Rupa Marya v. Warner Chappell Music Inc

Filing 335

REPLY in Further Support of 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 Reply Memorandum of Points and Authorities in Further Support of Plaintiffs' Counsel's Request for Attorneys' Fees and Expenses filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Declaration of Mark C. Rifkin, # 2 Declaration of Randall S. Newman, # 3 Declaration of Robert Brauneis, # 4 Declaration of Daniel J. Schacht)(Manifold, Betsy)

1 FRANCIS M. GREGOREK (144785)
gregorek{a),whafh.com
2 BETSY C.MANIFOLD (182450)
manifold{a),whafh. com
3 RACHEL'£ R. RICKERT (190634)
rickert{a),whafh.com
4 MARIS"'A C. LIVESAY (223247)
livesay{a),whafh.com
5 BRITTANY N. DEJONG (258766)
(fejong{a),whafh.com .
6 WOL'F1IALDENSTEIN ADLER
FREEMAN & HERZ LLP
7 750 B Street, Suite 2770
San Diego, CA 92101
8 Telephone: [phone]
Facsimile: 619/234-4599
9
1o Lead Counsel for Plaintiffs and the Settlement Class
11

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA -

WESTERN DIVISION
13
) Lead Case No. CV 13-04460-GHK (MRWx)
14 GOOD MORNING TO YOU
)
PRODUCTIONS CORP., eta!.,
15
) REPLY DECLARATION OF
Plaintiffs,
) RANDALL S. NEWMAN IN
16
) SUPPORT OF FINAL APPROVAL
17
) OF CLASS ACTION SETTLEMENT
v.
) AND REQUEST FOR ATTORNEYS'
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WARNER/CHAPPELL MUSIC, ) FEES AND EXPENSES
19
)
INC., et al.
20
) Room:
650
Hon. George H. King, Chief
21
Defendants.
) Judge:
Judge
)
22
) Date:
June 27, 2016
9:30 a.m.
23
) Time:
24 ,_,____ _ _ _ _ _ _ _ _ )
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1

The undersigned, Randall S. Newman, Esquire, under penalty of perjury,

2 hereby declares and states as follows:
3

1.

I am an attorney duly licensed to practice law in the State of New York

4 and the State of California. I have personal knowledge of the matters set forth herein
5 concerning all matters pertaining to this Action and, if called upon, I could and
6 would competently testify thereto.
7

2.

I submit this Reply Declaration in further support of Plaintiffs' motion

8 for an award of attorneys' fees and reimbursement of expenses (the "Motion").
9

3.

In their Opposition to Plaintiffs Motion, Defendants criticize Class

10 Counsel for the time spent researching and drafting the initial complaints. As an
11 initial matter, I personally spent a substantial amount of the time researching the
12 history of Happy Birthday, several hundred hours, before I presented my research to
13 Wolf Haldenstein Adler Freeman & Herz LLP ("Wolf Haldenstein"). In total, I spent
14 approximately 928 hours researching and drafting the initial complaint, some of
15 which was time spent working with WolfHaldenstein.
16

4.

My initial research during the investigation and pre-filing period was so

17 comprehensive that it represented almost one-half of the total time I spent working
18 on the Action. For the remainder of the litigation, I spent another approximately
19 1,200 hours of time, but I and my co-counsel constantly referred to and relied upon
20 the research I conducted during the initial work I did.
21

5.

I have worked with Mark C. Rifkin, Esquire, and Wolf Haldenstein in

22 the past. Based on my prior experience, I knew that Mr. Rifkin and Wolf Haldenstein
23 would require meticulous preparation before agreeing to participate in this case.
24 They shared my own view that we should not undertake a case of this significance
25 unless we were convinced that Defendants did not own the Happy Birthday
26 copyright.
27

6.

As I discussed in my Declaration in Support of the Motion, I was

28 educated and trained as a certified public accountant. As such, I have extensive
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auditing training and experience. Because the case involved a great deal of historical

2 document research, with no percipient witnesses alive to provide first-hand testimony
3

of relevant facts, piecing together the evidence in this case was similar to the work

4

performed by auditors. Therefore, I believe my background in public accounting as

5

well as a lawyer made me uniquely qualified to do much of the factual research

6

required for this case.

7

After I read the law review article written by Professor Brauneis, I

7.

8

essentially audited his article by reviewing all the documents he referred to. In doing

9

so, I uncovered many factual details that Professor Brauneis had not.

10
11

The 1921 Renewal of Good Morning to All
8.

For example, Professor Brauneis stated that "'Good Morning to All' was

12

composed and published in 1893, and was under copyright until 1949." (Def. Ex. 3,

13

p. 39).

14

"Good Morning to All" was properly renewed in 1921.

15

However, Professor Brauneis's statement assumed that the copyright for

9.

Since I did not know whether Defendants would rely upon the "Good

16

Morning" copyright, I did not make that assumption. Instead, I spent several days

17

over a period of weeks investigating whether the "Good Morning" copyright was

18

properly renewed in 1921, and determined it was likely renewed by the wrong party

19

under the complex renewal provisions of Section 24 of the 1909 Copyright Act

20

(covering renewals of subsisting copyrights).

21

10.

In his law review article, Professor Brauneis discussed the Hill v. Harris

22

litigation that was brought by Jessica Hill in 1934 against Sam Harris, Irving Berlin

23

and others over the use of Happy Birthday in the Broadway musical As Thousands

24

Cheer. Professor Brauneis mentioned that the lawsuit was dismissed for lack of

25

prosecution, a fact he called "one of the great mysteries of the history of 'Happy

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Birthday to You."'

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11.

To eliminate the possibility that Defendants might try to exploit the

uncertainty Professor Brauneis noted, over a period of a day or two, I reviewed the
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entire Hill v. Harris case, including Mr. Berlin's undated and undocketed motion to

2

dismiss, which argued that the copyright was not properly renewed in 1921.

3

Thereafter, I many spent hours researching detailed information I obtained as the

4

result of my review of the Hill v. Harris case

5

12.

Interestingly, Mr. Berlin was a founder of ASCAP. "Happy Birthday"

6

was added to the ASCAP repertoire while Hill v. Harris was pending, and

7

immediately became ASCAP's most popular song in 1935. It remains the most

8

popular song in the history of the AS CAP repertoire. That led me to spend several

9

days reviewing ASCAP records and the relationship between "Happy Birthday" and

10

ASCAP, including the role of John Sengstack, then the owner of Summy Co., in

11

ASCAP.

12

13.

Many of the facts I uncovered regarding the 1921 renewal were included

13

m the initial complaint we filed, but were never argued to the Court because

14

Defendants' defenses made the renewal issue irrelevant. However, before drafting

15

and filing the complaint, I tried to anticipate as many potential defenses as I could

16

since we had no idea how Defendants would defend their copyright.

17
18

which owned the "Good Morning" copyright, was incorporated in 1895 and was

19

dissolved in 1920 before the copyright was renewed. Based upon my discovery, we

20

believed that "Good Morning" became an orphan work in 1920, and were prepared to

21
22

argue that issue if necessary.

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was properly renewed in 1921.

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14.

15.

Professor Brauneis's article did not mention the fact that Summy Co.,

Professor Brauneis and I disagreed about whether the 1893 copyright

Researching the Digitized Publications in the New York Public Library

16.

The New York Public Library provides searchable online access to

26

electronic versions of publications dating back to the early 1900s, including early

27

issues of Variety and Billboard magazines.

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17.

Over a period of many days, I spent a at least 50 hours reading every
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CASE NO. CV 13-04460-GHK (MRWX)

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article that referred to "Summy," "Happy Birthday," "Sengstack," or "ASCAP" in

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Variety and Billboard from the earliest date they were available until the 1970s.

3

18.

Through my research of the online editions of Variety and Billboard, I

4

discovered an April 4, 1945, article in Variety titled "'Happy Birthday' Mixed Up in

5

Infringement Suit." That article mentioned that Summy Co. filed two copyright

6

infringement lawsuits over "Happy Birthday" in the Southern District of New York,

7

one against Louis Marx & Co. and the other against McLoughlin Brothers, Inc. I

8

also read an April 7, 1945, article in Billboard, titled "Infringement Suit 'Birthday'

9

Present to Mark [sic], McL' ghlin," that mentioned both lawsuits.

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19.

Neither of the lawsuits was discussed in Professor Brauneis's law

review article.
20.

With that information, I searched the National Archives and Records

13

Administration in New York City and located the case numbers for the two lawsuits.

14

The cases were not properly indexed in the National Archives, which explains why

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Professor Brauneis was unaware of them.

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17
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21.

I was only able to locate those cases because of the many hours I spent

reviewing hundreds of old issues of Variety and Billboard magazines.
22.

Similarly, while reviewing hundreds of old issues of Billboard

19

magazine, I found a January 19, 1946, article titled '"On the Town' Gets on N.Y.

20

Docket as Publisher Sues." The article described a third lawsuit that Summy Co.

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filed in the Southern District of New York against Paul Feigay and Oliver Smith,

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producers of the musical On the Town, for infringing Happy Birthday.

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23.

With that additional information, I obtained the file for the third lawsuit

24

from the National Archives in New York City. Professor Brauneis did not find this

25

case for the same reason he did not find the two other cases: all three cases were not

26

properly indexed in the National Archives. I was able to locate this third important

27

case only because of the hours I spent reviewing hundreds of old issues of Billboard

28

magazme.
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CASE NO. CV 13-04460-GHK (MRWX)

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2
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24.

I ordered the files for the three lawsuits from the National Archives, and

after copying them, I spent less than a day reviewing all three cases.
25.

These three lawsuits were important to the Court's summary judgment

4

decision. As the Court knows, Summy Co. did not assert or rely upon ES 1990 in any

5

of the three 1940s infringement lawsuits, relying instead only upon the 1983

6

copyright for "Good Morning." Interestingly, only Louis Marx & Co. filed an answer

7

in the three lawsuits, and asserted as a defense that the 1893 copyright was not

8

properly renewed in 1921, the same argument we were prepared to make if

9

Defendants relied on the "Good Morning" copyright

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26.

When I discussed these cases with Professor Brauneis, he acknowledged

11

that his analysis in his article would have been different had he known of them.

12

The Chain of Title Research

13

27.

Again, because we did not know how Defendants would defend their

14

copyright, with my background as an auditor and public accountant, I determined

15

that it was appropriate to investigate the chain of title between Summy Co., the

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original owner ofE51990, and Defendants.

17

28.

Although we were confident that the Court would rule in Plaintiffs'

18

favor that Defendants and their predecessors never acquired rights to the Song's

19

lyrics from anyone, we prepared for the possibility that the Court might not do so by,

20

among other things, examining whether Defendants properly acquired Summy Co.

21

As the Court is award, the documentary evidence we collected of the chain of title

22

was extremely complicated.

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29.

I conducted extensive historical research involving inspections of

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corporate records in public filings, merger documents, stock transfers, estate papers

25

and newspaper articles. These are the kinds of records accountants and auditors

26

frequently inspect as part of due diligence investigations. Obtaining and reviewing

27

those historical records took weeks to complete.

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30.

Although the chain of title issues were raised and we requested relevant
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chain of title documents in written discovery, Defendants provided virtually none of

2

these documents to Plaintiffs during the discovery phase of the litigation.

3

31.

My independent historical research uncovered many serious issues with

4

the chain of title from Summy Co. to Defendants, including many substantial gaps in

5

the various intervening transfers of ownership.

6

32.

We raised these issues with Defendants' counsel during a meeting held

7

in Los Angeles, California, on October 30, 2014 to discuss the Joint Motion for

8

Summary Judgment

9

33.

After the m-person meeting, Defendants produced some corporate

10

records and transfer documents they previously withheld from production and failed

11

to identify. Because they were incomplete and often conflicting, those records and

12

transfer documents made the transfer of title research even more complicated. I spent

13

several days reviewing those additional documents.

14

34.

Using the analytical skills I developed as a public accountant and

15

auditor, I carefully reviewed the documents from Defendants and discovered

16

additional significant gaps in the chain of title, including missing or incomplete

17

transfers and assignments and no evidence of payment for a stock transfer from

18

Clayton F. Summy to John F. Sengstack.

19

35.

We raised these gaps in our motion for summary judgment (Dkt. No.

20

182), we identified them in our comprehensive Statement of Uncontroverted Facts

21

(Dkt. No.183).

22

Plaintiffs' chain-of-title challenging, which referred to approximately 25 exhibits,

23

supporting the motion for summary judgment. (Dkt. No. 189-2). Preparing and

24

documenting the chain-of-title declaration took many hours over approximately four

25

weeks for me to complete.

26

Inspection of Records from The Hill Foundation

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36.

I submitted a thorough declaration setting forth the basis for

During the discovery phase of the litigation, we served a subpoena upon

The Hill Foundation, then a non-party to the Action, seeking documents relevant to
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CASE NO. CV 13-04460-GHK (MRWX)

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the Hill Sisters' role in the creation of the Song, as well as all other relevant

2

documents in its possession.

3

3 7.

I oversaw an on-site inspection of approximately 25 boxes of documents

4

at the office of counsel for The Hill Foundation in New York City. The Hill

5

Foundation provided no documents relevant to whether Patty Hill or Mildred Hill

6

wrote the Song, but it did provide a large quantity of royalty statements, various

7

relevant correspondence with Summy Co. regarding the Song, and many documents

8

from litigation against the trustees of the Estate of Jessica Hill.

9

38.

Based on my experience as a public accountant and auditor, I was able

10

to conduct a substantive review of the royalty statements more quickly and

11

efficiently than the associates from Wolf Haldenstein who accompanied me on the

12

inspection. In consultation with Mr. Rifkin, I relied upon Wolf Haldenstein's

13

associates to conduct a preliminary review of the documents and to bring important

14

documents to my attention for a more detailed analysis.

15

39.

By working with the associates of WolfHaldenstein in this manner, we

16

were able to complete a review of all 25 boxes of documents in a single day. This

17

exercise demonstrates how my time as a solo practitioner (billed at partner rates)

18

reduced the overall expense of the litigation.

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40.

After The Hill Foundation and ACEI intervened in the Action, because

20

of my experience in trusts and estates law (as well as my auditing and accounting

21

background) and my prior review of The Hill Foundation's records, Mr. Rifkin

22

assigned to me the task of investigating their potential ownership claim. To do so, I

23

reviewed thousands of pages of documents in the New York County Surrogate's

24

Court, where the estates of Patty Hill and Jessica Hill were probated.

25

41.

Because of my background and experience, Plaintiffs' Counsel were

26

able to complete this investigation in the short amount of time between the

27

Intervenors' intervention and the completion of all pre-trial preparations on

28

December 8, 2015,just one week before trial was to begin on December 15, 2015.
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42.

Because of the short time available for the work to be done, Mr. Rifkin

2

and I worked literally side by side to accomplish the work in as little time as

3

possible. We believed that, as more experienced senior lawyers, we could complete

4

the work much more quickly than if Mr. Rifkin had assigned it to more junior

5

lawyers in the first instance.

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43.

Based upon our detailed review in that short period of time, we were

7

fully prepared to refute the Intervenors' claim of copyright ownership had the Action

8

proceeded to trial on December 15, 2015. The trial became unnecessary when the

9

Intervenors agreed with Defendants to "relinquish their ownership claims to the Song

10
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and all their rights to the Song." See Settlement Agreement § 2.2.1.
44.

This was an important part of our settlement negotiation, and I believe it

12

was substantially aided by the work Mr. Rifkin and I completed quickly and

13

efficiently soon after the Intervenors asserted their claim.

14

Discovery of Happy Birthday Film Uses

15

45.

In addition to my other practice areas, I have extensive experience

16

representing entertainers, writers, and producers. I am, therefore, familiar with useful

17

sources of information in intellectual property cases, including the Internet Movie

18

Database (IMDb ), a comprehensive source of movie content information.

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46.

Using IMDb, I was able to locate many instances where Happy Birthday

20

was used or performed in motion pictures (and at least one feature-length cartoon)

21

prior to 193 5 when E51990 was registered.

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47.

With Mr. Rifkin's assistance, I arranged for Beth A. Landes, Esquire, an

23

associate of Wolf Haldenstein, to obtain copies of those films and to document the

24

uses of the Song therein.

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48.

This was another instance where Plaintiffs' Counsel relied upon my

26

knowledge and experience to efficiently discover relevant information, and then

27

where I worked with Mr. Rifkin to assign follow-up research to a more junior lawyer

28

to control costs in the litigation process.
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2

Preparation of the Joint Statement of Facts and Joint Appendix
49.

Mr. Rifkin divided the work on the summary judgment cross-motions

3

among Plaintiffs' Counsel in order to avoid duplication of effort and waste. Mr.

4

Rifkin assigned to me the responsibility for preparing the initial draft and subsequent

5

revisions to the Joint Statement of Uncontroverted Facts ("Joint Statement") and

6

assembling the Joint Appendix. Because of my extensive factual knowledge of the

7

case, Mr. Rifkin also assigned to me the responsibility for preparing our objections to

8

Defendants' statement of facts in the Joint Statement. Mr. Rifkin arranged for an

9

associate and a paralegal of Wolf Haldenstein in California to assist me and to

10
11

facilitate completion and filing of the extremely large summary judgment record.
50.

To complete the Joint Statement and the Joint Appendix, I worked with

12

Betsy C. Manifold, Esquire, a Wolf Haldenstein partner in California, to coordinate

13

with Defendants' counsel. Working almost full-time over a period of approximately

14

10 days, we exchanged multiple drafts of the Joint Statement and Joint Appendix

15

with Defendants' counsel. The process of editing and revising the Joint Statement

16

and Joint Appendix was extremely laborious, as Plaintiffs and Defendants responded

17

to each other's documents, objections, and changes of statements and defenses.

18

51.

The process of finalizing the Joint Statement (which was 160 pages

19

long) and Joint Appendix (which consisted of 126 separate exhibits) was extremely

20

labor-intensive. Preparing the citations to the Joint Appendix was an arduous task in

21

and of itself.

22

52.

I worked extensively with associates from WolfHaldenstein on the Joint

23

Statement and Joint Appendix. However, given the nature of the disputes between

24

Plaintiffs and Defendants over the Joint Statement and Joint Appendix, I do not

25

believe they could have been completed any more efficiently (if at all) had the work I

26

did been assigned in the first instance to a more junior lawyer.

27

Mediation Efforts

28

53.

As part of the settlement negotiation process, Mr. Rifkin requested and
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CASE NO. CV 13-04460-GHK (MRWX)

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obtained information from Defendants concerning the money they collected for use

2

of the Song. That information was provided to us in spreadsheet form just ten days

3

before the mediation took place in San Francisco, California, on November 30, 2015.

4

54.

Again because of my experience and background as a public accountant

5

and auditor, Mr. Rifkin asked me to review the spreadsheet, which was incomplete.

6

Using information Mr. Rifkin and I obtained from our review of the estate records

7

for Patty Hill and Jessica Hill, I was able to reconstruct much of the missing

8

information in a day or two, so that we had a more complete and accurate estimate of

9

the money Defendants had collected for use of the Song since 1949. We used my

10
11

reconstruction in the course of our settlement negotiation on November 30, 2015.
55.

I hereby certify, under the penalty of perjury under the laws of the

12

United States, that the foregoing statements are true and correct to the best of my

13

knowledge, information, and belief.

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Executed this 13th day of June, 2016, at New York, New York.

~,_, ~. t.jwJ
RANDALL S. NEWMAN

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CASE NO. CV 13-04460-GHK (MRWX)