Rupa Marya v. Warner Chappell Music Inc
Filing
225
DECLARATION of Betsy C. Manifold in Support of 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 224 filed by Plaintiffs Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Manifold, Betsy)
EXHIBIT F
EXHIBIT F
Page 25
From: Manifold, Betsy
Sent: Friday, July 24, 2015 7:00 PM
To: 'Klaus, Kelly'; Kaplan, Adam
Cc: Rifkin, Mark
Subject: RE: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Kelly –
Received your e‐mail and will inform the Court of your position. As agreed (and noted below), Plaintiffs will not file
WC2397‐2400 under seal. I will send you a copy of the papers via e‐mail before we file with the Court. We plan to file
Monday morning as early as practicable.
Plaintiffs do not agree that that the certified copies of the deposit copy and copyright receipt that Warner Chappell
recently obtained from the British Library should be submitted to the Court in advance of the hearing on
Wednesday. Pursuant to L.R. 7‐9, Plaintiffs will oppose Warner Chappell’s motion (Dkt. 223) to supplement the record
with those materials.
Betsy
From: Klaus, Kelly [mailto:Kelly.Klaus@mto.com]
Sent: Friday, July 24, 2015 6:47 PM
To: Manifold, Betsy; Kaplan, Adam
Cc: Rifkin, Mark
Subject: RE: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Hi Betsy –
Thanks for your email, and for forwarding the documents.
Warner Chappell does not object to Plaintiffs’ submission of the documents that you forwarded. (Warner Chappell also
does not object to your filing WC 2397‐2400 not under seal.) Warner Chappell does not agree that these documents
warrant the grant of summary judgment in Plaintiffs’ favor. When we spoke this afternoon, I asked you on what basis a
publication of the lyrics to Happy Birthday to You by a third party, even if in fact done with the “special permission” of
Summy (a point that we do not concede), would divest the common law copyright in those lyrics held by its authors,
Mildred and Patty Hill, given that nothing in the Everyday Song Book (or anything else of which we are aware) provides
any evidence of the Hills’ authorization. You told me that you were not prepared to discuss your legal arguments in that
regard, but rather only wanted to know Warner Chappell’s position regarding Plaintiffs’ request to submit the pages
from the Everyday Song Book. Whatever your argument is in regard to Plaintiffs’ motion for summary judgment,
Warner Chappell would like the opportunity to review it and to respond in writing prior to arguing the matter before the
Court.
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EXHIBIT F
Page 26
In addition, Warner Chappell requests that Plaintiffs agree that the certified copies of the deposit copy and copyright
receipt that Warner Chappell recently obtained from the British Library also be submitted to the Court in advance of the
hearing on Wednesday. Warner Chappell filed a motion to supplement the record with those materials yesterday (Dkt.
No. 223), but unlike your application, that motion was noticed for hearing in the ordinary course. If Plaintiffs are going
to be making new, non‐abandonment arguments to the Court on Wednesday, we think that the deposit copy also
should be before the Court, since it is highly relevant to the issues relating to summary judgment and supportive of
Warner Chappell’s motion. In particular, the certified copy of the sheet music for Happy Birthday to You! from the
British Library is compelling corroborative proof that Summy deposited the same sheet music (with the same “familiar
lyrics” to Happy Birthday to You!) with the U.S. Copyright Office on the same date, December 6, 1935. Please let us
know if Plaintiffs are agreeable to this request.
Please inform the Court of our position in response to your request; please attach a copy of this email to your
submission; and please provide us with your submission as soon as it is ready, so that we can consider our response to
your legal arguments.
Thanks, and regards,
Kelly
From: Manifold, Betsy [mailto:manifold@whafh.com]
Sent: Friday, July 24, 2015 2:02 PM
To: Klaus, Kelly; Kaplan, Adam
Cc: Rifkin, Mark
Subject: Warner Chappell: Plaintiffs' Ex Parte Application based on 1922 and 1927 Everyday Song Book
Counsel: As discussed, attached are the relevant pages from both the 1922 and 1927 Everyday Song Book. The clear
1927 version was located in the University of Pittsburgh music library and provided by one of their research librarians
yesterday. The language blurred in the 1927 copy provided by Defendants (even in today’s re‐scanned version) shows
Happy Birthday was published therein with “Special permission through courtesy of The Clayton F. Summy Co.” This
lead us to locate an earlier 1922 version of the Everyday Song Book which contains the same language.
We would like to submit this new evidence to the Court via ex parte application (today or Monday) and argue that it
warrants the grant of Summary Judgment in Plaintiffs’ favor. Please advise whether you oppose the submission of this
new evidence to the Court and will oppose Plaintiffs’ argument re: summary judgment so I can put Defendants’ position
in our ex parte application.
Thanks,
Betsy
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