Rupa Marya v. Warner Chappell Music Inc

Filing 265

REQUEST FOR JUDICIAL NOTICE re NOTICE OF MOTION AND MOTION to AMEND Amended Complaint, 95 Notice of Motion and Motion for Leave to Amend and File Fifth Amended Complaint 258 /Defendants Request For Judicial Notice In Support Of Defendants Opposition To Plaintiffs Motion For Leave To Amend And File Fifth Amended Complaint filed by Defendants Summy-Birchard Inc, Warner Chappell Music Inc. (Attachments: # 1 Proposed Order Granting Defendants' Request For Judicial Notice In Support Of Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint)(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

13 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.,
17 et al.,
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Lead Case No. CV 13-04460-GHK
(MRWx)
DEFENDANTS’ REQUEST FOR
JUDICIAL NOTICE IN SUPPORT
OF DEFENDANTS’ OPPOSITION
TO PLAINTIFFS’ MOTION FOR
LEAVE TO AMEND AND FILE
FIFTH AMENDED COMPLAINT

Defendants.
Courtroom: 650
Judge:
Hon. George H. King,
Chief Judge

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REQUEST FOR JUDICIAL NOTICE
CASE NO. CV 13-04460-GHK (MRWx)

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Warner/Chappell Music, Inc. and Summy-Birchard, Inc. (jointly,

2 “Warner/Chappell”) respectfully request that the Court take judicial notice of the
3 documents attached as Exhibits 4 through 11 to the concurrently filed Declaration of
4 Kelly M. Klaus in Support of Defendants’ Opposition to Plaintiffs’ Motion for
5 Leave to Amend and File Fifth Amended Complaint (“Klaus Declaration”).
Federal Rule of Evidence 201 authorizes federal courts to take judicial notice

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7 of facts that are “not subject to reasonable dispute . . . [and] can be accurately and
8 readily determined from sources whose accuracy cannot reasonably be questioned.”
9 Fed. R. Evid. 201(b). Judicial notice of Exhibits 4 through 11 to the Klaus
10 Declaration is appropriate because (1) the contents of the documents are alleged and
11 relied upon by Plaintiffs’ in their proposed Fifth Amended Complaint (Exhibits 5, 9,
12 10 and 11); and/or (2) the documents are copies of publicly available news articles,
13 web pages or other publications that indicate information in the public realm at
14 particular times (Exhibits 4, 5, 6, 7 and 8).
15 I.
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Documents Whose Contents Plaintiffs Allege In The Fifth Amended
Complaint
Warner/Chappell requests judicial notice of Exhibits 5, 9, 10 and 11 to the

Klaus Declaration. These are documents “whose contents are alleged” in Plaintiffs’
proposed Fifth Amended Complaint and whose authenticity cannot be questioned.
In re Silicon Graphics Inc. Secs. Litig., 183 F.3d 970, 986 (9th Cir. 1999) (quoting
Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by
Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002)).
Exhibit 5 to the Klaus Declaration is a true and correct copy of an article
entitled “Copyright and the World’s Most Popular Song,” by Robert Brauneis, last
accessed on November 8, 2015 at
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1111624_code329492.pdf?abstr
actid=1111624&mirid=1. Plaintiffs rely on and quote from this article in paragraph
8 of the operative Fourth Amended Complaint, as well as in paragraph 8 of the

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REQUEST FOR JUDICIAL NOTICE
13-04460-GHK (MRWx)

1 proposed Fifth Amended Complaint. See Fourth Am. Compl. ¶ 8 (“Various legal
2 scholars and copyright and music industry experts agree with [Plaintiffs’ theory in
3 this lawsuit], questioning the validity of Defendants’ assertion of copyright in the
4 Song, and supporting the conclusion that Happy Birthday properly exists in the
5 public domain. For example, Professor Robert Brauneis, Professor of Law and Co6 Director of the Intellectual Property Law Program at George Washington
7 University, and a leading legal scholar in intellectual property law, has stated that it
8 is ‘doubtful’ that Happy Birthday ‘is really still under copyright.’”); Fifth Am.
9 Compl. ¶ 8 (same); Klaus Decl. Ex. 5 at 2 (“[I]t is doubtful that ‘Happy Birthday to
10 You,’ the famous offspring of ‘Good Morning to All,’ is really still under
11 copyright.”).
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Exhibit 9 to the Klaus Declaration is a true and correct copy of a letter, which

13 Warner/Chappell produced with the bates numbers WC0001047-48, from Joseph S.
14 Dubin, of Universal City Studios, to Harry Garfield, dated July 1, 1964. Plaintiffs
15 rely on and quote from this letter in paragraph 147 of their proposed Fifth Amended
16 Complaint, as well as paragraphs 144 and 160-62 of the proposed Fifth Amended
17 Complaint.
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Exhibit 10 to the Klaus Declaration is a true and correct copy of a letter,

19 which Warner/Chappell produced with the bates number WC0001415, from Robert
20 B. Rosene, from the Office of Counsel of Walt Disney Productions, to Marion
21 Mingle, of the Harry Fox Agency, Inc., dated December 13, 1971. Plaintiffs rely on
22 and quote from this letter in paragraph 152 of their proposed Fifth Amended
23 Complaint, as well as paragraphs 144 and 160-62 of the proposed Fifth Amended
24 Complaint.
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Exhibit 11 to the Klaus Declaration is a true and correct copy of a letter,

26 which Warner/Chappell produced with the bates numbers WC0001422-23, from Jay
27 L. Lawton, the Manager of the Music Department at Walt Disney Productions, to
28 Louise Mastromano, of the Harry Fox Agency, Inc., dated May 11, 1983. Plaintiffs
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REQUEST FOR JUDICIAL NOTICE
13-04460-GHK (MRWx)

1 rely on and quote from this letter in paragraph 153 of their proposed Fifth Amended
2 Complaint, as well as paragraphs 144 and 160-62 of the proposed Fifth Amended
3 Complaint.
4 II.

Publicly Available News Articles, Web Pages, And Other Publications

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Warner/Chappell also requests judicial notice of Exhibits 4, 5, 6, 7, and 8 to

6 the Klaus Declaration. These documents are copies of publicly available news
7 articles, web pages or other publications that indicate information in the public
8 realm at particular times. “[A] court may take judicial notice of publicly available
9 newspaper and magazine articles and web pages that ‘indicate what was in the
10 public realm at the time, not whether the contents of those articles were in fact
11 true.’” Tarantino v. Gawker Media, LLC, No. CV 14-603-JFW FFMX, 2014 WL
12 2434647, at *1 n. 1 (C.D. Cal. Apr. 22, 2014) (quoting Von Saher v. Norton Simon
13 Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010)).1
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Exhibit 4 to the Klaus Declaration is a true and correct copy of a Social

15 Science Research Network webpage from which Prof. Brauneis’s article,
16 “Copyright and the World’s Most Popular Song,” is and has been available since
17 (according to the “Date posted”) March 21, 2008. This webpage was last accessed
18 on November 8, 2015 at
19 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624. From this webpage
20 the public can download, without charge, the full article “Copyright and the World’s
21 Most Popular Song,” by Robert Brauneis. Exhibit 4 indicates information that was
22 in the public realm as of March 21, 2008, more than five years before Plaintiffs
23 brought this lawsuit.
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Exhibit 5 to the Klaus Declaration is a true and correct copy of an article

25 entitled “Copyright and the World’s Most Popular Song,” by Robert Brauneis,
26 downloaded from the SSRN website referenced in the preceding paragraph. It was
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As shown above, Exhibit 5 also is subject to notice because it is incorporated by
reference in the proposed Fifth Amended Complaint.
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REQUEST FOR JUDICIAL NOTICE
13-04460-GHK (MRWx)

1 downloaded on November 8, 2015 at:
2 http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1111624_code329492.pdf?abstr
3 actid=1111624&mirid=1. Exhibit 5 indicates information that was in the public
4 realm as of March 21, 2008, when the article was made publicly available
5 (according to the “Date posted” on Exhibit 4), more than five years before Plaintiffs
6 brought this lawsuit.
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Exhibit 6 to the Klaus Declaration is a true and correct copy of the home

8 page of the online repository of documents relating to Happy Birthday that Prof.
9 Brauneis made publicly available in March 2008, according to Page 2 and footnote
10 10 of Exhibit 5 and in Robert Brauneis, Copyright and the World’s Most Popular
11 Song, 56 J. Copyright Soc’y U.S.A. 335, 338 n.10 (2009). Exhibit 6 indicates
12 information that was in the public realm as of March 21, 2008, more than five years
13 before Plaintiffs brought this lawsuit.
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Exhibit 7 to the Klaus Declaration is a true and correct copy of a transcript of

15 the July 18, 2008 broadcast of the ABC television news program “World News
16 Saturday,” as obtained by our office from the online transcript-ordering service for
17 ABC News (www.transcripts.tv) on November 8, 2015. Exhibit 7 indicates
18 information that was in the public realm as of July 18, 2008, nearly five years before
19 Plaintiffs brought this lawsuit.
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Exhibit 8 to the Klaus Declaration is a true and correct copy of an article

21 entitled “Sing ‘Happy Birthday’ and It’ll Cost You,” by Joel Siegel and John
22 Cochran, ABC News, dated July 21, 2008, last accessed on November 8, 2015 at
23 http://abcnews.go.com/WN/story?id=5413561&page=1. Exhibit 8 indicates
24 information that was in the public realm as of July 21, 2008, almost five years
25 before Plaintiffs brought this lawsuit.
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REQUEST FOR JUDICIAL NOTICE
13-04460-GHK (MRWx)

1 III.

Conclusion

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Warner/Chappell respectfully requests that the Court take judicial notice of

3 Exhibits 4 through 11 to the Klaus Declaration.
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DATED: November 9, 2015

MUNGER, TOLLES & OLSON LLP

By:

/s/ Kelly M. Klaus
KELLY M. KLAUS

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Attorneys for Defendants Warner/Chappell
Music, Inc. and Summy-Birchard, Inc.

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REQUEST FOR JUDICIAL NOTICE
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