaintiffs either, for the reasons shown
22
23 accounting and future royalties for use of that very copyright. Ex. 126 at 1939-40, 194547. And Jessica could not even have asserted a common law copyright claim in the
24 Harris suit because the court likely would have lacked pendent jurisdiction over the
claim, see Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 543-44 (2d
25 Cir. 1956), and there was no diversity, Ex. 36 at 594. The fact that Patty (and Jessica)
vigorously protected their rights to Good Morning to All does not suggest that Patty (or
26 Jessica) intended to abandon their rights in Happy Birthday to You, which they also
exploited and protected and from which they also profited.
27 28 Language in Sandler suggests that it turned on estoppel principles. See Sandler,
U.S.C.O. Bull. No. 20 at 625 (“[T]he defendant, who was personally known to Sandler,
28 continued to publish and sell Eili Eili in the honest belief that it was a Jewish folk song,
(footnote continued on following page)
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-22CASE NO. CV 13-04460-GHK (MRWx)

1 above.
2

Finally, none of the other items in Plaintiffs’ “mountain” of acts that purportedly

3 corroborate an intent to abandon Happy Birthday to You actually supports abandonment
4 under Ninth Circuit law. Ante, at 11-12. The failure to publish the Happy Birthday to
5 You lyrics alongside early publications of Good Morning to All in no way indicates an
6 intent irrevocably to surrender their rights to Happy Birthday to You. And it is not an
7 overt act, in any event. It is simply a failure to act. Likewise, the failure to bring
8 infringement suits for unauthorized uses of Happy Birthday to You also “was at most lack
9 of action,” which does not satisfy the overt act requirement. Hampton, 279 F.2d at 104.
10 Plaintiffs have no evidence that Patty Hill even was aware of the unauthorized uses they
11 cite. MSJ at 19-20.
12
13
14

D.

Plaintiffs Have No Evidence That Jessica Hill Abandoned Her Rights in
the Happy Birthday to You Lyrics

Even if Plaintiffs were able to show that Patty Hill abandoned her rights, which

15 they cannot, there would be no legal significance to that fact absent proof that her co29
16 owner, Jessica, equally abandoned her rights. The evidence proves the opposite.
17

The record is replete with evidence that Jessica intended to retain and exploit the

18 rights she inherited in the Happy Birthday to You lyrics, and that she had not relinquished
19 these rights before transferring them to Summy in 1944. Jessica licensed Summy the
20 rights to publish, copyright, and sell Happy Birthday to You sheet music in exchange for
21 a percentage of the list price for sales. Ex. 50 at 668-69; Ex. 126 at 1939-43, 1947.
22 Summy did just this, securing registrations E51988 and E51990.

This alone is

23
24 without a word of protest or complaint from him who now claims to be its author.”).
Plaintiffs cannot show detrimental reliance or estoppel.
25 29 Summy obtained Happy Birthday to You from both Patty and Jessica Hill, so Plaintiffs
must prove that both of these sisters committed an “overt act” demonstrating an intent to
26 surrender their respective rights in the song. Neither Patty nor Jessica could relinquish
the other sister’s rights. Davis v. Blige, 505 F.3d 90, 100, 103-104 (2d Cir. 2007); Young
27 Money Entm’t, LLC v. Digerati Holdings LLC, 2012 WL 5571209, at *7 (C.D. Cal. Nov.
15, 2012) (“[A] co-owner in copyright may not transfer away more rights than he
28 holds.”).
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CASE NO. CV 13-04460-GHK (MRWx)

1 compelling evidence that there was no abandonment. Fawcett, 191 F.2d at 598; Judscott,
2 377 F. Supp. at 1378; Marvin Worth, 319 F. Supp. at 1273.
3

Jessica also enforced her rights in Happy Birthday to You and/or Good Morning to

4 All, through litigation. She sued a famous Broadway producer in 1935 and her family’s
5 longtime publisher in 1942. Ex. 1 at 14; Ex. 32; Ex. 50. These are not the acts of
6 someone who intends to give up her rights to the public. Jessica’s “aggressive litigation
7 campaign” belies any suggestion she “foreswore any effort to enforce [her] copyrights or
8 otherwise intended to surrender the rights to [Good Morning to All or Happy Birthday to
9 You].” Tenenbaum, 672 F. Supp. 2d at 233; see Carol Publ’g Group, 11 F. Supp. 2d at
10 337.
11

Moreover, the Hill Foundation, which acted on Patty and Jessica’s behalf, settled

12 its suit against Summy in exchange for an $11,000 payment, based on the royalties
13 Summy had collected in licensing the melody and lyrics of Happy Birthday to You in
14 movies and plays, and a one-third share of any royalties Summy received in the future as
15 a result of such licenses. Ex. 126 at 1941, 1945-46; see also Exs. 50 at 666-67, 51 at 683.
16 Jessica also received, and was “to a considerable extent supported by,” Happy Birthday
17 to You royalties, Ex. 60 at 754-55, further demonstrating the absence of an intent to
18 abandon, Mills Music, 126 F. Supp. at 70. Plaintiffs’ purported evidence of abandonment
19 is unavailing also for the reasons shown above.
20

E.

In the Alternative, There Are Triable Issues on Abandonment

21

For the reasons stated, Plaintiffs’ abandonment theory fails as a matter of law. If

22 the Court disagrees, however, the Court must resolve the abandonment issue during a
23 bench trial, and not on summary judgment, given the substantial evidence that neither
24 Patty nor Jessica intended to abandon their rights in Happy Birthday to You.
Respectfully submitted,
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

25
26 Dated: June 15, 2015
27

By:

28
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/s/ Betsy C. Manifold
BETSY C. MANIFOLD
JOINT SUPPLEMENTAL BRIEF
CASE NO. CV 13-04460-GHK (MRWx)

FRANCIS M. GREGOREK
[e-mail]
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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2
3
4
5
6
7

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

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9
10
11
12

Interim Lead Counsel for Plaintiffs
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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16

HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 626/796-0107
Facsimile: 212/797-3172
DONAHUE FITZGERALD LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail] th
1999 Harrison Street, 25 Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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CASE NO. CV 13-04460-GHK (MRWx)

1

5

GLANCY PRONGAY & MURRAY 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

6

Attorneys for Plaintiffs

2
3
4

7
8 Dated: June 15, 2015
9

MUNGER TOLLES & OLSON
By:

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12
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14

/s/ Kelly M. Klaus
KELLY M.KLAUS
KELLY M. KLAUS (161091)
[e-mail]
ADAM I. KAPLAN (268182)
[e-mail]
560 Mission St., 27th Floor
San Francisco, CA 94105
Telephone: [phone]
MUNGER TOLLES & OLSON LLP
GLENN D. POMERANTZ (112503)
[e-mail]
MELINDA E. LEMOINE
[e-mail]
355 South Grand Ave., 35th Floor
Los Angeles, CA 90071
Telephone: [phone]

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Attorneys for Defendants

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CASE NO. CV 13-04460-GHK (MRWx)