Rupa Marya v. Warner Chappell Music Inc

Filing 230

TRANSCRIPT for proceedings held on July 29, 2015. Court Reporter/Electronic Court Recorder: KHOWOONSUN CHONG, phone number 213-894-3507. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/25/2015. Redacted Transcript Deadline set for 9/4/2015. Release of Transcript Restriction set for 11/2/2015. (kch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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HONORABLE GEORGE H. KING, CHIEF U.S. DISTRICT JUDGE

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GOOD MORNING TO YOU PRODUCTIONS
CORP., ET AL.,

)
)
) CASE NO.
PLAINTIFFS,
) CV 13-4460
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VS.
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WARNER/CHAPPELL MUSIC, INC.,
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ET AL.,
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DEFENDANTS.
)
________________________________________)

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REPORTER'S TRANSCRIPT OF
HEARING RE SUPPLEMENTAL BRIEFING
RE MOTION FOR SUMMARY JUDGMENT
WEDNESDAY, JULY 29, 2015
9:33 A.M.
LOS ANGELES, CALIFORNIA

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________________________________________________________
KHOWOONSUN CHONG, CSR 12907, CRR, RMR
FEDERAL

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255

EAST

LOS

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OFFICIAL
TEMPLE

ANGELES,

COURT

STREET,

REPORTER
ROOM

CALIFORNIA

181-G

90012

[e-mail]

UNITED STATES DISTRICT COURT

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APPEARANCES OF COUNSEL:

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FOR THE PLAINTIFFS:
WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ
BY: MARK C. RIFKIN, Esquire
270 Madison Avenue
New York, New York 10016
WOLF, HALDENSTEIN, ADLER, FREEMAN & HERZ
BY: BETSY C. MANIFOLD, Esquire
750 B Street, Suite 2770
San Diego, California 92101
RANDALL S. NEWMAN PC
BY: RANDALL S. NEWMAN, Esquire
37 Wall Street, Penthouse D
New York, New York 10005
DONAHUE FITZGERALD LLP
BY: DANIEL J. SCHACHT, Esquire
1999 Harrison Street, 25th Floor
Oakland, California 94612
GLANCY, PRONGAY & MURRAY
BY: MARC L. GODINO, Esquire
KARA M. WOLKE, Esquire
1925 Century Park East, Suite 2100
Los Angeles, California 90067
FOR THE DEFENDANTS:
MUNGER, TOLLES & OLSON
BY: KELLY M. KLAUS, Esquire
ADAM I. KAPLAN, Esquire
560 Mission Street, 27th Floor
San Francisco, California 94105
MUNGER, TOLLES & OLSON
BY: MELINDA E. LeMOINE, Esquire
555 South Grand Avenue, 35th Floor
Los Angeles, California 90071

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UNITED STATES DISTRICT COURT

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I N D E X

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CASE CV 13-4460

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PROCEEDINGS:

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HEARING RE SUPPLEMENTAL BRIEFING
RE MOTION FOR SUMMARY JUDGMENT

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Wednesday, July 29, 2015
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UNITED STATES DISTRICT COURT

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LOS ANGELES, CALIFORNIA; WEDNESDAY, JULY 29, 2015

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9:33 A.M.

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-oOo-

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THE CLERK:

Please remain seated and come to order.

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This United States District Court is now in session.

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Honorable George H. King, Chief Judge presiding.

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The

Calling Item No. 1 on the Court's calendar, Civil 13-4460,

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Good Morning to You Productions, Corp. versus Warner/Chappell

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Music, Inc., et al.

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Counsel, would you please state your

appearances for the record.
MR. RIFKIN:

Good morning, Your Honor.

of Wolf Haldenstein on behalf of plaintiffs.

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THE COURT:

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MR. NEWMAN:

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Good morning.
Good morning, Your Honor.

THE COURT:

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MR. SCHACHT:

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Randall S.

Newman, Randall S. Newman, P.C., on behalf of plaintiffs.

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Mark Rifkin

Good morning.
Good morning, Your Honor.

Daniel

Schacht of Donahue Fitzgerald on behalf of plaintiffs.
MS. MANIFOLD:

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behalf of plaintiffs.

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THE COURT:

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MR. GODINO:

Betsy Manifold, Wolf Haldenstein, on

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Yes, good morning.

Thank you.

Good morning, Your Honor.

Marc Godino

from Glancy, Prongay & Murray.

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THE COURT:

Thank you.

Good morning.

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MS. WOLKE:

Good morning, Your Honor.

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Kara Wolke,

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also from Glancy, Prongay, Murray on behalf of plaintiffs.

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THE COURT:

Thank you.

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MR. KLAUS:

Kelly Klaus from Munger, Tolles & Olson.

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Good morning.

With me are my colleagues Melinda LeMoine and Adam Kaplan.

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THE COURT:

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Thank you very much.

Good morning.

This matter is on calendar for me to consider the further

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briefing on the issue of abandonment, which I had directed you

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folks to submit previously.

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briefly mention and take care of more of a housekeeping matter,

In the meantime, I just want to

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what's happening with your various motions, applications to

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supplement the record.

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merits of these applications or these motions at this time, but

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I just want to make sure that I have what I'm supposed to have.

It's not my intention to take up the

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The plaintiffs -- both parties are asking to supplement.

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The defendants, you want to submit what is the equivalent

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of a British deposit copy for the E51990.

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Is that basically

it?

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MR. KLAUS:

That's correct, Your Honor.

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THE COURT:

Okay.

And the plaintiffs, you are also

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asking, on an ex parte basis, your application to go ahead and

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submit various things including certain songbook-type

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publications, whether it's 1922 or 1927, that you think would

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be helpful on the issue of really divestive publication,

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general publication.

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MR. RIFKIN:

Correct.

The 1922 publication in

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particular, correct, Your Honor.

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THE COURT:

And, Mr. Klaus, you folks have not

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opposed the application to supplement the record, but you do

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have arguments against -- the substance of the arguments is as

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to the significance of those documents; is that right?

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MR. KLAUS:

That's correct, Your Honor.

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THE COURT:

And you said that you have not attached

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a declaration to your explanation, various explanations you

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offer to provide such a declaration.

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MR. KLAUS:

We'd be happy to.

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THE COURT:

Do you folks think that you would

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require that to be in a declaration form to support the

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statements made by counsel?

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MR. RIFKIN:

Your Honor, there are two separate

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issues in their opposition filed yesterday.

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do with the circumstances around which the document, the 1927

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copy of Everyday Song Book, was identified in 2013.

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produced until just -- we got it.

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July 13.

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One of them has to

It was not

We had access to it on

On that, as we said in our ex parte application, that's a
secondary issue.
We are concerned about that only because we've spent the

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last two years without that document, and it would have had a

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significant impact on how this case was conducted, how the

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briefs were presented, how the arguments were made.

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But we're

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happy to let that sit aside for now while we concern ourselves

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with the merits of that particular issue.

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On that, the defendants have offered a supposition that

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maybe Summy wasn't authorized to permit the publication of the

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song in 1922.

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evidence of that --

To the best of our knowledge, there is no

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THE COURT:

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MR. RIFKIN:

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Let's not get --- but if the defendants have

something, then, yes, we would expect that to be offered in a
declaration; otherwise, there's no facts in the record.
THE COURT:

That's not what they're offering the

declaration for, is my understanding.
MR. RIFKIN:

It wasn't clear to me which part of

their response was being supported by the declaration.
THE COURT:

Let's get that clear.

Mr. Klaus, are you saying that you are prepared to offer a

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declaration with respect to the argument that counsel's made as

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to whether or not -- or rather, it's your argument that Summy

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didn't have authorization from the Hill sisters to grant that

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kind of permission for the publication in 1927.

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MR. KLAUS:

No.

That was not why I had offered the

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declaration.

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circumstances of the late production and --

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What I had offered the declaration on was on the

THE COURT:
that right now.

Okay.

I think -- I don't think we need

Do you have some evidence to offer as to that,

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that Summy was not authorized?

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record as full as possible.

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MR. KLAUS:

I'm just trying to make the

Well, I think the -- yes, the evidence

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that we have on -- it's both a question of whether Summy was

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authorized, and I think there's also a question as to whether

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the cable company which published this book was authorized.

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For that, I think the evidence is the actual book itself, which

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plaintiffs' counsel were kind enough to this morning show me

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the copies that they retrieved.

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There may be material in the copyright office.

I, of

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course, have no facts about what happened in 1922 or 1927

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personally, but I don't have any other evidence in the -- we

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have no other evidence about this.

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THE COURT:

Nothing else to submit on this subject.

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MR. KLAUS:

That's correct, Your Honor.

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THE COURT:

Then you can submit your reply.

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you haven't filed your reply yet.

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reply in seven days, and then we'll take a look at it, and I'll

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most likely rule without further argument.

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I think

Why don't you file your

And then as far as the pending motion of the defendant is

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concerned, we'll just go ahead and keep that on the usual

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briefing cycle, and then I'm more likely than not to take that

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off calendar as well and rule without argument.

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MR. RIFKIN:

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THE COURT:

Thank you, Your Honor.
All right.

So that takes care of the

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preliminary matters.

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I have some questions for both plaintiffs and defendants.

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Let's get right to the abandonment issue.

Let me start with the plaintiff.

Rather than going back

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and forth, I'll sort of skip around to all the questions I want

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to have the benefit of your -- your views on, Mr. Rifkin, and

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then I'll hear from Mr. Klaus.

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MR. RIFKIN:

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THE COURT:

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Of course, Your Honor.
The first question that's been raised by

the defendant is that the Happy Birthday to You was a joint

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authorship of both Mildred and Patty.

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no, it wasn't a joint authorship, it was really a derivative

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work created by Patty based upon the previous perhaps joint

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work of Good Morning to You between Mildred and Patty.

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Your view seems to be

What is the evidence -- I'm trying to understand -- what

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is the evidence that you point to that would tend to support

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your view that this is a derivative work -- and when I say

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"this," I'm obviously talking about Happy Birthday to You -- as

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opposed to a work of joint authorship between Mildred and

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Patty?

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MR. RIFKIN:

Well, Your Honor, I think there's two

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pieces of evidence that are already in the record on this

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question.

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1935 in the Hill v. Harris litigation in which she said that

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she and her sister Mildred composed --

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The first is Patty Hill's deposition testimony in

THE COURT:

Which page are you talking about?

UNITED STATES DISTRICT COURT

Are

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you talking about 1007 of that deposition?

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MR. RIFKIN:

going to get my copy of it.

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THE COURT:

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MR. NEWMAN:

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If you don't mind, Your Honor, I'm

Sure.
Betsy, do you have the copy that's in

the summary judgment record of that deposition testimony?

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MS. MANIFOLD:

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MR. RIFKIN:

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What exhibit is it?

Your Honor, just a moment so that I

have a copy that lines up with the pages on there.

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THE COURT:

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MR. RIFKIN:

I have it as Exhibit 87.
It is, Your Honor.

I have Exhibit 87

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in front of me, and you are asking me about page 1007 of the

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record?

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THE COURT:

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MR. RIFKIN:

Yes, if that's what you're referring to.
Yes.

She describes that Happy Birthday

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was one of the earliest songs in the group.

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recall that the book Song Stories for the Kindergarten -- Song

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Stories for the Kindergarten, which was published in 1893,

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consisted of about 70 songs, many of which were written by

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Mildred and Patty together.

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All.

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many centuries before, including songs like Twinkle Twinkle

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Little Star.

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Your Honor may

One of them was Good Morning to

Some of them were songs that had been written by others

THE COURT:

Slow down a little bit when you're

speaking so my reporter can get it down.

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MR. RIFKIN:

But yes.

On -- on page 1007 Patty Hill

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says that Happy Birthday -- I'm sorry -- that Good Morning to

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All was one of the earliest in the group.

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And then she later says in that same answer that she

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then -- "she" being Patty, she then says that she wrote other

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versions of the song, and she identifies several of them there,

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including Goodbye to You, Happy Journey to You, Happy Christmas

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to You, Happy New Year to You.

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the page she's asked about Happy Birthday, and she says, yes, I

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And then toward the bottom of

wrote the words to that song as well.
The other piece of evidence that's -- that's in the
record, which is -THE COURT:

Before you do that, let me talk briefly

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with you about this piece of evidence -- and don't forget the

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other piece because I do want to talk to you about --

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MR. RIFKIN:

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THE COURT:

Yes.
If you read this page in its entirety

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and the context of the answer, which is a lengthy answer that

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she gives, she does begin talking about the Good Morning to

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You -- to All, but she also said, we used it for, meaning

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presumably the melody, we used it for all the rest of these

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versions -- Goodbye to You, Happy Journey to You, including,

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when asked, Happy Birthday to You.

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Doesn't that seem to you to be more suggestive that these
were all joint collaborations and various versions of the

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melody but there are various versions of the lyrics, that they

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were working together, as she says "We used it for"?

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MR. RIFKIN:

I don't believe that the "we" in that

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paragraph refers to her and her sister Mildred.

I think it's

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clear from the context of the deposition that the "we" there

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refers to her and the students of her class.

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evidence anywhere that Mildred and Patty together published any

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of these other versions of the melody with any of these other

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lyrics, whether it was Goodbye to You, Good Journey to You,

There's no

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Happy Christmas to You, Happy New Year to You, Happy Vacation

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to You, or for that matter, Happy Birthday to You.

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But what she does say is that she sang Happy Birthday with

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every birthday celebration in the school.

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educator, and you may recall we pointed out before she called

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herself the poetess.

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the poetess, I wrote the words.

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the context that Patty wrote these alternate words, these

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derivative words.

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THE COURT:

Patty was the

She said Mildred was the composer, I was
And I think it's clear from

The fact that Patty may have written the

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words is not dispositive.

You don't have to jointly write the

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words to be a joint author of the work.

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disputed that Mildred didn't write the words, but for purposes

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of joint authorship, the test is really not whether you

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actually authored the words.

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prepared by two or more authors with the intention that their

So I don't think it's

It's whether, you know, the work

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contributions be merged into inseparable and interdependent

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parts of the unitary whole.

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Don't you think it is at least susceptible of the reading

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that the two of them were collaborating and trying to

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manipulate the music in a way that's probably best for small

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children and their abilities and that in that process they were

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also applying different words to that tune?

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Undoubtedly, Patty probably came up with the words, but
they were in that collaborative effort.

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MR. RIFKIN:

I don't -- respectfully, I don't

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believe that's what happened.

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rest of the transcript, Patty describes in some more detail the

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actual process of writing the Good Morning to You song, and she

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says --

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THE COURT:

And I think, if we look at the

Go ahead.

Go to that, then.

Tell me

where that is.
MR. RIFKIN:

She says, with respect -- and, again,

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I'm on page 1007 -- she says, It would be written, and I would

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take it into the school the next morning -- and now here she's

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clearly talking about Good Morning to All -- and test it with

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the little children.

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composition.

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And then she's describing now the musical

So she says, if the register, which is a musical term, was

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beyond the children, we went back home -- we and Patty -- Patty

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and Mildred -- we went back home at night and altered it and

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would go back the next morning and try it again -- again, "it"

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is a reference to the song Good Morning to All -- again and

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again until we secured a song that even the youngest children

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could learn with perfect ease.

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And while only the words -- she then goes on to describe

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what happens with these adaptations.

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the answer she gives that they were working on Good Morning to

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All.

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melody for the song, and then Patty would test it out in school

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I think it's clear from

She had written those words, and Mildred had composed the

the next day.
If the kids were able to sing it, great.

If there was a

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problem with it, she went home.

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and they developed a song, Good Morning to All, that she says

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even the youngest children could sing with ease.

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She and Mildred worked on it,

Then I think she says "we," and here's where I think the

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"we" needs to be put into context.

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clearly is the song Good Morning to All -- for Goodbye to You,

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Happy Journey to You, Happy Christmas to You, and so forth.

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We used it -- and it

And I think, if we were to look at this sentence, the word

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"we" out of context, without recognizing that there's never

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been a single publication attributed to Patty and Mildred of

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any of these alternate songs, it's -- it's evident to me that

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Patty and Mildred never said they wrote it together.

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I think, taken out of context, the word "we" could
possibly be a reference to Mildred, and so it might lead to the

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conclusion that this was a joint work.

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the entire record and the explanation that Patty gives, and one

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other piece of evidence which I'd like to come to in a moment,

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it becomes much clearer to me that the song Patty and Mildred

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wrote together is the only song that has ever been associated

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with them together, and that's Good Morning to All.

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But in the context of

But perhaps even more important is that Summy, Warner's

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predecessor, Summy actually gives us a temporal reference in

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Exhibit 51.

This is the answer that Summy filed to the amended

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complaint in the litigation the Hill Foundation brought against

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Summy.

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Good Morning to All --

And on page 680 and 681 of the answer, they say that

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THE COURT:

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MR. RIFKIN:

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THE COURT:

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MR. RIFKIN:

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Yes.

Give me the pages again.

It's pages 680 and 681 of

Exhibit 51.

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I'm sorry.

Right.
This is the answer that was filed in

the Hill Foundation v. -THE COURT:

Paragraph 6?

Are you talking about

paragraph 6?
MR. RIFKIN:

Your Honor, just give me a moment to

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turn to the page.

I'm talking about paragraph 6, yes.

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Summy says in its answer that the song Good Morning to All

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with -- now I'm quoting -- the song Good Morning to All, with

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different words, later became entitled Happy Birthday to You.

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And

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To me, Summy's admission, their judicial admission in that

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litigation that the song later became known as Happy Birthday

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to You, reinforces the fact that it was a derivative work that

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was subsequently done presumably by Patty.

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If we accept Patty's testimony that she wrote the song,

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the lyrics to the song, then I think the two parts of the

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record that I refer to -- page 1007 from Patty's transcript

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where she says she wrote it, she used it with her students in

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school, Mildred was not a schoolteacher -- the fact that

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there's no evidence of any alternate version of the song being

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attributed to the sisters together, and the fact that Summy in

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their answer says the song later became known as Happy Birthday

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to You, reinforces the conclusion that Good Morning to All was

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a unified creation of Mildred and Patty together as a joint

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work -- there's no dispute about that -- but that Happy

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Birthday was a later variation by Patty either in her classroom

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or for use in her classroom, which has never, except by the

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defendants periodically in this litigation, has never been

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attributed to Mildred Hill.

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THE COURT:

What if the agreement between the

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authors, Mildred and Patty, had been that let's work this song

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out, the register being perfect for the little kids, with this

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initial verse, and then I'll just go ahead and add some more

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verses that we can also plug in.

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Does that constitute a joint work?

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MR. RIFKIN:

No.

I don't -- I don't think that

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necessarily has to be the case because the joint work has to be

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a deliberate creation on the part of two or more authors to

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create a single unified work.

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And in that case the subsequent work would not be part of

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the original work.

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Patty made it clear that she was the one who contributed the

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new matter to that derivative work, not Mildred.

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It would still be a derivative work, and

Mildred's work on the song was done when Mildred and Patty

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were satisfied that the melody was appropriate for, as Patty

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says, even the youngest child to sing.

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done -- that work was now the work of Mildred and Patty, and

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the subsequent work became the work of Patty.

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But once that work was

And, again, all we can do to think about this is look at

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what evidence there is in the record, and it seems to me that

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the evidence in the record in this instance is one sided.

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Summy says the song later became known as Happy Birthday to You

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when those lyrics were added.

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lyrics.

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the same iterative way that she describes writing Good Morning

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to All, and the song has never been published together with

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attribution to Mildred and Patty.

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Patty says she wrote those

There's no suggestion that she wrote them with Mildred

So I don't think that -- I don't think that we can

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conclude that Happy Birthday was a joint work of Mildred and

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Patty.

UNITED STATES DISTRICT COURT

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THE COURT:

What about on page 1006, which is before

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the discussion that we've been talking about where there -- you

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know, 1006 and 1007 explicates all these various versions.

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on 1006 there's also some discussion by Ms. Hill when she's

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talking about these songs.

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But

My memory is a little vague as to the

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particular year, but it was bound to be between

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1889 and 1893 when these songs were demanded by

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the public for publication.

We did not write

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them for publication.

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of children I was teaching.

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superior to any other music in the market, and

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the public demanded the publication.

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MR. RIFKIN:

We wrote them for a group
They were so

Yes, Your Honor.

That's -- that's what

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I -- I referred to earlier when I said the book Song Stories

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for the Kindergarten was published with a collection of songs

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by -- some by Mildred and Patty, some by other authors.

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you look up on that same page 1006, at the top of the page

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there's a paragraph -- there's an answer from Patty that's cut

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off, but what she describes is how she went about writing Song

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Stories for the Kindergarten.

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But if

She says, when my sister Mildred and I began the writing

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of these songs -- and then there's a parenthetical, I don't

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know who inserted it, but it's in the transcript, referring to

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Song Stories for the Kindergarten -- we had two motives.

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One

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was to provide good music for children.

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adapt the music for the little children's limited ability to

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sing music of a complicated order.

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The second was to

And I think it's clear that the second answer she gives on

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page 1006 that Your Honor asked about is a reference to those

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same collections -- that same collection of songs, Song Stories

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for the Kindergarten.

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THE COURT:

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MR. RIFKIN:

That's your view.
Yeah.

I don't think -- in other words,

10

on page 1006, I think when she's referring to the songs, it's

11

the songs in Song Stories.

12

the -- in the bottom of the answer that you began to read, she

13

says, we published this in response to a demand for

14

publication, and they were published and put on exhibit in the

15

World's Fair in Chicago in 1893.

16

And, in fact, she even continues in

We mentioned that before.

That is the publication of the

17

70 or so songs in Song Stories for the Kindergarten, only one

18

of which is a version of Good Morning to All.

19

words Good Morning to All appear in that song.

20

alternate versions that Ms. Hill mentions on the next page in

21

her answer to a different question -- none of those alternate

22

versions and none of those alternate lyrics appear in the 1893

23

publication of Song Stories for the Kindergarten.

And only the
None of these

24

Now, if she really wanted to publish those songs together

25

and she really worked with Mildred together, it would have been

UNITED STATES DISTRICT COURT

20
1

easy for them to include the alternate lyrics right then and

2

there in Song Stories for the Kindergarten.

3

so.

4

THE COURT:

They did not do

Well, take a look at page 1009.

There

5

seems to be then -- there was some talk -- let's go back to

6

1008.

7

Stories for the Kindergarten, be marked Exhibit A for

8

identification.

9

time that this particular song was being written -- presumably

There's a question by Mr. Stark.

Okay.

I ask this book, Song

Then he says, question, and during the

10

referring to Good Morning to All -- did you use the various

11

lyrics in conjunction with the tune while you were working with

12

the children?

13

certainly -- we certainly did.

There's an objection, and the answer is, we

14

MR. RIFKIN:

15

THE COURT:

Yes.
Does that not suggest that there was a

16

collaborative effort, not only of the Good Morning to All but

17

also these various lyrics that have been identified on

18

page 1007?

19

MR. RIFKIN:

No.

Again, I think, Your Honor, that

20

the "we" in that sentence has to be put into the context of the

21

rest of Ms. Hill's testimony.

22

not a reference to her and to Mildred.

23

to her and her students in school.

24
25

I think there again the "we" is
The "we" is a reference

If she and Mildred had worked on more than one song
together, it would have appeared in Song Stories for the

UNITED STATES DISTRICT COURT

21
1

Kindergarten when it was published in 1893, particularly if

2

they worked on them at the same time.

3

The only way you can harmonize all of the evidence that's

4

in the record, including Summy's admission in the Hill v. Summy

5

litigation that the song later became known as Happy Birthday

6

to You -- the only way you can harmonize all of that is to view

7

it exactly the way I've described, that the Hill sisters wrote

8

Good Morning to All in that iterative manner that Patty

9

described, and then in her classroom Patty separately composed

10

alternate combinations of lyrics which were never published

11

anywhere by the Hill sisters.

12

So I don't -- I truly don't believe that all of the

13

evidence, the totality of the evidence, permits the -- the

14

conclusion that Happy Birthday to You was written as a joint

15

work by Mildred and Patty at the same time they were writing

16

Good Morning to All.

17

I've just gone over is consistent instead with what Summy said,

18

that it later became known as a different work because Patty

19

sang it with her kids in school.

20

THE COURT:

21
22

I think the totality of the evidence that

Do you think there's a triable issue at

least on this?
MR. RIFKIN:

Well, Your Honor, you may recall that

23

there was a question asked to both sides at the last hearing

24

whether, if the Court found there were triable issues, whether

25

the Court could determine those triable issues without a jury.

UNITED STATES DISTRICT COURT

22
1

And this is one of those issues where I suppose one could

2

again -- one could look at some of the answers Patty gave in

3

her deposition and take a word or two out of those answers and

4

say, What did "we" mean?

5

What did "songs" mean?

But then those words have to be put into their proper

6

context, which I've suggested here in my answer, and if there

7

is a disputed issue of fact here, I think the evidence

8

overwhelmingly favors the plaintiffs' point of view that the

9

song that was written as a joint work is the song that was

10

published as part of Song Stories for the Kindergarten, Good

11

Morning to All.

12

THE COURT:

13

MR. RIFKIN:

14

So what you're saying -The later work -- I'm sorry.

I didn't

mean to interrupt, Your Honor.

15

THE COURT:

What you're saying -- I'm trying to

16

understand the procedural posture that we are in.

17

if this is going to be a different trier of fact on summary

18

judgment -- I'm only here to determine whether there's a

19

triable issue of material fact.

20

judgment is denied, and we move on to the trial.

21

on these issues, you folks have both stipulated to a court

22

trial.

23

Typically,

If there is, then summary
In this case,

So the question then becomes do I put my summary judgment

24

hat on and say, hmm, it looks like at least it's triable, take

25

it off, and then at the same time put on my trier-of-fact hat,

UNITED STATES DISTRICT COURT

23
1

and I say, all right.

2

evidence there is, this is all the record there is.

3

make their argument, here's my finding of fact.

4
5
6

Well, it is triable, but this is all the
Both sides

Do you think it will be appropriate to do it all in
basically one order?
MR. RIFKIN:

I think that we -- we both consented to

7

Your Honor making those fact findings when we were here back in

8

March, and we have no reason to change our view on that at all.

9

If the Court finds that the question of whether this

10

was -- whether Happy Birthday was a joint work is not clearly

11

answered for summary judgment purposes, then I believe the

12

Court could make the determination along the lines that I've

13

suggested, based upon the totality of the evidence that we've

14

described to you, including Summy's reference to it as a song

15

that later became known as Happy Birthday to You.

16

The fact that the Hill sisters --

17

THE COURT:

18

MR. RIFKIN:

19

THE COURT:

Let's not go -Okay.
I guess what I'm saying is there's no

20

need, from a technical standpoint, for me on the summary

21

judgment to say, well, if I find there's triable issues,

22

summary judgment denied.

23

court trial.

24

same thing you've already moved in.

25

argument you've already made.

All right.

Now let's set a time for

You folks come in, and you basically move in the
You're making the same

And then I say, all right.

UNITED STATES DISTRICT COURT

Now

24
1

that I'm a trier of fact, I'm going to make these findings of

2

fact and conclusions of law if, from your perspective, that's

3

really form over substance.

4

MR. RIFKIN:

That's correct, Your Honor, based upon

5

our consent, both parties' consent on March 23rd to Your Honor

6

making those findings of fact.

7

And I will, of course, say that -- I know you don't want

8

to address the issues raised by the ex parte application, but

9

this all becomes subject to the 1922 publication of the song

10

without a copyright notice.

11

that.

12

I don't want to lose sight of

I just want to merely -THE COURT:

I'm well aware of the many issues that

13

are raised here, and depending upon the Court's resolution

14

either as trier of fact or on summary judgment, it may obviate

15

the necessity of further inquiry --

16

MR. RIFKIN:

17

THE COURT:

18

MR. RIFKIN:

19

THE COURT:

Correct.
-- but -Correct.
But since we only called this hearing

20

for purposes of addressing the issue of abandonment, I think we

21

should do that.

22
23
24
25

MR. RIFKIN:

And I want to make sure I answer all

your questions on abandonment.
THE COURT:

All right.

Next.

Let's move on.

You take the position that, while the law may be that an

UNITED STATES DISTRICT COURT

25
1

overt act of abandonment is required where there is a statutory

2

copyright, you think that that requirement is not present where

3

there is a common law copyright.

4

your cases.

5

that proposition.

6

And basically I've looked at

I don't think any of your cases directly stand for

But in fairness to you, I think what you have done is you

7

have followed a logical argument, saying that common law

8

copyright is a property right and any property right can be

9

abandoned in many ways and they do not typically require an

10

overt act necessarily.

11

Roby case that you cited, mere nonuse might be sufficient to

12

constitute abandonment of the easement and so forth.

13

MR. RIFKIN:

14

THE COURT:

In fact, in some instances like the

Correct.
I take it you have no cases directly on

15

the issue of whether a common law copyright may be abandoned

16

without any need for showing of an overt act.

17

that?

18
19

MR. RIFKIN:

THE COURT:

21

MR. RIFKIN:

23
24
25

Other than the cases we've cited, we're

not aware of any direct authority on that point.

20

22

Am I correct in

Okay.
Our argument is as comprehensive as we

can make it in the brief.
THE COURT:

Very good.

Thank you.

Now let's move on to the next subject.

In terms of overt

acts, you've identified various of them.

UNITED STATES DISTRICT COURT

26
1

MR. RIFKIN:

2

THE COURT:

3

Right.
One of them is the teaching of the song

to the teachers and the kids.

4

MR. RIFKIN:

5

THE COURT:

Correct.
So you all -- it's interesting because

6

you and the defendant both seem to rely on the same passage

7

from Ms. Hill's deposition, which is Exhibit 87 at page 1024,

8

and you cite that her statement that we are trying to protect

9

ourselves -- we are not trying to protect ourselves in any way

10
11

except as to publication at this time.
So your take of it is, because she said that, it means

12

that she was thereby abandoning anything other than that, which

13

she wanted to protect the publication.

14

ripened into the Song Stories book, and Happy Birthday lyrics

15

at least were not in there.

16

MR. RIFKIN:

Right.

Publication obviously

I think it's pretty clear when

17

she says we were not trying to protect ourselves in any way

18

except as to publication at that time.

19

there's no dispute the only publication, the only publication

20

that existed at that time, was Good Morning to All.

21

And we recognize that

And this ties obviously to the answer to the first

22

question you asked about whether it was a joint work.

23

you know, here, if they intended to protect themselves

24

regarding any of these alternate arrangements that Patty claims

25

to have written, then they could have done so easily by

UNITED STATES DISTRICT COURT

I think,

27
1

including them in the book.

2

She was not reticent about protecting the work in Song

3

Stories for the Kindergarten, including Good Morning to All --

4

neither of the Hill sisters was -- but she makes it very clear

5

that that's all we wanted to protect.

6

protect ourselves in any way except as to publication at that

7

time, and that publication was Good Morning to All.

8
9

THE COURT:

We were not trying to

What about some of her other statements

that the defendants cite, including exchanges also in that

10

deposition between counsel and Ms. Hill in terms of how she was

11

trying to limit the authority or the permission, only for

12

educational uses, only as far as the kids singing them

13

concerned and so forth?

14

everything other than there's just that one line, but if you

15

read what she has said at various parts during the course of

16

the deposition --

17

MR. RIFKIN:

18

THE COURT:

How does that -- if you read

Right.
-- does it at least raise a triable

19

issue as to whether or not there was evidence of abandonment by

20

it?

21

MR. RIFKIN:

Your Honor, I don't -- I don't think on

22

this question it does because, No. 1, the clearest statement

23

she makes in the deposition is the one you just asked me about

24

on page 1024 of the deposition transcript, where she says what

25

the extent of their interest was.

The purpose that she

UNITED STATES DISTRICT COURT

28
1

describes for creating and publishing the collection of songs

2

in Song Stories for the Kindergarten we certainly don't need to

3

challenge or dispute or in any way explain because Happy

4

Birthday to You simply isn't in that publication.

5

And, again, I think that the failure to include that song

6

in the 1893 publication, if the Court believes there's some

7

question about whether it was written then -- and by "it" I

8

mean the Happy Birthday lyrics -- is conclusive when you put it

9

against the statement that she makes that we were only trying

10

to protect the publication at that time.

11

clearest black-and-white expression of what the limits of her

12

interests were.

13

after that --

14

I think that is the

But then if there's even any doubt about it

THE COURT:

If she was only trying to protect the

15

publication because that was what's being published in the

16

songbook, and the Happy Birthday lyrics if it existed at that

17

time was not being published in the songbook, does that

18

necessarily mean that she was abandoning the lyrics to Happy

19

Birthday?

20

MR. RIFKIN:

Oh, I think, in and of itself she says

21

this was the extent of our rights.

22

to look at that in a vacuum because, as we say in our brief, if

23

you look at the question of abandonment, you don't look at one

24

act and say that's not abandonment and another act and say

25

that's not abandonment and a third act and say that's not

But I don't think you need

UNITED STATES DISTRICT COURT

29
1

abandonment any more than you look at a tree and say, well,

2

that's not a forest and you look at the tree next to that and

3

say that's not a forest either when you're standing in the

4

midst of a forest, because there is other evidence, including

5

what she says to the New York Times in 1934, when she says that

6

her only claim was regarding the music of Good Morning.

7

When you look at what she says to Time Magazine, she says

8

I had long ago resigned myself to the fact that the ditty had

9

become common property of the nation.

10
11

When you look at the

rights that she -THE COURT:

Let's go back because I want to make

12

sure -- let's go back to the New York Time article.

13

New York Time article doesn't say exactly what you just said.

14

It doesn't purport to quote from Ms. Hill, saying, I only have

15

a gripe with them with respect to the music and not the lyrics.

16

MR. RIFKIN:

17

THE COURT:

The

Correct.
That may be your gloss on it, and that's

18

fine, but as we look at it, what it says is she also admitted,

19

meaning I assume this was Ms. Patty --

20

MR. RIFKIN:

21

THE COURT:

Uh-huh.
-- Smith Hill, she also admitted that it

22

was her sister Jessica Hill, instructor of English at Teachers

23

College, who had signed a complaint in the suit filed earlier

24

in the day in federal court, alleging the Happy Birthday to You

25

sung in As Thousands Cheer was a plagiarism on the music of her

UNITED STATES DISTRICT COURT

30
1

own song.

2

MR. RIFKIN:

3

THE COURT:

Right.

Right.

It does not say anything about "but it

4

is not plagiarism of the words, because that I've already given

5

up."

That doesn't go that far.

6

MR. RIFKIN:

7

THE COURT:

That -What you're saying is an inference that

8

might be drawn from the fact that she had emphasized in her

9

lawsuit that plagiarism of the music, without any discussion of

10

plagiarism of the lyrics, because obviously the lyrics were

11

sung in As Thousands Cheer -- you say that is some indication

12

of an overt act to abandon.

13

MR. RIFKIN:

Yeah.

If -- if someone performs your

14

work without your permission -- and although only Jessica

15

signed the complaint, the complaint was brought in the name of

16

the foundation for the benefit of both sisters.

17

Jessica was the only one who signed the complaint, the

18

complaint was that the song Happy Birthday to You was used in

19

the play As Thousands Cheer without their permission.

20

claim was that the performance, again, plagiarized the music.

21

Now, had they believed that it also plagiarized Patty's

Although

And the

22

writing of the lyrics, it wouldn't have taken much for them to

23

say that.

24

evidence in the negative.

25

to You infringes upon your rights to the -- to the music, but

Again, this is -- this is a -- this is a piece of
There's a claim that Happy Birthday

UNITED STATES DISTRICT COURT

31
1

there's no corresponding claim that it infringes upon your

2

right to the lyrics.

3

THE COURT:

Your point, going back to the trees and

4

the forest, I guess your point is that you're not necessarily

5

saying any one of these pieces of evidence may in and of itself

6

constitute the overt act that is indicative of an intent to

7

abandon but that, when you put everything together -- the

8

teaching, the various articles, and then of course the Time

9

Magazine article and so forth --

10

MR. RIFKIN:

11

THE COURT:

12
13

Right.
-- together they do constitute the type

of overt act which evidences an intent or purpose to abandon.
MR. RIFKIN:

I think all these various affirmative

14

acts on the part of Patty, together, the totality of those

15

acts, is clear that they regarded -- that she regarded the

16

Happy Birthday lyrics fundamentally differently than she

17

regarded the composition of Good Morning to All, which she was

18

fiercely protective of -- again, to the point where she sued

19

over it, she demanded compensation for it, she fought with her

20

publisher over it, "it" being Good Morning to All, but never,

21

never anything about Happy Birthday to You even when Happy

22

Birthday to You was the work being performed.

23

So, yes, I think, if you wanted them all -- if -- if

24

the -- if the interview she gave to Time Magazine, where she

25

says she long ago resigned herself to the fact that the ditty

UNITED STATES DISTRICT COURT

32
1

had become common property of the nation, if that's not alone

2

sufficient to say she's abandoned any claim to copyright, then,

3

yes, I think all these other overt acts are certainly

4

sufficient to do that.

5

Again, also, we have what she says in -- in the deposition

6

in 1935 that all she was trying to protect was the publication

7

at that time.

8

as overt acts of abandonment are concerned for a song, Happy

9

Birthday to You, that Patty Hill really didn't particularly

I don't know how much more we can ask for as far

10

take much -- I guess the answer that I want to give is pride

11

in.

12

you compare that with how she talks about Happy Birthday to

13

You, Happy Birthday to You was an afterthought.

14

prompted to even mention it when asked about it when her

15

deposition was taken in a lawsuit over Happy Birthday to You.

16

The first thing she wanted to talk about was Good Morning to

17

All.

18

different.

When you read how she talks about Good Morning to All and

She had to be

So, yes, I think they are -- they are fundamentally

19

THE COURT:

Let me ask you one last question before

20

I have you sit down, and I'll talk to Mr. Klaus.

21

if the Court were to find that this was a joint -- "this"

22

meaning Happy Birthday to You lyrics -- that was a joint --

23

work of joint authorship with Mildred, then do you have any

24

evidence of any acts evidencing intent to abandon those lyrics

25

by Jessica?

UNITED STATES DISTRICT COURT

And, that is,

33
1

MR. RIFKIN:

And, again, leaving apart the 1922

2

publication, the answer is yes.

3

filed by Jessica and Patty together against the Hill

4

Foundation -- I'm sorry -- on behalf of the Hill Foundation

5

against --

6

THE COURT:

7

MR. RIFKIN:

In the litigation that was

Summy.
-- Summy.

The only claim that was made

8

in that case had to do with Good Morning to All and the

9

copyrights in Good Morning to All, which by that time Jessica

10

had renewed in 1921.

11

complaint having to do with the use of that song, the public

12

performance of that song, not as Good Morning to All but

13

instead as Happy Birthday to You.

14

And, again, there are allegations in that

Jessica was not at all embarrassed to assert her rights as

15

the heir of Mildred to the composition of Good Morning to All.

16

If Jessica thought she had a right to the Happy Birthday

17

lyrics, they would have appeared in that complaint with

18

certainty.

19

using Happy Birthday to You without your permission and not say

20

I own the rights to Happy Birthday?

21

for using Happy Birthday to You and only say I own the rights

22

to a different song, Good Morning to All, if you truly believed

23

you owned copyrights to the Happy Birthday lyrics, whether they

24

were common law copyrights, statutory copyrights, or any other

25

kinds of rights?

Why go through the trouble of suing someone for

Why would you sue someone

If you were going to file --

UNITED STATES DISTRICT COURT

34
1
2
3

THE COURT:

That's not -- doesn't that become, as to

her, just a failure to assert?
MR. RIFKIN:

No, because there was a complaint and

4

there was an amended complaint, and it is clear -- again, it is

5

clear from the allegations in that case that what they were

6

talking about was the musical composition.

7

recall that in the complaint they refer to -- "they" being the

8

Hill Foundation -- they refer to a license of various piano

9

arrangements of the musical composition Good Morning to All.

Your Honor may

10

That's Exhibit 50.

And then in Exhibit 51 -- this is the

11

amended complaint in Exhibit 51, which is --

12

THE COURT:

13

little confused here.

14

causes of action.

15

nor there for our purposes, I think.

16

Wait, wait.

I think you're getting a

In the amended complaint there are three

The third cause of action is neither here

The first cause of action largely talks about the songbook

17

and the various iterations of the songbook.

18

the agreements that had been reached back then at the time --

19

at or about the time of the publication of the songbook, which

20

would have been around the turn of the previous century.

21

MR. RIFKIN:

22

THE COURT:

The second -- and

Correct.
The second cause of action talks about

23

the piano arrangement licenses that I think we've been talking

24

about that you and the defendants dispute, the scope of that.

25

But be that as it may, that was entered into allegedly far

UNITED STATES DISTRICT COURT

35
1

later.

2

discussion with respect to the piano arrangements of Happy

3

Birthday to You, whereas the first cause of action, while it's

4

true in two of those paragraphs -- I think 10 and perhaps 15 --

5

there is some mention of Happy Birthday to You, but it seems to

6

me most of the discussion, as well as the copyrights referred

7

to therein and the renewals of the copyright referred to

8

therein, have nothing to do with E51990 or E51988.

9

That was '34 or '35, and that was when there was

MR. RIFKIN:

Correct.

The first part of the case

10

concerned the original copyright to Good Morning to All in

11

1893, and it concerned the renewal by Jessica in 1921, and

12

Summy's exploitation of Song Stories for the Kindergarten.

13

That's the work that was covered by the 1893 copyright and

14

Jessica's renewal of it in 1921, which expired in 1949.

15

There's no dispute about that.

16

first part of the case concerned that particular publication.

17

But, yes, that's right.

The

The second part of the case, which is the part of the

18

case -- the Hill Foundation v. Summy case -- that's really

19

germane to our present dispute -- has to do with these 1934 and

20

1935 assignments.

21

the Hill Foundation, on behalf of both Jessica and Patty, make

22

it clear that what was assigned was rights to piano

23

arrangements of the musical composition.

24

answer makes it clear that that's all they acquire.

25

And again, you know, Jessica makes it clear

And Summy in its

Now, there was a dispute back then about whether it was a

UNITED STATES DISTRICT COURT

36
1

license or a sale.

2

what we bought was the rights to various piano arrangements of

3

the said musical composition Good Morning to All.

4

Summy says we bought it, but Summy says

THE COURT:

Okay.

Period.

So with that understanding where

5

we are, tell me again how you believe that this is an

6

indication of some act of abandonment by Jessica.

7

context that we're talking about it.

8

MR. RIFKIN:

That's the

Because by then Patty and Jessica both

9

knew that the song Happy Birthday to You was being performed.

10

And if it was being performed without their permission and if

11

they believed their permission was necessary, either Patty's

12

permission because she was the author of the derivative work,

13

or Patty's and Jessica's permission because the Court concludes

14

that Happy Birthday was a joint derivative work, then we have

15

to look at the failure to assert any rights to the lyrics

16

Happy Birthday to You in that litigation brought by both

17

Jessica and Patty.

18

And we have to say that there was some significance to the

19

fact that they sued over the work that they believed they

20

owned, which is Good Morning to All, and that they didn't -- in

21

the same action against the same defendant, they didn't assert

22

any rights to the derivative work, no matter who it was.

23

Whether it was Patty -- she was an interested party in that

24

litigation -- or Patty and Jessica together because the Court

25

finds it's a joint work, then the Court has to conclude from

UNITED STATES DISTRICT COURT

37
1

the absence of any assertion of any rights to the lyrics

2

Happy Birthday to You, that Patty and Jessica together didn't

3

believe they had any rights to those lyrics.

4

So either way, whether it's because Patty didn't believe

5

she had the rights alone and it was her derivative work, or

6

because Patty and Jessica together didn't believe they had

7

rights in a joint work, it's pretty compelling evidence that

8

they didn't have those rights and didn't think they had those

9

rights.

10

And, of course, we have all the other litigation that was

11

brought, not just by Patty and Jessica or the Hill Foundation,

12

but also by Summy for performances of Happy Birthday to You,

13

both before the copyright was filed in 1935 and after the

14

copyright was filed in 1935 where the only rights asserted were

15

the rights to the musical composition Good Morning to All,

16

never to the lyrics Happy Birthday to You, even when the

17

performance was Happy Birthday to You.

18

So if it was an act of forgetfulness on Patty's and

19

Jessica's part when filing the first complaint, they hadn't

20

overcome that forgetfulness when they filed the amended

21

complaint, and it apparently spread to Summy when Summy filed

22

its own lawsuits over the songs after they acquired the rights,

23

whatever rights they acquired from Patty and Jessica in 1934

24

and '35 in those infamous assignments, because they filed

25

lawsuits against third parties who used Happy Birthday to You,

UNITED STATES DISTRICT COURT

38
1

and they never claimed any right to the lyrics Happy Birthday

2

to You.

3

After a while, even leaving apart the 1922 publication,

4

the evidence is just overwhelming that the claim of Patty and

5

of Mildred and of Jessica was limited to Good Morning to All.

6

It never reached Happy Birthday to You.

7

And Patty tells us why on multiple occasions.

8

why in her deposition.

9

article.

She told us

She told us why in the Time Magazine

The reporter certainly mentions it in the New York

10

Times article.

You know, this is the record the Court's going

11

to have to decide, and this record is so completely one sided

12

that I think summary judgment is appropriate.

13

THE COURT:

14

MR. RIFKIN:

15

THE COURT:

All right.

Thank you very much.

Thank you, Your Honor.
Mr. Klaus, let's start with the issue of

16

joint authorship, and I'm going to give you a chance to address

17

what Mr. Rifkin had argued.

18

the same page of the deposition that you also rely on of

19

Patty Hill that is at page 1007 of her deposition.

20

other aspects of this deposition that you want me to take a

21

look at, that's fine.

22

you believed that this was a joint work as opposed to a

23

derivative work of Patty only, subsequently pending.

24
25

MR. KLAUS:

And that is the same -- basically

If you have

But I'd like to hear from you as to why

I think we have to step back, first, on

what the legal standard is for a joint work with respect to a

UNITED STATES DISTRICT COURT

39
1

musical composition.

2

to would be the Shapiro, Bernstein case from the Second Circuit

3

in 1947.

4

what the Second Circuit said:

5

And the case we had directed Your Honor

And at page -- 161 F.2d 409 to 410, they -- this is

The words and music of a song constitute a

6

musical composition in which the two

7

contributions merge into a single work to be

8

performed as a unit for the pleasure of the

9

hearers.

They are not a composite work like the

10

articles in an encyclopedia but are as little

11

separable for purposes of the copyright as are

12

the individual notes which constitute the melody.

13

And they go back, and they cite a case where you

14

have a composer of -- of the -- of the music, the tune, and the

15

lyrics who had never met each other.

16

The case in the -- the case in Shapiro, Bernstein involved

17

a set of music that was taken to a different lyricist a year

18

after the underlying composition.

19

law.

20

lyrics, they are combined together.

21

And so this is a matter of

When you have somebody who is writing the music and the

But in this case what the evidence in this transcript

22

actually shows, these aren't two strangers.

23

that we have -- we haven't really discussed is these are two

24

sisters.

25

with both Patty and her sister Jessica.

They're living in the same house.

One of the things

They are working

And I would also

UNITED STATES DISTRICT COURT

40
1

direct you to page 1031 of the record, which is the portion

2

which is -- 1031 and 1032, which is where Jessica, who

3

apparently was 14 or 15 years old at the time these works were

4

being done in around 1893, she says one of the earliest ones

5

they put together was Happy Birthday to You.

6

And on page 1032 she's asked, will you describe to us one

7

particular incident or one particular hour of work during which

8

your two sisters were at work?

9

Ms. Mildred Hill did and what Ms. Patty Hill did.

10

That is, tell us what

And Jessica says, well, my sister would be at the piano

11

playing it, and my sister Patty would often say to her that the

12

children did not sing that interval well.

13

and this is entirely consistent with what Patty says.

14

I can remember that,

We have a situation where, even if Mildred was not going

15

to the school and listening to how the children are singing the

16

tune, what the testimony in this deposition shows is Patty

17

saying I came home at night, Mildred sat at the piano, and we

18

went -- I told her the words that I had written, and we figured

19

out what would be good enough for the little kids in the

20

register.

21

I would also point out, Your Honor, Exhibit 50 to the

22

summary judgment record, which is the amended complaint in

23

Hill versus Harris -- I'm sorry.

24

Summy.

25

behalf of both of the sisters, on page 664, the said song Happy

Hill Foundation against

The flat-out allegation of the Hill Foundation on

UNITED STATES DISTRICT COURT

41
1

Birthday to You, written and composed by the said Patty S. Hill

2

and Mildred J. Hill.

3

I just don't see, in light of the legal standard for what

4

a joint work of authorship is with respect to a composition

5

containing musical notes and lyrics, and the facts that we have

6

in this deposition about the way this was being composed, how

7

this could be anything other than a joint work of authorship.

8
9

THE COURT:

Let me move on to -- you put in a

footnote only that, to the extent that this was a work of joint

10

authorship and if there's going to be abandonment, there would

11

be the requirement of two overt acts, one by each of the

12

holders of the joint authorship interest.

13

authority for that other than the ones that you cite which

14

really don't say that?

15

author cannot delegate the rights of the other.

16

Do you have any

They just say simply that one joint

But do you have any particular authority which says that

17

in this circumstance the overt act must be one committed by

18

each of the joint authors or the interest holders of the joint

19

authorship, or can it be one joint author exhibiting some overt

20

act or acts with the knowledge and acquiescence of the other

21

but not necessarily additional overt act on the part of the

22

second joint author?

23

MR. KLAUS:

I don't at -- I don't have, on that

24

precise question, authority for you.

What I do have,

25

Your Honor, though, is on a closely related question, which is

UNITED STATES DISTRICT COURT

42
1

the Davis against Blige case which we cited, and that is

2

505 F.3d 90 --

3

THE COURT:

Right.

4

MR. KLAUS:

-- and that's pages 99 through 100.

5

Again, this is the Second Circuit.

6
7

THE COURT:

That just says that a coauthor cannot

grant an exclusive license without the other --

8

MR. KLAUS:

Correct.

9

THE COURT:

-- author's consent.

10

MR. KLAUS:

But if -- but if one co-owner can't

11

grant an exclusive license without the other's consent, then it

12

makes no sense to say that one co-owner can effectively abandon

13

the other --

14

THE COURT:

That's not my question.

I'm not saying

15

one co-owner tries to abandon and the other co-owner says I

16

don't want to abandon anything.

17

That's not what I'm positing.

What I'm saying is one co-owner wants to abandon and, for

18

purposes of argument, has exhibited the requisite overt act or

19

acts to do so.

20

doesn't complain about it, but doesn't take any independent

21

overt act.

22

The second co-owner is fully aware of it,

Maybe I'm misreading the importance of your footnote, but

23

it sounds like, to me, that you say, if we were to conclude

24

that it's a joint authorship between Mildred and Patty, and by

25

Mildred passing the interest to Jessica, both Jessica and Patty

UNITED STATES DISTRICT COURT

43
1

must independently exhibit an overt act or acts.

2

I'm just trying to question you on, whether you have that level

3

of authority.

4

That's what

I am not questioning the fact that, if Jessica didn't want

5

to abandon, Patty didn't -- if they were joint authors, didn't

6

have the authority to do that for her.

7

MR. KLAUS:

I don't -- the direct answer is I don't

8

have the case.

I think it follows from the nature of

9

abandonment in copyright, which is somebody abandoning their

10

copyright interest.

11

have an undivided interest in the copyright, that in order for

12

there to be an entire -- a dedication of the entire work to the

13

public, that A and B both -- they could do it jointly.

14

could both together say we are -- we are giving this -- here is

15

an overt act.

16

public for all time.

17

That is, if co-owner A and co-owner B each

They

We are giving -- we are giving this work to the

But to say that one -- but to say that A could do

18

something to divest itself of its interest and to say that that

19

would have any sort of an effect on B, B's interest in the

20

copyright, I don't think that can be squared with -- I don't

21

think that can be squared with the law on that.

22

THE COURT:

But if you have some people like the

23

Hill sisters, as you described, they have a certain level of

24

closeness.

25

individuals.

This is not just any two individuals, any
They are sisters.

They have joint interest in

UNITED STATES DISTRICT COURT

44
1

the Hill Foundation that acts for them and so forth.

2

no evidence that Jessica and Patty were estranged or at odds

3

with each other or so forth.

4

There's

So if Patty had taken certain steps that, let's say for

5

argument's sake, sufficient to constitute the overt act and

6

Jessica were aware of what she was doing and had even in some

7

instances mentioned that -- something to the effect that Patty

8

had done these things, would that be enough?

9

MR. KLAUS:

I don't think so, Your Honor.

I think

10

that would be inaction on Jessica's part, which under the

11

Hampton case it's clear inaction is not enough to constitute

12

abandonment of her interest.

13

our papers, numerous pieces of evidence of Jessica working to

14

protect her own interests and the interest of the Hill

15

Foundation.

16

In fact, we have, as we cited in

I would also just -- in saying that, I don't -- obviously,

17

as you know from reading our papers, we have a fundamental

18

disagreement as to whether what is cited with respect to Patty

19

is evidence of Patty abandoning.

20

THE COURT:

21

All right.

I understand.

I understand that.

Let me ask you about the Time Magazine

22

article.

That's Exhibit 90.

You say that -- you object that

23

this is hearsay.

24

your objection is.

25

authenticity, that you're not saying that this is not really a

Let me just make sure that I understand what
I take it you don't object on the basis of

UNITED STATES DISTRICT COURT

45
1

reproduction of Time Magazine but that somebody pretended this

2

to be a Time Magazine.

3
4

MR. KLAUS:

We don't dispute the authenticity of

this document.

5

THE COURT:

Okay.

Then in terms of hearsay, I

6

take -- well, why don't you tell me precisely what your hearsay

7

objection is.

8
9

MR. KLAUS:

Well, the first is that there's no --

there's no quotation of Patty Hill.

The person who wrote this

10

article in August of 1934 never said, I sat down and

11

interviewed Patty Hill, and this is what she told me.

12

are a number of statements here that looks like a Patty Hill --

13

I don't know how the reporting for Time Magazine worked in

14

1934.

15

have come from piecing together other statements.

16

no statement that's actually attributed to being --

There

That could have come from an interview with her, could
But there's

17

THE COURT:

Let's take it one step at a time.

18

MR. KLAUS:

Yes.

19

THE COURT:

On the face of it, appears to be two

20

layers of hearsay.

21

The first level of hearsay is the article

itself.

22

MR. KLAUS:

Correct.

23

THE COURT:

Are you objecting to that, or do you

24

concede that, because of the ancient document exception, that

25

this would satisfy the hearsay on that level?

UNITED STATES DISTRICT COURT

46
1
2

MR. KLAUS:

On that level, yes.

As an ancient

document, it would.

3

THE COURT:

All right.

4

MR. KLAUS:

Correct.

5

THE COURT:

The second level would be if this were

6

attributable to Patty.

7

MR. KLAUS:

Correct.

8

THE COURT:

Let's -- for purpose of discussion,

9

let's assume that the magazine article had said, "And Ms. Patty

10

Hill said, quote, 'I have no complaint to make on the'" -- you

11

know, so forth and so on, close quote.

12

If it were that, do you have any objections?

13

MR. KLAUS:

Yeah.

The objection we cited, citing

14

the -- the Hsia case from Washington, D.C., is that it's not an

15

admission.

16

pecuniary interest because there's no showing that's been made

17

that at the point in time, if Patty Hill had made this

18

question, she understood the consequences of what she -- she

19

understood the consequences of what she was saying.

20

It can't be taken to be an admission against

THE COURT:

Isn't there some, at least, inferences

21

that could be drawn that this could be admissible but goes to

22

weight, not admissibility, inasmuch as we are talking in the

23

context of her having some kind of a lawsuit, and then we talk

24

about the scope of her assertion of her rights in that lawsuit

25

on the same work that we're talking about?

UNITED STATES DISTRICT COURT

47
1

MR. KLAUS:

True, although the purpose of the

2

hearsay rule, Your Honor, is we're not -- obviously, we're not

3

able to cross-examine Patty Hill on what it was that she said.

4

So we're looking, even before you get to --

5
6

THE COURT:

MR. KLAUS:

9

Understood, Your Honor.

could.

7
8

Our record would be much better if we

The point being that, even before you get to assigning it
any weight, there's a question of the reliability of the

10

statement and whether it is sufficiently reliable.

11

purposes of admitting it under the admission against pecuniary

12

interest, I think that is drawing it quite a few inferences

13

without -- without further corroborating evidence that she

14

understood that, by saying this, somebody was going to stand up

15

and say that you have no rights.

16

to the world that you have no rights forever to the song.

17

THE COURT:

And for

You affirmatively were saying

That doesn't seem obvious from the

18

quote?

19

she had said I have no complaint to make on the use of the

20

words because long ago I resigned myself to the fact that that

21

ditty had become common property of the nation?

22

pretty clear that she -- she's not going to be able to assert

23

anything else, having told everybody, hey, I resign myself that

24

this is common property, this is public domain, in effect.

25

Sorry, not a quote.

MR. KLAUS:

Doesn't it seem obvious that, if

That seems

Well, I think that is -- again, those

UNITED STATES DISTRICT COURT

48
1

are inferences that are being drawn from the words which we're

2

assuming for purposes of the question, the quote about common

3

property of the nation.

4

But, again, to my point that, given the standard for

5

abandonment is beyond an action, is beyond somebody saying to a

6

reporter, you know, everybody is singing this and so there's

7

nothing I can do about it, doesn't contain the indication that

8

by -- that she was aware that the consequences of saying that

9

would one day be taken to mean it's not just that there is

10

inaction on your part or perceived inability to control, but

11

you are intending to say I intend to give this to the nation.

12

THE COURT:

Well, what you just said there sort of

13

intermixes two different concepts, one of abandonment, one for

14

purposes of hearsay exception.

15

but technically there's two different concepts.

16

There's some crossover there,

Let me ask you then, since this does not purport to say

17

quotation marks around it, are you of the view that in context

18

it does not appear that this is a quotation or this is a

19

summary of what she had said?

20

MR. KLAUS:

Yes.

Yes.

I don't think -- I don't

21

think there is enough, from the face of this document, for us

22

to know what she said, to whom, what else may have been said

23

for us to treat this as a statement that can be attributed to

24

this declarant.

25

THE COURT:

Okay.

Assuming for the moment that I

UNITED STATES DISTRICT COURT

49
1

find that this is admissible for the reasons that we've talked

2

about -- that is, this is an exception of hearsay rule -- you

3

say that, in and of itself, is not enough still for purposes of

4

abandonment.

5

for purposes of argument, if we accept your argument on that

6

point, what about when, in conjunction with the other

7

failures-to-assert situation -- and not just any failure to

8

assert.

9

of the same work, albeit in other aspects or other rights

10

I'm not necessarily agreeing or disagreeing, but

It's a failure to assert where there is an assertion

within the work.

11

Would that not as a totality suggest that there has been

12

an overt action?

13

act.

14

intention to abandon.

15

evidence as been posited by Mr. Rifkin, would that not tend to

16

show that there was an overt act or acts evidencing an intent

17

or purpose to abandon?

18

And we're not just barely talking about overt

It has to be an overt act that is indicative of an

MR. KLAUS:

So if you took the whole group of

I don't think that it would meet the

19

standard, Your Honor, for the following reason, which is the

20

line that Hampton draws in the Ninth Circuit -- Rohauer

21

follows -- is fairly clear, which is, in order to find that

22

somebody -- because there are lots of things somebody can do

23

where they may not complain, for whatever their reasons are.

24

But if the -- what those cases stand for is you really have to

25

take -- it's not just a combination of -- it's not putting

UNITED STATES DISTRICT COURT

50
1

tree, tree, tree together and saying, aha, I've come up with an

2

overt act that I'll call a forest, or forest I'll call an overt

3

act.

4

You actually need that act requirement for a reason under

5

the cases, which is that this is -- it's an important right.

6

It's a right that's protected by -- through not only the

7

constitution and statute and that what you are going to require

8

is some overt act.

9

is a totality of the circumstances and a totality of inaction

10

being combined together to say that this totality of inaction

11

somehow becomes an overt act.

12

You're not going to require something that

And the reason I would say this, Your Honor, which is they

13

are focused on the complaints that were filed in the Harris v.

14

Hill case and the Hill Foundation against Summy case.

15

then, of course, they -- they cite to later things that are not

16

attributable to the Hills.

17

And

But the rule -- that is the rule of applicability for

18

copyright owners, generally.

Again, this is -- the law here

19

is -- the law on overt act and abandonment continues to be the

20

same.

21

requiring copyright owners, on the penalty of one day being

22

held to have lost their copyright, to either throw everything

23

in and assert everything or risk that somebody will come back

24

and say we're going to apply a totality of the circumstances

25

test.

If that's what it is, then what you're doing is you're

UNITED STATES DISTRICT COURT

51
1

So what I think, this is one of the areas where -- as you

2

know, many areas of the law we say let's look at -- let's come

3

up with a standard, and let's throw everything in, and we'll

4

balance it and we will weigh it together.

5

In a number of areas of the law, we say, no, there's going

6

to be a clear, bright line, and what we are going to require is

7

the act of abandonment.

8

just an act demonstrating an intent but that it is overt means

9

it has to be something that is affirmative and bright line.

10

THE COURT:

11

act.

12

I think the fact that it's called not

Of course an act need not be a physical

It could be an oral act or oral statement to constitute

an act.

13

MR. KLAUS:

That's correct.

That's correct.

14

THE COURT:

Now, I think you also, in support of

15

your position that there is no abandonment, you've also made

16

the argument that the lyrics had been granted or transferred in

17

some way, whether it's licensed or assigned or whatever, to the

18

Summy Company back in '34 to '35.

19

that this is still part of your argument because it does tend

20

to sort of bleed into the subsequent argument as to whether or

21

not any rights were even granted to the Summy Company before

22

the copyrights were -- were sought to be taken out on them, the

23

purported copyrights.

24
25

And I just want to make sure

So I want to make sure that I understand whether you are
also arguing that that's further evidence of lack of

UNITED STATES DISTRICT COURT

52
1

abandonment, something like how could you have abandoned

2

something, and then you would have transferred the rights to

3

somebody else.

4

Is that what you're saying?

5

MR. KLAUS:

Yes.

6

THE COURT:

Okay.

Then let me understand -- again,

7

I know you and I had a nice conversation about it last time,

8

and I went back and read the transcript.

9

spend a couple more minutes where you can try to make it as

And if we can just

10

clear to me as you can as to what you believe is the evidence

11

of the transfer of any of the rights to the lyrics of Happy

12

Birthday to You from the Hills to your predecessor.

13

MR. KLAUS:

Well, I don't have all of it at the tip

14

of -- at my fingertips, Your Honor, but what I've looked at in

15

coming to the hearing today is the, No. 1, the allegations that

16

are in the complaint, in the Hill v. --

17

THE COURT:

The amended complaint.

18

MR. KLAUS:

The amended complaint, which is 1942, I

20

THE COURT:

Yes.

21

MR. KLAUS:

One must remember at this point in time

19

believe.

22

the Summy Company had been publishing sheet music.

Sheet

23

music.

24

of what I'm saying, that the sheet music for E51990 was the

25

familiar lyrics to Happy Birthday, that the sheet music that we

I would ask the Court, if you assume for the purposes

UNITED STATES DISTRICT COURT

53
1

have in the record is in fact the sheet music that Summy was

2

publishing in 1935 with those lyrics as well as the E51988 with

3

the unison song version.

4

That had to have been known to the Hill -- they admit that

5

they had given -- they had given permission for the work to be

6

done in sheet music form.

7

are going beyond the limited license that we gave you, and you

8

were licensing -- you're sublicensing sound and dialogue,

9

meaning the lyrics, rights to Happy Birthday to You to people

The complaint in the case was you

10

in the motion picture industry, and by that you were exceeding

11

the scope of your license.

12
13
14

THE COURT:

That -- I'm sorry.

Finish, and then

I've got two questions.
MR. KLAUS:

Yes.

And then, of course, we have the

15

settlement of the Hill Foundation against Summy case -- I think

16

that's Exhibit 126 in the summary judgment record -- which

17

specifically lists the Happy Birthday to You copyright and

18

again has -- and says that Summy is the publisher of these

19

works and the Hills -- the Hill Foundation is the one that has

20

the sisters' interest in them.

21

Again, I don't think there is -- to the point of I don't

22

think there is any evidence that I'm aware of where the Hill

23

sisters said to anyone, we didn't give Summy the right to

24

publish sheet music with the lyrics to Happy Birthday to You.

25

And indeed the copyright registration in 1935, at least prima

UNITED STATES DISTRICT COURT

54
1

facie evidence -- and we think uncontradicted -- that they did

2

have that right, that right was granted to them.

3
4

THE COURT:

Well, in reading this amended

complaint --

5

MR. KLAUS:

Yes.

6

THE COURT:

-- the discussion about the grant of any

7

sheet music does not include Happy Birthday.

It repeatedly

8

talks about those songs in the Song Stories book and versions

9

of Song Stories book.

It talks about copyrights and the

10

renewal of those copyrights later by Jessica, but those are not

11

the copyrights of E51990 or E51988.

12

So, yes, it is true that there is some mention of

13

Happy Birthday in some of the paragraphs -- 10, 11, and 15 of

14

the first cause of action -- but when you look at everything,

15

the rights that they're talking about are limited to

16

circumstances involving the songbook, Good Morning to You, and

17

the copyrights to those and the renewal of copyrights, none of

18

which included Happy Birthday within it, the lyrics to Happy

19

Birthday within it.

20

The music, of course, it's the same music.

MR. KLAUS:

Those are -- the legal claim was brought

21

under the Good Morning to You or the Song Stories for the

22

Kindergarten songbook copyright, but paragraph 15 says -- this

23

is on page 665 and 666 -- at the time of granting the aforesaid

24

licenses to Summy under the original and renewal copyrights

25

above mentioned and described --

UNITED STATES DISTRICT COURT

55
1

THE COURT:

Which does not include Happy Birthday,

2

because anything above mentioned and described -- copyrights,

3

licenses -- did not include Happy Birthday lyrics.

4
5
6

Happy Birthday lyrics happened, if anything, you're
asserting, happened later in -- well, skip that.
Go ahead, because I don't think any of these things that

7

you have read, as defined by this first amended complaint,

8

purports to include anything having to do with Happy Birthday

9

lyrics.

10

MR. KLAUS:

It says, though, if you continue on to

11

the next -- if you continue on to the next page, nor did such

12

licenses contemplate or contain any agreement Summy should have

13

the right to grant licenses or sublicenses to the producers of

14

dramatic performances in respect to the use of any said songs

15

therein and in -- said songs therein and, in particular, the

16

aforesaid song, Happy Birthday to You --

17

THE COURT:

Okay.

18

MR. KLAUS:

-- being included within said songs

19

within.

20

the express license and the oral renewals thereof being those

21

of publication and sale of said songs -- again, repeating the

22

words "said songs," which is up above -- or works in sheet

23

music form.

24
25

The only rights acquired at any time by Summy under

THE COURT:

All that is really saying -- I think

what you're trying to say is that somehow suggests that there

UNITED STATES DISTRICT COURT

56
1

was an agreement by the Hills to license the lyrics to Summy

2

but that somehow the license and the lyrics was limited to

3

sheet music but that Summy went and exceeded the scope of the

4

license by dealing with people uncontemplated back in the turn

5

of the last century, i.e., dramatic performances or movie

6

directors, movie producers.

7

But none of that says that the lyrics of Happy Birthday

8

had ever been licensed to Summy.

9

MR. KLAUS:

Well, except for the -- the paragraph

10

that I just read, it said, said songs including Happy Birth- --

11

including Happy Birthday to You.

12

THE COURT:

It says it didn't give you that right.

13

It's true they didn't give them any rights to that.

14

have said, in dealing with these music -- with these movie

15

producers, we didn't give you the right to You're a Hound Dog.

16

We didn't give you the right to Beat it.

17

all those things because it's true we didn't give you any

18

rights.

19

You could

You could have said

But the fact that we didn't give you the right to deal

20

with them, including for this song, does not logically follow

21

that we had given you the rights to the lyrics for Happy

22

Birthday for sheet music when everything that has been alleged

23

thus far refers to the sheet music of those publications,

24

copyrights, and renewals relating to the Song Stories

25

publications and related publications.

UNITED STATES DISTRICT COURT

57
1

MR. KLAUS:

Well, two things.

One is the end, what

2

it says is the only rights acquired at any time by Summy under

3

the --

4

THE COURT:

What page?

5

MR. KLAUS:

This is on page 666, the end of

6

paragraph 15.

7

THE COURT:

Paragraph 15.

8

MR. KLAUS:

So the only rights acquired at any time

9

Okay.

by Summy under the original express license and the oral

10

renewals thereof, meaning there were rights that were acquired,

11

being those of publication and sale of said songs, the said

12

songs including Happy Birthday to You in sheet music form.

13

THE COURT:

You know, if you read this in isolation,

14

perhaps because it was this mention of Happy Birthday, but if

15

you really look at this entire first cause of action and

16

context and the way it's been set up, there is nothing that

17

suggests that there were any rights acquired by Summy under the

18

original express license because the original express license,

19

the oral renewals, had nothing to do with Happy Birthday.

20

Lyrics, I mean.

21

MR. KLAUS:

Okay.

23

THE COURT:

All right.

24

MR. KLAUS:

So just to -- taking your point about

22

25

Let me go to paragraph 24,

Your Honor.
That now --

not looking at these in isolation --

UNITED STATES DISTRICT COURT

58
1

THE COURT:

Right.

3

MR. KLAUS:

Correct.

4

THE COURT:

Now we're talking about a different

2

This is the second cause of

action.

5

license that was granted much later.

6

in 1934 or '35 and a license granted at a time when hardly the

7

allegation could be that we never contemplated the successes or

8

the popularity of movies, I would think, in '34, '35.

9

should be some contemplation of that unlike at the turn of the

10

century.

11

But go ahead.
MR. KLAUS:

This license is granted

There

Make your point.
The point is that what she's saying --

12

this goes to -- this is our fundamental point, Your Honor.

13

1934 and 1935 Jessica Hill -- what this is saying is she said I

14

trust you.

15

they've done.

16

they were out licensing to motion pictures at the time, but I

17

trust you.

18

I'm going to grant you a license.

19

In

I trust that -- I trust Summy because of what
I think what she's also saying is I didn't know

And because I trust you, I'm going to give you --

And she says that she reposed faith, trust, confidence,

20

granted to this defendant a number of licenses for the

21

publication, sale, and performance of various piano

22

arrangements of the song variously entitled Good Morning to All

23

or Happy Birthday to You.

24

THE COURT:

Correct.

25

MR. KLAUS:

I know this takes us back to the

UNITED STATES DISTRICT COURT

59
1

question about whether the piano arrangement consists not only

2

of the -- the putting the notes in particular order on the --

3

on the little lines on the page but that I think in context

4

what this is plainly saying is I've licensed you because you

5

can -- you can publish it either as Good Morning to All or as

6

Happy Birthday to You.

7

THE COURT:

The piano arrangement meaning the music

8

to it because, if it were the lyrics, it wouldn't make sense to

9

say it's variously called this or that because this is not the

10

same as that.

11

MR. KLAUS:

Your Honor, the question I would have,

12

Your Honor, is then why seven years after Summy had published

13

Happy Birthday to You with lyrics and if Jessica -- if

14

Jessica Hill is complaining about the fact that you are using

15

this in motion pictures and I don't -- I don't like you using

16

it in motion pictures and I only granted you a license with

17

respect to a particular musical arrangement that some other

18

people have called Good Morning to All and some other people

19

call Happy Birthday to You, why is there no complaint by

20

Jessica Hill or the Hill Foundation about Summy's publishing

21

the sheet music, including the lyrics?

22

THE COURT:

Maybe it's the same answer that why is

23

it that they would not have asserted their rights against these

24

other defendants when they were already suing them for the

25

music?

Maybe, you know, sort of turned around on your argument

UNITED STATES DISTRICT COURT

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1

because the argument you want to assert against them is the

2

same one that could be said about against you.

3

MR. KLAUS:

Except for the fact that -- except for

4

the fact that they -- the actual actions here are not only not

5

asserting a claim in it but settling the lawsuit with express

6

recognition of the E51990 copyright and transferring all of the

7

Hill Foundation, which was all of the Hill sisters' interest to

8

the song.

9

THE COURT:

Isn't that also circular because the

10

1944 agreement transfers whatever they had in E51990 and -988,

11

whatever it is they had.

12

transferred any rights, either because they felt that they

13

didn't have any more rights because they had given to the

14

public or whatever reason they never transferred the rights,

15

then those -- the copyrights of 1935, whatever they are,

16

wouldn't have included it either.

17

But if they never had ever

So it's really basically circular.

I'm giving you what I

18

have, and the question is what did you have?

19

it to you before and I give you something that's in the

20

copyright and the copyright didn't include what I had given

21

you, then you still don't have it.

22

MR. KLAUS:

If I didn't give

1944, when there have been these

23

lawsuits when the value of the work is clear and when, as the

24

agreement expressly provides that these -- that the remaining

25

Hill sisters were receiving, as they continued to do and as

UNITED STATES DISTRICT COURT

61
1

their legatee, the Association For Early Childhood Development,

2

has continued to receive a third of the royalties for this

3

song, that, Your Honor, seems to be inconsistent with the idea

4

that going through all of these steps, taking -- settling the

5

lawsuit, continuing to take royalties, continuing to take

6

monies from ASCAP for the exploitation of this particular work,

7

that one would say that these sisters actually thought that

8

somehow long ago they had dedicated this work to the public or

9

it had slipped from their hands into the public domain.

10

If you look at the combination of the evidence,

11

Your Honor, here -- again, I don't -- this is not a question of

12

do you have to say that they gave up their copyright.

13

not the overt act requirement for abandonment.

14

sense, protecting the interest of the two people who we know --

15

effectively, Mildred's heir Jessica and Patty, who wrote the

16

song -- who were the authors of the song.

17

This is

This is, in a

It's a matter of protecting -- it's a matter of saying,

18

when you look at the totality of what they did and how they

19

behaved, that you -- that you say I think that there's clear

20

evidence that, whatever they said in one section of the

21

complaint or not, they had granted a license for the

22

publication in sheet music form.

23

registered for in 1935.

24

they had -- that's what they had continued to exploit.

25

That's what the copyright was

That's what they had -- that's what

And I'm not aware of -- other than these statements that

UNITED STATES DISTRICT COURT

62
1

are -- we've got the hearsay issues with, anything that says

2

that Jessica and Patty Hill said, at some point in time, we

3

didn't care about the Happy Birthday to You copyright, we

4

didn't care what Summy was doing in terms of publishing the

5

lyrics because it had somehow -- it had somehow slipped away, I

6

think all the evidence is to the contrary, Your Honor.

7

THE COURT:

Let me wrap up with you, Mr. Klaus, by

8

asking you the same question I asked Mr. Rifkin.

9

from a procedural standpoint, do you see -- if I were to decide

10

that I think there are triable issues of fact on any variety of

11

issues presented, starting from authorship to abandonment to

12

transfer to whatever, if I find that there is a triable issue

13

of fact inasmuch as both sides have consented to a court trial,

14

is there any need from a form standpoint to say okay, that

15

motion is denied; now let's come back and put everything -- the

16

same thing into the record?

17

And, that is,

Because this is one of those cases where the record is --

18

just as soon as I say it's unlikely to be expanded, you folks

19

expanded the record; so maybe I should be more careful.

20

it's largely unlikely to be expanded, at least not expanded by

21

any further explication by the principal players in this case,

22

shall we say.

23

But

Would it, in your view, be appropriate for the Court then

24

to make the factual findings as part of the same order or to

25

bifurcate it for purposes of some other opportunity for you to

UNITED STATES DISTRICT COURT

63
1

come in and resubmit the same evidence in essence?

2

MR. KLAUS:

Much as I, Your Honor, would not --

3

would like to be mindful of your time and all of our time with

4

respect to this, I think that, given the nature of -- given the

5

nature of the summary judgment process and the fact that we've

6

got a certain set of papers, that if there is a -- if there is

7

a triable fact, if there's a fact that has to be tried, that in

8

fairness to both parties, we should have the ability to -- just

9

as in -- just as in any other trial with a jury trial, you're

10

not in a sense limited to the arguments that you've made or the

11

way you connect the dots on the evidence from summary judgment

12

through trial.

13

I think the same thing would apply here.

THE COURT:

But you don't see, even if we were to

14

have that subsequent proceeding -- and I can understand your

15

point -- you don't foresee any need to call any witnesses.

16

don't know what witnesses you would be calling.

17

MR. KLAUS:

I

We have discussed at least on our

18

side -- we have not discussed yet with -- I assume, if we get

19

to that point, we'll talk to Mr. Rifkin and his colleagues

20

about what exactly this trial would look like.

21

I don't think there would be any -- I don't foresee any

22

percipient witnesses coming to testify, shall we say.

23
24
25

It would be --

THE COURT:

You don't want to go out on a limb now,

MR. KLAUS:

Okay.

Mr. Klaus.

UNITED STATES DISTRICT COURT

64
1

THE COURT:

Okay.

Thank you.

2

MR. KLAUS:

Thank you, Your Honor.

3

THE COURT:

Mr. Rifkin, why don't I just have you

4

start by commenting upon the second-to-the-last thing that

5

Mr. Klaus said, not the procedural aspect but his discussion

6

with respect to what he believes to be another piece of

7

evidence against abandonment, and that is his arguments with

8

respect to what Exhibit 50 and Exhibit 126 would tend to show,

9

that there had been rights to the lyrics of Good Morning -- I'm

10

sorry -- Happy Birthday to You having been granted to Summy.

11

MR. RIFKIN:

I'll try to keep my comments brief

12

because I think largely the Court has already heard an awful

13

lot about this.

14

and Exhibit 51 side by side because one is the amended

15

complaint by the Hill Foundation, and the other one is Summy's,

16

the defendant's predecessor's answer.

17

at them together, it is clear exactly what was meant by the

18

plaintiffs' allegations and what the defendant had to say about

19

them.

And I think it's helpful to have Exhibit 50

And I think, if we look

20

First, Your Honor asked questions of Mr. Klaus about the

21

first claim in the amended complaint and how it was related to

22

the original publications and the original copyrights, the 1893

23

works, the 1896 work, and the 1899 work, and I would

24

essentially say exactly that.

25

Mr. Klaus referred to some references to the said songs.

UNITED STATES DISTRICT COURT

65
1

He mentioned that twice.

2

paragraphs.

3

It appears in two different

It appears twice.

It appears in paragraph 15 on page 665 and 666.

4

And Your Honor, I believe, was correct to note that

5

paragraph 15 is part of the first cause of action and the said

6

songs that are referred to in paragraph 15 by the plaintiff

7

Hill Foundation is a reference to the songs that were included

8

in the original works -- the 1893, 1899, and 1896 works -- that

9

are covered by the copyrights that are identified in

10

paragraph 12, which begins on page 664 and carries over to

11

page 665.

12

There is no dispute that those works included only the

13

lyrics to Good Morning to All, and I believe Your Honor

14

understands that argument.

15

I don't want to belabor it.

Mr. Klaus then asked the Court to turn to paragraph 24,

16

which is part of the second cause of action.

17

cause of action concerns those unidentified assignments from

18

Jessica in 1934 and 1935 which unfortunately are not in the

19

record.

20

the best evidence of what those assignments covered and didn't

21

cover.

22
23
24
25

And the second

And in these two pieces of evidence are essentially

And I would make just two brief comments, but I'm happy to
answer any other questions the Court has.
First, the reference to the various piano arrangements of
the song, singular -- the various piano arrangements of the

UNITED STATES DISTRICT COURT

66
1

song variously entitled Good Morning to All or Happy Birthday

2

to You could only mean the musical composition because, as

3

Your Honor knows, the song was the musical composition that was

4

common to that particular work, whether it was called Good

5

Morning to All or Happy Birthday to You.

6

But let us not read past the allegation that the transfer

7

was of various piano arrangements.

8

context in which the phrase "various piano arrangements" can

9

possibly refer to human lyrics.

10

Now, I don't know any

I just don't understand that.

But even if we were going to say, well, there's some doubt

11

about whether they were talking about one song when they used

12

the word "song" in the singular and whether they only meant

13

Good Morning to All when they said "variously entitled" Good

14

Morning to You or -- or Happy Birthday to You, Summy answers

15

that for us.

16

think what we need to look at is their answer to paragraph 24,

17

which is on page 684 of the reproduced record.

18

And so let's look at Exhibit 51, and this time I

There, in response to the Hill Foundation's allegation

19

that various piano arrangements of the song variously entitled

20

Good Morning to All and Happy Birthday to You were licensed,

21

Summy says as follows:

22

The said Jessica Hill sold, assigned, and

23

transferred to this defendant various piano

24

arrangements of the said musical composition,

25

quotation mark, Good Morning to All, close

UNITED STATES DISTRICT COURT

67
1

quotation mark, and all world rights including

2

publishing, public performance, and mechanical

3

reproduction rights of and to copyright,

4

extension of copyright, so on and so forth.

5

The only song title that is mentioned in the answer

6

filed by Summy was Good Morning to All.

7

conceivable lingering doubt the defendants might try to

8

introduce about what was meant by the Hill Foundation in

9

paragraph 24 of the amended complaint, and I think we don't

10

need to belabor it anymore.

11

not the words.

12

It removes whatever

It's just the musical composition,

It's that simple.

I did want to comment on a couple of points that Mr. Klaus

13

made in the beginning of his argument.

14

citation to Shapiro, Bernstein.

15

discusses the difference -- it somehow supports his argument

16

that Happy Birthday was a derivative work even if the words

17

were later written by Patty.

18

One had to do with his

And he says that that case

That's just not so.

What that case talks about is the difference between a

19

joint work, which Good Morning to All unquestionably was, and a

20

composite work, which Good Morning to All unquestionably was

21

not.

22

Song Stories for the Kindergarten in 1893.

23

is, for example, the publication of Everyday Song Book in 1922.

24

It includes works by multiple authors that are assembled by a

25

compiler.

A composite work is, for example, the publication of
A composite work

UNITED STATES DISTRICT COURT

68
1

The case Shapiro, Bernstein simply did not discuss

2

anything about joint works versus derivative works.

3

Your Honor, if Mr. Klaus's argument is that no one can

4

subsequently add to an original joint work by the inclusion of

5

new material without that subsequent work becoming a joint work

6

with the original authors, there's simply no authority that I'm

7

aware of, certainly none that's been cited to the Court to

8

support that proposition.

9

work, not a composite work, and not a joint work.

10
11

And,

Happy Birthday was a derivative
And that was

our point.
The only other point I wanted to make from Mr. Klaus's

12

earlier argument, other than to answer any questions the Court

13

has, is to turn back to page 664 from Exhibit 50.

14

don't mean to jump around, but Mr. -- Mr. Klaus had --

15

THE COURT:

I'm sorry.

16

MR. RIFKIN:

17

THE COURT:

18

MR. RIFKIN:

Again, and I

Six sixty --

Page 664 of Exhibit 50.
Okay.
Mr. Klaus had referred to this, and I

19

looked at it, and if you recall during my initial comments, I

20

talked about how Summy had identified Happy Birthday to You as

21

a later composition.

22

not Summy's answer, Exhibit 51, which I referred to before, but

23

this time Exhibit 50, the Hill sisters' amended complaint, and

24

they too describe Happy Birthday as a later composition.

25

And lo and behold, when I was reading now

In paragraph 10 they say one of the songs contained in the

UNITED STATES DISTRICT COURT

69
1

works mentioned above -- and, again, those works are

2

undoubtedly Song Stories for the Kindergarten and Song Stories

3

for the Sunday school, the 1890s compositions.

4

songs contained in the works mentioned and described in

5

paragraphs 4 to 7, inclusive, is one entitled Good Morning to

6

All, which, with words written by the said Patty S. Hill was

7

later entitled Happy Birthday to You.

8
9

One of the

Again, I think this answers the Court's question about the
temporal connection between the writing of Good Morning to All

10

and the subsequent writing of Happy Birthday to You -- this

11

time not in the words just of Summy in his answer, but now in

12

the words of Patty and Jessica in their amended complaint.

13

THE COURT:

But the very next paragraph says the

14

said song Happy Birthday to You, written and composed by the

15

said Patty S. Hill and Mildred J. Hill.

16

MR. RIFKIN:

Right.

Because the song consists not

17

just of the lyrics but also of the melody.

18

doubt, no doubt at all, that Mildred Hill wrote the melody, and

19

there's no doubt at all that Patty wrote the words.

20

that's what paragraph 11 means.

21

read paragraph 10 of this complaint, that what the Hill

22

Foundation said is Good Morning to All was written by Patty and

23

Mildred.

24

just seems in -- unavoidable to reach that conclusion.

25

And there's no

So I think

It's clear to me that, if you

Patty then later wrote Happy Birthday to You.

It

And, again, in the context of all the other evidence that

UNITED STATES DISTRICT COURT

70
1

we've discussed today -- and I don't want to belabor all those

2

points -- lastly, Your Honor, I would ask if you would like to

3

hear anything on the admissibility of the article, the Time

4

Magazine article.

5

THE COURT:

6

MR. RIFKIN:

Yes.

Go ahead.

I think, first, we've satisfied the

7

authenticity requirement, and we've satisfied the ancient

8

document requirement of the hearsay rule at least for the

9

article itself.

And then the question becomes, well, what

10

about the statement that is attributed to Patty -- although, I

11

agree, not with quotation marks around it.

12

But just like a witness sometimes in Court testifies this

13

is what she said to me, without putting air quotes around

14

hearsay, the article does the same thing.

15

statement against interest for the reasons that I think the

16

Court asked Mr. Klaus about.

17

say that it was not supported by any corroborating

18

circumstances that indicate its trustworthiness, and that is a

19

part of rule 804(b)(3)(B).

20

And it is clearly a

But I thought I heard Mr. Klaus

804 are exceptions to the hearsay rule when the declarant

21

is unavailable.

804(b)(3) generally is statement against

22

interests.

23

are admissible if they are the kind that a reasonable person

24

would have made only if the person believed it to be true

25

because, when made, it was so contrary to the declarant's

804(b)(3)(A) says that statements against interest

UNITED STATES DISTRICT COURT

71
1

pecuniary or proprietary interests.

2

804 (B) adds a second qualification, when that evidence is

3

offered in a criminal case as one that tends to expose the

4

declarant to criminal liability, that it be supported by

5

corroborating circumstances that indicate its trustworthiness.

6

So that argument that we need to provide corroborating

7

circumstances clearly indicating the trustworthiness only would

8

arise if this were a criminal case and only if there was a

9

question of Patty Hill's criminal liability.

10

It simply doesn't

apply.

11

THE COURT:

Let me ask you if you agree with

12

Mr. Klaus's statement, albeit somewhat in passing, that

13

dialogue rights, as referred at least at paragraph 18 on

14

page 666 of the first amended complaint, is synonymous with

15

lyrics.

16

MR. RIFKIN:

17

THE COURT:

18

No, I don't.

I don't agree.

And what's your view on what is the

meaning of dialogue rights?

19

MR. RIFKIN:

I think dialogue is exactly what it

20

says.

It's spoken dialogue.

21

me just a moment to get to that page -- okay.

22

paragraph 8 in exhibit -- I'm sorry.

23

paragraph 9?

24

THE COURT:

25

MR. RIFKIN:

But either way -- and if you give
Either way,

I think -- is that

I'm sorry?
663, paragraph 8.

I'm sorry.

UNITED STATES DISTRICT COURT

Either

72
1

way, that's within the context of Count 1 in the complaint

2

which, as Your Honor has noted, has to do with the original

3

assignments, original assignments being Song Stories for the

4

Kindergarten under the 1893 and so forth copyrights.

5

has nothing to do with Happy Birthday to You.

6

THE COURT:

7

MR. RIFKIN:

8

THE COURT:

9
10
11
12
13

All right.

It just

Thank you.

Thank you, Your Honor.
Mr. Klaus, I just want, very limited, to

ask you about these dialogue rights.
talk to you when you mentioned it.

I didn't have a chance to
Now I remember.

What evidence do you have to suggest that dialogue rights,
as used back then in paragraph 18, is synonymous with lyrics?
MR. KLAUS:

I guess one is I don't know that we have

14

anything that is in the current summary judgment record that

15

says what the industry custom and usage would be.

16

what else it could be other than "sound" meaning -- this would

17

be the equivalent, I think, Your Honor, of what we would today

18

call a sync license that -- synchronizing the -- synchronizing

19

the recording with the moving pictures.

20

I don't know

But I think what -- I think it's clear from the complaint,

21

and the complaint is -- and the allegations of the complaint

22

are you went out and you allowed people to make movies where

23

they were singing Happy Birthday to You.

24

dispute between the Hill Foundation.

25

That's -- that's the

And it seems to me that, if what you're talking about

UNITED STATES DISTRICT COURT

73
1

is -- the allegation is they granted sound and dialogue rights,

2

I believe the answer in paragraph 51 refers to yes, we did.

3

They said we held ourselves out as saying we were granting

4

sound and dialogue rights to motion picture producers.

5

THE COURT:

Aren't dialogue rights really referring

6

to a genre of pictures just coming out, which were the talkies?

7

Those are the dialogue rights, that you have a right to use it

8

in this kind of a film or a film that's a talkie?

9

the context of what dialogue rights means; it has nothing to do

10

Isn't that

with lyrics?

11

MR. KLAUS:

If the distinction is with silent, then

12

I think the word "sound" would be sufficient.

13

is with silent, all you would need is sound rights, but if

14

it's --

15

THE COURT:

If the contrast

Certainly we can call it something else,

16

but a lot of times different industries have their own little

17

way of saying things.

18

accused of that more than one time.

19

across this case around the same time -- about 1940, 1942 --

20

where the dialogue rights discussion was in the context of

21

whether or not it was properly licensed for that type of movie

22

where there is dialogue, not that it relates to any kind of

23

lyrics.

24
25

MR. KLAUS:
answer.

I'm sure the legal profession has been
But I seem to have run

I confess, Your Honor, I don't know the

I'm happy to look at it.

If you'd like us to submit

UNITED STATES DISTRICT COURT

74
1

something, I'm happy to do that.

2

THE COURT:

Okay.

3

MR. KLAUS:

I just don't know off the top of my

THE COURT:

Okay.

4

head.

5
6

All right.

Thank you very much, Counsel.

Very good.

I appreciate your helping

7

to enlighten me on this, and just like before, I'll think some

8

more about this.

9

MR. KLAUS:

Your Honor, and I'll say, if -- I know

10

that Mr. Rifkin is going to file a reply with respect to their

11

ex parte.

12

would like -- if there are questions that you have about the

13

legal standards or additional issues that may be raised by the

14

submission, we obviously would like to have a further

15

opportunity to reply to them if they're -- particularly if

16

they're going to be dispositive, because we put together our

17

ex parte opposition in relatively short order.

I don't know if there will be any new -- if you

18

THE COURT:

I'll take a look at it.

19

MR. KLAUS:

Thank you, Your Honor.

20

MR. RIFKIN:

21

THE CLERK:

22

Thank you very much, Your Honor.
This court now stands in recess.

(Matter adjourned at 11:25 A.M.)

23
24
25

UNITED STATES DISTRICT COURT

75
1

CERTIFICATE OF OFFICIAL REPORTER

2
3
4
5

I, KHOWOONSUN CHONG, FEDERAL OFFICIAL REALTIME

6

COURT REPORTER, IN AND FOR THE UNITED STATES DISTRICT COURT FOR

7

THE CENTRAL DISTRICT OF CALIFORNIA, DO HEREBY CERTIFY THAT

8

PURSUANT TO SECTION 753, TITLE 28, UNITED STATES CODE THAT THE

9

FOREGOING IS A TRUE AND CORRECT TRANSCRIPT OF THE

10

STENOGRAPHICALLY REPORTED PROCEEDINGS HELD IN THE

11

ABOVE-ENTITLED MATTER AND THAT THE TRANSCRIPT PAGE FORMAT IS IN

12

CONFORMANCE WITH THE REGULATIONS OF THE JUDICIAL CONFERENCE OF

13

THE UNITED STATES.

14
15

DATED THIS 2ND DAY OF AUGUST 2015.

16
17
18
19
20

/S/ KHOWOONSUN CHONG
______
KHOWOONSUN CHONG, CSR NO. 12907, CRR
FEDERAL OFFICIAL COURT REPORTER

21
22
23
24
25

UNITED STATES DISTRICT COURT

1
'34 [3] - 35:1; 51:18; 58:8
'35 [5] - 35:1; 37:24; 51:18;
58:6, 8
1 [3] - 27:22; 52:15; 72:1
10 [4] - 35:4; 54:13; 68:25;
69:21
100 [1] - 42:4
1006 [6] - 18:1, 3-4, 18; 19:5,
10
1007 [8] - 10:1, 12; 11:1;
13:18; 16:7; 18:3; 20:18;
38:19
1008 [1] - 20:6
1009 [1] - 20:4
1024 [2] - 26:7; 27:24
1031 [2] - 40:1
1032 [2] - 40:2, 6
11 [2] - 54:13; 69:20
11:25 [1] - 74:22
12 [1] - 65:10
126 [2] - 53:16; 64:8
13 [1] - 6:19
14 [1] - 40:3
15 [9] - 35:4; 40:3; 54:13, 22;
57:6; 65:2, 5
161 [1] - 39:3
18 [2] - 71:13; 72:12
1889 [1] - 18:8
1890S [1] - 69:3
1893 [13] - 10:18; 18:8;
19:15, 22; 21:1; 28:6;
35:11, 13; 40:4; 64:22;
65:8; 67:22; 72:4
1896 [2] - 64:23; 65:8
1899 [2] - 64:23; 65:8
1921 [3] - 33:10; 35:11, 14
1922 [8] - 5:22, 25; 7:5; 8:11;
24:9; 33:1; 38:3; 67:23
1927 [4] - 5:22; 6:16; 7:20;
8:11
1934 [8] - 29:5; 35:19; 37:23;
45:10, 14; 58:6, 13; 65:18
1935 [11] - 9:23; 32:6; 35:20;
37:13; 53:2, 25; 58:13;
60:15; 61:23; 65:18
1940 [1] - 73:19
1942 [2] - 52:18; 73:19
1944 [2] - 60:10, 22
1947 [1] - 39:3
1949 [1] - 35:14
2013 [1] - 6:17
23RD [1] - 24:5
24 [4] - 57:21; 65:15; 66:16;
67:9
4 [1] - 69:5
409 [1] - 39:3
410 [1] - 39:3
50 [7] - 34:10; 40:21; 64:8,
13; 68:13, 16, 23

505 [1] - 42:2
51 [8] - 15:9, 15; 34:10;
64:14; 66:15; 68:22; 73:2
6 [3] - 15:19, 22
663 [1] - 71:25
664 [4] - 40:25; 65:10; 68:13,
16
665 [3] - 54:23; 65:2, 11
666 [4] - 54:23; 57:5; 65:2;
71:14
680 [2] - 15:11, 14
681 [2] - 15:11, 14
684 [1] - 66:17
7 [1] - 69:5
70 [2] - 10:19; 19:17
8 [2] - 71:22, 25
804 [2] - 70:20; 71:2
804(B)(3 [1] - 70:21
804(B)(3)(A [1] - 70:22
804(B)(3)(B) [1] - 70:19
87 [3] - 10:10; 26:7
9 [1] - 71:23
90 [2] - 42:2; 44:22
988 [1] - 60:10
99 [1] - 42:4
A.M [1] - 74:22
ABANDON [11] - 30:12; 31:7,
12; 32:24; 42:12, 15-17;
43:5; 49:14, 17
ABANDONED [4] - 25:9, 15;
32:2; 52:1
ABANDONING [4] - 26:12;
28:18; 43:9; 44:19
ABANDONMENT [26] - 5:7;
9:1; 24:20, 23; 25:1, 12;
27:19; 28:23-25; 29:1;
32:8; 36:6; 41:10; 43:9;
44:12; 48:5, 13; 49:4;
50:19; 51:7, 15; 52:1;
61:13; 62:11; 64:7
ABILITIES [1] - 13:6
ABILITY [2] - 19:2; 63:8
ABLE [3] - 14:11; 47:3, 22
ABSENCE [1] - 37:1
ACCEPT [2] - 16:5; 49:5
ACCESS [1] - 6:18
ACCUSED [1] - 73:18
ACQUIESCENCE [1] - 41:20
ACQUIRE [1] - 35:24
ACQUIRED [7] - 37:22;
55:19; 57:2, 8, 10, 17
ACT [35] - 25:1, 10, 16;
28:24; 30:12; 31:6, 12;
36:6; 37:18; 41:17, 20-21;
42:18, 21; 43:1, 15; 44:5;
49:13, 16; 50:2-4, 8, 11,
19; 51:7, 10-12; 61:13
ACTION [14] - 34:14, 16, 22;
35:3; 36:21; 48:5; 49:12;
54:14; 57:15; 58:2; 65:5,

16
ACTIONS [1] - 60:4
ACTS [12] - 25:25; 31:14;
32:3, 8, 24; 41:11, 20;
42:19; 43:1; 44:1; 49:16
ACTUAL [3] - 8:7; 13:13;
60:4
ADAM [1] - 5:4
ADAPT [1] - 19:2
ADAPTATIONS [1] - 14:6
ADD [2] - 16:23; 68:4
ADDED [1] - 17:18
ADDITIONAL [2] - 41:21;
74:13
ADDRESS [2] - 24:8; 38:16
ADDRESSING [1] - 24:20
ADDS [1] - 71:2
ADJOURNED [1] - 74:22
ADMISSIBILITY [2] - 46:22;
70:3
ADMISSIBLE [3] - 46:21;
49:1; 70:23
ADMISSION [6] - 16:1; 21:4;
46:15; 47:11
ADMIT [1] - 53:4
ADMITTED [2] - 29:18, 21
ADMITTING [1] - 47:11
AFFIRMATIVELY [1] - 47:15
AFORESAID [2] - 54:23;
55:16
AFTERTHOUGHT [1] - 32:13
AGO [4] - 29:8; 31:25; 47:20;
61:8
AGREE [3] - 70:11; 71:11, 16
AGREEING [1] - 49:4
AGREEMENT [5] - 16:20;
55:12; 56:1; 60:10, 24
AGREEMENTS [1] - 34:18
AHA [1] - 50:1
AHEAD [7] - 5:20; 8:21;
13:15; 16:23; 55:6; 58:10;
70:5
AIR [1] - 70:13
ALBEIT [2] - 49:9; 71:12
ALLEGATION [5] - 40:24;
58:7; 66:6, 18; 73:1
ALLEGATIONS [5] - 33:10;
34:5; 52:15; 64:18; 72:21
ALLEGED [1] - 56:22
ALLEGEDLY [1] - 34:25
ALLEGING [1] - 29:24
ALLOWED [1] - 72:22
ALONE [2] - 32:1; 37:5
ALTERED [1] - 13:25
ALTERNATE [9] - 12:17;
14:22; 16:10; 19:20-22;
20:1; 21:10; 26:24
AMENDED [16] - 15:9; 34:4,
11, 13; 37:20; 40:22;

UNITED STATES DISTRICT COURT

52:17; 54:3; 55:7; 64:14,
21; 67:9; 68:23; 69:12;
71:14
ANCIENT [3] - 45:24; 46:1;
70:7
ANSWER [31] - 11:4, 18;
14:7; 15:9, 11, 17, 23;
16:12; 18:19; 19:4, 12, 21;
20:12; 22:6; 24:22; 26:21;
32:10; 33:2; 35:24; 43:7;
59:22; 64:16; 65:23; 66:16;
67:5; 68:12, 22; 69:11;
73:2, 25
ANSWERED [1] - 23:11
ANSWERS [4] - 22:2; 66:14;
69:8
APART [2] - 33:1; 38:3
APPEAR [3] - 19:19, 22;
48:18
APPEARED [2] - 20:25;
33:17
APPLICABILITY [1] - 50:17
APPLICATION [4] - 5:20;
6:3, 20; 24:8
APPLICATIONS [2] - 5:10,
12
APPLY [3] - 50:24; 63:12;
71:10
APPLYING [1] - 13:7
APPRECIATE [1] - 74:6
APPROPRIATE [4] - 17:10;
23:4; 38:12; 62:23
AREAS [3] - 51:1, 5
ARGUED [1] - 38:17
ARGUING [1] - 51:25
ARGUMENT [22] - 7:17;
8:19, 23; 23:3, 25; 25:7,
21; 42:18; 49:5; 51:16,
19-20; 59:25; 60:1; 65:14;
67:13, 15; 68:3, 12; 71:6
ARGUMENT'S [1] - 44:5
ARGUMENTS [5] - 6:4, 25;
63:10; 64:7
ARISE [1] - 71:8
ARRANGEMENT [4] - 34:23;
59:1, 7, 17
ARRANGEMENTS [12] 26:24; 34:9; 35:2, 23; 36:2;
58:22; 65:24; 66:7, 19, 24
ARTICLE [13] - 29:12; 31:9;
38:9; 44:22; 45:10, 20;
46:9; 70:3, 9, 14
ARTICLES [2] - 31:8; 39:10
ASCAP [1] - 61:6
ASIDE [1] - 7:1
ASPECT [1] - 64:5
ASPECTS [2] - 38:20; 49:9
ASSEMBLED [1] - 67:24
ASSERT [10] - 33:14; 34:2;
36:15, 21; 47:22; 49:7;

2
50:23; 60:1
ASSERTED [2] - 37:14;
59:23
ASSERTING [2] - 55:5; 60:5
ASSERTION [3] - 37:1;
46:24; 49:8
ASSIGNED [3] - 35:22;
51:17; 66:22
ASSIGNING [1] - 47:8
ASSIGNMENTS [6] - 35:20;
37:24; 65:17, 20; 72:3
ASSOCIATED [1] - 15:5
ASSOCIATION [1] - 61:1
ASSUME [4] - 29:19; 46:9;
52:23; 63:18
ASSUMING [2] - 48:2, 25
ATTACHED [1] - 6:7
ATTRIBUTABLE [2] - 46:6;
50:16
ATTRIBUTED [6] - 14:21;
16:11, 19; 45:16; 48:23;
70:10
ATTRIBUTION [1] - 17:22
AUGUST [1] - 45:10
AUTHENTICITY [3] - 44:25;
45:3; 70:7
AUTHOR [5] - 12:21; 36:12;
41:15, 19, 22
AUTHOR'S [1] - 42:9
AUTHORED [1] - 12:24
AUTHORITY [8] - 25:19;
27:11; 41:13, 16, 24; 43:3,
6; 68:6
AUTHORIZATION [1] - 7:19
AUTHORIZED [4] - 7:4; 8:1,
5
AUTHORS [9] - 12:25; 16:21;
17:3; 18:17; 41:18; 43:5;
61:16; 67:24; 68:6
AUTHORSHIP [13] - 9:10,
18; 12:23; 32:23; 38:16;
41:4, 7, 10, 12, 19; 42:24;
62:11
AWARE [8] - 24:12; 25:19;
42:19; 44:6; 48:8; 53:22;
61:25; 68:7
AWFUL [1] - 64:12
B'S [1] - 43:19
BALANCE [1] - 51:4
BARELY [1] - 49:12
BASED [3] - 9:12; 23:13;
24:4
BASIS [2] - 5:20; 44:24
BEAT [1] - 56:16
BECAME [8] - 15:25; 16:2,
12; 17:13, 17; 21:5, 18;
23:15
BECOME [4] - 29:9; 32:1;
34:1; 47:21
BECOMES [5] - 15:4; 22:23;

24:9; 50:11; 70:9
BECOMING [1] - 68:5
BEGAN [2] - 18:22; 19:12
BEGIN [1] - 11:19
BEGINNING [1] - 67:13
BEGINS [1] - 65:10
BEHALF [4] - 5:1; 33:4;
35:21; 40:25
BEHAVED [1] - 61:19
BEHOLD [1] - 68:21
BELABOR [3] - 65:14; 67:10;
70:1
BELIEVES [2] - 28:6; 64:6
BENEFIT [2] - 9:5; 30:16
BERNSTEIN [4] - 39:2, 16;
67:14; 68:1
BEST [3] - 7:5; 13:5; 65:20
BETSY [1] - 10:5
BETTER [1] - 47:5
BETWEEN [9] - 9:13, 18;
16:20; 18:7; 27:10; 42:24;
67:18; 69:9; 72:24
BEYOND [4] - 13:24; 48:5;
53:7
BIFURCATE [1] - 62:25
BIRTH [1] - 56:10
BIRTHDAY [94] - 9:9, 17;
10:15; 11:2, 9, 23; 12:11;
15:25; 16:2, 12, 16; 17:17,
24; 21:5, 14; 23:10, 15;
26:14; 28:4, 8, 16, 19;
29:24; 30:18, 24; 31:16,
21-22; 32:9, 12-13, 15, 22;
33:13, 16, 19-21, 23; 35:3,
5; 36:9, 14, 16; 37:2, 12,
16-17, 25; 38:1, 6; 40:5;
41:1; 52:12, 25; 53:9, 17,
24; 54:7, 13, 18-19; 55:1,
3-4, 8, 16; 56:7, 11, 22;
57:12, 14, 19; 58:23; 59:6,
13, 19; 62:3; 64:10; 66:1,
5, 14, 20; 67:16; 68:8, 20,
24; 69:7, 10, 14, 23; 72:5,
23
BIRTHDAY [1] - 12:13
BIT [1] - 10:24
BLACK [1] - 28:11
BLACK-AND-WHITE [1] 28:11
BLEED [1] - 51:20
BLIGE [1] - 42:1
BOOK [9] - 8:6; 10:17; 18:15;
20:6; 26:14; 27:1; 54:8
BOOK [2] - 6:17; 67:23
BOTTOM [2] - 11:8; 19:12
BOUGHT [2] - 36:1
BOUND [1] - 18:7
BRIEF [4] - 25:22; 28:22;
64:11; 65:22
BRIEFING [2] - 5:7; 8:22

BRIEFLY [2] - 5:9; 11:13
BRIEFS [1] - 6:25
BRIGHT [2] - 51:6, 9
BRITISH [1] - 5:16
BROUGHT [5] - 15:10;
30:15; 36:16; 37:11; 54:20
CABLE [1] - 8:6
CALENDAR [2] - 5:6; 8:23
CANNOT [2] - 41:15; 42:6
CARE [4] - 5:9; 8:25; 62:3
CAREFUL [1] - 62:19
CARRIES [1] - 65:10
CASE [33] - 6:24; 17:2, 5;
22:20; 25:11; 33:8; 34:5;
35:9, 16-18; 39:1, 13, 16,
21; 42:1; 43:8; 44:11;
46:14; 50:14; 53:6, 15;
62:21; 67:14, 18; 68:1;
71:3, 8; 73:19
CASES [7] - 25:4, 14, 18;
49:24; 50:5; 62:17
CAUSES [1] - 34:14
CELEBRATION [1] - 12:13
CENTURIES [1] - 10:22
CENTURY [3] - 34:20; 56:5;
58:10
CERTAIN [4] - 5:21; 43:23;
44:4; 63:6
CERTAINLY [7] - 20:13;
28:2; 32:3; 38:9; 68:7;
73:15
CERTAINTY [1] - 33:18
CHALLENGE [1] - 28:3
CHANCE [2] - 38:16; 72:9
CHANGE [1] - 23:8
CHEER [3] - 29:25; 30:11, 19
CHICAGO [1] - 19:15
CHILD [1] - 17:11
CHILDHOOD [1] - 61:1
CHILDREN [10] - 13:6, 21,
24; 14:3, 14; 18:11; 19:1;
20:12; 40:12, 15
CHILDREN'S [1] - 19:2
CHRISTMAS [3] - 11:7;
12:10; 14:18
CIRCUIT [4] - 39:2, 4; 42:5;
49:20
CIRCULAR [2] - 60:9, 17
CIRCUMSTANCE [1] - 41:17
CIRCUMSTANCES [8] 6:16; 7:23; 50:9, 24; 54:16;
70:18; 71:5, 7
CITATION [1] - 67:14
CITE [5] - 26:8; 27:9; 39:13;
41:13; 50:15
CITED [7] - 25:11, 18; 42:1;
44:12, 18; 46:13; 68:7
CITING [1] - 46:13
CLAIM [10] - 29:6; 30:20, 24;
31:1; 32:2; 33:7; 38:4;

UNITED STATES DISTRICT COURT

54:20; 60:5; 64:21
CLAIMED [1] - 38:1
CLAIMS [1] - 26:24
CLASS [1] - 12:6
CLASSROOM [3] - 16:16;
21:9
CLEAR [25] - 7:13, 15; 12:5,
16; 14:6; 17:7; 19:4; 26:16;
27:4; 31:15; 34:4; 35:20,
22, 24; 44:11; 47:22;
49:21; 51:6; 52:10; 60:23;
61:19; 64:17; 69:20; 72:20
CLEARER [1] - 15:4
CLEAREST [2] - 27:22;
28:11
CLEARLY [5] - 13:20; 14:17;
23:10; 70:14; 71:7
CLERK [1] - 74:21
CLOSE [2] - 46:11; 66:25
CLOSELY [1] - 41:25
CLOSENESS [1] - 43:24
CO [8] - 42:10, 12, 15, 17,
19; 43:10
CO-OWNER [8] - 42:10, 12,
15, 17, 19; 43:10
COAUTHOR [1] - 42:6
COLLABORATING [1] - 13:4
COLLABORATIONS [1] 11:25
COLLABORATIVE [2] - 13:9;
20:16
COLLEAGUES [2] - 5:4;
63:19
COLLECTION [3] - 18:16;
19:6; 28:1
COLLECTIONS [1] - 19:6
COLLEGE [1] - 29:23
COMBINATION [2] - 49:25;
61:10
COMBINATIONS [1] - 21:10
COMBINED [2] - 39:20;
50:10
COMING [3] - 52:15; 63:22;
73:6
COMMENT [1] - 67:12
COMMENTING [1] - 64:4
COMMENTS [3] - 64:11;
65:22; 68:19
COMMITTED [1] - 41:17
COMMON [10] - 25:3, 7, 15;
29:9; 32:1; 33:24; 47:21,
24; 48:2; 66:4
COMPANY [4] - 8:6; 51:18,
21; 52:22
COMPARE [1] - 32:12
COMPELLING [1] - 37:7
COMPENSATION [1] - 31:19
COMPILER [1] - 67:25
COMPLAIN [2] - 42:20; 49:23
COMPLAINING [1] - 59:14

3
COMPLAINT [37] - 15:10;
29:23; 30:15, 17-18; 33:11,
17; 34:3, 7, 11, 13; 37:19,
21; 40:22; 46:10; 47:19;
52:16-18; 53:6; 54:4; 55:7;
59:19; 61:21; 64:15, 21;
67:9; 68:23; 69:12, 21;
71:14; 72:1, 20
COMPLAINTS [1] - 50:13
COMPLETELY [1] - 38:11
COMPLICATED [1] - 19:3
COMPOSED [6] - 9:24; 14:8;
21:9; 41:1, 6; 69:14
COMPOSER [2] - 12:15;
39:14
COMPOSITE [5] - 39:9;
67:20-22; 68:9
COMPOSITION [18] - 13:22;
31:17; 33:15; 34:6, 9;
35:23; 36:3; 37:15; 39:1, 6,
18; 41:4; 66:2, 24; 67:10;
68:21, 24
COMPOSITIONS [1] - 69:3
COMPREHENSIVE [1] 25:21
CONCEDE [1] - 45:24
CONCEIVABLE [1] - 67:7
CONCEPTS [2] - 48:13, 15
CONCERN [1] - 7:1
CONCERNED [7] - 6:22;
8:21; 27:13; 32:8; 35:10,
16
CONCERNS [1] - 65:17
CONCLUDE [3] - 17:24;
36:25; 42:23
CONCLUDES [1] - 36:13
CONCLUSION [4] - 15:1;
16:13; 21:14; 69:24
CONCLUSIONS [1] - 24:2
CONCLUSIVE [1] - 28:8
CONDUCTED [1] - 6:24
CONFESS [1] - 73:24
CONFIDENCE [1] - 58:19
CONFUSED [1] - 34:13
CONJUNCTION [2] - 20:11;
49:6
CONNECT [1] - 63:11
CONNECTION [1] - 69:9
CONSENT [4] - 24:5; 42:9,
11
CONSENTED [2] - 23:6;
62:13
CONSEQUENCES [3] 46:18; 48:8
CONSIDER [1] - 5:6
CONSISTED [1] - 10:19
CONSISTENT [2] - 21:17;
40:13
CONSISTS [2] - 59:1; 69:16
CONSTITUTE [9] - 16:25;

25:12; 31:6, 11; 39:5, 12;
44:5, 11; 51:11
CONSTITUTION [1] - 50:7
CONTAIN [2] - 48:7; 55:12
CONTAINED [2] - 68:25;
69:4
CONTAINING [1] - 41:5
CONTEMPLATE [1] - 55:12
CONTEMPLATED [1] - 58:7
CONTEMPLATION [1] - 58:9
CONTEXT [19] - 11:18; 12:5,
17; 14:16, 20, 24; 15:1;
20:20; 22:6; 36:7; 46:23;
48:17; 57:16; 59:3; 66:8;
69:25; 72:1; 73:9, 20
CONTINUE [2] - 55:10
CONTINUED [3] - 60:25;
61:2, 24
CONTINUES [2] - 19:11;
50:19
CONTINUING [2] - 61:5
CONTRARY [2] - 62:6; 70:25
CONTRAST [1] - 73:12
CONTRIBUTED [1] - 17:7
CONTRIBUTIONS [2] - 13:1;
39:7
CONTROL [1] - 48:10
CONVERSATION [1] - 52:7
COPIES [1] - 8:9
COPY [5] - 5:16; 6:17; 10:3,
5, 9
COPYRIGHT [31] - 8:10;
24:10; 25:2, 8, 15; 32:2;
35:7, 10, 13; 37:13; 39:11;
43:9-11, 20; 50:18, 21-22;
53:17, 25; 54:22; 60:6, 20;
61:12, 22; 62:3; 67:3
COPYRIGHTS [19] - 33:9,
23-24; 35:6; 51:22;
54:9-11, 17, 24; 55:2;
56:24; 60:15; 64:22; 65:9;
72:4
CORRECT [23] - 5:18, 25;
6:1, 6; 8:15; 24:4, 16, 18;
25:13, 16; 26:4; 29:16;
34:21; 35:9; 42:8; 45:22;
46:4, 7; 51:13; 58:3, 24;
65:4
CORRESPONDING [1] 31:1
CORROBORATING [4] 47:13; 70:17; 71:5
COUNSEL [4] - 6:13; 8:8;
27:10; 74:6
COUNSEL'S [1] - 7:17
COUNT [1] - 72:1
COUPLE [2] - 52:9; 67:12
COURSE [10] - 8:11; 9:7;
24:7; 27:15; 31:8; 37:10;
50:15; 51:10; 53:14; 54:19

COURT [6] - 21:24; 22:21;
23:23; 29:24; 62:13; 74:21
COURT [17] - 21:25; 23:9,
12; 28:6; 32:21; 36:13,
24-25; 52:23; 62:23; 64:12;
65:15, 23; 68:7, 12; 70:12,
16
COURT'S [3] - 24:13; 38:10;
69:8
COVER [1] - 65:21
COVERED [3] - 35:13; 65:9,
20
CREATE [1] - 17:4
CREATED [1] - 9:12
CREATING [1] - 28:1
CREATION [2] - 16:14; 17:3
CRIMINAL [4] - 71:3, 8
CROSS [1] - 47:3
CROSS-EXAMINE [1] - 47:3
CROSSOVER [1] - 48:14
CURRENT [1] - 72:14
CUSTOM [1] - 72:15
CUT [1] - 18:19
CYCLE [1] - 8:22
D.C [1] - 46:14
DAVIS [1] - 42:1
DAYS [1] - 8:18
DEAL [1] - 56:19
DEALING [2] - 56:4, 14
DECIDE [2] - 38:11; 62:9
DECLARANT [3] - 48:24;
70:20; 71:4
DECLARANT'S [1] - 70:25
DECLARATION [9] - 6:8, 12;
7:10, 12, 14, 17, 22
DEDICATED [1] - 61:8
DEDICATION [1] - 43:12
DEFENDANT [7] - 8:20; 9:9;
26:6; 36:21; 58:20; 64:18;
66:23
DEFENDANT'S [1] - 64:16
DEFENDANTS [9] - 5:15;
7:3, 8; 9:2; 16:18; 27:9;
34:24; 59:24; 67:7
DEFINED [1] - 55:7
DELEGATE [1] - 41:15
DELIBERATE [1] - 17:3
DEMAND [1] - 19:13
DEMANDED [3] - 18:8, 13;
31:19
DEMONSTRATING [1] - 51:8
DENIED [3] - 22:20; 23:22;
62:15
DEPOSIT [1] - 5:16
DEPOSITION [18] - 9:22;
10:1, 6; 12:5; 22:3; 26:7;
27:10, 16, 23-24; 32:5, 15;
38:8, 18-20; 40:16; 41:6
DERIVATIVE [14] - 9:11, 16;

UNITED STATES DISTRICT COURT

12:18; 16:3; 17:6, 8; 36:12,
14, 22; 37:5; 38:23; 67:16;
68:2, 8
DESCRIBE [3] - 14:5; 40:6;
68:24
DESCRIBED [7] - 21:7, 9;
23:14; 43:23; 54:25; 55:2;
69:4
DESCRIBES [5] - 10:15;
13:12; 17:20; 18:20; 28:1
DESCRIBING [1] - 13:21
DETAIL [1] - 13:12
DETERMINATION [1] - 23:12
DETERMINE [2] - 21:25;
22:18
DEVELOPED [1] - 14:13
DEVELOPMENT [1] - 61:1
DIALOGUE [14] - 53:8;
71:13, 18-20; 72:9, 11;
73:1, 4-5, 7, 9, 20, 22
DIFFERENCE [2] - 67:15, 18
DIFFERENT [13] - 13:7;
15:25; 19:21; 21:18; 22:17;
32:18; 33:22; 39:17; 48:13,
15; 58:4; 65:1; 73:16
DIFFERENTLY [1] - 31:16
DIRECT [3] - 25:19; 40:1;
43:7
DIRECTED [2] - 5:7; 39:1
DIRECTLY [2] - 25:4, 14
DIRECTORS [1] - 56:6
DISAGREEING [1] - 49:4
DISAGREEMENT [1] - 44:18
DISCUSS [1] - 68:1
DISCUSSED [4] - 39:23;
63:17; 70:1
DISCUSSES [1] - 67:15
DISCUSSION [9] - 18:2, 4;
30:9; 35:2, 6; 46:8; 54:6;
64:5; 73:20
DISPOSITIVE [2] - 12:20;
74:16
DISPUTE [10] - 16:15; 26:19;
28:3; 34:24; 35:15, 19, 25;
45:3; 65:12; 72:24
DISPUTED [2] - 12:22; 22:7
DISTINCTION [1] - 73:11
DITTY [3] - 29:8; 31:25;
47:21
DIVEST [1] - 43:18
DIVESTIVE [1] - 5:23
DOCUMENT [7] - 6:16, 23;
45:4, 24; 46:2; 48:21; 70:8
DOCUMENTS [1] - 6:5
DOG [1] - 56:15
DOMAIN [2] - 47:24; 61:9
DONE [9] - 16:4; 17:9, 12;
25:6; 26:25; 40:4; 44:8;
53:6; 58:15
DOTS [1] - 63:11

4
DOUBT [6] - 28:12; 66:10;
67:7; 69:18
DOWN [4] - 10:24; 32:20;
45:10
DRAMATIC [2] - 55:14; 56:5
DRAWING [1] - 47:12
DRAWN [3] - 30:8; 46:21;
48:1
DRAWS [1] - 49:20
DURING [4] - 20:8; 27:15;
40:7; 68:19
E51988 [3] - 35:8; 53:2;
54:11
E51990 [6] - 5:16; 35:8;
52:24; 54:11; 60:6, 10
EARLIEST [3] - 10:16; 11:3;
40:4
EARLY [1] - 61:1
EASE [2] - 14:4, 14
EASEMENT [1] - 25:12
EASILY [1] - 26:25
EASY [1] - 20:1
EDUCATIONAL [1] - 27:12
EDUCATOR [1] - 12:14
EFFECT [3] - 43:19; 44:7;
47:24
EFFECTIVELY [2] - 42:12;
61:15
EFFORT [2] - 13:9; 20:16
EITHER [12] - 16:16; 24:14;
29:3; 36:11; 37:4; 50:22;
59:5; 60:12, 16; 71:20, 25
EMBARRASSED [1] - 33:14
EMPHASIZED [1] - 30:8
ENCYCLOPEDIA [1] - 39:10
END [2] - 57:1, 5
ENGLISH [1] - 29:22
ENLIGHTEN [1] - 74:7
ENTERED [1] - 34:25
ENTIRE [4] - 15:2; 43:12;
57:15
ENTIRELY [1] - 40:13
ENTIRETY [1] - 11:17
ENTITLED [7] - 15:25; 58:22;
66:1, 13, 19; 69:5, 7
EQUIVALENT [2] - 5:15;
72:17
ESSENCE [1] - 63:1
ESSENTIALLY [2] - 64:24;
65:19
ESTRANGED [1] - 44:2
EVERYDAY [2] - 6:17; 67:23
EVIDENCE [51] - 7:6, 25; 8:3,
7, 12-13; 9:14, 21; 11:11,
14; 12:7; 15:3; 16:10;
17:15; 21:3, 13, 16; 22:7;
23:2, 13; 27:19; 29:4;
30:24; 31:5; 32:24; 37:7;
38:4; 39:21; 44:2, 13, 19;
47:13; 49:15; 51:25; 52:10;

53:22; 54:1; 61:10, 20;
62:6; 63:1, 11; 64:7; 65:19;
69:25; 71:2; 72:11
EVIDENCES [1] - 31:12
EVIDENCING [2] - 32:24;
49:16
EVIDENT [1] - 14:22
EX [5] - 5:20; 6:20; 24:8;
74:11, 17
EXACTLY [6] - 21:7; 29:13;
63:20; 64:17, 24; 71:19
EXAMINE [1] - 47:3
EXAMPLE [2] - 67:21, 23
EXCEEDED [1] - 56:3
EXCEEDING [1] - 53:10
EXCEPT [7] - 16:17; 26:10,
18; 27:6; 56:9; 60:3
EXCEPTION [3] - 45:24;
48:14; 49:2
EXCEPTIONS [1] - 70:20
EXCHANGES [1] - 27:9
EXCLUSIVE [2] - 42:7, 11
EXHIBIT [5] - 10:7; 19:14;
43:1; 44:22; 71:22
EXHIBIT [20] - 10:10; 15:9,
15; 20:7; 26:7; 34:10;
40:21; 53:16; 64:8, 13-14;
66:15; 68:13, 16, 22
EXHIBITED [1] - 42:18
EXHIBITING [1] - 41:19
EXISTED [2] - 26:20; 28:16
EXPANDED [4] - 62:18
EXPECT [1] - 7:9
EXPIRED [1] - 35:14
EXPLAIN [1] - 28:3
EXPLANATION [2] - 6:8;
15:2
EXPLANATIONS [1] - 6:8
EXPLICATES [1] - 18:3
EXPLICATION [1] - 62:21
EXPLOIT [1] - 61:24
EXPLOITATION [2] - 35:12;
61:6
EXPOSE [1] - 71:3
EXPRESS [5] - 55:20; 57:9,
18; 60:5
EXPRESSION [1] - 28:11
EXPRESSLY [1] - 60:24
EXTENSION [1] - 67:4
EXTENT [3] - 27:25; 28:21;
41:9
F.2D [1] - 39:3
F.3D [1] - 42:2
FACE [2] - 45:19; 48:21
FACIE [1] - 54:1
FACT [35] - 12:19; 16:3, 9,
11; 19:11; 22:7, 17, 19, 25;
23:3, 7, 16; 24:1, 6, 14;
25:10; 29:8; 30:8; 31:25;
36:19; 43:4; 44:12; 47:20;

51:7; 53:1; 56:19; 59:14;
60:3; 62:10, 13; 63:5, 7
FACTS [3] - 7:10; 8:11; 41:5
FACTUAL [1] - 62:24
FAILURE [5] - 28:5; 34:2;
36:15; 49:7
FAILURES [1] - 49:7
FAILURES-TO-ASSERT [1] 49:7
FAIR [1] - 19:15
FAIRLY [1] - 49:21
FAIRNESS [2] - 25:6; 63:8
FAITH [1] - 58:19
FAMILIAR [1] - 52:25
FAR [6] - 8:20; 27:12; 30:5;
32:7; 34:25; 56:23
FAVORS [1] - 22:8
FEDERAL [1] - 29:24
FELT [1] - 60:12
FEW [1] - 47:12
FIERCELY [1] - 31:18
FIGURED [1] - 40:18
FILE [3] - 8:17; 33:25; 74:10
FILED [13] - 6:15; 8:17; 15:9,
17; 29:23; 33:3; 37:13,
20-21, 24; 50:13; 67:6
FILING [1] - 37:19
FILM [2] - 73:8
FINDINGS [4] - 23:7; 24:1, 6;
62:24
FINE [2] - 29:18; 38:21
FINGERTIPS [1] - 52:14
FINISH [1] - 53:12
FIRST [21] - 9:8, 22; 26:21;
32:16; 34:16; 35:3, 9, 16;
37:19; 38:24; 45:8, 20;
54:14; 55:7; 57:15; 64:20;
65:5, 24; 70:6; 71:14
FLAT [1] - 40:24
FLAT-OUT [1] - 40:24
FOCUSED [1] - 50:13
FOLKS [6] - 5:8; 6:2, 11;
22:21; 23:23; 62:18
FOLLOW [1] - 56:20
FOLLOWED [1] - 25:7
FOLLOWING [1] - 49:19
FOLLOWS [3] - 43:8; 49:21;
66:21
FOOTNOTE [2] - 41:9; 42:22
FORESEE [2] - 63:15, 21
FOREST [6] - 29:2-4; 31:4;
50:2
FOREVER [1] - 47:16
FORGET [1] - 11:14
FORGETFULNESS [2] 37:18, 20
FORM [7] - 6:12; 24:3; 53:6;
55:23; 57:12; 61:22; 62:14
FORTH [10] - 9:4; 14:18;

UNITED STATES DISTRICT COURT

25:12; 27:13; 31:9; 44:1, 3;
46:11; 67:4; 72:4
FOUGHT [1] - 31:19
FOUNDATION [21] - 15:10,
18; 33:4; 35:18, 21; 37:11;
40:23; 44:1, 15; 50:14;
53:15, 19; 59:20; 60:7;
64:15; 65:7; 67:8; 69:22;
72:24
FOUNDATION [2] - 30:16;
34:8
FOUNDATION'S [1] - 66:18
FRONT [1] - 10:12
FULL [1] - 8:2
FULLY [1] - 42:19
FUNDAMENTAL [2] - 44:17;
58:12
FUNDAMENTALLY [2] 31:16; 32:17
GENERAL [1] - 5:24
GENERALLY [2] - 50:18;
70:21
GENRE [1] - 73:6
GERMANE [1] - 35:19
GIVEN [9] - 30:4; 48:4; 53:5;
56:21; 60:13, 20; 63:4
GLANCY [1] - 5:1
GLOSS [1] - 29:17
GOODBYE [4] - 11:7, 22;
12:9; 14:17
GRANT [6] - 7:19; 42:7, 11;
54:6; 55:13; 58:18
GRANTED [11] - 51:16, 21;
54:2; 58:5, 20; 59:16;
61:21; 64:10; 73:1
GRANTING [2] - 54:23; 73:3
GREAT [1] - 14:11
GRIPE [1] - 29:15
GROUP [4] - 10:16; 11:3;
18:10; 49:14
GUESS [4] - 23:19; 31:4;
32:10; 72:13
HAMPTON [2] - 44:11; 49:20
HANDS [1] - 61:9
HAPPY [103] - 9:9, 17; 10:15;
11:2, 7-9, 22-23; 12:10-12;
14:18; 15:25; 16:2, 12, 15;
17:17, 24; 21:5, 14; 23:10,
15; 26:14; 28:3, 8, 16, 18;
29:24; 30:18, 24; 31:16,
21; 32:8, 12-13, 15, 22;
33:13, 16, 19-21, 23; 35:2,
5; 36:9, 14, 16; 37:2, 12,
16-17, 25; 38:1, 6; 40:5,
25; 52:11, 25; 53:9, 17, 24;
54:7, 13, 18; 55:1, 3-4, 8,
16; 56:7, 11, 21; 57:12, 14,
19; 58:23; 59:6, 13, 19;
62:3; 64:10; 66:1, 5, 14,
20; 67:16; 68:8, 20, 24;

5
69:7, 10, 14, 23; 72:5, 23
HAPPY [6] - 6:10; 7:1; 56:10;
65:22; 73:25; 74:1
HARDLY [1] - 58:6
HARMONIZE [2] - 21:3, 6
HARRIS [3] - 9:23; 40:23;
50:13
HAT [2] - 22:24
HEAD [1] - 74:4
HEAR [3] - 9:6; 38:21; 70:3
HEARD [2] - 64:12; 70:16
HEARERS [1] - 39:9
HEARING [3] - 21:23; 24:19;
52:15
HEARSAY [13] - 44:23; 45:5,
20, 25; 47:2; 48:14; 49:2;
62:1; 70:8, 14, 20
HEIR [2] - 33:15; 61:15
HELD [2] - 50:22; 73:3
HELPFUL [2] - 5:23; 64:13
HELPING [1] - 74:6
HERSELF [2] - 12:15; 31:25
HILL [57] - 7:19; 9:23; 11:1;
15:10, 18; 16:19; 21:4, 11;
23:16; 27:4; 29:22; 32:9;
33:3; 34:8; 35:18, 21;
37:11; 38:19; 40:9, 23-24;
43:23; 44:1, 14; 45:9, 11;
46:17; 47:3; 50:14; 53:4,
15, 19, 22; 58:13; 59:14,
20; 60:7, 25; 62:2; 64:15;
65:7; 66:18, 22; 67:8;
68:23; 69:6, 15, 18, 21;
72:24
HILL [11] - 18:4; 19:20; 21:7;
27:10; 29:14, 21; 41:1;
45:12; 46:10; 52:16
HILL'S [3] - 9:22; 20:21; 26:7
HILL'S [1] - 71:9
HILLS [4] - 50:16; 52:12;
53:19; 56:1
HMM [1] - 22:24
HOLDERS [2] - 41:12, 18
HOME [4] - 13:24; 14:12;
40:17
HONOR [55] - 5:18; 6:1, 6,
14; 8:15, 24; 9:7, 20; 10:2,
8, 11, 16; 15:21; 18:14;
19:5; 20:19; 21:22; 22:14;
23:7; 24:4; 27:21; 34:6;
38:14; 39:1; 40:21; 41:25;
44:9; 47:2, 7; 49:19; 50:12;
52:14; 57:22; 58:12; 59:11;
61:3, 11; 62:6; 63:2; 64:2,
20; 65:4, 13; 66:3; 68:3;
70:2; 72:2, 7, 17; 73:24;
74:9, 19
HOUND [1] - 56:15
HOUR [1] - 40:7
HOUSE [1] - 39:24

HOUSEKEEPING [1] - 5:9
HSIA [1] - 46:14
HUMAN [1] - 66:9
I.E [1] - 56:5
IDEA [1] - 61:3
IDENTIFICATION [1] - 20:8
IDENTIFIED [5] - 6:17; 20:17;
25:25; 65:9; 68:20
IDENTIFIES [1] - 11:6
IMPACT [1] - 6:24
IMPORTANCE [1] - 42:22
IMPORTANT [2] - 15:7; 50:5
INABILITY [1] - 48:10
INACTION [5] - 44:10; 48:10;
50:9
INASMUCH [2] - 46:22;
62:13
INCIDENT [1] - 40:7
INCLUDE [7] - 20:1; 28:5;
54:7; 55:1, 3, 8; 60:20
INCLUDED [5] - 54:18;
55:18; 60:16; 65:7, 12
INCLUDES [1] - 67:24
INCLUDING [16] - 5:21;
10:22; 11:7, 22; 21:4;
23:14; 27:1, 3, 9; 29:4;
56:10, 20; 57:12; 59:21;
67:1
INCLUSION [1] - 68:4
INCLUSIVE [1] - 69:5
INCONSISTENT [1] - 61:3
INDEED [1] - 53:25
INDEPENDENT [1] - 42:20
INDEPENDENTLY [1] - 43:1
INDICATE [2] - 70:18; 71:5
INDICATING [1] - 71:7
INDICATION [3] - 30:11;
36:6; 48:7
INDICATIVE [2] - 31:6; 49:13
INDIVIDUAL [1] - 39:12
INDIVIDUALS [2] - 43:24
INDUSTRIES [1] - 73:16
INDUSTRY [2] - 53:10; 72:15
INFAMOUS [1] - 37:24
INFERENCE [1] - 30:7
INFERENCES [3] - 46:20;
47:12; 48:1
INFRINGES [2] - 30:25; 31:1
INITIAL [2] - 16:23; 68:19
INQUIRY [1] - 24:15
INSEPARABLE [1] - 13:1
INSERTED [1] - 18:24
INSTANCE [1] - 17:16
INSTANCES [2] - 25:10; 44:7
INSTEAD [2] - 21:17; 33:13
INSTRUCTOR [1] - 29:22
INTEND [1] - 48:11
INTENDED [1] - 26:23
INTENDING [1] - 48:11

INTENT [5] - 31:6, 12; 32:24;
49:16; 51:8
INTENTION [3] - 5:11; 12:25;
49:14
INTERDEPENDENT [1] 13:1
INTEREST [18] - 27:25;
41:12, 18; 42:25; 43:10,
18-19, 25; 44:12, 14;
46:16; 47:12; 53:20; 60:7;
61:14; 70:15, 22
INTERESTED [1] - 36:23
INTERESTING [1] - 26:5
INTERESTS [4] - 28:12;
44:14; 70:22; 71:1
INTERMIXES [1] - 48:13
INTERRUPT [1] - 22:14
INTERVAL [1] - 40:12
INTERVIEW [2] - 31:24;
45:14
INTERVIEWED [1] - 45:11
INTRODUCE [1] - 67:8
INVOLVED [1] - 39:16
INVOLVING [1] - 54:16
ISOLATION [2] - 57:13, 25
ISSUE [13] - 5:7, 23; 6:21;
7:2; 9:1; 21:20; 22:7, 19;
24:20; 25:15; 27:19; 38:15;
62:12
ISSUES [12] - 6:15; 21:24;
22:1, 21; 23:21; 24:8, 12;
62:1, 10-11; 74:13
ITERATIONS [1] - 34:17
ITERATIVE [2] - 17:20; 21:8
ITSELF [7] - 8:7; 28:20; 31:5;
43:18; 45:21; 49:3; 70:9
JESSICA [39] - 29:22; 30:14,
17; 32:25; 33:3, 9, 14, 16;
35:11, 20-21; 36:6, 8, 17,
24; 37:2, 6, 11, 23; 38:5;
39:25; 40:2, 10; 42:25;
43:4; 44:2, 6, 13; 54:10;
58:13; 59:13, 20; 61:15;
62:2; 65:18; 66:22; 69:12
JESSICA'S [4] - 35:14;
36:13; 37:19; 44:10
JOINT [42] - 9:9, 11-12, 18;
11:25; 12:21, 23; 15:1;
16:14, 25; 17:2, 24; 21:14;
22:9; 23:10; 26:22;
32:21-23; 36:14, 25; 37:7;
38:16, 22, 25; 41:4, 7, 9,
12, 14, 18-19, 22; 42:24;
43:5, 25; 67:19; 68:2, 4-5,
9
JOINTLY [2] - 12:20; 43:13
JOURNEY [4] - 11:7, 22;
12:9; 14:18
JUDGMENT [14] - 10:6;
22:18, 20, 23; 23:11,

UNITED STATES DISTRICT COURT

21-22; 24:14; 38:12; 40:22;
53:16; 63:5, 11; 72:14
JUDICIAL [1] - 16:1
JULY [1] - 6:19
JUMP [1] - 68:14
JURY [2] - 21:25; 63:9
KAPLAN [1] - 5:4
KEEP [2] - 8:21; 64:11
KELLY [1] - 5:3
KIDS [6] - 14:11; 16:22;
21:19; 26:3; 27:12; 40:19
KIND [6] - 7:20; 8:8; 46:23;
70:23; 73:8, 22
KINDERGARTEN [19] 10:17; 18:16, 21, 25; 19:7,
17, 23; 20:2, 7; 21:1;
22:10; 27:3; 28:2; 35:12;
54:22; 67:22; 69:2; 72:4
KINDS [1] - 33:25
KLAUS [59] - 5:3, 18; 6:6, 10;
7:21; 8:3, 15; 38:24; 41:23;
42:4, 8, 10; 43:7; 44:9;
45:3, 8, 18, 22; 46:1, 4, 7,
13; 47:1, 7, 25; 48:20;
49:18; 51:13; 52:5, 13, 18,
21; 53:14; 54:5, 20; 55:10,
18; 56:9; 57:1, 5, 8, 21, 24;
58:3, 11, 25; 59:11; 60:3,
22; 63:2, 17, 25; 64:2;
72:13; 73:11, 24; 74:3, 9,
19
KLAUS [18] - 5:3; 6:2; 7:16;
9:6; 32:20; 38:15; 62:7;
63:24; 64:5, 20, 25; 65:15;
67:12; 68:14, 18; 70:16;
72:8
KLAUS'S [3] - 68:3, 11;
71:12
KNOWLEDGE [2] - 7:5;
41:20
KNOWN [7] - 16:2, 12; 17:17;
21:5, 18; 23:15; 53:4
KNOWS [1] - 66:3
LACK [1] - 51:25
LARGELY [3] - 34:16; 62:20;
64:12
LAST [6] - 6:23; 21:23;
32:19; 52:7; 56:5; 64:4
LASTLY [1] - 70:2
LATE [1] - 7:23
LAW [12] - 24:2, 25; 25:3, 7,
15; 33:24; 39:19; 43:21;
50:18; 51:2, 5
LAWSUIT [6] - 30:9; 32:15;
46:23; 60:5; 61:5
LAWSUITS [3] - 37:22, 25;
60:23
LAYERS [1] - 45:20
LEAD [1] - 14:25
LEARN [1] - 14:4

6
LEAST [11] - 13:3; 21:21;
22:24; 26:15; 27:18; 46:20;
53:25; 62:20; 63:17; 70:8;
71:13
LEAVING [2] - 33:1; 38:3
LEGAL [5] - 38:25; 41:3;
54:20; 73:17; 74:13
LEGATEE [1] - 61:1
LEMOINE [1] - 5:4
LENGTHY [1] - 11:18
LEVEL [6] - 43:2, 23; 45:20,
25; 46:1, 5
LIABILITY [2] - 71:4, 9
LICENSE [20] - 34:8; 36:1;
42:7, 11; 53:7, 11; 55:20;
56:1, 4; 57:9, 18; 58:5, 18;
59:16; 61:21; 72:18
LICENSED [5] - 51:17; 56:8;
59:4; 66:20; 73:21
LICENSES [6] - 34:23; 54:24;
55:3, 12-13; 58:20
LICENSING [2] - 53:8; 58:16
LIGHT [1] - 41:3
LIKELY [2] - 8:19, 22
LIMB [1] - 63:23
LIMIT [1] - 27:11
LIMITED [7] - 19:2; 38:5;
53:7; 54:15; 56:2; 63:10;
72:8
LIMITS [1] - 28:11
LINE [4] - 27:14; 49:20; 51:6,
9
LINES [3] - 10:9; 23:12; 59:3
LINGERING [1] - 67:7
LISTENING [1] - 40:15
LISTS [1] - 53:17
LITIGATION [9] - 9:23;
15:10; 16:2, 18; 21:5; 33:2;
36:16, 24; 37:10
LIVING [1] - 39:24
LO [1] - 68:21
LOGICAL [1] - 25:7
LOGICALLY [1] - 56:20
LOOK [28] - 8:18; 13:11;
14:19; 17:14; 18:18; 20:4;
22:2; 28:22; 29:1, 7, 9, 18;
36:15; 38:21; 51:2; 54:14;
57:15; 61:10, 18; 63:20;
64:16; 66:15; 73:25; 74:18
LOOKED [3] - 25:3; 52:14;
68:19
LOOKING [2] - 47:4; 57:25
LOOKS [2] - 22:24; 45:12
LOSE [1] - 24:10
LOST [1] - 50:22
LYRICIST [1] - 39:17
LYRICS [59] - 12:1, 9; 16:6;
17:18; 19:22; 20:1, 11, 17;
21:10; 26:14; 28:8, 16, 18;
29:15; 30:10, 22; 31:2, 16;

32:22, 24; 33:17, 23;
36:15; 37:1, 3, 16; 38:1;
39:15, 20; 41:5; 51:16;
52:11, 25; 53:2, 9, 24;
54:18; 55:3, 9; 56:1, 7, 21;
57:20; 59:8, 13, 21; 62:5;
64:9; 65:13; 66:9; 69:17;
71:15; 72:12; 73:10, 23
MAGAZINE [9] - 29:7; 31:9,
24; 38:8; 44:21; 45:1, 13;
70:4
MAGAZINE [1] - 46:9
MANIFOLD [1] - 10:7
MANIPULATE [1] - 13:5
MANNER [1] - 21:8
MARCH [2] - 23:8; 24:5
MARK [2] - 66:25; 67:1
MARKED [1] - 20:7
MARKET [1] - 18:12
MARKS [2] - 48:17; 70:11
MATERIAL [3] - 8:10; 22:19;
68:5
MATTER [1] - 74:22
MATTER [8] - 5:6, 9; 12:11;
17:8; 36:22; 39:18; 61:17
MATTERS [1] - 9:1
MEAN [9] - 22:4, 14; 28:8,
18; 48:9; 57:20; 66:2;
68:14
MEANING [8] - 11:20; 29:19;
32:22; 53:9; 57:10; 59:7;
71:18; 72:16
MEANS [4] - 26:11; 51:8;
69:20; 73:9
MEANT [3] - 64:17; 66:12;
67:8
MEANTIME [1] - 5:8
MECHANICAL [1] - 67:2
MEET [1] - 49:18
MELINDA [1] - 5:4
MELODY [8] - 11:21; 12:1, 8;
14:9; 17:10; 39:12; 69:17
MEMORY [1] - 18:6
MENTION [5] - 5:9; 32:14;
35:5; 54:12; 57:14
MENTIONED [9] - 19:16;
44:7; 54:25; 55:2; 65:1;
67:5; 69:1, 4; 72:10
MENTIONS [2] - 19:20; 38:9
MERE [1] - 25:11
MERELY [1] - 24:11
MERGE [1] - 39:7
MERGED [1] - 13:1
MERITS [2] - 5:12; 7:2
MET [1] - 39:15
MIDST [1] - 29:4
MIGHT [4] - 14:25; 25:11;
30:8; 67:7
MILDRED [44] - 9:10, 13, 18,
24; 10:20; 12:4, 7, 15, 22;

13:25; 14:8, 12, 21, 23, 25;
15:4; 16:9, 14, 19, 21;
17:8, 12, 19, 22, 24; 18:17,
22; 19:25; 20:22, 24;
21:15; 32:23; 33:15; 38:5;
40:9, 14, 17; 41:2; 42:24;
69:15, 18, 23
MILDRED'S [2] - 17:9; 61:15
MIND [1] - 10:2
MINDFUL [1] - 63:3
MINUTES [1] - 52:9
MISREADING [1] - 42:22
MOMENT [5] - 10:8; 15:3, 21;
48:25; 71:21
MONIES [1] - 61:6
MORNING [5] - 5:2, 5; 8:8;
13:19; 14:1
MORNING [61] - 9:13; 10:20;
11:2, 19; 13:13, 20; 14:2,
7, 13, 17; 15:6, 12, 23-24;
16:13; 17:20; 19:18; 20:10,
16; 21:8, 16; 22:11; 26:20;
27:3, 7; 29:6; 31:17, 20;
32:11, 16; 33:8, 12, 15, 22;
34:9; 35:10; 36:3, 20;
37:15; 38:5; 54:16, 21;
58:22; 59:5, 18; 64:9;
65:13; 66:1, 5, 13-14, 20,
25; 67:6, 19-20; 69:5, 9, 22
MOST [2] - 8:19; 35:6
MOTION [7] - 8:20; 53:10;
58:16; 59:15; 62:15; 73:4
MOTIONS [2] - 5:10, 12
MOTIVES [1] - 18:25
MOVE [5] - 22:20; 23:23;
24:24; 25:24; 41:8
MOVED [1] - 23:24
MOVIE [4] - 56:5, 14; 73:21
MOVIES [2] - 58:8; 72:22
MOVING [1] - 72:19
MULTIPLE [2] - 38:7; 67:24
MUNGER [1] - 5:3
MURRAY [1] - 5:1
MUSIC [35] - 13:5; 18:12;
19:1-3; 29:6, 15, 25; 30:9,
20, 25; 39:5, 14, 17, 19;
52:22-25; 53:1, 6, 24; 54:7,
19; 55:23; 56:3, 14, 22-23;
57:12; 59:7, 21, 25; 61:22
MUSICAL [15] - 13:21, 23;
34:6, 9; 35:23; 36:3; 37:15;
39:1, 6; 41:5; 59:17; 66:2,
24; 67:10
MUST [3] - 41:17; 43:1; 52:21
NAME [1] - 30:15
NATION [5] - 29:9; 32:1;
47:21; 48:3, 11
NATURE [3] - 43:8; 63:4
NECESSARILY [6] - 17:2;
25:10; 28:18; 31:4; 41:21;

UNITED STATES DISTRICT COURT

49:4
NECESSARY [1] - 36:11
NECESSITY [1] - 24:15
NEED [13] - 7:24; 23:20;
25:16; 28:2, 21; 50:4;
51:10; 62:14; 63:15; 66:16;
67:10; 71:6; 73:13
NEEDS [1] - 14:16
NEGATIVE [1] - 30:24
NEVER [16] - 14:20, 23;
16:17; 17:21; 21:10; 31:20;
37:16; 38:1, 6; 39:15;
45:10; 58:7; 60:11, 14
NEW [6] - 11:8; 12:10; 29:5,
12-13; 38:9
NEW [3] - 17:8; 68:5; 74:11
NEWMAN [1] - 10:5
NEXT [10] - 13:19; 14:1, 10;
19:20; 24:24; 25:24; 29:2;
55:11; 69:13
NICE [1] - 52:7
NIGHT [2] - 13:25; 40:17
NINTH [1] - 49:20
NONE [6] - 19:19, 21-22;
54:17; 56:7; 68:7
NONUSE [1] - 25:11
NOTE [1] - 65:4
NOTED [1] - 72:2
NOTES [3] - 39:12; 41:5;
59:2
NOTHING [7] - 8:14; 35:8;
48:7; 57:16, 19; 72:5; 73:9
NOTICE [1] - 24:10
NUMBER [3] - 45:12; 51:5;
58:20
NUMEROUS [1] - 44:13
OBJECT [2] - 44:22, 24
OBJECTING [1] - 45:23
OBJECTION [4] - 20:12;
44:24; 45:7; 46:13
OBJECTIONS [1] - 46:12
OBVIATE [1] - 24:14
OBVIOUS [2] - 47:17
OBVIOUSLY [7] - 9:17;
26:13, 21; 30:10; 44:16;
47:2; 74:14
OCCASIONS [1] - 38:7
ODDS [1] - 44:2
OFFER [3] - 6:9; 7:16, 25
OFFERED [5] - 7:3, 9, 21-22;
71:3
OFFERING [1] - 7:11
OFFICE [1] - 8:10
OFTEN [1] - 40:11
OLD [1] - 40:3
OLSON [1] - 5:3
ONCE [1] - 17:11
ONE [59] - 6:15; 10:16, 20;
11:3; 15:2; 17:7, 16; 18:25;
19:17; 20:24; 22:1; 23:5;

7
26:2; 27:14, 23; 28:23;
30:17; 31:5; 32:19; 38:11;
39:22; 40:4, 6-7; 41:11, 14,
17, 19; 42:10, 12, 15, 17;
43:17; 45:17; 48:9, 13;
50:21; 51:1; 52:21; 53:19;
57:1; 60:2; 61:7, 20; 62:17;
64:14; 66:11; 67:13; 68:3,
25; 69:3, 5; 71:3; 72:13;
73:18
ONES [2] - 40:4; 41:13
OPPORTUNITY [2] - 62:25;
74:15
OPPOSED [3] - 6:3; 9:18;
38:22
OPPOSITION [2] - 6:15;
74:17
ORAL [5] - 51:11; 55:20;
57:9, 19
ORDER [7] - 19:3; 23:5;
43:11; 49:21; 59:2; 62:24;
74:17
ORIGINAL [13] - 17:6; 35:10;
54:24; 57:9, 18; 64:22;
65:8; 68:4, 6; 72:2
OTHERWISE [1] - 7:10
OURSELVES [6] - 7:1; 26:9,
17; 27:6; 73:3
OVERCOME [1] - 37:20
OVERT [29] - 25:1, 10, 16,
24; 30:12; 31:6, 12; 32:3,
8; 41:11, 17, 19, 21; 42:18,
21; 43:1, 15; 44:5; 49:12,
16; 50:2, 8, 11, 19; 51:8;
61:13
OVERWHELMING [1] - 38:4
OVERWHELMINGLY [1] 22:8
OWN [6] - 30:1; 33:20; 37:22;
44:14; 73:16
OWNED [2] - 33:23; 36:20
OWNER [8] - 42:10, 12, 15,
17, 19; 43:10
OWNERS [2] - 50:18, 21
PAGE [38] - 9:25; 10:12;
11:1, 9, 17; 13:18; 15:11,
22; 16:7; 18:1, 18; 19:5,
10, 20; 20:4, 18; 26:7;
27:24; 38:18; 39:3; 40:1, 6,
25; 54:23; 55:11; 57:4;
59:3; 65:2, 10-11; 66:17;
68:13, 16; 71:14, 21
PAGES [4] - 10:9; 15:13;
42:4
PAPERS [3] - 44:13, 17; 63:6
PARAGRAPH [27] - 12:4;
15:19, 22; 18:19; 54:22;
56:9; 57:6, 21; 65:2, 5-6,
10, 15; 66:16; 67:9; 68:25;
69:13, 20-21; 71:13, 22-23,

25; 72:12; 73:2
PARAGRAPHS [4] - 35:4;
54:13; 65:2; 69:5
PARENTHETICAL [1] - 18:23
PART [18] - 7:13; 17:3, 5;
22:10; 31:14; 35:9, 16-17;
37:19; 41:21; 44:10; 48:10;
51:19; 62:24; 65:5, 16;
70:19
PARTE [5] - 5:20; 6:20; 24:8;
74:11, 17
PARTICULAR [13] - 6:1; 7:2;
18:7; 20:9; 35:16; 40:7;
41:16; 55:15; 59:2, 17;
61:6; 66:4
PARTICULARLY [3] - 21:1;
32:9; 74:15
PARTIES [3] - 5:14; 37:25;
63:8
PARTIES' [1] - 24:5
PARTS [3] - 13:2; 16:6; 27:15
PARTY [1] - 36:23
PASSAGE [1] - 26:6
PASSING [2] - 42:25; 71:12
PAST [1] - 66:6
PATTY [2] - 13:24
PATTY [89] - 9:10, 12-13, 19,
22; 10:20; 11:1, 5; 12:7,
13, 17, 19; 13:8, 12; 14:9,
21, 23; 15:2, 4; 16:4, 14,
16, 21; 17:7, 9-10, 12-13,
18, 22, 25; 18:17, 19; 21:8,
15, 18; 22:2; 26:24; 29:19;
31:14; 32:9; 33:3; 35:21;
36:8, 17, 23-24; 37:2, 4, 6,
11, 23; 38:4, 7, 19, 23;
39:25; 40:9, 11, 13, 16;
41:1; 42:24; 43:5; 44:2, 4,
7, 18-19; 45:9, 11-12; 46:6,
9, 17; 47:3; 61:15; 62:2;
67:17; 69:6, 12, 15, 19,
22-23; 70:10; 71:9
PATTY'S [6] - 16:5, 7; 30:21;
36:11, 13; 37:18
PECUNIARY [3] - 46:16;
47:11; 71:1
PENALTY [1] - 50:21
PENDING [2] - 8:20; 38:23
PEOPLE [7] - 43:22; 53:9;
56:4; 59:18; 61:14; 72:22
PERCEIVED [1] - 48:10
PERCIPIENT [1] - 63:22
PERFECT [2] - 14:4; 16:22
PERFORMANCE [5] - 30:20;
33:12; 37:17; 58:21; 67:2
PERFORMANCES [3] 37:12; 55:14; 56:5
PERFORMED [4] - 31:22;
36:9; 39:8
PERFORMS [1] - 30:13

PERHAPS [4] - 9:12; 15:7;
35:4; 57:14
PERIOD [1] - 36:3
PERIODICALLY [1] - 16:18
PERMISSION [10] - 7:20;
27:11; 30:14, 19; 33:19;
36:10-13; 53:5
PERMIT [1] - 7:4
PERMITS [1] - 21:13
PERSON [3] - 45:9; 70:23
PERSONALLY [1] - 8:12
PERSPECTIVE [1] - 24:2
PHRASE [1] - 66:8
PHYSICAL [1] - 51:10
PIANO [16] - 34:8, 23; 35:2,
22; 36:2; 40:10, 17; 58:21;
59:1, 7; 65:24; 66:7, 19, 23
PICTURE [2] - 53:10; 73:4
PICTURES [5] - 58:16;
59:15; 72:19; 73:6
PIECE [6] - 11:11, 14-15;
15:3; 30:23; 64:6
PIECES [4] - 9:21; 31:5;
44:13; 65:19
PIECING [1] - 45:15
PLAGIARISM [4] - 29:25;
30:4, 9
PLAGIARIZED [2] - 30:20
PLAINLY [1] - 59:4
PLAINTIFF [2] - 9:3; 65:6
PLAINTIFFS [4] - 5:1, 14, 19;
9:2
PLAINTIFFS' [3] - 8:8; 22:8;
64:18
PLAY [1] - 30:19
PLAYERS [1] - 62:21
PLAYING [1] - 40:11
PLEASURE [1] - 39:8
PLUG [1] - 16:24
POETESS [2] - 12:15
POINT [22] - 9:15; 22:8;
25:19; 31:3, 18; 40:21;
46:17; 47:8; 48:4; 49:6;
52:21; 53:21; 57:24;
58:10-12; 62:2; 63:15, 19;
68:10
POINTED [1] - 12:14
POINTS [2] - 67:12; 70:2
POPULARITY [1] - 58:8
PORTION [1] - 40:1
POSITED [1] - 49:15
POSITING [1] - 42:16
POSITION [2] - 24:25; 51:15
POSSIBLE [1] - 8:2
POSSIBLY [2] - 14:25; 66:9
POSTURE [1] - 22:16
PRECISE [1] - 41:24
PRECISELY [1] - 45:6
PREDECESSOR [2] - 15:8;

UNITED STATES DISTRICT COURT

52:12
PREDECESSOR'S [1] 64:16
PRELIMINARY [1] - 9:1
PREPARED [2] - 7:16; 12:25
PRESENT [2] - 25:2; 35:19
PRESENTED [2] - 6:25;
62:11
PRESUMABLY [3] - 11:21;
16:4; 20:9
PRETENDED [1] - 45:1
PRETTY [3] - 26:16; 37:7;
47:22
PREVIOUS [2] - 9:12; 34:20
PREVIOUSLY [1] - 5:8
PRIDE [1] - 32:10
PRIMA [1] - 53:25
PRINCIPAL [1] - 62:21
PROBLEM [1] - 14:12
PROCEDURAL [3] - 22:16;
62:9; 64:5
PROCEEDING [1] - 63:14
PROCESS [3] - 13:6, 13;
63:5
PRODUCED [1] - 6:18
PRODUCERS [4] - 55:13;
56:6, 15; 73:4
PRODUCTION [1] - 7:23
PROFESSION [1] - 73:17
PROMPTED [1] - 32:14
PRONGAY [1] - 5:1
PROPER [1] - 22:5
PROPERLY [1] - 73:21
PROPERTY [7] - 25:8; 29:9;
32:1; 47:21, 24; 48:3
PROPOSITION [2] - 25:5;
68:8
PROPRIETARY [1] - 71:1
PROTECT [11] - 26:8, 13, 17,
23; 27:5; 28:10, 14; 32:6;
44:14
PROTECTED [1] - 50:6
PROTECTING [3] - 27:2;
61:14, 17
PROTECTIVE [1] - 31:18
PROVIDE [3] - 6:9; 19:1;
71:6
PROVIDES [1] - 60:24
PUBLIC [10] - 18:9, 13;
33:11; 43:13, 16; 47:24;
60:14; 61:8; 67:2
PUBLICATION [36] 5:23-25; 7:4, 20; 14:21;
18:9, 13; 19:14, 16, 23;
24:9; 26:10, 13, 18-19;
27:6; 28:4, 6, 10, 15; 32:6;
33:2; 34:19; 35:16; 38:3;
55:21; 57:11; 58:21; 61:22;
67:21, 23
PUBLICATIONS [5] - 5:22;

8
56:23, 25; 64:22
PUBLISH [3] - 19:24; 53:24;
59:5
PUBLISHED [13] - 8:6;
10:18; 12:7; 17:21; 18:16;
19:13; 21:1, 10; 22:10;
28:15, 17; 59:12
PUBLISHER [2] - 31:20;
53:18
PUBLISHING [6] - 28:1;
52:22; 53:2; 59:20; 62:4;
67:2
PURPORT [2] - 29:14; 48:16
PURPORTED [1] - 51:23
PURPORTS [1] - 55:8
PURPOSE [5] - 27:25; 31:12;
46:8; 47:1; 49:17
PURPOSES [13] - 12:22;
23:11; 24:20; 34:15; 39:11;
42:18; 47:11; 48:2, 14;
49:3, 5; 52:23; 62:25
PUT [12] - 14:16; 19:14;
20:20; 22:5, 23, 25; 28:8;
31:7; 40:5; 41:8; 62:15;
74:16
PUTTING [3] - 49:25; 59:2;
70:13
QUALIFICATION [1] - 71:2
QUESTIONING [1] - 43:4
QUESTIONS [8] - 9:2, 4;
24:23; 53:13; 64:20; 65:23;
68:12; 74:12
QUITE [1] - 47:12
QUOTATION [6] - 45:9;
48:17; 66:25; 67:1; 70:11
QUOTE [6] - 29:14; 46:10;
47:18; 48:2
QUOTES [1] - 70:13
QUOTING [1] - 15:24
RAISE [1] - 27:18
RAISED [4] - 9:8; 24:8, 13;
74:13
RATHER [2] - 7:18; 9:3
REACH [1] - 69:24
REACHED [2] - 34:18; 38:6
READ [11] - 11:17; 19:12;
27:13, 15; 32:11; 52:8;
55:7; 56:10; 57:13; 66:6;
69:21
READING [4] - 13:3; 44:17;
54:3; 68:21
REALLY [16] - 5:23; 9:11;
12:23; 19:24; 24:3; 32:9;
35:18; 39:23; 41:14; 44:25;
49:24; 55:24; 57:15; 60:17;
73:5
REASON [5] - 23:8; 49:19;
50:4, 12; 60:14
REASONABLE [1] - 70:23
REASONS [3] - 49:1, 23;

70:15
RECEIVE [1] - 61:2
RECEIVING [1] - 60:25
RECESS [1] - 74:21
RECOGNITION [1] - 60:6
RECOGNIZE [1] - 26:18
RECOGNIZING [1] - 14:20
RECORD [27] - 5:11; 6:3;
7:10; 8:2; 9:21; 10:6, 13;
11:12; 15:2; 16:7; 17:15;
21:4; 23:2; 38:10; 40:1, 22;
47:5; 53:1, 16; 62:16, 19;
65:19; 66:17; 72:14
RECORDING [1] - 72:19
REFER [4] - 16:7; 34:7; 66:9
REFERENCE [9] - 14:2, 25;
15:8; 19:5; 20:22; 23:14;
65:7, 24
REFERENCES [1] - 64:25
REFERRED [8] - 18:15; 35:6;
64:25; 65:6; 68:18, 22;
71:13
REFERRING [5] - 10:14;
18:24; 19:10; 20:10; 73:5
REFERS [4] - 12:4, 6; 56:23;
73:2
REGARDED [3] - 31:15, 17
REGARDING [2] - 26:24;
29:6
REGISTER [3] - 13:23;
16:22; 40:20
REGISTERED [1] - 61:23
REGISTRATION [1] - 53:25
REINFORCES [2] - 16:3, 13
RELATED [3] - 41:25; 56:25;
64:21
RELATES [1] - 73:22
RELATING [1] - 56:24
RELATIVELY [1] - 74:17
RELIABILITY [1] - 47:9
RELIABLE [1] - 47:10
RELY [2] - 26:6; 38:18
REMAINING [1] - 60:24
REMEMBER [3] - 40:12;
52:21; 72:10
REMOVES [1] - 67:6
RENEWAL [5] - 35:11, 14;
54:10, 17, 24
RENEWALS [5] - 35:7;
55:20; 56:24; 57:10, 19
RENEWED [1] - 33:10
REPEATEDLY [1] - 54:7
REPEATING [1] - 55:21
REPLY [5] - 8:16-18; 74:10,
15
REPORTER [3] - 10:25; 38:9;
48:6
REPORTING [1] - 45:13
REPOSED [1] - 58:19
REPRODUCED [1] - 66:17

REPRODUCTION [2] - 45:1;
67:3
REQUIRE [5] - 6:12; 25:9;
50:7; 51:6
REQUIRED [1] - 25:1
REQUIREMENT [6] - 25:2;
41:11; 50:4; 61:13; 70:7
REQUIRING [1] - 50:21
REQUISITE [1] - 42:18
RESIGN [1] - 47:23
RESIGNED [3] - 29:8; 31:25;
47:20
RESOLUTION [1] - 24:13
RESPECT [13] - 7:17; 13:17;
29:15; 35:2; 38:25; 41:4;
44:18; 55:14; 59:17; 63:4;
64:6, 8; 74:10
RESPECTFULLY [1] - 13:10
RESPONSE [3] - 7:14; 19:13;
66:18
REST [3] - 11:21; 13:12;
20:21
RESUBMIT [1] - 63:1
RETICENT [1] - 27:2
RETRIEVED [1] - 8:9
RIFKIN [65] - 5:25; 6:14; 7:8,
13; 8:24; 9:7, 20; 10:2, 8,
11, 15; 11:1, 16; 12:3;
13:10, 17; 15:14, 17, 21;
17:1; 18:14; 19:9; 20:14,
19; 21:22; 22:13; 23:6, 18;
24:4, 16, 18, 22; 25:13, 18,
21; 26:1, 4, 16; 27:17, 21;
28:20; 29:16, 20; 30:2, 6,
13; 31:10, 13; 33:1, 7;
34:3, 21; 35:9; 36:8; 38:14;
64:11; 68:16, 18; 69:16;
70:6; 71:16, 19, 25; 72:7;
74:20
RIFKIN [7] - 9:5; 38:17;
49:15; 62:8; 63:19; 64:3;
74:10
RIGHTS [57] - 28:21; 29:10;
30:25; 33:14, 20-21, 25;
35:22; 36:2, 15, 22; 37:1,
3, 5, 7-9, 14-15, 22-23;
41:15; 46:24; 47:15; 49:9;
51:21; 52:2, 11; 53:9;
54:15; 55:19; 56:13, 18,
21; 57:2, 8, 10, 17; 59:23;
60:12-14; 64:9; 67:1, 3;
71:13, 18; 72:9, 11; 73:1,
4-5, 7, 9, 13, 20
RIPENED [1] - 26:14
RISK [1] - 50:23
ROBY [1] - 25:11
ROHAUER [1] - 49:20
ROYALTIES [2] - 61:2, 5
RULE [9] - 8:19, 23; 47:2;
49:2; 50:17; 70:8, 19

UNITED STATES DISTRICT COURT

RUN [1] - 73:18
SAKE [1] - 44:5
SALE [4] - 36:1; 55:21;
57:11; 58:21
SANG [2] - 12:12; 21:19
SAT [2] - 40:17; 45:10
SATISFIED [3] - 17:10; 70:6
SATISFY [1] - 45:25
SCHOOL [8] - 12:13; 13:19;
14:9; 16:9; 20:23; 21:19;
40:15; 69:3
SCHOOLTEACHER [1] 16:9
SCOPE [4] - 34:24; 46:24;
53:11; 56:3
SECOND [13] - 19:1, 4;
34:17, 22; 35:17; 41:22;
42:19; 46:5; 58:1; 64:4;
65:16; 71:2
SECOND [3] - 39:2, 4; 42:5
SECOND-TO-THE-LAST [1]
- 64:4
SECONDARY [1] - 6:21
SECTION [1] - 61:20
SECURED [1] - 14:3
SEE [3] - 41:3; 62:9; 63:13
SEEM [5] - 11:24; 26:6;
47:17; 73:18
SENSE [4] - 42:12; 59:8;
61:14; 63:10
SENTENCE [2] - 14:19;
20:20
SEPARABLE [1] - 39:11
SEPARATE [1] - 6:14
SEPARATELY [1] - 21:9
SET [4] - 23:22; 39:17; 57:16;
63:6
SETTLEMENT [1] - 53:15
SETTLING [2] - 60:5; 61:4
SEVEN [2] - 8:18; 59:12
SEVERAL [1] - 11:6
SHALL [2] - 62:22; 63:22
SHAPIRO [4] - 39:2, 16;
67:14; 68:1
SHEET [15] - 52:22, 24-25;
53:1, 6, 24; 54:7; 55:22;
56:3, 22-23; 57:12; 59:21;
61:22
SHORT [1] - 74:17
SHOW [3] - 8:8; 49:16; 64:8
SHOWING [2] - 25:16; 46:16
SHOWS [2] - 39:22; 40:16
SIDE [3] - 63:18; 64:14
SIDED [2] - 17:16; 38:11
SIDES [3] - 21:23; 23:2;
62:13
SIGHT [1] - 24:10
SIGNED [3] - 29:23; 30:15,
17

9
SIGNIFICANCE [2] - 6:5;
36:18
SIGNIFICANT [1] - 6:24
SILENT [2] - 73:11, 13
SIMPLE [1] - 67:11
SIMPLY [5] - 28:4; 41:14;
68:1, 6; 71:9
SING [5] - 14:11, 14; 17:11;
19:3; 40:12
SINGING [4] - 27:12; 40:15;
48:6; 72:23
SINGLE [3] - 14:21; 17:4;
39:7
SINGULAR [2] - 65:25; 66:12
SISTER [7] - 9:24; 12:4;
18:22; 29:22; 39:25; 40:10
SISTERS [15] - 7:19; 16:11;
21:7, 11; 23:16; 27:4;
30:16; 39:24; 40:8, 25;
43:23, 25; 53:23; 60:25;
61:7
SISTERS' [3] - 53:20; 60:7;
68:23
SIT [2] - 7:1; 32:20
SITUATION [2] - 40:14; 49:7
SIX [1] - 68:15
SIXTY [1] - 68:15
SKIP [2] - 9:4; 55:5
SLIPPED [2] - 61:9; 62:5
SLOW [1] - 10:24
SMALL [1] - 13:5
SMITH [1] - 29:21
SOLD [1] - 66:22
SOMEONE [3] - 30:13;
33:18, 20
SOMETIMES [1] - 70:12
SOMEWHAT [1] - 71:12
SONG [27] - 6:17; 10:17;
18:15, 20, 25; 19:6, 11, 17,
23; 20:2, 6, 25; 22:10;
26:14; 27:2; 28:2; 35:12;
54:8, 21; 56:24; 67:22;
69:2; 72:3
SONG [59] - 7:5; 11:6, 10;
13:13; 14:2, 9, 13, 17;
15:4, 23-24; 16:2, 5-6, 10,
12, 21; 17:9, 17, 21; 19:19;
20:9, 24; 21:5; 22:9; 23:14;
24:9; 26:2; 28:5; 30:1, 18;
32:8; 33:11, 22; 36:9; 39:5;
40:25; 47:16; 53:3; 55:16;
56:20; 58:22; 60:8; 61:3,
16; 65:25; 66:1, 3, 11-12,
19; 67:5; 69:14, 16
SONGBOOK [8] - 5:21;
28:16; 34:16, 19; 54:16, 22
SONGBOOK-TYPE [1] - 5:21
SONGS [31] - 10:16, 19,
21-22; 14:22; 18:5, 8, 16,
23; 19:6, 10-11, 17, 24;

22:4; 28:1; 37:22; 54:8;
55:14, 18, 21-22; 56:10;
57:11; 64:25; 65:6; 68:25;
69:4
SOON [1] - 62:18
SORRY [12] - 11:2; 15:13;
22:13; 33:4; 40:23; 47:18;
53:12; 64:10; 68:15; 71:22,
24
SORT [5] - 9:4; 43:19; 48:12;
51:20; 59:25
SOUGHT [1] - 51:22
SOUND [6] - 53:8; 72:16;
73:1, 4, 12
SOUNDS [1] - 42:23
SPEAKING [1] - 10:25
SPECIFICALLY [1] - 53:17
SPEND [1] - 52:9
SPENT [1] - 6:22
SPOKEN [1] - 71:20
SPREAD [1] - 37:21
SQUARED [2] - 43:20
STAND [3] - 25:4; 47:14;
49:24
STANDARD [5] - 38:25; 41:3;
48:4; 49:19; 51:3
STANDARDS [1] - 74:13
STANDING [1] - 29:3
STANDPOINT [3] - 23:20;
62:9, 14
STANDS [1] - 74:21
STAR [1] - 10:23
STARK [1] - 20:6
START [3] - 9:3; 38:15; 64:4
STARTING [1] - 62:11
STATEMENT [11] - 26:8;
27:22; 28:9; 45:16; 47:10;
48:23; 51:11; 70:10, 15,
21; 71:12
STATEMENTS [6] - 6:13;
27:8; 45:12, 15; 61:25;
70:22
STATUTE [1] - 50:7
STATUTORY [2] - 25:1;
33:24
STEP [2] - 38:24; 45:17
STEPS [2] - 44:4; 61:4
STILL [4] - 17:6; 49:3; 51:19;
60:21
STIPULATED [1] - 22:21
STORIES [25] - 10:17; 18:15,
21, 25; 19:6, 11, 17, 23;
20:2, 7, 25; 22:10; 26:14;
27:3; 28:2; 35:12; 54:8, 21;
56:24; 67:22; 69:2; 72:3
STRANGERS [1] - 39:22
STUDENTS [3] - 12:6; 16:8;
20:23
SUBJECT [3] - 8:14; 24:9;
25:24

SUBLICENSES [1] - 55:13
SUBLICENSING [1] - 53:8
SUBMISSION [1] - 74:14
SUBMIT [6] - 5:8, 15, 21;
8:14, 16; 73:25
SUBSEQUENT [6] - 17:5, 13;
51:20; 63:14; 68:5; 69:10
SUBSEQUENTLY [3] - 16:4;
38:23; 68:4
SUBSTANCE [2] - 6:4; 24:3
SUCCESSES [1] - 58:7
SUE [1] - 33:20
SUED [2] - 31:18; 36:19
SUFFICIENT [5] - 25:11;
32:2, 4; 44:5; 73:12
SUFFICIENTLY [1] - 47:10
SUGGEST [3] - 20:15; 49:11;
72:11
SUGGESTED [2] - 22:6;
23:13
SUGGESTION [1] - 17:19
SUGGESTIVE [1] - 11:24
SUGGESTS [2] - 55:25;
57:17
SUING [2] - 33:18; 59:24
SUIT [1] - 29:23
SUMMARY [15] - 10:6; 22:17,
19, 23; 23:11, 20, 22;
24:14; 38:12; 40:22; 48:19;
53:16; 63:5, 11; 72:14
SUMMY [49] - 7:4, 18; 8:1, 4;
15:7-9, 11, 23; 16:11;
17:17; 21:4, 17; 33:6;
35:18, 23; 36:1; 37:12, 21;
40:24; 50:14; 51:18, 21;
52:22; 53:1, 15, 18, 23;
54:24; 55:12, 19; 56:1, 3,
8; 57:2, 9, 17; 58:14;
59:12; 62:4; 64:10; 66:14,
21; 67:6; 68:20; 69:11
SUMMY'S [7] - 16:1; 21:4;
23:14; 35:12; 59:20; 64:15;
68:22
SUNDAY [1] - 69:3
SUNG [2] - 29:25; 30:11
SUPERIOR [1] - 18:12
SUPPLEMENT [3] - 5:11, 14;
6:3
SUPPORT [4] - 6:12; 9:15;
51:14; 68:8
SUPPORTED [3] - 7:14;
70:17; 71:4
SUPPORTS [1] - 67:15
SUPPOSE [1] - 22:1
SUPPOSED [1] - 5:13
SUPPOSITION [1] - 7:3
SUSCEPTIBLE [1] - 13:3
SYNC [1] - 72:18
SYNCHRONIZING [2] 72:18

UNITED STATES DISTRICT COURT

SYNONYMOUS [2] - 71:14;
72:12
TALKIE [1] - 73:8
TALKIES [1] - 73:6
TALKS [7] - 32:11; 34:16, 22;
54:8; 67:18
TEACHERS [2] - 26:3; 29:22
TEACHING [3] - 18:11; 26:2;
31:8
TECHNICAL [1] - 23:20
TECHNICALLY [1] - 48:15
TEMPORAL [2] - 15:8; 69:9
TEND [4] - 9:15; 49:15;
51:19; 64:8
TENDS [1] - 71:3
TERM [1] - 13:23
TERMS [4] - 25:24; 27:10;
45:5; 62:4
TEST [4] - 12:23; 13:20; 14:9;
50:25
TESTIFIES [1] - 70:12
TESTIFY [1] - 63:22
TESTIMONY [5] - 9:22; 10:6;
16:5; 20:21; 40:16
THE' [1] - 46:10
THEMSELVES [1] - 26:23
THEREBY [1] - 26:12
THEREIN [4] - 35:7; 55:15
THEREOF [2] - 55:20; 57:10
THEY'VE [1] - 58:15
THIRD [4] - 28:25; 34:14;
37:25; 61:2
THOUSANDS [3] - 29:25;
30:11, 19
THREE [1] - 34:13
THROW [2] - 50:22; 51:3
TIES [1] - 26:21
TIP [1] - 52:13
TITLE [1] - 67:5
TODAY [3] - 52:15; 70:1;
72:17
TOGETHER [28] - 10:20;
12:2, 7; 14:23; 15:5; 16:11,
14; 17:21; 19:24; 20:25;
31:7, 11, 14; 33:3; 36:24;
37:2, 6; 39:20; 40:5; 43:14;
45:15; 50:1, 10; 51:4;
64:17; 74:16
TOLLES [1] - 5:3
TOOK [1] - 49:14
TOP [2] - 18:18; 74:3
TOTALITY [10] - 21:13, 16;
23:13; 31:14; 49:11; 50:9,
24; 61:18
TOWARD [1] - 11:8
TRANSCRIPT [6] - 13:12;
16:7; 18:24; 27:24; 39:21;
52:8
TRANSFER [3] - 52:11;
62:12; 66:6

10
TRANSFERRED [5] - 51:16;
52:2; 60:12, 14; 66:23
TRANSFERRING [1] - 60:6
TRANSFERS [1] - 60:10
TREAT [1] - 48:23
TREE [5] - 29:1; 50:1
TREES [1] - 31:3
TRIABLE [11] - 21:20, 24-25;
22:19, 24; 23:1, 21; 27:18;
62:10, 12; 63:7
TRIAL [8] - 22:20, 22; 23:23;
62:13; 63:9, 12, 20
TRIED [1] - 63:7
TRIER [4] - 22:17, 25; 24:1,
14
TRIER-OF-FACT [1] - 22:25
TRIES [1] - 42:15
TROUBLE [1] - 33:18
TRUE [6] - 35:4; 47:1; 54:12;
56:13, 17; 70:24
TRULY [2] - 21:12; 33:22
TRUST [6] - 58:14, 17, 19
TRUSTWORTHINESS [3] 70:18; 71:5, 7
TRY [4] - 14:1; 52:9; 64:11;
67:7
TRYING [14] - 8:1; 9:14; 13:4;
22:15; 26:8, 17; 27:5, 11;
28:9, 14; 32:6; 43:2; 55:25
TUNE [4] - 13:7; 20:11;
39:14; 40:16
TURN [6] - 15:22; 34:20;
56:4; 58:9; 65:15; 68:13
TURNED [1] - 59:25
TWICE [2] - 65:1, 3
TWINKLE [2] - 10:22
TWO [25] - 6:14, 23; 9:20;
12:25; 13:4; 16:6; 17:3;
18:25; 22:3; 35:4; 39:6,
22-23; 40:8; 41:11; 43:24;
45:19; 48:13, 15; 53:13;
57:1; 61:14; 65:1, 19, 22
TYPE [3] - 5:21; 31:11; 73:21
TYPICALLY [2] - 22:16; 25:9
UNAVAILABLE [1] - 70:21
UNAVOIDABLE [1] - 69:24
UNCONTEMPLATED [1] 56:4
UNCONTRADICTED [1] 54:1
UNDER [10] - 44:10; 47:11;
50:4; 54:21, 24; 55:19;
57:2, 9, 17; 72:4
UNDERLYING [1] - 39:18
UNDERSTOOD [4] - 46:18;
47:7, 14
UNDIVIDED [1] - 43:11
UNDOUBTEDLY [2] - 13:8;
69:2
UNFORTUNATELY [1] -

65:18
UNIDENTIFIED [1] - 65:17
UNIFIED [2] - 16:14; 17:4
UNISON [1] - 53:3
UNIT [1] - 39:8
UNITARY [1] - 13:2
UNLIKE [1] - 58:9
UNLIKELY [2] - 62:18, 20
UNQUESTIONABLY [2] 67:19
UP [12] - 5:11; 10:9; 13:8;
18:18; 30:5; 47:14; 50:1;
51:3; 55:22; 57:16; 61:12;
62:7
USAGE [1] - 72:15
USES [1] - 27:12
USUAL [1] - 8:21
VACATION [1] - 12:10
VACUUM [1] - 28:22
VAGUE [1] - 18:6
VALUE [1] - 60:23
VARIATION [1] - 16:16
VARIETY [1] - 62:10
VARIOUS [22] - 5:10, 21; 6:8;
11:25; 12:1; 18:3; 20:10,
17; 25:25; 27:15; 31:8, 13;
34:8, 17; 36:2; 58:21;
65:24; 66:7, 19, 23
VARIOUSLY [5] - 58:22;
59:9; 66:1, 13, 19
VERSE [1] - 16:23
VERSES [1] - 16:24
VERSION [3] - 16:10; 19:18;
53:3
VERSIONS [9] - 11:6, 22, 25;
12:1, 8; 18:3; 19:20, 22;
54:8
VERSUS [2] - 40:23; 68:2
VIEW [9] - 9:10, 16; 19:8;
21:6; 22:8; 23:8; 48:17;
62:23; 71:17
VIEWS [1] - 9:5
WAIT [2] - 34:12
WANTS [1] - 42:17
WARNER'S [1] - 15:7
WASHINGTON [1] - 46:14
WAYS [1] - 25:9
WEIGH [1] - 51:4
WEIGHT [2] - 46:22; 47:9
WHEREAS [1] - 35:3
WHITE [1] - 28:11
WHOLE [2] - 13:2; 49:14
WITNESS [1] - 70:12
WITNESSES [3] - 63:15, 22
WORD [5] - 14:19, 24; 22:3;
66:12; 73:12
WORDS [28] - 11:10;
12:16-18, 20-22, 24; 13:7;
14:5, 8; 15:25; 19:9, 19;

22:5; 30:4; 39:5; 40:18;
47:20; 48:1; 55:22; 67:11,
16; 69:6, 11-12, 19
WORKS [13] - 40:3; 53:19;
55:22; 64:23; 65:8, 12;
67:24; 68:2; 69:1, 4
WORLD [2] - 47:16; 67:1
WORLD'S [1] - 19:15
WRAP [1] - 62:7
WRITE [3] - 12:20, 22; 18:9
WRITING [9] - 13:13; 17:20;
18:20, 22; 21:15; 30:22;
39:19; 69:9
WRITTEN [16] - 10:19, 21;
12:19; 13:18; 14:8; 20:9;
21:14; 22:9; 26:25; 28:7;
40:18; 41:1; 67:17; 69:6,
14, 22
WROTE [17] - 11:5, 10;
12:16; 14:23; 15:5; 16:5, 8;
17:18; 18:10; 21:7; 45:9;
61:15; 69:18, 23
YEAR [2] - 18:7; 39:17
YEAR [2] - 11:8; 12:10
YEARS [3] - 6:23; 40:3;
59:12
YESTERDAY [1] - 6:15
YORK [4] - 29:5, 12-13; 38:9
YOUNGEST [3] - 14:3, 14;
17:11

UNITED STATES DISTRICT COURT