Rupa Marya v. Warner Chappell Music Inc

Filing 325

DECLARATION of Jennifer Nelson in Support of Final Approval of Class Action Settlement and Request for Incentive Compensation Award NOTICE OF MOTION AND MOTION for Settlement Approval of Proposed Class Action Settlement Plaintiffs' Notice of Motion and Motion for Final Approval of Proposed Class Action Settlement; Memorandum of Points and Authorities in Support Thereof

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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 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA - 13 WESTERN DIVISION 14 GOOD MORNING TO YOU PRODUCTIONS CORP., et al., 15 Plaintiffs, 16 17 v. 18 19 WARNER/CHAPPELL MUSIC, INC., et al. 20 Defendants. 21 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Lead Case No. CV 13-04460-GHK (MRWx) DECLARATION OF JENNIFER NELSON IN SUPPORT OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND REQUEST FOR INCENTIVE COMPENSATION AWARD Room: Judge: Date: Time: 650 Hon. George H. King, Chief Judge June 27, 2016 9:30 a.m. 1 1. The undersigned, Jennifer Nelson, under penalty of perjury, hereby 2 declares and states as follows: 3 2. I am the President of Good Morning to You Productions Corp. 4 (“GMTY”), one of the four Plaintiffs in this Action. I have personal knowledge of 5 the facts set forth herein and, if called upon, I could and would competently testify 6 thereto. 7 3. I submit this Declaration in support of Plaintiffs’ motions for final 8 approval of the Settlement and for an incentive compensation award to the Plaintiffs. 9 These motions and supporting memoranda of law are filed concurrently herewith. 10 4. GMTY is producing a documentary film about the history and origin of 11 the song Happy Birthday to You (“Happy Birthday” or the “Song”). In the course of 12 making the film, I researched the Song, including biographical research of Mildred 13 Hill and her sister Patty Hill, who wrote the original musical composition Good 14 Morning to All on which Happy Birthday is based. In the course of my research, I 15 discovered many facts that led me to believe Defendant Warner/Chappell Music, Inc. 16 (“Warner”) and its predecessors did not own a copyright to the Song. I also learned 17 of a scholarly article written by Robert Brauneis, Professor of Law at George 18 Washington School of Law, raising various technical issues with Warner’s copyright 19 claim. 20 5. I discussed these issues with my attorney, Randall S. Newman, Esquire, 21 and I provided all my research and relevant documents to him. Mr. Newman and I 22 met with Mr. Brauneis to speak with him about his legal theories as well as his own 23 historical research, and we conducted additional research of our own to confirm my 24 initial doubts about the scope of Warner’s copyright. Based upon our research, as 25 well as the scholarly article written by Prof. Brauneis, we concluded that Warner did 26 not own a copyright to the Song’s melody or its familiar lyrics, but at most only 27 owned a copyright to specific piano arrangements and a second verse of the Song, 28 1 NELSON DECL. CASE NO. CV 13-04460-GHK (MRWX) 1 written by R.R. Forman as an employee of the Clayton F. Summy Co., one of 2 Warner’s predecessors. 3 6. At the time, I was aware of Warner’s claim to own a copyright to the 4 Song, and at that time I understood GMTY could only use the Song safely in my 5 movie if it obtained a synchronization license to do so. I could not be certain that I 6 would prevail in a dispute with Warner over the copyright. Because I could not be 7 certain I would prevail and because I risked liability for a large damages award for 8 willful infringement, and because I could not release my movie without licensing the 9 Song from Warner, GMTY obtained a synchronization license from Defendant 10 Warner/Chappell Music, Inc. (“Warner”) on or about March 26, 2013, for which it 11 paid Warner the sum of $1,500. 12 7. After GMTY paid for a license for Happy Birthday, Mr. Newman 13 introduced me to Mark C. Rifkin, Esquire, another lawyer with whom he had worked 14 on other matters in the past. Mr. Newman and I met with Mr. Rifkin and his 15 colleagues and discussed the copyright dispute in detail with them. Mr. Newman and 16 I provided all of my documents and all the historical evidence we had gathered to 17 Mr. Rifkin and his colleagues, which we discussed at length. 18 8. I also helped Mr. Newman and Mr. Rifkin and his colleagues conduct 19 even more historical research. For example, we traveled to Louisville, Kentucky, 20 where the Hill Sisters lived, we examined the Hill Sisters’ personal papers at the 21 Filson Historical Society in Louisville, we met with the curator of the Little Loom 22 House, where the Song was supposedly first sung, and we met with local historians 23 to discuss the Song’s history. 24 9. After my complaint was filed, I communicated frequently with Mr. 25 Newman and Mr. Rifkin and his colleagues in person, by telephone, and by email, 26 both to continue our independent historical research and to discuss the status of the 27 Action. We constantly reviewed the ongoing investigation, as well as the progress of 28 the litigation, so that I could monitor the Action for myself and for the absent Class 2 NELSON DECL. CASE NO. CV 13-04460-GHK (MRWX) 1 members. 2 10. My attorneys have kept me extremely well-informed of the progress of 3 the litigation throughout the pendency of the Action so that I could oversee the 4 Action for the benefit of the Class. In addition, I documented the progress of the 5 action as part of my work on my documentary film. 6 11. In particular, my attorneys and I reviewed the consolidated and amended 7 complaints before they were filed, we reviewed the Defendants’ motion to dismiss 8 and Plaintiffs’ response to it, we reviewed the Court’s decision denying Defendants’ 9 motion to dismiss, we reviewed the exchange of discovery, we reviewed the cross- 10 motions for summary judgment and the Court’s hearings on the cross-motions, we 11 reviewed the Court’s decision granting partial summary judgment in favor of the 12 Plaintiffs, and we discussed the possible settlement of the Action. 13 12. I had extensive communication with my attorneys about the proposed 14 Settlement as it was being negotiated. Ultimately, after those communications, I 15 reviewed, approved, and executed the Settlement Agreement. Thereafter, I have 16 continued to review the settlement process. 17 13. Since the time of my early investigation of the Song, I have spent 18 several hundred hours investigating the origin of the Song and the scope of 19 Defendants’ copyright. Since my first complaint was filed alone, I have spent at least 20 300 hours in performing my duties as Plaintiff in the Action. I have spent all that 21 time at my own expense, and without any compensation or promise of compensation 22 of any kind. 23 24 25 14. I believe my role in the Action was crucial in achieving the excellent results we have obtained for the Class and for the public. 15. I hereby certify, under the penalty of perjury under the laws of the 26 Unitted States, that the foregoing statements are true and correct to the best of my 27 knowledge, information, and belief. 28 3 NELSON DECL. CASE NO. CV 13-04460-GHK (MRWX)

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