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)

FRANCLS M. GRCGOREK(l44785)

gregorek(ti'whalh.com

2 BETSY C:- MA !FOLD ( 182450)
man.iw~~whath.com
3 RAC
R. RCCKERT (190634)

rickertUilwhath.com

4 MARIS"'A C. LIVESAY (223247)

[e-mail]

5 BRlTiANY N. DEJONG (258766)

dejong(@whafh.com
6 WOL'"f'llALDE TElN ADLER
FREEMAN & K ERZ LLP
7 750 B Street, Suite 2770
San Diego, CA 9210 I
8 Telephone: [phone]
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Facsimile: 6 19/234-4599

IO Lead Counsel for Plaintiffs and the Settlement Class
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UNITED STATE DISTRICT COURT

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CENTRAL DI TRlCT OF CALIFORN IA -

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WE TERN DlVlSlON

Defendants.

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The undersigned, Robert Brauneis. Esquire, under penalty of perjury, hereby

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2 declares and states as follows:
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I am a Professor of Law and Co-Dire<:tor of lhe lntellecmal Property

4 Program at lhe George Washington University Law School. 1 have personal

5 knowledge of the matters set forth herein concerning all matters penaining to this
6 Action and, if called upon, I could and would competently testify thereto.
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2.

I am Lhe author of"Copyright and the World's Most Popular ong." 56

8 JOlJRl'AL OF THE COPYRIGHT SOCIETY OF IHF U.S.A. 335 (2009), the 1inal version o

9 which was published on October 14, 20 I0 (lhe -Article''). My Article reviews the
10 history of llappy Birthday to You ("Happ)' Birthday" or the "Song") and challenges
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Lhe copyright in that Song on a number of grounds.

3.

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I began r<:searching the disputed ~Happy Birthday copyright in 2007. 1

13 spent hundreds of hours conducting detailed historical factual research. including an
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ext.:.nsive review of the copyright records on file at the Copyright Office, records on

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the Library of Congress, litigation records available at lhe Njitional Archive

16 and in the Surrogate's Court in

ew York City. probate records in Cook Count},

17 lllinois. and original documents and manuscripts of Mildred and Patty Hill on file at
18 the Filson Historical Sociccy in Louisville. Kentucky and at the University of Oregon

19 in Eugene. Oregon.
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4.

l also conducted

an extensive review of relevant copyright law.

including law pertaining to the limited presumption a copyright owner is entitled to

22 under a registration.
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5.

1 am aware that Defendants have opposed Plaintiffs' Counsel's request

24 for an award of attorneys' fel!S and reimbursement of expenses in pan on the basis
25 that PlaintiftS' Counsel relied upon my work in commencing and litigating the
26 Action. While T consulted with Randall S. Newman, Esquire, before the Action was
27 commenced, and consulted with PJajntiffs' CounseJ while the Action was pending, I
28 believe the results Lhey achieved in the Action reflect their own independent research
BRAUNElS OECL.
CASE NO. CV 13--04460-Glt.- (MRWX)

and efforts rather than my own investigations. analyses, or conclusions.
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6.

Lcarefully reviewed Plaintiffs' initial complaint in this action. Many o

3 the facts alleged in the Lnitial complaint were not part of my analysis.
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I also read with great interest the Court's September 22, 2015, well-

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reasoned summary judgment decision. Many of the facLS supporting the Coun's

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decision were not part of my analysis. and some of th.: Coun' s decision ran ctireclly

7 contra!)• to my own conclusions in my anicle. and have convinced me that I was
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likely \.\>Tong.

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For example, throughout my detailed research and investigation, I did

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not discover, and was unaware of. three federal lawsuiL~ filed by the Clayton F.

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Summy Co. ("Summy,.) in the 1940s alleging copyright infringement over Happy

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Birtlulay. none or which asserted any copyright under Reg.

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been the basis for the claim of copyright ownership by \Vamer/CbappeU Music, Cnc..

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and its predecessors. including Summy. The National Archives had mistakenly failed

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to index those lawsuits. and so my search there ctid not locate them. Mr. Newman's

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diligent search of historical newspapers in the 1940s uncovered a mention of those

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lawsuits, which was how he was able to locate them and bring them to my attention.

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o. ES 1990. which had

ln my article, I came to the conclusion that the I !ill Sisters evennially

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assigned copyright in the Song's lyrics

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conversations with Mr. Newman and Mark C. Ri1k.in, Esquire, I am aware that the

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limited scope of these assignmenLS was an integral part of their theory of the case;

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from my reading or this coun·s 1emorandum and Order on Cross-Motions for

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Summary Judgment of September 22, 2015, I am aware that tbe Court>s view that the

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assignments were limited

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the plaintiffs.

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to Warner's predecessors. From my

mscope was essential to the Coun's decision in favor o

T did not know. and as~med otherwise, lhat Warner djd not possess a

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copy of the original registration eeni ficate for Reg. No. ES 1990. nor did I know

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wllether Mildred Hill's name appeared on the registration certificate for that

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BRAUNEIS Dl::CL.
CASE NO CV 13--044(,o..c;HK (MRWX)

cop)right. [ assumed that Mildred Hill's name appeared on the regisrration

2 cenificatc.

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I clid not know whether Warner possessed a deposit copy of the work

4 deposited with the registration for Reg. No. ES 1990. My legal analysis of the validity
5 of the copyright was not dependent upon whether Warner possessed a deposit copy
6 of the work. although Plaintiffs' Counsel later detennined that Warner did not
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possess a copy of the deposited work.

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J did not know whether Warner would or did claim that Preston Ware

9 Orem wrote any oft:he Song's lyrics.
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13.

I did not discover, and was unaware ot: the publication of sheet music

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with the Song's words and melody in The E1•eryday Song Book by the Cable Co.

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("Cable") in the 1920s. My legal analysis of the validit) of the copyright was not

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dependent upon any of those publications.

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After \Varner produced an illegible copy of the 1927 publication of The

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£ve1yday Song Book, I worked with counsel for the plaintiffs in this action to locate

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additional e-arlier copies of the work.

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15.

I read the cross-motions for summary judgment in this Action as well as

the Coun's decision granting in pan Plaintiffs" motion for summary judgment and

19 denying

Defendants·

cross· motion

for

summary

judgmenL

Alarya

v

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IVarner!Chappell Music, Inc.. No. CV L
3-4460 GHK (MR Wx), 2015 U.S. Dist.

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LEXIS 128755 (C.D. Cal. Sep. 22, 20 IS). in whicll the Court determined that

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Defendants do not own, and their predecessors never owned, a copyright to the

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Song's lyrics.

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Based upon my review of the summary judgment record. I am aware

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that Plaintiffs' Counsel did not rai. e any of my conclusions regarding the invaJjdity

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of the copyright claim in presenting Plaintilfs' motion for summary judgment or in

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opposing Defendants' cross-motion

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conclusions on the copyright's invalidity do not appear in the Coun' s decision on the

for summary j udgment.

Moreover. my

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BRAUNEI~ OECL.
CASE NO. CV 13·04*-GHK (MRWX)

summary judgment cross-motions. Rather. my conclusions appear unrelated to lhe
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Court's decision.

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As I stated above. my anicle concluded that the Hill Sisters eventually

assigned any rights they may have had to the Song's lyrics to Warner's predecessors.

5 The Coun's decision granting partial summary judgment in Plaintiffs' favor rests
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upon its finding that the HiU Sisters never assigned an) such rights to \Vamer's

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predecessors. Plaintiffs· Counsel alone developed and argued the factual and legal

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basis for the Court's determination.

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18.

I am not seeking a fee for mysel r in this Action. and I have no financial

interest in any foes or expenses awarded to Plaintiffs' Counsel in the Action.
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I hereby declare, under the penalty of perjury under the laws of the

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

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knowledge, infonnation, and belief.

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Executed this /L[!..'day of June. 2016. in Munich. Germany.

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BRAUNEIS OF.CL.
CASI: NO. CV !3·0-!460-GHK (MRWX)