Rupa Marya v. Warner Chappell Music Inc

Filing 241

OPPOSITION to EX PARTE APPLICATION for Leave to file Response under L.R. 7-10 239 Defendants' Opposition To Plaintiffs' Ex Parte Application filed by Defendants Summy-Birchard Inc, Warner Chappell Music Inc. (Klaus, Kelly)

1 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 MELINDA E. LeMOINE (State Bar No. 235670)
[e-mail]
4 ADAM I. KAPLAN (State Bar No. 268182)
[e-mail]
5 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
6 Thirty-Fifth Floor
Los Angeles, California 90071-1560
7 Telephone: [phone]
Facsimile: [phone]
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Attorneys for Defendants
9 Warner/Chappell Music, Inc. and
Summy-Birchard, Inc.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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

Lead Case No. CV 13-04460-GHK
(MRWx)
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ EX PARTE
APPLICATION
Judge:

Hon. George H. King,
Chief Judge

Courtroom: 650
Fact Disc. Completion: July 11, 2014
MSJ Hearings:
March 23 and
July 29, 2015
Pretrial Conference:
N/A
Trial:
N/A

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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1

There are no “extraordinary circumstances” that justify Plaintiffs’ ex parte

2 request for leave to file a surreply. Dkt. No. 14 (“This court entertains ex parte
3 applications only in extraordinary circumstances[.]”); In re Intermagnetics Am., Inc.,
4 101 B.R. 191, 193 (C.D. Cal. 1989) (“opportunities for legitimate ex parte
5 applications are extremely limited”).1 Plaintiffs simply want to have the last word
6 on an issue that they raised in their opposition to Warner/Chappell’s motion, and to
7 which Warner/Chappell responded in its reply. There is nothing “extraordinary”
8 about that situation, and it is not grounds for filing a surreply. Heil Co. v. Curotto
9 Can Co., No. 04-1590 MMC, 2004 WL 2600134, at *1 (N.D. Cal. Nov. 16, 2004)
10 (denying leave to file surreply), aff’d, 163 F. App’x 908 (Fed. Cir. 2006).
11

The instant motion is simple and straightforward. Warner/Chappell asks to

12 supplement the record with further evidence confirming that the “text” and “words”
13 for which Clayton F. Summy Co. (“Summy”) claimed copyright protection in the
14 E51990 application—and for which the Copyright Office granted protection in the
15 corresponding certificate—are the “familiar” lyrics to Happy Birthday to You! In
16 opposing this motion, Plaintiffs have grudgingly given up their prior contention that
17 it is impossible to know what work Summy deposited with the E51990 application.2
18 Plaintiffs instead opposed the motion substantively on the grounds that, even if the
19 copy deposited with the British Museum on December 6, 1935 (Klaus Decl. Ex. A)
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See also Sims v. Paramount Gold & Silver Corp., No. CV 10-356-PHX-MHM,
2010 WL 5364783, at *8 (D. Ariz. Dec. 21, 2010) (“Surreplies … are highly
disfavored, as they usually are a strategic effort by the nonmoving party to have the
last word on a matter.… [C]ourts will not allow surreplies except in the most
extraordinary circumstances.”) (internal citations and quotation marks omitted);
Bohn v. Pharmavite, LLC, No. CV 11-10430-GHK (AGRx), 2013 WL 4517895, at
*1 n.2 (C.D. Cal. Aug. 7, 2013) (“we view Defendant’s apparent habit of filing surreplies … with great disfavor”); Moore’s Federal Practice – Civil § 56.84 (“[A]
request for leave to file a sur-reply typically will be denied when no new issues are
raised in the reply or the party has already addressed the issue in earlier briefings.”).
2
See Dkt. 182 at 25-30 (arguing that Warner/Chappell could not establish the scope
of its copyright in E51990 because it did not offer the deposit copy into evidence);
see also Dkt. 197-1 at 2-3, 12-14 (Plaintiffs’ motion to exclude Ex. 106).
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1 were identical to the copy that Summy deposited on the same date in the U.S.
2 Copyright Office, that fact would be irrelevant. According to Plaintiffs’ opposition,
3 Warner/Chappell’s copyright in E51990 could not cover the “familiar” lyrics to
4 Happy Birthday to You!, because the application for E51990 identified Preston Ware
5 Orem, an employee-for-hire, as the author of the work. Dkt. 236 at 1, 6-9
6 (opposition to motion to supplement); see also Dkt. 239 at 2, 5 (ex parte
7 application’s description of Plaintiffs’ opposition). Warner/Chappell’s reply
8 responded to this exact argument.
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As Warner/Chappell explained in its reply, the undisputed evidence shows

10 that Patty Hill wrote the familiar lyrics to Happy Birthday to You! When Summy
11 was asked in the application to “State exactly on what new matter copyright is
12 claimed,” Summy responded, “Arrangement as easy piano solo, with text.” Dkt.
13 189-3, Ex. 48, at 654 (emphasis added). The British Museum deposit confirms—
14 indeed, makes it irrefutable—that the only “text” Summy could have claimed
15 copyright protection for in the copyright application (and for which copyright
16 protection was granted by the E51990 copyright) consisted of the “familiar” lyrics.
17 Dkt. 237 at 2-5. Under settled copyright law, the fact that the E51990 application
18 listed Orem’s name as the author did not mean that Summy was entitled to claim
19 copyright protection for “text” only if Orem wrote that text. Id. at 4-6.
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Plaintiffs’ initial summary judgment papers also asked the Court to limit the

21 scope of Warner/Chappell’s copyright in Happy Birthday to You! based on the
22 reference to Orem in the E51990 application. Dkt. 182 at 1-2, 23-30. When
23 Plaintiffs’ recent opposition reiterated this argument, Warner/Chappell’s reply cited
24 the same cases that Warner/Chappell had cited in its summary judgment papers.3
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Compare Dkt. 237 at 4-6 (recent reply brief, citing Harris v. Emus Records Corp.,
734 F.2d 1329 (9th Cir. 1984); Baron v. Leo Feist, Inc., 173 F.2d 288 (2d Cir.
27 1949); Nat’l Broad. Co. v. Sonneborn, 630 F. Supp. 524 (D. Conn. 1985); and
Urantia Found. v. Burton, No. K 75-255 CA 4, 1980 WL 1176, at *4-5 (W.D. Mich.
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
-2CASE NO. CV 13-04460-GHK (MRWx)

1 Accordingly, Warner/Chappell’s reply not only responded to Plaintiffs’ opposition,
2 but it also addressed an issue (and cited authority) that Plaintiffs already have
3 briefed. Moore’s Federal Practice – Civil § 56.84 (“[A] request for leave to file a
4 sur-reply typically will be denied when no new issues are raised in the reply or the
5 party has already addressed the issue in earlier briefings.”) (emphasis added).
6 Again, the cases Warner/Chappell cited in its reply and on summary judgment
7 foreclose Plaintiffs’ hypercritical—and counterfactual—construction of the
8 Copyright Office records at issue.
9

Warner/Chappell’s reply raised no new issues. While Warner/Chappell’s

10 reply cited two additional cases, those cases pertain to issues that already have been
11 briefed extensively. As such, there is nothing “extraordinary” about the inclusion of
12 those two cases in Warner/Chappell’s reply. Sims, 2010 WL 5364783, at *8.
13 Plaintiffs cite no authority to the contrary. The cases that Plaintiffs cite instead say
14 that raising new issues or citing new evidence in some cases may justify a surreply.
15 As demonstrated, Warner/Chappell did not raise new issues or cite new evidence in
16 its reply. The fallacy of Plaintiffs’ position is demonstrated by the fact that their
17 proposed surreply relies on two cases that Plaintiffs never cited before. Manifold
18 Decl. Ex. A, at 2-3. Under Plaintiffs’ logic, this would entitle Warner/Chappell to a
19 sur-surreply. Briefing on a motion must come to an end at some point.
20

The two additional cases cited by Warner/Chappell stand for the

21 uncontroversial legal principle that the contents of a deposit copy define the scope
22 of the copyright. Dkt. 237 at 3. Plaintiffs themselves relied on this very principle
23 when they argued that Warner/Chappell could not establish the scope of its
24 copyright in E51990 because it could not prove the contents of the deposit copy.
25 See, e.g., Dkt. 182 at 27-28 (seeking to exclude Ex. 106 and arguing that this would
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27 Aug. 27, 1980)), with Dkt. 182 at 16-17, 38 (initial summary judgment papers,
citing these same cases).
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1 “leav[e] Defendants with nothing whatsoever to prove the scope or subject-matter of
2 E51990”). As a result, the parties spent a significant portion of the summary
3 judgment papers addressing the weight and admissibility of the evidence of the
4 contents of the E51990 deposit copy.4
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In sum, Plaintiffs arguments are unavailing and there is “no reason to extend

6 briefing beyond that contemplated in the federal rules and local rules governing civil
7 procedure.” PageMasters, Inc. v. Océ-Technologies B.V., No. Civ.05 1519 PHX
8 RCB, 2006 WL 753164, at *1 (D. Ariz. Mar. 23, 2006).5
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10 DATED: August 25, 2015

MUNGER, TOLLES & OLSON LLP

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By:

/s/ Kelly M. Klaus
KELLY M. KLAUS
Attorneys for Defendants Warner/Chappell
Music, Inc. and Summy-Birchard, Inc.

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Dkt. 182 at 25-30, 38-45 (joint summary judgment papers); see also Dkt. 197-1 at
2-3, 12-14 (Plaintiffs’ motion to exclude Ex. 106); Dkt. 200 at 8-12
(Warner/Chappell’s opposition to Plaintiffs’ motion to exclude Ex. 106); Dkt. 202 at
6-11 (Plaintiffs’ reply supporting their motion to exclude Ex. 106).
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Plaintiffs submitted their proposed surreply, even though an ex parte “application
ought properly to be addressed to the need to [file a surreply], rather than to the
substance of the [surreply] itself.” Intermagnetics Am., 101 B.R. at 194.
Warner/Chappell will not similarly avail itself of a sur-surreply by responding to
Plaintiffs’ proposed filing beyond noting that Plaintiffs’ mischaracterization of
Warner/Chappell’s arguments and of apposite precedent is unpersuasive.
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)