Rupa Marya v. Warner Chappell Music Inc

Filing 224

EX PARTE APPLICATION MOTION for Consideration of Newly Discovered Evidence "Mistakenly" Withheld by Defendants During Discovery, EX PARTE APPLICATION for Summary Judgment as to First Claim for Relief filed by Plaintiffs Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Proposed Order) (Manifold, Betsy)

1 FRANCIS M. GREGOREK (144785)
[e-mail]
2 BETSY C. MANIFOLD (182450)
[e-mail]
3 RACHELE R. RICKERT (190634)
[e-mail]
4 MARISA C. LIVESAY (223247)
[e-mail]
5 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Street, Suite 2770
San Diego, CA 92101
7 Telephone: [phone]
Facsimile: 619/234-4599
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9 Interim Lead Counsel for Plaintiffs and the [Proposed] Class
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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

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

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Lead Case No. CV 13-04460-GHK (MRWx)
[PROPOSED] ORDER GRANTING
PLAINTIFFS’ EX PARTE
APPLICATION TO HAVE THE COURT
CONSIDER NEWLY DISCOVERY
EVIDENCE “MISTAKENLY”
WITHHELD BY DEFENDANTS
DURING DISCOVERY AND ENTER
SUMMARY JUDGMENT IN
PLAINTIFFS’ FAVOR
Judge: Hon. George H. King, Chief Judge
Courtroom: 650
Fact Discovery Cutoff: July 11, 2014
MSJ Hearings:
March 23, 2015
and July 29, 2015
Pretrial Conference:
N/A
Trial:
N/A

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HAVING FOUND GOOD CAUSE APPEARING in Plaintiffs’, Good

2 Morning To You Productions Corp., Robert Siegel, Rupa Marya, and Majar
3 Productions, LLC (“Plaintiffs”), Ex Parte Application to have the Court Consider
4 Newly Discovery Evidence “Mistakenly” Withheld by Defendants during
5 Discovery and Enter Summary Judgment in Plaintiffs’ Favor. The Court makes the
6 following findings:
Findings of Fact and Conclusions of Law

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1.

The Court initially set the fact discovery deadline for June 27, 2014.

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(Dkt. 92), which was extended by Magistrate Judge Wilner, in

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connection with this Court, and at the request of both parties, to July

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11, 2014. (Dkt. 119).

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2.

On November 25, 2014, the parties filed Joint Cross-Motions for
Summary Judgment (Dkt. 179, 181, 182), a Joint Statement of

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Uncontroverted Facts (Dkt. 180, 183), and an extensive Joint

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Evidentiary Appendix (Dkt. 167-178) (amended by Court Order and

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re-filed). (Dkt. 185, 187-195).

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3.

By Order dated December 18, 2014, the Court continued the hearing

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on the Cross-Motions for Summary Judgment to February 9, 2015.

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(Dkt. 196), which was then taken off calendar pending further order

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of the Court (Dkt. 204). The Court re-set the hearing for March 23,

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2015 (Dkt. 205) and oral argument was held on that date (Dkt. 207).

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4.

abandonment (Dkt. 215) which was submitted by the parties on June

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15, 2015 (Dkt. 217, 219).

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Oral argument on the Supplemental

Briefing is now set for July 29, 2015. (Dkt. 222).

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On May 18, 2015, the Court ordered further briefing on the issue of

5.

On July 9, 2015, Defendants advised Plaintiffs that a supplemental
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production of documents would be provided nearly one year after the

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close of fact discovery. Plaintiffs were unable to access the secure

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production link until July 13, 2015.

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scanned pages from The Everyday Song Book (1927 edition)

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containing the Good Morning and Birthday Song. On July 23, 2015,

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Plaintiffs, through their own investigation, were able to locate a clear

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copy of the same 1927 edition which stated that the Good Morning

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and Birthday Song had been published with “Special permission

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through courtesy of The Clayton F. Summy Co.”

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Upon further

investigation, on July 24, 2015, Plaintiffs obtained a 1922 edition

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with the same identical page.

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Defendants’ supplemental late production included blurred copies of

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On July 21, 2015, Plaintiffs requested an opportunity to review

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Defendants’ originals of the supplemental production because certain

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copies were blurred or illegible. On July 22, 2015, Defendants again

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produced a blurred page from The Everyday Song Book (1927

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edition) containing the Good Morning and Birthday Song.

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8.

This Court has broad discretion to permit a litigant to supplement the

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factual record on the cross-motions for summary judgment with

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newly discovered evidence. Bell v. City of Los Angeles, 835 F. Supp.

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2d 836, 848 (C.D. Cal. 2011) (Matz, J.) (citing Betz v. Trainer

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Wortham & Co., 610 F.3d 1169, 1171 (9th Cir. 2010)); Fed. R. Civ.

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P. (“Rule”) 56(e). See, e.g., George v. Northwestern Mut. Life Ins.

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Co., 2011 U.S. Dist. LEXIS 99454, *9-10 (W.D. Wash. Sept. 1,

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2011).

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9.

Although the Court previously directed the Parties not to supplement

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the summary judgment record, Plaintiffs completed their briefing

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before they learned of the publication of The Everyday Song Book,

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which Defendants “mistakenly” withheld from production during

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discovery. This was through absolutely no fault of Plaintiffs, who

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acted diligently immediately after obtaining access to the blurred

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1927 edition of that compilation. The Court will allow Plaintiffs to

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supplement the record and will consider the newly-discovered

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evidence.

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to the Happy Birthday lyrics and grants summary judgment in

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Plaintiffs’ favor based upon this newly-discovered evidence.

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Based on this evidence, the Court concludes that there is no copyright

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Under Section 9 of the 1909 Copyright Act, “any person entitled

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thereto by this Act may secure copyright for his work by publication

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thereof with the notice of copyright required by this Act” affixed to

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all copies of the work. 17 U.S.C. § 9. At a minimum, Section 18 of

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the 1909 Copyright Act required the notice to include the word

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“Copyright,” the abbreviation “Copr., ” or the “©” symbol as well as

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the year of first publication and the name of the author of the

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copyrighted work. 17 U.S.C. § 18.

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12.

If the strict notice requirements of the 1909 Copyright Act were not

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met, the “published work was interjected irrevocably into the public

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domain.” Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1165

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(9th Cir. 1996) (emphasis added). None of these notice requirements

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was met for the Good Morning and Birthday Song included in the

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fourth edition of The Everyday Song Book published in 1922.

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13.

Forfeiture occurs for individual works included with the author’s

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permission in a compilation published by another person. With few

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exceptions, none of which apply here, when an individual work is

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included in a compilation and the copyright notice includes only the

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compilation publisher’s name, the author of the individual work loses

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his copyright and the author’s work falls into the public domain. See

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New York Times Co. v. Tasini, 533 U.S. 483, 494-95 (2001).

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14.

Everyday Song Book including Reg. No. A453345, for the first

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edition, filed on Aug. 5, 1916 (which did not include the Good

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Morning and Birthday Song); and Reg. No. A624750 for a revised

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edition, filed on Oct. 6, 1921 (which included the Good Morning and

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Birthday Song).

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Plaintiffs submitted copyrights for the various editions of The

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Neither of those two copyrights was ever renewed. Thus, for

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A453345, the copyright expired 28 years later on Aug. 5, 1944, and

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for A624750, the copyright expired on Oct. 6, 1949.

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before the Court.

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This evidence moots the consideration of all other issues presently

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Plaintiffs meet the requirements both for ex parte relief and for the
underlying request to have the Court consider the newly discovered
evidence submitted and to grant summary judgment in Plaintiffs’
favor.
ORDER

THEREFORE, based upon the foregoing Findings of Fact and Conclusions
of Law, Plaintiffs’ Ex Parte Application is hereby GRANTED, as follows:

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Plaintiffs acted diligently in submitting this ex parte application.

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The only prejudice to Defendants is created by their own conduct.

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Plaintiffs are not at fault in the need for this ex parte relief and good

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cause exists for consideration of newly discovered evidence

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“mistakenly” withheld from discovery by Defendants.

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4.

Summary Judgment is hereby granted in Plaintiffs’ favor.

IT IS SO ORDERED.

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Dated:________________

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

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WARNER/CHAPPELL:21972.prop.order

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