Rupa Marya v. Warner Chappell Music Inc

Filing 332

In Opposition re: NOTICE OF MOTION AND MOTION for Attorney Fees Plaintiffs' Notice of Motion and Motion for Award of Attorneys' Fees and Expenses and for Incentive Compensation Awards; Memorandum of Points and Authorities in Support Thereof #323 /Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses filed by Defendant Warner Chappell Music Inc. (Attachments: #1 Declaration Of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #2 Exhibit 1 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #3 Exhibit 2 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #4 Exhibit 3 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses, #5 Exhibit 4 to Declaration of Kelly M. Klaus In Support Of Defendants' Opposition To Plaintiffs' Motion For Award Of Attorneys' Fees And Expenses)(Klaus, Kelly)

Exhibit 4

Ex. 4
84

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Prof. Robert Brauneis
GW Law School > Prof. Robert Brauneis

"Copyright and the World's Most
Popular Song"

Appendices, Documents and Sound
Recordings

This page contains text and links to PDF document files (and a few mp3 sound
files) relating to the history of the song "Happy Birthday to You," as explored in
my article "Copyright and the World's Most Popular Song."

That article has been published at 56 Journal of the Copyright Society of the
USA 335 (2009). A draft of the article is available at
http://ssrn.com/abstract=1111624

I have continued to learn things about the history of the song after the publication
of the article. A web page containing addenda and errata for the article is
available at
http://docs.law.gwu.edu/facweb/rbrauneis/happybirthdayaddenda.htm

__________________________________________________________________

Outline of Contents
Appendices
Appendix 1: Tracing Ownership of Copyright
Appendix 2: A Summary and Comparison Chart of Royalties Paid on
"Happy Birthday to You"
Appendix 3: A Chart of ASCAP Royalties Paid on "Happy Birthday to
You"
Appendix 4: A Chart of Non-ASCAP Royalties Paid on "Happy Birthday to
You"

Documents (and a few sound recordings)
Inter Partes Litigation

Jessica Hill v. Sam H. Harris Theatrical Enterprises, Inc., et al
Jessica Hill v. Federal Broadcasting Corporation, et al.
The Hill Foundation, Inc. v. Clayton F. Summy Co.
The Hill Foundation, Inc. v. Postal Telegraph-Cable Company
Newman v. Clayton F. Summy Co.

Wills, Trusts, and Probate Matters

Ex. 4
85

Mary Downing Hill
William Wallace Hill
Patty Smith Hill
Jessica Mateer Hill
Archibald Alexander Hill

Copyright Office Documents

Registrations
Recorded Transfers

Musical Scores and Sound Recordings
Pre-1935 References to the HBTY Lyrics in Conjunction with
the GMTA melody
Other Documents
Photographs

__________________________________________________________________

Appendices
[A1] Appendix 1: Tracing Ownership of Copyright
[A2] Appendix 2: A Summary and Comparison Chart of Royalties Paid on
"Happy Birthday to You" (for the assumptions on which this chart is based,
please see the article)
[A3] Appendix 3: A Chart of ASCAP Royalties Paid on "Happy Birthday
to You" (for the assumptions on which this chart is based, please see the
article)
[A4] Appendix 4: A Chart of Non-ASCAP Royalties Paid on "Happy
Birthday to You" (for the assumptions on which this chart is based, please
see the article)

Documents (and a few sound
recordings)
Inter Partes Litigation
•  Jessica Hill v. Sam H. Harris, et al., Equity No.
78-350 (S.D.N.Y., complaint filed August 14, 1934)
[HVH 1] Docket
[HVH 2] Complaint
[HVH 3] Memorandum in Opposition to Certain Numbered Interrogatories
Propounded To Sam H. Harris Theatrical Enterprises, Inc., in the AboveCaptioned Matter
[HVH 4] Order with Notice of Settlement of November 17, 1934 [regarding
interrogatories]
[HVH 5] Order With Notice of Settlement [regarding joinder of additional
defendants]
[HVH 6] Amended Complaint
[HVH 7] Answer
[HVH 8] Order with Notice of Settlement of April 19, 1935 [regarding
interrogatories]

Ex. 4
86

[HVH 9] Answers to Interrogatories Propounded to Sam H. Harris
Theatrical Enterprises, Inc.
[HVH 10] Answers of Defendant Irving Berlin to Interrogatories
[HVH 11] Defendants' Motion to Dismiss
[HVH 12] Depositions De Bene Esse [of Patty Smith Hill and Jessica
Mateer Hill]
[HVH 13] Order of Dismissals

•  Jessica Hill v. Federal Broadcasting Corporation,
et al., Equity No. 79-312 (S.D.N.Y., complaint filed
January 21, 1935)
[HVFB 1] Docket
[HVFB 2] Complaint
[HVFB 3] Summons
[HVFB 4] Answer
[HVFB 5] Order with Notice of Settlement [regarding joinder of additional
defendant]
[HVFB 6] Notice of Motion and Affidavit [of George Link, Jr.]

•  The Hill Foundation, Inc. v. Clayton F. Summy
Co., Civil No. 19-377 (S.D.N.Y., complaint filed
October 15, 1942)
[HFVS 1] Docket Sheet
[HFVS 1a] Complaint
[HFVS 2] Answer
[HFVS 3] Amended Complaint
[HFVS 4] Answer to Amended Complaint
[HFVS 5] Notice of Motion to Amend Complaint at the Trial
[HFVS 6] Notice to Take Depositions
[HFVS 7] Memorandum in Support of Defendant's Motion to Limit
Examination
[HFVS 8] Affidavit in Opposition to Defendant's Motion to Vacate Notice
for its Examination Before Trial
[HFVS 9] Memorandum in Opposition to Plaintiff's Motion to Vacate
Defendant's Notice to Examine Before Trial
[HFVS 10] Stipulation of Discontinuance

•  The Hill Foundation, Inc. v. Postal TelegraphCable Company, Civil No. 20-439 (S.D.N.Y.,
complaint filed March 2, 1943)
[HFVPT 1] Docket
[HFVPT 2] Bill of Complaint
[HFVPT 3] Answer
[HFVPT 4] Affidavit [in Support of Adjournment]
[HFVPT 5] Affidavit [in Support of Application for Continuance]
[HFVPT 6] Stipulation and Affidavit for Adjournment
[HFVPT 7] Stipulation [of Discontinuance]

•  Elizabeth Newman v. Clayton F. Summy Co.,
Civil No. 16-124 (S.D.N.Y., removed from state
court October 18, 1941) (This case does not
concern "Good Morning to All" or "Happy

Ex. 4
87

Birthday to You," but reveals some facts about the
Clayton F. Summy Company.)
[NVS 1] Docket
[NVS 2] Excerpt from Trial Transcript

Wills, Trusts, and Probate Matters
•  Mary Downing Hill
[MDH 1] Jefferson County Index to Wills, 1784 to 1919 Inclusive
[MDH 2] Inventory and Appraisement of the Personal Estate of Mary
D. Hill, Deceased
[MDH 3] In re Estate of Mary D. Hill, Final Settlement of
Administrator

•  William Wallace Hill  
1922-23
[WWH 1] Last Will and Testament
[WWH 2] Application for Letters Testamentary (Corinne Dorothy
Hill) (April 3, 1923)
[WWH 3] Testimony of Corinne Dorothy Hill (April 12, 1923)
[WWH 4] Testimony of Harry B. Heign (May 14. 1923)
[WWH 5] Executor's Individual Bond (May 14, 1923)
[WWH 6] Published Notice (May 29, 1923)
[WWH 7] Petition [for Authority to Execute Deed for Property Held in
Trust] (July 14, 1923)
[WWH 8] Petition [for Approval of Settlement With Hill, Joiner & Co.]
(July 14, 1923)
[WWH 9] Order [Granting Petition for Authority to Execute Deed]
(July 16, 1923)
[WWH 10] Order [Granting Petition for Approval of Settlement] (July
16, 1923)

  1939
[WWH 11] Petition for Letters of Administration De Bonis Non with
Will Annexed and for Discharge of Attorney of Deceased Executrix
(February 1, 1939)
[WWH 12] Order Granting Petition for Withdrawal
[WWH 13] Letters of Administration De Bonis Non With Will Annexed
(February 1, 1939)
[WWH 14] Petition for Waiver of Security and for Waiver of
Requirement of Publication of Notice for Adjustment of Claims
(February 1, 1939)
[WWH 15] Bond of Allen Davy (February 1, 1939)
[WWH 16] Order Granting Petition (February 1, 1939)
[WWH 17] Inventory (February 8, 1939)
[WWH 18] Petition for Private Sale (February 9, 1939)
[WWH 19] Order for Private Sale (February 9, 1939)
[WWH 20] Appearance In Re Final Account (Archibald Anderson
Hill)
[WWH 21] Renunciation of Legacy (Archibald Anderson Hill)
(February 27, 1939)
[WWH 22] Testimony of Victor P. Kayser - Proof of Supplemental

Ex. 4
88

Heirship (March 7, 1939)
[WWH 23] Amended and Supplemental Inventory (March 10, 1939)
[WWH 24] Petition for Private Sale of Personal Property (March 22,
1939)
[WWH 25] Order for Private Sale (March 22, 1939)
[WWH 26] Report of Private Sale of Personal Property by
Administrator De Bonis Non with Will Annexed (March 23, 1939)
[WWH 27] Petition for Fees (Leo B. Lowenthal) (March 25, 1939)
[WWH 28] Order Regarding Fees (March 29, 1939)
[WWH 29] Published Notice of Final Account Hearing (March 31,
1939)
[WWH 30] Attorney General Letter Regarding Inheritance Tax
(March 31, 1939)
[WWH 31] Affidavit of Nonresidence of Heirs at Law (March 31, 1939)
[WWH 32] Certificate of Mailing (April 3, 1939)
[WWH 33] Estate Assessment (April 19, 1939)
[WWH 34] Motion for Release of Costs (April 25, 1939)
[WWH 35] Waiver of Attorney's Fees (April 29, 1939)
[WWH 36] Receipts
[WWH 37] First and Final Account (May 1, 1939)
[WWH 38] First and Final Report (May 1, 1939)

•  Patty Smith Hill
[PSH 1] Last Will and Testament
[PSH 2] First Codicil to Last Will and Testament
[PSH 3] Decree Admitting Will to Probate
[PSH 4] Deposition of Subscribing Witness (Lillian Geltman)
[PSH 5] Deposition of Subscribing Witness (Samuel Mann)
[PSH 6] Deposition of Subscribing Witness (Fred Mitchell)
[PSH 7] Oath of Executor
[PSH 8] Designation of Clerk for Service of Process
[PSH 9] Waiver of Citation in Probate Proceeding (Jessica Hill)
[PSH 10] Waiver of Citation in Probate Proceeding (Archibald
Anderson Hill)
[PSH 11] Petition for Probate of Will
[PSH 12] Application for Letters Testamentary (Archibald Anderson
Hill)
[PSH 13] order Granting Letters Testamentary

•  Jessica Mateer Hill
[JMH 1] Last Will and Testament
[JMH 2] Surrogate Court Minute Book Entries for Estate of Jessica M.
Hill
[JMH 3] Supplemental Affidavit [Residency of Jessica M. Hill]
[JMH 4] Affidavit of Executor in Support of Schedules [Patty Hill
Blocks]
Income Information -- Hill Trust
[JMH 5] Account of Proceedings of the Estate of Jessica M. Hill
(December, 1951 - April, 1954)
[JMH 6] (Intermediate) Accounting of the Trust Created Under the
Will of Jessica M. Hill from September 7, 1958 to June 30, 1961
[JMH 7] Accounting of the Trust Created Under the Will of Jessica M.
Hill from July 1, 1961 to June 30, 1971
[JMH 8] Accounting of the Trust Created Under the Will of Jessica M.
Hill from March 30, 1992 to March 31, 1994
[JMH 9] Affidavit for a Supplemental Account March 31, 1994 - July
31, 1995
[JMH 10] Affidavit for an Account of the Trust Created Under the Will
of Jessica M. Hill August 1, 1995 - June 30, 1998

Ex. 4
89

Income Information -- Hill Foundation, Inc.
[JMH 11] Appraisal of Hill Foundation Shares (Containing an
Accounting of the Hill Foundation April 1, 1946 - March 31, 1951)
[JMH 12] Affidavit for an Account of the Hill Foundation Inc., An
Asset of the Trust July 2, 1962 - July 31, 1995
[JMH 13] Affidavit for an Account of the Hill Foundation Inc., An
Asset of the Trust August 1, 1995 - June 30, 1998
[JMH 14] Affidavit of Alvin J. Burnett (January 23, 1997)
Statements of Issues
[JMH 15] Statement of Issues of Muriel Lydia Wright (July 26, 1999)
[JMH 16] Objectant Association for Childhood Education
International's Statement of Issues
[JMH 17] Statement of Issues of Alvin J. Burnett

•  Archibald Alexander Hill
[AAH 1] Last Will

Copyright Office Documents
•  Registrations
"Song Stories for the Kindergarten" - original edition
[R1] Registration Record - Original Term - 45997
[R2] Renewal Application - R 19043
[R3] Renewal Record - R 19043

"Happy Birthday" - E pub. 45655
[R4] Application for Registration - Original Term
[R5] Registration Record - Original Term
[R6] Approved Renewal Application - R289194

"Happy Birthday" - E pub. 46661
[R7] Application for Registration - Original Term
[R8] Registration Record - Original Term
[R9] Approved Renewal Application - R291287

"Happy Birthday" - E pub. 47439
[R10] Application for Registration - Original Term
[R11] Registration Record - Original Term
[R12] Approved Renewal Application - R293413

"Happy Birthday" - E pub. 47440
[R13] Application for Registration - Original Term
[R14] Registration Record - Original Term
[R15] Approved Renewal Application - R293412

"Happy Birthday To You" - E pub. 51988
[R16] Application for Registration - Original Term
[R17] Registration Record - Original Term
[R18] Approved Renewal Application - R306185

"Happy Birthday To You" - E pub. 51990
[R19] Application for Registration - Original Term
[R20] Registration Record - Original Term
[R21] Approved Renewal Application - R306186

•  Recorded Assignments and Licenses

Ex. 4
90

[RA1] Archibald Anderson Hill to Patty Smith Hill and Jessica Mateer
Hill (September 21, 1939) (Vol. 425, p. 31)
[RA2] Allen Davey, as Administrator de bonis of the Estates of William
Wallace Hill, deceased to Clayton F. Summy Co. (September 21, 1939)
(Vol. 425, p. 34)
[RA3] Patty S. Hill and Jessica M. Hill to Clayton F. Summy Co.
(September 21, 1939) (Vol. 425, p. 36)
[RA4] Patty S. Hill and Jessica M. Hill to The Hill Foundation, Inc.
(June 8, 1942) (Vol. 485, p. 242)
[RA5] Patty S. Hill and Jessica M. Hill to The Hill Foundation, Inc.
(November 14, 1944) (Vol. 552, p. 61)
[RA6] The Hill Foundation, Inc. to Clayton F. Summy Co. (November
10, 1944) (Vol. 552, p. 63)

Musical Scores and Sound Recordings

Alleged Predecessors to "Good Morning to All"
[S1] A Happy New Year
[S2] A Happy New Year (Sound Recording - .mp3 file)
[S3] Good Night To You All
[S4] Good Night To You All (Sound Recording - .mp3 file)
[S5] Happy Greeting to All
[S6] Happy Greeting to All (Sound Recording - .mp3 file)
[S7] Anniversary Song (1885 publication in "Select Songs for the
Singing Service in the Prayer Meeting and Sunday School")
[S8] Anniversary Song (1885 publication in "Augsburg Songs for
Sunday Schools and Other Services")
[S9] A Happy Greeting to All (1909 publication in "Deseret Sunday
School Songs")
Music by Mildred J. Hill, in the collection of the Ekstrom Library,
University of Louisville, originally donated to the Louisville Free
Public Library by Miss A.E. Booth:
Bookplate from Louisville Free Public Library acknowledging gift
from Miss A. E. Booth
[S10] The Heart's Song (Des Herzens Lied) (words by Lydia Avery
Coonley, German translation by John Berhoff)
[S11] Joy Of The Morning (words by Edwin Markham)
[S12] Kissing Time (Mutterglück) (words by Eugene Field, German
text by John Berhoff)
[S13] A Secret (Ein Geheimniss) (words by W.W.H. (William Wallace
Hill?), German translation by John Berhoff
[S14] Secrets (words by Frederick Lawrence Knowles)
[S15] Sleep Song (words credited to "Anonymous")
[S16] Smiles and Frowns (words credited to "Anonymous")
[S17] Swing High and Swing Low (Wieg' Hin und Wieg' Her) (lyrics by
Eugene Field, German translation by John Berhoff)
[S18] Thistledown (words credited to "Anonymous")
[S19] To Anthea (words by Robert Herrick)
[S20] With All My Heart (words by Grace H. Duffield)
Pre-1935 Published Versions of "Happy Birthday to You"
[S51] The Beginners' Book of Songs
[S52] The Golden Book of Favorite Songs
[S53] The One Hundred and One Best Songs
[S54] Childrens' Praise and Worship

Ex. 4

Post-1934 Published Versions of "Happy Birthday to You" (these PDF

91

scans omit the actual scores, which include arrangements that are
almost certainly still under copyright)
[S101] Happy Birthday to You (Deposit Copy - E pub 51988)
[S102] Happy Birthday to You (Copy from the Arthur Friedheim
Music Library at the Peabody Conservatory -- an early printing of the
work that was probably registered as E pub 51990)
[S103] Happy Birthday! March (Copy from the San Jose Public
Library -- an early printing of the Preston Ware Orem solo piano
instrumental arrangement that was probably registered as E pub
45655)
[S104] Happy Birthday to You (British edition with arrangement by
Debroy Somers, published by Keith Prowse; 1939 or later (copyright
notice for arrangement bears 1939 date); price one shilling) (credited
only to Mildred Hill; notice change in crediting in later British edition)
[S 105] Happy Birthday (Deposit copy of E pub 26375, dated April 13,
1948) (credited to Mildred Hill, arrangement by Charles Lee Hill for
full band, published by Southern Music Company)
[S 106] Happy Birthday to You (Deposit copy of E pub 32204, dated
December 13, 1948) (music credited to Mildred J. Hill and "Coburn";
words credited to Gene Barry)
[S107] Happy Birthday to You (Deposit Copy - E pub 45486 - dated
April 13, 1950) credited to Mildred and Patty Hill, but does not
specifically credit words
[S 108] Happy Birthday to You (Deposit copy of Ep 72792, dated July
7, 1953) (music credited to Mildred Hill and "Wilson"; words credited
to Gene Barry)
[S 109] Happy Birthday (edition found in the collection of Carnegie
Mellon University; after 1953, based on phrase on back cover "more
than 65 years of service to the music profession"; Clayton F. Summy
began music publishing business in 1888) (song credited only to
Mildred J. Hill; no credit for arrangement)
[S 110] Happy Birthday to You (Deposit copy of Ep 108379, dated
April 29, 1957) (music credited to Mildred Hill; arrangement by
Robert Dahnert; words by Gene Barry)
[S 111] Happy Birthday to You (in "Twice 55 Community Songs 'The
Brown Book' Revised Edition" published by C.C. Birchard Company,
Sole Selling Agent Summy Publishing Company, 1957 (copyright
notice)) (music credited to Mildred J. Hill; words apparently credited
to "Traditional")
[S 112] Happy Birthday (arrangement and cover art identical to edition
found in collection of Carnegie Mellon University above; but after
1957, because credit to publisher "Summy-Birchard"; the Clayton F.
Summy Company bought the C.C. Birchard Company in 1957) (song
credited only to Mildred J. Hill; no credit for arrangement)
[S 113] Happy Birthday to You - South African edition - published no
earlier than 1961 (priced at 50 cents; cents first introduced as a
division of the Rand on February 14, 1961, see
http://www.globalfinancialdata.com/index.php3?
action=showghoc&country_name=South_Africa) credited to Mildred
and Patty Hill, but does not specifically credit words
[S 115] Happy Birthday to You (in the collection of the University of
Illinois at Urbana-Champaign Music Library) (combines E pub 51990,
with arrangment by Preston Ware Orem, with Ep 108379, with
arrangment by Robert Dahnert and words by Gene Barry; but adds
Patty S. Hill's name as co-author, missing from the earlier editions)
(post-1962 - includes copyright notice of 1962 renewal)
[S 115] Happy Birthday to You (later British edition with arrangement
by Debroy Somers, published by Keith Prowse; price two shillings,
twice the price of the earlier British edition; published before 1969,
when the shilling was replaced by the five-pence coin, see
http://www.bignell.uk.com/up_to_dec.htm) (credited "Words and
Music by Patti S. Hill and Mildred J. Hill; arranged by Debroy
Somers)
[S 116] Happy Birthday to You! Exclusive print rights administered by
Alfred Publishing Co. - likely post-1970 - words and music credited to
Mildred and Patty Hill

Ex. 4
92

Mildred Hill's Transcriptions of "Negro Hymns" (now in the collection
of the University of Oregon; very large file sizes of about 45 MB)
[S 201] Negro Hymns No. 1, Mildred J. Hill, Sept. 23, 1893,
Vagabondia.
[S 202] Negro Hymns from Mildred J. Hill, 1109 Second St, Louisville
Ky

Pre-1935 References to the HBTY Lyrics in
Conjunction with the GMTA melody
[R1] Inland Educator - January 1901
[R2] The Educator-Journal - January 1901 ("January 1900" on title
page probably mistaken")
[R1] Wisconsin Journal of Education - April 1908
[R1] "Tell Me a True Story" Tales of Bible Heroes for The Children of
To-Day, arranged by Mary Stewart (1909)

Other Documents
[D1] "Negro Music," by Johann Tonsor, Music magazine, Vol.
III (December 1892)
[D2] January 23, 1961 Letter from Mr. William Lichtenwanger,
Acting Head, Reference Section, Library of Congress, to Mr.
Robert G. Olson, Editor, Summy-Birchard Publishing Company
Association for Childhood Education International IRS Form
990s
[D3] 2003 - 04
[D4] 2004 - 05
[D5] 2005 - 06
[D6] "History of Music in Louisville," by Mildred J. Hill, in J.
Stoddard Johnston, ed., Memorial History of Louisville from its
First Settlement to the Year 1896
[D7] "Louisville Free Kindergarten Association," by Patty S.
Hill, in J. Stoddard Johnston, ed., Memorial History of
Louisville from its First Settlement to the Year 1896
[D8] "Services Today for Miss Mildred J. Hill," Louisville
Courier-Journal, June 6, 1916
[D9] Funeral of Miss [Mary D.] Hill Tomorrow Morning,"
Louisville Courier-Journal, September 18, 1916
[D10] Tenth Census of the United States, 1880, Page No. 5,
Enumerator's Dist. No. 2, Enumeration Dist. No. 128, Schedule
No. 1 - Inhabitants in Louisville, in the County of Jefferson,
State of Kentucky, enumerated by me on the 2nd day of June,
1880. Harry Kremer, Enumerator.
[D11] "Unconscious Composers," by M[ildred] J. H[ill],
Louisville Courier-Journal

Photographs
[P1] Photograph of gravestone of Martha Currie Hill and Samuel
Alexander Hill, born and died, October 3, 1854, Cave Hill
Cemetery, Louisville, Kentucky
[P2] Photograph of the gravestone of Willis Grimes Hill, born
and died, January 26, 1863, Cave Hill Cemetery, Louisville,
Kentucky

Ex. 4
93