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)

1 FRANCIS M. GREGOREK (144785)
[e-mail]
2 BETSY C. MANIFOLD (182450)
[e-mail]
3 RACHELE R. RICKERT (190634)
[e-mail]
4 MARISA C. LIVESAY (223247)
[e-mail]
5 BRITTANY N. DEJONG (258766)
[e-mail]
6 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
7 750 B Street, Suite 2770
San Diego, CA 92101
8 Telephone: [phone]
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
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

26
27
28

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)

-4-

1

[e-mail]

2

6

JANINE POLLACK (pro hac vice)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
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)
[e-mail]
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]

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)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 626/796-0107
Facsimile: 212/797-3172
DONAHUE GALLAGHER WOODS
LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
-5-

1
2

1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

3
4
5

12

GLANCY PRONGAY &
MURRAY, LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
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-