Rupa Marya v. Warner Chappell Music Inc

Filing 255

MEMORANDUM in Opposition to Request of National Music Publishers' Association for Leave to File Amicus Brief filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Declaration of Mark Rifkin, # 2 Exhibit A, # 3 Exhibit B)(Manifold, Betsy)

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1 FRANCIS M. GREGOREK (144785) 2 BETSY C. MANIFOLD (182450) 3 RACHELE R. RICKERT (190634) 4 MARISA C. LIVESAY (223247) 5 BRITTANY N. DEJONG (258766) 6 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 7 750 B Street, Suite 2770 San Diego, CA 92101 8 Telephone: 619/239-4599 9 Facsimile: 619/234-4599 10 Interim Lead Counsel for Plaintiffs and the [Proposed] Class 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 13 ) ) ) ) ) v. ) ) WARNER/CHAPPELL MUSIC, ) INC., et al. ) ) Defendants. ) ) ) ) ) ) GOOD MORNING TO YOU 14 PRODUCTIONS CORP., et al., 15 Plaintiffs, 16 17 18 19 20 21 22 23 24 25 26 27 28 Lead Case No. CV 13-04460-GHK (MRWx) OPPOSITION TO REQUEST OF NATIONAL MUSIC PUBLISHERS’ ASSOCIATION FOR LEAVE TO FILE AMICUS BRIEF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: Time: Room: Judge: November 16, 2015 9:30 a.m. 650 Hon. George H. King, Chief Judge Plaintiffs, by and through their attorneys, hereby oppose the request of the 1 2 National Music Publishers’ Association (“NMPA”) for leave to file an amicus 3 curiae brief (“amicus brief”) in support of Defendants’ motion for reconsideration. 4 (ECF No. 247). NMPA’s request is highly improper, and for the reasons that 5 follow, the Court should reject NMPA’s proposed amicus brief. NMPA1 seeks leave to submit an amicus brief to add its own voice to 6 7 Defendants’ already repetitive arguments, apparently believing that Defendants’ 8 lengthy summary judgment briefing and subsequent motion for reconsideration 9 was deficient. As with Defendants’ motion for reconsideration, NMPA’s proposed 10 amicus brief makes no new arguments, it presents no new evidence, and it cites no 11 new law for the Court to reconsider. The proposed amicus brief adds nothing new 12 to the mountainous factual record and it cites no change in the law since the Court 13 decided the cross-motions for summary judgment; it merely repeats (for a third 14 time) the same shop-worn arguments that Defendants made on summary judgment 15 and again in their motion for reconsideration. Thus, just like Defendants’ motion 16 for reconsideration, NMPA’s proposed amicus brief –merely repeats the same oral 17 and written arguments Defendants already made twice before – and blatantly 18 violates L.R. 7-18. For that reason alone, NMPA should not be granted leave to file 2 19 its proposed amicus brief. See Henderson v. J.M. Smucker Co., No. 10-4524-GHK 20 21 22 23 24 25 26 1 NMPA is hardly disinterested in this matter. The Chairman of NMPA’s Board of Directors, Irwin Robinson, was Senior Vice President of Chappell and Co. before it merged with Warner Music to become Defendant Warner; one of its directors, Cameron Strang, is CEO of sister company Warner Bros. Records; another director, Neil Gillis, was Senior Vice President of Defendant Warner; and a fourth director, Chip McLean, was Vice President of Business and Legal Affairs for Warner Bros. Records. Declaration of Mark C. Rifkin in Opposition to NMPA’s Request for Leave to File Amicus Brief, ¶ 5. 2 NMPA also failed to comply with L.R. 6-1 which required their motion to be 27 filed not later than twenty-eight (28) days before the hearing date as NMPA filed their motion twenty-one (21) days before the hearing date. 28 -1- 1 2013 U.S. Dist. LEXIS 166061, at *5-6 (C.D. Cal. Nov. 20, 2013). 2 When NMPA sought Plaintiffs’ consent to file the proposed amicus brief, its 3 General Counsel, Danielle Aguirre, admitted that NMPA had nothing new to add 4 to the factual record and no new arguments to make. See Declaration of Mark C. 5 Rifkin in Opposition to NMPA’s Request for Leave to File Amicus Brief, ¶¶ 6-8 6 and Exhibit B thereto, filed together herewith. Since NMPA’s proposed amicus 7 brief plainly could not meet the demanding requirements of L.R. 7-18, Plaintiffs 8 refused to consent to NMPA’s request, and advised NMPA accordingly, both 9 orally and in writing. See id. Therefore, NMPA’s highly improper request never 10 should have been made because it does not comply with L.R. 7-18. 11 In addition, under Federal Rule of Appellate Procedure 29, an amicus brief 12 may be filed “only by leave of court or if the brief states that all parties have 13 consented to its filing.” Fed. R. App. P. 29(a). According to the 1998 Advisory 14 Committee Notes to Rule 29, an amicus brief should only address matters not 15 adequately addressed already by a party. In the Central District, courts generally 16 follow this requirement in deciding whether to accept an amicus brief. For 17 example, in Gingery v. City of Glendale, No. 14-1291 PA (AJWx) 2014 U.S. Dist. 18 LEXIS 107598, *5-6 (C.D. Cal. Aug. 4, 2014), the Court denied an ex parte 19 request for leave to submit an amicus brief because the information provided was 20 not necessary for the disposition of the motions before it. 21 The Court did not, as Defendants argued (and as NMPA seeks permission to 22 repeat), reject the general legal principle that an immaterial mistake does not 23 deprive a copyright owner of the limited presumption it is entitled to under a 24 copyright registration certificate. Instead, the Court rejected Defendants’ purely 25 speculative argument that Summy left Patty Hill’s name off the 1935 registration 26 for E51990 by mistake, and that the omission of her name from the registration 27 application – which was expressly limited on its face to the new matter added by 28 Summy’s employee-for-hire, Preston Ware Orem (who, by Defendants’ own -2- 1 admission, did not write the Happy Birthday lyrics) – was immaterial. 2 That purely speculative argument was thoroughly considered and properly 3 rejected by the Court. (ECF 244 at 14-16 & n.6).3 Neither Defendants nor NMPA, 4 as would-be amicus, have added anything to the record for the Court to reconsider. 5 As Plaintiffs have explained in opposing Defendants’ motion for reconsideration, 6 there is not a scintilla of evidence in the voluminous summary judgment record, 7 and no new evidence for the Court to reconsider, that the omission of Patty’s name 8 from the registration application for E51990 was a mistake at all, rather than an 9 accurate description of the work-for-hire covered by that limited copyright. See 10 ECF 251 at 12-13. 11 NMPA’s proposed amicus brief, which (like Defendants’ motion for 12 reconsideration) adds no new evidence (or cites any evidence already in the record 13 that the Court supposedly overlooked), merely echoes Defendants’ speculative 14 argument that Summy “made a mistake” eighty years ago when it did not put Patty 15 Hill’s name on registration application for the work-for-hire copyright covering 16 only Mr. Orem’s new matter. The Court should reject illogical and wholly 17 unsupported speculation (whether from Defendants or NMPA) about why Summy 18 left Patty Hill’s name off the copyright application for new matter done by a 19 different person, Mr. Orem, as its employee-for-hire. It was no mistake that 20 Summy did so, and there is not a shred of evidence in the record that suggests 21 otherwise. 22 Finally, in granting partial summary judgment for Plaintiffs, the Court 23 reviewed a detailed factual record and determined that there was no genuine 24 dispute of fact regarding whether Defendants’ limited work-for-hire copyright 25 26 27 28 3 As the Court noted, “It would be accurate to characterize the failure to identify Patty as an author as a ‘mistake’ only if E51990 was a registration of the lyrics.” (ECF No. 244 at 14 n.6). -3- 1 covered the familiar Happy Birthday lyrics. The Court’s Summary Judgment Order 2 did not change the law, nor did it disregard any settled legal principles. NMPA’s 3 professed fear that the Court’s decision will thrust many other works into the 4 public domain or set off “a flood of litigation” (ECF No. 253 at 17-18) is entirely 5 unwarranted. This peculiar factual dispute, between parties already capably 6 represented by highly skilled counsel, was aired before the Court on summary 7 judgment (and re-aired by Defendants in their motion for reconsideration). NMPA 8 has nothing substantive to add to this dispute, and nothing to fear from the Court’s 9 highly fact-specific findings in this case. 10 11 For all these reasons, the Court should deny NMPA’s highly improper request for leave to file an amicus brief. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dated: October 27, 2015 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP By: /s/ Betsy C. Manifold BETSY C. MANIFOLD FRANCIS M. GREGOREK BETSY C. MANIFOLD RACHELE R. RICKERT MARISA C. LIVESAY 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 26 27 28 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP MARK C. RIFKIN (pro hac vice) -4- 1 2 6 JANINE POLLACK (pro hac vice) 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 212-545-4753 7 Interim Lead Counsel for Plaintiffs 3 4 5 8 9 10 11 12 RANDALL S. NEWMAN PC RANDALL S. NEWMAN (190547) 37 Wall Street, Penthouse D New York, NY 10005 Telephone: 212/797-3737 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HUNT ORTMANN PALFFY NIEVES DARLING & MAH, INC. ALISON C. GIBBS (257526) OMEL A. NIEVES (134444) KATHLYNN E. SMITH (234541) smith@ 301 North Lake Avenue, 7th Floor Pasadena, CA 91101 Telephone 626/440-5200 Facsimile 626/796-0107 Facsimile: 212/797-3172 DONAHUE GALLAGHER WOODS LLP WILLIAM R. HILL (114954) ANDREW S. MACKAY (197074) DANIEL J. SCHACHT (259717) -5- 1 2 1999 Harrison Street, 25th Floor Oakland, CA 94612-3520 Telephone: 510/451-0544 Facsimile: 510/832-1486 3 4 5 12 GLANCY PRONGAY & MURRAY, LLP LIONEL Z. GLANCY (134180) MARC L. GODINO (188669) 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: 310/201-9150 Facsimile: 310/201-9160 13 Attorneys for Plaintiffs 6 7 8 9 10 11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WARNERCHAPPELL:22335.resp.amicus -6-

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